Court File and Parties

COURT FILE NO.: FC-19-477 DATE: 2020/03/06 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JASON MICHAEL SEARS Applicant – and – SARAH LINDA CORISTINE Respondent

Counsel: Richard P. Bowles, for the Applicant Ron Paritzky, for the Respondent

HEARD: December 17, 2019

RULING ON MOTION RE INTERIM ACCESS

Corthorn J.

Introduction

[1] In June 2019, the parties entered into a separation agreement. The terms of that agreement (a) include that the parties’ two young children shall have their primary residence with the mother, and (b) set a schedule for the children’s access with their father. The terms with respect to access are without prejudice to the parties.

[2] The parties each bring a motion to vary the terms for interim access to which they previously agreed. The father seeks to increase the children’s access with him; the mother seeks to reduce the time the children spend with their father. The mother also seeks relief addressing the parties’ conduct when caring for the children.

[3] Assessing the merits of the parties’ respective positions is challenging. The affidavit evidence, although extensive, is contradictory. Much of the evidence is not relevant to the issues to be determined. Some of the affiants express opinions beyond their respective areas of expertise.

Background

[4] The parties were married in November 2011 and separated in March 2018. They are the parents of two children: Vivian Victoria Jessica Coristine-Sears (D.O.B. December 10, 2012) and Tristan Justin Jaxon Coristine-Sears (D.O.B. April 22, 2015). Vivian and Tristan are hereinafter collectively referred to as “the Children”.

[5] In March 2018, the mother asked the father to leave the matrimonial home. The father moved to the parties’ jointly-owned property in Mont-Tremblant, Quebec. As of late 2019, the father had returned to Ottawa and begun living in a rented home. The mother has, since the date of separation, resided primarily with the Children at the maternal grandmother’s home.

[6] The father commenced this application in March 2019. He seeks a divorce, an order for equalization of net family property, and relief with respect to custody and access. In her Answer, the mother makes claims related to custody, access, child support, other financial relief, and a restraining order.

[7] In June 2019, the parties entered into a separation agreement titled “Interim Without Prejudice Separation Agreement” (“the Agreement”). Paragraph 2.2 of the Agreement provides that the father will have parenting time with the Children on alternating weekends from Friday at 4:30 p.m. until Sunday at 6:00 p.m. and every Wednesday evening from 4:30 p.m. to 7:30 p.m. (“the Schedule”).

[8] The Agreement provides for exchanges at a Starbucks located near the Children’s school. The Agreement also provides that the parties “shall abide by the Children’s dietary restrictions, as medically indicated which includes dietary intolerances for both children and gluten for Vivian.” Amongst a number of terms dictating the parties’ conduct, the Agreement prohibits the parties from using alcohol, marijuana, or other “non-prescription illicit drugs”, within 12 hours prior to taking the Children into or while the Children are in his or her care.

[9] The first court appearance was for a case conference, in October 2019, over which Desormeau J. presided. She is case managing the proceeding. At the case conference, the parties agreed on the terms of an interim order, on a without prejudice basis to either of them (“the Order”).

[10] Amongst other terms, the Order provides that the Children shall reside primarily with their mother. In addition, the Children’s access visits with their father were to “resume” in accordance with the Schedule. The location agreed upon for exchanges took into consideration that the father was living at Mont-Tremblant at the time. The parties were to attempt to identify a “neutral access exchange person”.

[11] The Order also includes the following terms with respect to the parties’ conduct:

(E) Neither parent shall consume marijuana within 12 hours of access or while in a caregiving role. (F) Neither party [shall] discuss adult issues with the Children nor shall they speak disparagingly about the other parent or their family. (G) Tristan should be attending counselling as soon as possible. (H) Both parents [shall] strictly comply with the dairy[-]free diet for both children and gluten[-]free diet for Vivian.

[12] The parties also agreed that they were not required to demonstrate a material change in circumstances for the purpose of the father’s motion for interim relief. Desormeau J. scheduled the father’s motion, to address exclusively the issue of access, to be heard on December 17, 2019. In the end, two motions for access, one by each of the parