Court File and Parties

COURT FILE NO.: FS- 18-271-00 DATE: 2019-03-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher Tillger, Applicant AND: Stephanie Tillger, Respondent

BEFORE: Ricchetti, J.

COUNSEL: C. van der Burg for Christopher Tillger ("Father") S. Young for Stephanie Tillger ("Mother")

HEARD: February 22, 2019

Endorsement on Interim Custody and Access

The Motions

[1] On October 16, 2018, the Father brought a motion seeking, inter alia:

a) Interim custody of the Children; b) interim access that the Mother have supervised access to the Children at a supervised access facility; c) An interim restraining order; and d) Exclusive possession of the matrimonial home.

[2] On November 9, 2018, the Mother brought a motion seeking, inter alia:

a) Interim joint custody; b) Exclusive possession of the matrimonial home; c) A short term access arrangement with third party supervision eventually becoming equal access provided that the Mother hired a live-in nanny; d) Mother not to drive the Children, not smoke marijuana in front of the Children; and e) Production of the CAS file.

[3] On February 3, 2019, the Father amended his motion to seek, inter alia:

a) Sole custody; b) The Mother have access on Mondays and Thursdays from 2:15 pm to 7:15 pm until he commences work and the Children start daycare; once that occurs, the Mothers access to be two days a week from after daycare until 6:30 pm and every second Saturday and Sunday from 1:30 pm until 6:30 pm. c) Millie Fogliano is to supervise all Mother's access visits; d) A restraining order; e) A no contact order; and f) Police enforcement.

[4] On February 7, 2019, the Mother amended her Notice of Motion to seek, inter alia:

a) No interim custody order be made but, if necessary, joint custody; b) Conditional on the Mother hiring a full time support worker and/ or Millie Fogliano supervising the access visits: i. until the Father returns to work, Mother to have parenting time from Wed 9:00 am until Friday 9:00 am and alternating weekends from Friday 9 am until Monday 9 am, with Father being responsible for pick up and drop off; and ii. When the Father returns to work, the Children are to be placed in daycare no more than three days a week during the Father's parenting time; c) Non consumption of alcohol for both parties while the Children are in their care; Mother not to drive a vehicle with the Children in it; and Mother not to use marijuana in the presence of the Children; and d) Parties to live within 20 km of the Father's current residence at 2809 Hollington Cres. Mississauga.

The Preliminary Issues

[5] Prior to the hearing of the motions on the merits, there were several preliminary issues to be decided:

a) The admissibility of motor vehicle accident related medical reports ("MVA Medical Reports") attached to the Father's affidavits; b) The admissibility of video and audio recordings attached to the Father's affidavits ("Recordings"); and c) The admissibility of the Children's Aid Society ("CAS") file attached to the Father's affidavits.

Background

[6] The Mother was born April 30, 1979.

[7] The Father was born November 16, 1978.

[8] On October 29, 2000, the Mother was involved in a catastrophic motor vehicle accident and suffered a traumatic brain injury. The ensuing claims were resolved in 2012 or 2013. The extent the Mother's brain injury impacts her ability to care for herself and the Children is a hotly contested issue on these motions.

[9] Stephanie and Chris married on March 5, 2008.

[10] There are two children of the marriage: Taylor Nicole Tillger (born December 17, 2015) and Tristan Nicholas Trever Tillger (born November 21, 2017) ("the Children").

[11] In March 2016, the parties entered into a Marriage Contract which provided that the Mother have possession of the matrimonial home upon separation.

[12] Prior to April 22, 2018, the relationship deteriorated resulting in police and CAS involvement.

[13] Both parties claim they were the primary childcare parent for the Children until April 22, 2018. Both parties do not agree on whether, when or the extent of the other party's involvement in the childcare of the Children prior to that date.

[14] On April 22, 2018, the Mother made allegations the Father was molesting Taylor and that he assaulted her. The Mother called the police. When the police arrived the Father showed the police officers a video which captured an assault by the Mother. The assault was that the Mother twisted the Father's thumb and poured beer over his head. The Mother was arrested for assaulting the Father.

[15] The events of April 22, 2018 resulted in the separation of the parties.

[16] The Mother was released on bail with conditions including, no contact with the Father and not to return to the matrimonial home.

[17] As a result, the Mother became separated from the Children. The Father remained in the matrimonial home.

[18] The Mother's access to the Children became extremely limited.

[19] Unfortunately, the Mother did not respond appropriately or responsibly to this turn of events leading her to unusually irresponsible and dangerous behaviour over the next few months in 2018.

[20] The Mother was convicted for the following offences:

a) July 3, 2018 - mischief X 2, failing to comply with recognizance X2 and breach of recognizance X2; b) September 12, 2018 - impaired operation of a MV, failing to stop, and public mischief; and c) January 11, 2019 - breach of recognizance.

[21] The outstanding assault charge of April 22, 2018 remains but may be subject to diversion.

[22] As a result of the convictions, the Mother was incarcerated four times between April 22, 2018, and October 11, 2018:

a) May 22-28, 2018; b) June 15-21, 2018; c) June 27-July 3, 2018; and d) August 30-October 11, 2018.

[23] The Mother had very little parenting time with the Children since April 22, 2018 until November 16, 2018.

[24] On November 16, 2018, the court made an interim, without prejudice, supervised access order on consent giving the Mother 2 five hour periods of parenting time a week on Tuesdays and Thursdays, supervised by Millie Folgiano, her mother ("Millie").

[25] The November 16, 2018 order also provided that the Father would give the Mother 7 days advance notice of any major decisions impacting the Children.

[26] The matrimonial home was destroyed by fire on January 13, 2019 rendering the claims to exclusive possession of the matrimonial home moot.

[27] In early January 2019, the Father proceeded to relocate to Mississauga, by signing a lease for 2809 Hollington Crescent, Mississauga ("New Residence"), without advising the Mother, notwithstanding it would result in the relocation of the Children a substantial distance from north Brampton to south Mississauga. Not only did the Father not advise the Mother of his proposed relocation, on January 18, 2019, Mother's counsel was told that the Father was "looking into" rental accommodations in Mississauga, whereas, in reality the Father had already signed a lease for the New Residence a few days earlier.

[28] Also in early January 2019, the Father proceeded to select a daycare school for the Children, near his New Residence, and placed a deposit to the school. This was done without advising the Mother of this decision. The deposit for the Children's daycare was provided by the Father prior to him signing the lease for the New Residence.

[29] The Father will be returning to work in May 2019.

The Admissibility Issues

[30] Evidence is not to be received by the court unless it is admissible. In order to be admissible, the evidence must be:

a. Relevant, in that, it must have a tendency to prove or disprove the existence of any material fact necessary for the determination of the issues to be decided; and b. not subject to exclusionary rule of law or public policy.

See: R. v. Morris, [1983] 2 S.C.R. 190, 36 C.R. (3d) 1, 7 C.C.C. (3d) 97

1. MVA Medical Reports

[31] The Father attached 6 medical reports, from the Mother's MVA litigation proceeding, as exhibits to his affidavit ("MVA Medical Reports"). These MVA Medical Reports are dated from January 11, 2005 until April 15, 2013.

[32] The MVA Medical Reports were obtained by the Father from files in the basement of the matrimonial home. Some of the MVA Medical Reports are addressed to the Mother's lawyers.

[33] Not all medical reports from the files were attached to the Father's affidavits. The Father decided which to attach.

[34] None of the doctors who wrote the MVA Medical Reports provided an affidavit for these motions.

[35] The Mother seeks to strike, from the Father's affidavits, the MVA Medical Reports on the basis that:

a) The MVA Medical Reports were obtained by a theft of the Mother's property and constitute an invasion of the Mother's privacy; b) The MVA Medical Reports provide medical opinion evidence which is inadmissible as it fails to comply with the admissibility requirements in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182; and c) The MVA Medical Reports are not relevant as they do not provide any evidence as to the Mother's current medical condition and would be greatly prejudicial if admitted.

[36] The Father submits that the MVA Medical Reports are relevant and provide the best evidence of the Mother's ability to parent the Children and, hence, what is in the Children's best interests. The Father submits that any admissibility issues raised by the Mother go to weight, not admissibility, of the MVA Medical Reports.

[37] The Father submits that the Medical Reports are not outdated as they are consistent with a Disability Tax Certificated of October 16, 2016. Lastly, the Father submits that, if the MVA Medical Reports fail to capture the Mother's current medical condition, it was within the Mother's ability to produce a current medical report and she failed to do so.

Analysis on MVA Medical Reports

[38] The Father seeks to rely on the MVA Medical Reports to show that, because of her brain injury, the Mother is not capable of providing the appropriate and necessary care and parenting for the Children. In other words, the Father seeks to rely on the accuracy and truth of the contents of the MVA Medical Reports.

[39] Neither party seeks to rely on the Ontario’s Evidence Act or the Family Law Rules for the admissibility or exclusion of the MVA Medical Reports.

[40] I am not persuaded that there is sufficient evidence on this motion to exclude the MVA Medical Reports on the basis of theft, invasion of privacy or privilege. The onus to establish the exclusion of the MVA Medical Reports on any of these grounds is on the Mother and she has failed to meet this onus.

[41] In my view, the admissibility of the MVA Medical Reports depends on their admissibility on common law principles of evidence.

[42] I agree with Father's submissions that the MVA Medical Reports are relevant.

[43] However, there is no doubt that the MVA Medical Reports constitute hearsay evidence of the doctors' opinions as mere attachments to the Father's affidavits. As stated above, the Father seeks to admit the MVA Medical Reports for proof of the opinions set out in the MVA Medical reports.

[44] There are additional concerns regarding the MVA Medical Records: they are outdated; and they are selected from a larger group of medical reports (for example, there may be potentially responding medical reports with different opinions). These concerns bring into serious question the reliability of the MVA Medical Reports reliable.

[45] The MVA Medical Reports are hearsay and have limited relevancy. No legal basis for the admissibility of the MVA Medical Reports has been advanced and I find none.

Conclusion on the MVA Medical Reports

[46] The MVA Medical Reports are inadmissible and are hereby struck from the Father's affidavits.

2. The Father's Video and Audio Recordings

[47] The Father produces a number of video and audio recordings, in many cases surreptitiously recorded. These recordings fall into two categories:

a) Those the Father recorded capturing statements by third parties, such as the Mother's brother's statements in a phone call ("Third Party Recordings"); and b) Those the Father recorded capturing the Mother's actions and statements ("First Party Recordings").

Analysis of Third Party Recordings

[48] The Mother submits that the Third Party Recordings should be excluded because they are hearsay and because surreptitious recordings should not be admitted absent compelling reasons to do so.

[49] The Father submits that the Third Party Recordings should be admitted but the court should determine, what weight, if anything, to be given to them. The Father submits that the Mother responded to the Third Party Recordings and, therefore, has had an opportunity to dispute what the third parties stated or to provide responding evidence.

[50] These Third Party Recordings are hearsay statements of third parties.

[51] The Father seeks to rely on what these third parties stated for the proof of the truth of what the third party said, namely, their views on the Mother's ability/inability to care for the Children and her medical condition. For example, in the recording of the Mother's brother, the Father seeks to rely on the recording to show that the Mother's brother also believes that the Mother is erratic and, therefore, not capable of caring for the Children.

[52] The Father could have obtained affidavits from these third parties or examined them as witnesses on a pending motion. The Father did neither.

[53] While the third party statements might be relevant (although some provide medical opinions from lay persons), I see no basis for the admissibility of the hearsay statements in the Third Party Recordings as evidence on these motions for the proof of what the third parties said.

[54] I reject the Father's submissions that the Mother responded to some of the Third Party Recordings making them admissible. It is clear to me the Mother's primary position was that the Third Party Recordings be excluded but felt it was necessary for her to respond to several in the even the court decided to admit the Third Party Recordings. I fail to see how this changes inadmissible evidence into admissible evidence.

[55] I am also concerned that:

a) The Father made a large number of self-serving statements during the Third Party Recordings, when he knew he was recording them, which are prejudicial in those circumstances as prior consistent statements; b) In one case, the Father even agreed that the conversation was between him and the third party but now the Father discloses the recorded conversation; and c) These recordings do not capture the entire recorded conversations but only portions, making the context of what was said, entirely unclear and unreliable.

Conclusion on Third Party Recordings

[56] The Third Party Recordings are not admissible. The Third Party Recordings are hereby struck from the Father's affidavits.

3. Analysis of the First Party Recordings

[57] The Mother submits that these, largely surreptitious recordings, should not, for public policy reasons, be admitted as evidence.

[58] The Father submits that the recordings contain admissible relevant evidence of statements and actions by the Mother.

[59] The Father relies on Children's Aid Society of Brant v. T.(J.A.) 2005 ONCJ 302. This case does not assist in deciding this issue. The Children's Aid Society of Brant case, was a child protection case under the Child and Family Services Act. That statute provided at s. 51(1)(b) that any report the court considered relevant could be considered in proceedings under that part. A similar provision (s. 93) exists in the current version of this statute, Child, Youth and Family Services Act. Neither provision apply in this case.

[60] Unlike the Third Party Recordings, the First Party Recordings of the Mother's conduct and statements are not hearsay.

[61] Clearly, the Mother's conduct and statements are relevant to the issue of what is in the best interests of the Children as they may provide accurate evidence of the party's conduct, interaction with the children or other related relevant evidence regarding the Children at the time of and during a specific recording.

[62] That does not mean the Recordings are admissible just because they are relevant. Even where evidence is admissible, the court retains a residual discretion: the power to exclude otherwise admissible evidence on the basis that its probative value is outweighed by its prejudicial effect.

[63] The relevance of the proffered evidence must be considered. This includes a consideration of the reliability of the Recordings.

[64] Concerns regarding the reliability of recordings made in such a manner include:

i. The recording may not accurately reflect or provide context to the events or conversations they purport to depict; ii. The recording may not accurately reflect the typical behaviour of the person being recorded iii. The recording likely reflects the "artificial" conduct of the party recording because the recorder has knowledge the recording is being made and may be used in the future; iv. The recording can easily be edited, removing important parts or the entirety of segments which reflect badly on the recorder or reflect well on the person being recorded; v. The recording can be selectively chosen from a number of recordings; vi. The recording likely does not reflect the entire interaction or the context of the interaction; vii. The recording may not reflect the typical interactions between the parties recorded but only demonstrate an isolated incident; viii. The recorded incident may been "provoked" by the recorder to cause the recorded party to make illicit, ill-advised statements or behave in an inappropriate manner; and ix. The recording may have been staged by the recorder to include negative surroundings such as having children present during an argument.

[65] There are many reasons why the admission of such recordings, while apparently relevant, should be approached cautiously by a careful evaluation of the true relevance and reliability of such recordings.

[66] Courts have recognized that surreptitious recordings, hacking computers, or copying text messages without permission are “odious” and “repugnant” practices that should be discouraged in family law cases. Such evidence, if admitted, encourages this behaviour and condones deceit to obtain an advantage in the litigation. It often results in hurt, anger and distrust between the parties, making a rationale, reasonable resolution more difficult, often causing the parties to ignore what may be in their best interests, and more importantly, what is in the children's best interests.

[67] The issue of surreptitiously recordings was dealt with by Justice Sheer in Hameed v. Hameed, 2006 ONCJ 274. Sheer J. determined that the court's discretion to admit such evidence was to weight the policy considerations against the probative value of the proffered evidence:

[13] The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.

[68] Hameed has been followed in many subsequent legal authorities and is consistent with the statement of the Court of Appeal in Sordi v. Sordi, 2011 ONCA 665 at para 12:

[12] With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issues before him.

Consideration of the Admissibility of the Recordings

[69] Before turning to a consideration of the individual Recordings by the Father, there is one overriding comment applicable to all the Recordings:

i. the Recordings do not capture the entire interaction; ii. at least some of the Recordings have been edited by the Father; iii. not all of the Recordings made by the Father have been produced; and iv. in some it is difficult to ascertain what is happening and why.

[70] As a result, the analysis commences with considerable concerns regarding the reliability and, hence, the relevancy of the Recordings.

The April 22, 2018 Recordings

[71] The Father produced four video's surrounding the assault: prior to, the assault, after the assault, and post assault discussion.

[72] The circumstances surrounding the making of these recordings raise certain concerns. It is difficult to imagine a situation where the Father just happened to be recording on the day of the assault. These recordings do not show what happened before the recording started - what lead to the argument or what happened after the recording was stopped (or edited). The Father explains that he started recording events and conversations after the Mother's allegations of molestation. But the allegation of molestation occurred at the same day or shortly after this assault. So why was the Father recording this event when he did?

[73] There is also an issue of the Father's possible motivation to make these recordings. The Father had prior to April 22, 2018 tentatively made arrangements to move out of the matrimonial home. The Father knew that, if the parties separated, the marriage contract provided he would have to move out of the matrimonial home. The result of recording the Mother's assault, showing it to the police, resulted in the Father retaining de facto exclusive possession of the matrimonial home despite the terms of the marriage contract.

[74] The Father does "not even raise his voice" during these recordings. Well, of course not, he knew he was recording and wanted to present himself in the best light possible - even going so far as to calmly want to get Taylor dressed to leave the matrimonial home.

[75] Then the Father posted the recordings (or at least one of them) on Facebook! This underscores the public policy reasons for discouraging such recordings as they sometimes lead to actions which further inflame the already incendiary family issues.

[76] However, despite this court's concerns regarding the reliability of these recordings, I will admit them because they show considerable parental conflict in the presence of the Children. The Mother uses unacceptable language and inappropriate conduct in front of the Children. The Mother's conduct and statements, regardless of what had occurred prior to the recordings causing her to behave in the manner she did, is highly relevant. What is not answered by these recordings is what would the Father's conduct have been had he not been recording the events?

[77] As such, although the April 22, 2018 recordings are admitted, I decline to give these recordings much weight.

The Novotel videos

[78] There are two videos captured at the Novotel.

[79] This first Novotel video shows the Father picking up the Children when the Mother had supervised access. During this recording, the Father makes many self-serving statements. I am not persuaded that this video provides any meaningful insight on the issues of custody or access.

[80] The second Novotel video is 7 seconds long. It shows the Mother writhing on the floor. What cannot be discerned is why the Mother is acting the way she is. Is she drunk? Is she high? Is something else going on?

[81] I am not persuaded there is a compelling reason to admit either of these video recordings. They will be struck from the Father's affidavits.

Taylor Outside with a diaper

[82] This video shows Taylor outside of the home with just a diaper on. It is hard to put any context to what, why or how this impacts either parties’ ability to parent their Children. Was it warm outside? Did Taylor run out the open door towards the Father? There are simply too many unanswered questions.

[83] I am not persuaded there is a compelling reason to admit this video recording. This video will be struck from the Father's affidavits.

Video at Dr. Graham's office

[84] In this video, Taylor is at the doctor's office with her parents.

[85] The parties are making disparaging comments to each other. Other than showing parental conflict in front of Taylor, I find nothing of relevance in this video.

[86] I am not persuaded there is a compelling reason to admit this video recording. This video will be struck from the Father's affidavits.

Conclusion on First Party Recordings

[87] Aside from the April 22, 2018 video recordings, I am not persuaded compelling reasons have been shown to admit the balance of the Father's Recordings as evidence on this motion.

[88] Aside from the April 22, 2018 video recordings, all other Father Recordings shall be stuck from the Father's affidavits.

4. The Children's Aid Society Records

[89] In this case, both the Mother and Father executed authorizations and consents for the release of the CAS file. The Mother invited CAS to attend on the first motion on November 16, 2018, but CAS did not attend. The CAS file ultimately released its file to the parties.

[90] The CAS file was appended to the Father's affidavit. The Father served notice under the Evidence Act for its admission as business records. The Father submits the CAS file is highly relevant, probative and is admissible.

[91] Despite having sought the disclosure of the CAS file in her earlier motion and authorizing the release of the CAS file, the Mother seeks to strike the CAS file from the Father's affidavit, but concedes that the issue regarding the CAS file may be more of a matter of weight, rather than admissibility.

[92] Even, if admitted, the Mother submits that the CAS file is highly prejudicial and minimally probative, based substantially on hearsay and expressions of opinion without knowing the expertise or involvement of the writer of the opinions.

[93] There is no doubt that the CAS file is relevant as it may provide assistance on the issues of custody and access, particularly given the disagreement on many facts between the parties.

[94] I accept the Mother's submission that it is this court's responsibility to determine custody and access based on the applicable principles of law applied to the facts. The court should not and does not abdicate its responsibility by deferring to the CAS's opinions. This does not resolve the issue of the admissibility of the CAS file.

[95] The CAS file is sought to be introduced as a business record. I agree that in normal situations a witness from CAS would attend and state that "this" file was made in the ordinary course of business.

[96] Had one of the CAS workers provided an affidavit stating "this is the CAS file" (as has been done numerous times in prior court proceedings), admissibility would not be an issue. Yes, the CAS worker who provided the affidavit (or appeared in court) would be subject to cross- examination, but since the person who acknowledges it is the CAS file, made in the normal course of CAS' statutory duty to investigate such matters, would not necessarily have any personal knowledge of the matters contained in the CAS file, I am not persuaded cross-examination would have achieved anything. Besides, both parties wanted disclosure of the CAS file, both parties agreed to its disclosure and neither party sought an adjournment to have a CAS representative attend at the motion for cross-examination. The attempt to exclude the CAS file appears to be hollow and in response to the fact portions of the CAS file are not favourable to the Mother.

[97] It should be noted that the CAS is specifically created and recognized by statute to conduct investigations of this type. See s. 35 of the Child, Youth and Family Services Act. The CAS records the events as they occur during the investigations and sets out the support workers assessment as part of the investigation. As is evident from the CAS file, the notations are made by the social workers contemporaneously and in accordance with the CAS policies.

[98] I am not persuaded that in this case, the failure to have a CAS person present to attest that its file was made in the ordinary course of business is necessary given the statutory obligation of CAS.

[99] Nevertheless, when business records are admitted there are certain limitations as to what portions are admissible for the truth of the contents rather than what was done.

[100] I find the analysis in Flood v. Flood, 2019 ONCJ 12 to be persuasive.

[49] The real dispute in this case is centred around the reliability of the information contained in some of these documents [CAS records], which the respondents contend includes impermissible hearsay and opinion evidence.

[50] All parties agree that the Setak case is the authoritative decision on this issue. This court agrees that the analysis from the Setak decision must be applied in this case, therefore: (1) Section 35 of the Evidence Act should be interpreted as making hearsay statements admissible for the truth of their content when both the person recording the information and the person providing the information are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event. (2) Witness accounts recorded that do not comply with (1) above will not be admissible for the truth of their content, unless the statement is from one of the parties to the litigation and amounts to an admission against interest, or otherwise satisfies some other exception to the hearsay rule or satisfies the principled approach to the hearsay rule. (3) Where the documents contain opinions, the opinions expressed are not admitted for the truth of their content.

[54] Applying the analysis above in this case, this court has concluded that the documents tendered for admission will be admissible for the truth of their content when both the person recording the information and the person providing the information are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event. Further, the documents tendered for admission will be admissible for the truth of their content if the statement contained in the document amounts to an admission against interest, or otherwise satisfies some other exception to the hearsay rule or satisfies the principled approach to the hearsay rule. Where the documents contain opinions, the opinions expressed are not admitted for the truth of their content. Where the document contains inadmissible evidence, it should be edited, or if editing is not possible, excluded.

[101] I agree that the portions of the CAS file should be looked at carefully and with caution.

[102] For example, when a social worker relies on hearsay from third parties, the court should be cautious on any conclusions reached based on the hearsay alone. Where the CAS relies on self-serving statements made by one party, then conclusions reached based solely on the self-serving statements should raise questions regarding the weight to be given to any opinion reached by the social worker based on the self-serving statements alone. However, where the hearsay or self-serving statements are verified through CAS observations and investigation, then the conclusions become more reliable. In other words, a careful review and assessment of what the CAS did, what it relied on and what conclusions it reached, is necessary by this court.

Conclusion on the CAS File

[103] In my view, in the circumstances of this case, where both parties jointly sought the disclosure of the CAS file; no one suggesting that a CAS "person" needed to attend these motions, and that the CAS file was made in the ordinary course of its statutory responsibility, the CAS file is admissible.

The Matrimonial Home

[104] Possession of the matrimonial home is no longer an issue. In January 2019, the matrimonial home burned down. The Father has found alternate accommodations. The Mother is looking for alternate accommodations.

The Principles Governing Custody and Access

[105] The Court’s determination of custody and access is governed by section 16 of the Divorce Act.

[106] Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or another person.

[107] Section 16(4) provides that the court may grant custody and/or access to more than one person and Section 16(6) gives the court a broad discretion to include any terms, conditions, or restrictions in a custody and access order that it considers fit and just.

[108] Section 16(8) provides that the sole criterion for determining custody and access issues is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.”

[109] The Divorce Act further provides: 16.(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such access.

[110] The goal of maximum contact with each parent is not absolute, but maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.

[111] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. When applying the “best interests” test in the Divorce Act, the criteria set out in the Children's Law Reform Act (CLRA) are considered.

[112] Under section 20 of the CLRA, both parents are equally entitled to custody of a child. Where the parents live separate and apart, and the child resides with one parent with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, to make inquiries, and be given information as to the child’s health, education, and welfare (see sections 20(1), (4), and (5) of the CLRA).

[113] Section 24 of the CLRA provides as follows:

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

25. (2) The court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

26. (3) A person’s past conduct shall be considered only, (a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

27. (4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

[114] An important factor in deciding whether to grant joint custody is the determination whether the parties can communicate, put aside their hostile relations, and make decisions in the best interests of the children. Kaplanis v. Kaplanis, 2005 CarswellOnt 266 (C.A.), at par 11.

[115] While supervised access is not preferable, in this case, it is not an issue to be decided at this time, since the Mother agrees that supervised access should continue for now.

Highly Conflicting Evidence

[116] The evidence on this motion is highly conflicting on even the most basic facts.

[117] The parties have filed a total of 10, in many cases, extremely lengthy affidavits on the substantive issues to contradict and respond to the other party's most recent affidavit.

[118] Even after questioning there are few facts the parties can agree on.

[119] Let me provide one example of conflicting evidence which goes to the core of the issues to be decided - the ability of the parties to properly and responsibly parent the Children. The parties cannot agree on the extent of the Mother's current medical condition. The Father suggests the Mother has a serious medical issue that requires her to have a full-time support worker and a full-time nanny. The Father relies on old medical reports and his own observations throughout the time they cohabited. The Mother agrees that she needs some support but to a small fraction of the amount suggested by the Father and not for childcare. The Mother points to the cohabitation history of the parties of not having or needing a full-time support person or nanny. Neither produced a current medical report to support their opinions. This conflicting evidence raises many unanswered questions: If the Mother did not have a full-time personal care giver or nanny until April 22, 2018, why does the Father say she needs these persons now? The Father was working full time after Taylor was born and there is no evidence the parties had a nanny. Was Anne Lavoie doing this function? The parties cannot agree on what Anne Lavoie's function was and what she did during weekdays. If Anne Lavoie was assisting in childcare (in addition to her other duties such as caring for horses on the farm), why is a full-time nanny needed now? What did the parties do for childcare on the weekends when Ms. Lavoie was not present? What did they do in the evenings when neither Ms. Lavoie and the Father was not present? And so on.

[120] Another difficulty, is the exaggeration and feeble explanations by both parties. I urge both parties to refrain from the hyperbole by attempting to paint the other parent as the worst parent in the world and to minimize/explain away their shortcomings as parents. This does not help the credibility of either party. I point out a few examples: a) the Father stated as a fact that the Mother "continually" brought one of the Children in the bathroom with her while she smoked marijuana (but he subsequently agreed he only saw this twice as the Mother stated but believed it was more often) or that the Mother would "continually/daily" feed beer to Taylor - a two to three year old. The Father's description of these incidents were a serious exaggeration by the Father suggesting this behaviour was "continual" or "daily" when it turned out it was only once or twice. Yes, even at once or twice, this was very inappropriate behaviour by the Mother, but such exaggerations by the Father in sworn testimony suggest a general unreliability and distortion of what the Father states in his affidavits; and b) The Mother made allegations of molestation by the Father. There was absolutely no factual basis for the Mother's allegation. When confronted with the CAS file which confirms the allegations, the Mother recanted and provided an implausible explanation that she never alleged the Father was molesting Taylor; only that she wanted CAS to ensure the Father was not molesting Taylor. Really! Again, this suggests a general unreliability and distortion of what the Mother states in her affidavits.

Interim Custody

[121] The Father states he needs sole custody because he needs "to be able to make decision on behalf of the Children as they arise without worrying about being "blocked" from doing so by the respondent."

[122] While the Father lists a great number of reasons why he should have sole decision making in para. 21 of his factum, this court questions where these concerns were prior to April 22, 2018 particularly since the Father states he had concerns about the Mother for virtually the entire marriage.

[123] The Mother submits that the parties have always been able to make decisions regarding the best interests of the Children. While the Mother originally did not want this court to make a custody order, in light of the Father's unilateral decisions to move residences and put the Children in daycare without, at a minimum, advising her in advance, the Mother now seeks an interim joint custody order to ensure that future decisions regarding the Children are jointly made.

[124] Where possible, a joint custody arrangement is preferable to a sole custody arrangement. A joint custody arrangement marginalizes one parent's involvement and role in significant care and life decisions of their children. There need to be clear evidence and reasons why joint custody would not be appropriate such as the parties cannot put aside their differences and communicate to make decisions in the bests interests of the children.

[125] I am satisfied that an interim joint custody order is in the Children's best interests in this case because: a) There is no evidence that the parties could not agree on a single child related decision prior to April 22, 2018. I reject the Father's submission that there were no major decisions to be made before then. There are always decisions to be made when raising children, particularly babies, some small, some more significant decisions. Medical, religious and the selection of a childcare school were made prior to April 22, 2018 and agreed upon by the parties. The parties were able to make these decisions despite the already strained relationship which existed prior to April 22, 2018; b) The Father's unilateral decisions to move residences and arrange to place the Children in a daycare of his choosing, without telling the Mother while they had de facto joint custody is indicative of the Father's propensity to exclude the Mother from decisions regarding the Children should he be given sole custody. The Father's explanation was that he hadn't actually moved; he only signed a lease, is simply an unacceptable answer and demonstrates the Father wants to and will make decisions without input from or even advising the Mother until after the fact. The Father's other explanation that he had said in an earlier affidavit in November 2018 he wanted to move to Mississauga is hollow because he was seeking exclusive possession of the matrimonial home in north Brampton at that time and that only changed when the matrimonial home burned down on January 13, 2019; c) The Father's decision to want the Children to attend a full time daycare would inevitably impact on the Mother's access. I am not persuaded that this failure to tell the Mother is entirely by accident. The Father's explanation that he only put a "deposit" on the daycare space is an unacceptable answer and demonstrates that the Father will make decisions without input from or regard to the Mother's wishes. More problematic is that the Father put this deposit on this daycare in Mississauga on January 10, 2019, three days before the matrimonial home burned down and without advising the Mother. It is hard to imagine what the Father would have done if the matrimonial home had not burned down; d) The Father's concerns that the Mother will "block" him are speculative. Should these concerns be borne out, the court can intervene, potentially altering this interim custody order; e) Dr. Graham, the children's paediatrician has submitted several letters relied on by both parties. He has not raised any concerns regarding the medical needs of the Children to date; and f) At this point, the Mother has been excluded from the Children's lives to a large extent because of her own actions and to exclude her from any future decision making with regard to the Children until this matter goes to trial is, on the evidence before me, unwarranted and an unnecessary exclusion of the Mother's joint role in deciding how to raise and care for the Children.

[126] I am not persuaded that a joint custody order is not workable given the parenting history in this case prior to April 22, 2018. As stated above, I reject the Father's submission that there were no major decisions made regarding the Children prior to April 22, 2018. There is no evidence that the parties have not and cannot put aside their differences and make decisions regarding the best interests of the Children.

[127] The Father points to the Mother's objection to his moving in January 2019 as evidence of the Mother's obstruction. I disagree this was obstruction since the Mother's objection was made when the Father chose to move many kilometers from the matrimonial home with the Children, without advising the Mother he was going to do so until after he had already signed the lease. In this court's view, this is a significant example of why a joint custody order should be made. The same rationale can be said for the Father's actions to unilaterally choose a daycare for the Children.

[128] A great deal of the Father's evidence on the Mother's inability to make decisions comes from the MVA Medical Reports which are outdated, incomplete and not admissible. If the Father had experienced and witnessed all the issues regarding the Mother's "mental state" "all through the years right up until separation", no doubt major disagreements regarding the care of the Children would have arisen long ago. None are in evidence. Yet, despite the Father's assertion of the Mother's mental state making her unable to make decisions, the parties were still able to raise Taylor and have Tristan jointly and, from all accounts, the Children have done well.

[129] There shall issue an interim order granting joint custody to the parents.

Interim Access

[130] The Mother acknowledges that her parenting time with the Children should be supervised by a third party. Where the parties differ is the amount of time of supervised parenting time and whether the supervised parenting time should transition to equal parenting time when Mother has a full-time, live in nanny.

[131] The Father went on at length in his first two affidavits why Millie Folgiano (the maternal grandmother - "Millie") was not acceptable to supervise the Mother's access and why supervised access at a supervised access facility was necessary. Yet, three days after his November 13, 2018 affidavit, the Father agreed to the Mother's access to be supervised by Millie twice a week for 5 hour periods. The Father now accepts that Jane Morrow is also a suitable third party to supervise the Mother's access.

[132] I am satisfied that, prior to April 22, 2018, there were numerous times the Father left Taylor alone with the Mother, particularly in the evenings and weekends, which is inconsistent with the Father's current allegations that the Children must be protected at all times from the Mother's behaviour. The Father worked full time after Taylor was born and continued to do so until Tristan was born. The Father also was involved in other activities in the evenings and weekends.

[133] As of the date of the separation, both parties agree that the Children were healthy, happy and meeting their developmental milestones.

[134] As of today's date, the evidence is that the Children have been well taken care of. The Father of course states it is because the Mother has not been significantly involved with the Children since April 22, 2018.

The CAS

[135] The Father relies heavily on the CAS November 13, 2018 letter which states in part: Peel CAS does not have any imminent child protection concerns for the children while they are in Mr. Tillger's care. Should Mr. Tillger successfully obtain a custody of the children under the Children's Law Reform Act, Peel CAS would not need to take action to intervene in the care of the children. ...Should the court consider placement or unsupervised access of the children with their mother, Peel CAS would need to take immediate action to intervene and ensure the safety of the children in her care.

[136] The CAS subsequently went on to explain that "custody" in the November 13, 2018 letter meant primary care not legal custody.

[137] The fact is that the Mother is not requesting unsupervised access and this court is not prepared to grant supervised access to the Mother at this time. More will be said on this below.

[138] I have reviewed the CAS file in its entirety.

[139] Much of it records what each of the parties said to the CAS support workers. Such notes of their statements add little to what the parties have said in their numerous affidavits. If anything, the CAS file demonstrates that both parties, and to a greater extent the Father, have made disparaging allegations and comments about the other parent to CAS. This runs the risk that the CAS support worker drew conclusions based on self-serving statements rather than direct observation and independent investigation. The CAS file must be considered carefully and the CAS' opinions approached with caution.

[140] I recognize that some of the difficulty the CAS had regarding the Mother's ability to care for the Children arose from the fact the Mother was in and out of jail for a number of months until the middle of October 2018, not permitting CAS to engage with the Mother as would be their normal course.

[141] Self-serving disparaging statements by both parties appears to have been relied on by CAS to come to its opinion that it has concerns regarding the Mother's ability to care for the Children unsupervised. That is not to say that the CAS did not have firsthand observations and reasons to have concerns regarding Mother's ability to care for the Children unsupervised. One of the CAS' notes is a conversation with the Mother on July 30, 2018. The CAS worker had real, serious and legitimate concerns she observed and noted regarding what and how Stephanie presented herself (including the Mother making her own disparaging allegations against the Father). The CAS appeared to confirm that the Mother was drunk for an access visit.

[142] I conclude that the CAS' concerns regarding the Mother's actions, including her alcohol and drug intake and medical condition, is credible and based on sufficient observations, contact with the parents and their investigations. This is a significant factor in favour of continued supervised access by the Mother.

The Mother's Medical Condition

[143] This court has concerns regarding the Mother's medical condition which is not answered by the evidence on this motion.

[144] Despite acknowledging that the Mother suffered a catastrophic brain injury and that the MVA Medical Reports "do not reflect my current medical circumstances", the Mother failed to provide an up to date medical report on her medical condition. The inference must be drawn that the Mother chose not to because it would not be favourable to her position. In fact, Mother's affidavit of November 29, 2018 disclosed her request to obtain a medical report from her current doctor, Dr. Graham. Yet, no such medical report has been produced to date except for a brief letter which provides no insight into the Mother's current medical condition. The Mother's references seeing Joanna Gable and Trish Scott, her counsellors, but they have not provided an affidavit on these motions. There is reference to the Mother seeing a psychiatrist, yet, there is no report from her psychiatrist.

[145] Having the most current medical information is important. The best and most current medical information comes from the Mother's December 2016 Disability Tax Credit Certificate, signed by the Mother and completed by the doctor, which certificate states: "mental function - needs supervision constantly - forgetful from head injury."

[146] On this record, this court cannot discount the serious concerns it has about leaving the Children with the Mother without supervision.

The Events of 2018 and Parenting Concerns

[147] The concern regarding the Mother's ability to care for her children unsupervised, at this time, does not arise just from the lack of current medical information or the CAS' file.

[148] The Mother's conduct from April 22, 2018 throughout the summer of 2018 raises considerable questions and concerns regarding her lack of control, dangerous conduct, impulsive, rash behaviour, judgment, over-reaction, alcohol and drug dependency and, therefore, her ability to properly parent and care for the Children unsupervised.

[149] A few examples: a) The Mother made unfounded allegations of the Father molesting Taylor. The Mother's explanation is not believable stating that she did not say "he was" molesting Taylor only that the CAS should ensure "he wasn't" molesting Taylor. The Mother clearly admitted to making this unfounded and serious allegations to the CAS during its investigation; b) The Mother was released on April 22, 2018 on condition she not return to the matrimonial home but she re-attended the very next day and was charged with breach of condition. However, this additional charge did not deter the Mother from re-attending and committing a number of additional breach of conditions over the next few months; c) The Mother admits that on two occasions she was in the bathroom with Taylor while she was smoking medical marijuana. This is simply not acceptable behaviour for a parent and categorically not in the Children's best interests; d) There is one admitted incident where the Mother physically disciplined Taylor. However, there does not appear to be any dispute that this was an isolated incident which the parties discussed afterwards and agreed that physical discipline was not to be repeated; e) The Mother admits that Taylor "may have taken a sip of beer in the past, I certainly wasn't ever "sharing" beer with her." Taylor would have been two years old. Giving any alcohol to a baby is unacceptable. She states that the photo she sent to the Father of a baby holding a beer can was only a "joke." Again, this is not acceptable behaviour for a parent and not in the Children's best interests; f) The Mother was arrested while drunk. She defecated in the police vehicle and then threw feces at the police officer. This is just "bizarre" behaviour by the Mother; g) There are other incidents which are consistent with this disturbing behaviour by the Mother:

• The Mother appeared to be drunk for an access visit, as alleged by the Father and confirmed by the CAS;
• The Mother was intoxicated, drove a car while prohibited from doing so, had an accident and left the scene;
• the damage to the Father's motorcycle (but the Mother admits she "nudged" it with her tractor);
• letting horses out of the paddock;
• using profanity in the April 22, 2018 assault in the presence of Taylor; and
• breaking a window to get into the matrimonial home;

[150] This is not to say that there are no concerns regarding the Father's behaviour: a) Surreptitious recordings and posting the assault on Facebook along with other sexually suggestive photos taken from the Mother's iPad (which she left after being arrested) are highly indicative of the Father's approach to this high conflict case; b) The Mother alleged the Father was telling Taylor the Mother was "sick." The Father responded that he did so but only to tell Taylor "why we would pray for her to get better" - Taylor couldn't be more than 3 years old. It makes little sense to say this to a 2-3 year old. The Father explained in another affidavit that he told Taylor her mommy was "sick" because the Mother had held her tightly and had said disturbing things to Taylor. Again, this explanation makes no sense to a 2 1/2 year old.

[151] Fortunately, the Children have been well cared for by the Father and there is no evidence of any parenting concerns regarding the Father.

Need for Mother to Demonstrate Stability

[152] While a large number of the supervised access visits have gone well and the Mother has demonstrated a short period of responsibility, more needs to be done.

[153] At this time the Mother does not yet have a residence. She is looking for one.

[154] At this time the Mother does not yet, have a full-time support worker/nanny. While the Mother has said since her first affidavit on November 9, 2018 that she would hire a full-time nanny, she has yet to do so. If supervised access continues, the Mother will have to ensure that the Father approves the full-time support worker/nanny as the person who supervises access visits, failing which the Mother will have to get court approval of the full time support/nanny person.

[155] I find it difficult to accept that the Father is not confident someone hired as a "nanny" could not control the Mother's behaviour when he does not know who the person is or have the CV of the person to be hired.

Conclusion on Interim Access

[156] I am satisfied that the Mother should have increased supervised access at this time. The Children are young and need to maintain a relationship with both parents. Prolonged periods without access by the Mother is not in the Children's best interests.

[157] Granting the Mother additional supervised access promotes the "maximum contact principle" in this case and is, in my view, in the best interests of the Children. As noted by Justice Chappel, “it is a well-established principle that the best interests of the child are generally fostered by ensuring that children have a loving relationship with both parents, and that such a relationship should only be interfered with in demonstrated circumstances of danger to the child's physical, emotional or mental well-being.” Jackson v. Jackson, 2017 ONSC 1566 at para 59.

[158] There is one further factor. The Father will be returning to work in May 2019. By giving Mother greater supervised access on Tuesdays and Thursdays will not impact on the Father's time with the Children. By giving the Mother supervised access on Saturdays, will not interfere with the Children's daycare anymore than necessary. The parties can arrange for partial daycare, which appears to be available at Kidzone.

[159] Until further order of this court, the court orders that the Mother have supervised access on the following basis: a) Tuesdays, Thursdays and Saturdays each week from 10:00 a.m. to 7:00 p.m.; b) All access by the Mother will be supervised by Millie Fogliano or Jane Morrow. Ms. Fogliano/ Ms. Morrow must remain on the same floor of the residence as the Mother during the entire supervised access; c) The Mother shall not consume ANY alcoholic product for 6 hours prior to and during the supervised access visit; d) The Mother, if it necessary to take prescribed medication including medical marijuana, shall not take such medication or use the medical marijuana in front of the Children and all smoking of medical marijuana shall be done either outside of the residence or on a different floor than any Children are on.

[160] The Father wants a provision that neither of the Children are to be taken to the bathroom by the Mother. I see no need for this. I agree the Mother's past action in taking Taylor into the bathroom when she smoked marijuana was entirely inappropriate. But I am satisfied there is no need for such a condition as the Mother will not be permitted to smoke marijuana on the same floor as where any of the Children are.

The Need for a Review

[161] Clearly, the conflict and lack of evidence, establishing a longer history of how the supervised access is going, strongly favours having this matter come back before the court to revisit interim access in 6 months time without the need to show material change in circumstances. This will hopefully permit the reviewing court, at that time to have the parties put before it: a) Evidence as to how the supervised access has gone in the last 6 months; b) Evidence of whether the parties can put the Children's best interests first going forward; c) Evidence by the CAS of their continued involvement; d) Evidence of the Mother's current medical condition. While I am not ordering the Mother to provide an updated medical, if she obtains any updated medical evidence (as she says she has requested but not yet received a medical report from Dr. Graham because he is away), it would be of assistance to the reviewing court and determining what variation of this access order, if any, should be made to meet the Children's best interests; e) Evidence on the Mother's residence situation as she is presently living with her mother but looking for her own accommodations; f) Evidence as to whether the Mother hired a full-time nanny/support worker and the qualifications/responsibilities/willingness of such person to assist the childcare duties and supervising any supervised access which might be ordered in the future; and g) Evidence on the Mother's abstention of consuming any alcohol. The Mother agreed with CAS to participate in a random alcohol screening programme but CAS has yet to set this up waiting for the Mother to find new accommodations. Given the Mother's agreement, the results of random alcohol screening programme as may be and when directed by CAS would assist the reviewing court.

Restraining Order

[162] The Father's reasons for seeking a restraining order was that the Mother's sentence had expired and he was not sure whether the Mother was still subject to conditions to stay away from him and the matrimonial home. The matrimonial home is no longer an issue.

[163] A restraining order in many cases does nothing to encourage the parties to cooperate regarding the best interests of the Children. On many occasions it unnecessarily maintains (or escalates) the conflict between the parties by making one party feel that the court has found the other has committed such a wrong that court protection is necessary, rather than letting them focus on the Children's best interests.

[164] The onus is upon the person requesting the restraining order, on a balance of probabilities, to persuade the court that it is required is reasonable, legitimate for protection against harm or safety.

[165] I am not persuaded there is a risk of harm to the Father or the Children or the need to impose such an order for their safety. While there was an assault on April 22, 2018, it is important to remember it was a twisting of a thumb, a spit and pouring a beer on the Father. The Mother pled guilty and was sentenced. Any further assault (or even threatening assault) will result in severe consequences to the Mother. I note that the Mother remains on probation for a significant period of time.

[166] However, I cannot ignore the Mother's destructive behaviour at the matrimonial home during the summer of 2018. I will grant a mutual restraining order that neither party shall attend within 100 meters of the known residence of the other party AND that all communications between the parties are to be by email and solely regarding Children issues.

Enforcement by Police Order

[167] I see no need for this type of order at this time. The parenting time is clearly set out and there should be no confusion, ambiguity and, hence, no need for police enforcement.

Non-Removal of Children from the Province

[168] Both parties agree that a non-removal of the Children from the jurisdiction, without the written consent of the other party or a court order should be made. So ordered.

Email Communications/Non-Disparagement Communications

[169] Children can be easily and significantly impacted by hearing conflict between their parents and by parents making disparaging comments regarding the other parent. This needs to stop.

[170] In order to avoid this, this court orders that: a) Neither party shall have any communication with the other except by email and solely for the purpose of dealing with matters relating strictly with the Children; and b) Neither party shall make any disparaging comment regarding the other party in front of the Children or where it can be heard by them.

Conclusion

[171] An interim order shall issue containing the following terms: a) The Applicant, Christopher Tillger (“Chris”), and the Respondent, Stephanie Tillger (“Stephanie”), shall have joint custody of the children, namely Taylor Nicole Tillger, born December 17, 2015, and Taylor Nicholas Trever Tillger, born November 21, 2017. b) The Mother shall have increased supervised access as follows: i. Tuesdays, Thursdays and Saturdays each week from 10:00 a.m. to 7:00 p.m.; ii. All access by the Mother will be supervised by Millie Fogliano or Jane Morrow and such other person(s) as may be expressly consented to by the Father in writing or be approved by this court. Ms. Fogliano/ Ms. Morrow must remain on the same floor of the residence as the Mother during the entire supervised access; iii. The Mother shall not consume ANY alcoholic product for 6 hours prior to and during the supervised access visits; iv. The Mother, if it is necessary to take prescribed medication including medical marijuana, shall not do so in front of the Children and shall do so outside of the residence or on a different floor that any Children are on; v. The Mother shall participate in the CAS random alcohol testing program as and when designated by the CAS; vi. The Mother is responsible for the pickup of the Children for her access periods. The Father shall be responsible for the pickup of the Children at the end of the Mother's access period. The parties are to agree on a mutually convenient neutral place in Mississauga for access exchanges, failing which, either the court will designate an access exchange place or it will be the responsibility of the pickup parent to arrange for a third party to pickup the Children from the other party's residence; vii. Both parties shall have their residence in the City of Mississauga except with the written consent of the other party or court order; viii. The Mother shall not drive a vehicle with the Children in the vehicle for pickup, drop off or at any other time; and ix. Any daycare for the Children shall not interfere with the Mother's access periods. c) A restraining order to issue restraining either party from attending within 100 meters of the known residence of the other party; d) Neither party shall have any direct or indirect communication with the other except by email and solely for the purpose of dealing with matters relating strictly with the Children. This term will be included in the restraining order; e) Neither party shall make any disparaging comment regarding the other party in front of the Children or where it can be heard by them; f) The access provisions of this order may be reviewed in 6 months without the need to show material change in circumstances; and g) Neither party shall remove any of the Children outside of the province of Ontario without the written permission of the other party or court order.

Costs

[172] If the parties cannot resolve the issue of costs, the following shall apply.

[173] Either party seeking costs shall serve and file written submissions on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 5 pages, with attached Costs Outline, Offers to Settle and any authorities.

[174] The responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 5 pages with any Offers to Settle, and authorities relied on attached.

[175] There shall be no reply submissions without leave.

Ricchetti, J. Date: March 6, 2019

COURT FILE NO.: FS- 18-271-00 DATE: 2019-03-06 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RE: Christopher Tillger, Applicant AND: Stephanie Tillger, Respondent COUNSEL: C. van der Burg for Christopher Tillger ("Father") S. Young for Stephanie Tillger ("Mother") ENDORSEMENT ON INTERIM CUSTODY AND ACCESS Ricchetti J. Released: March 6, 2019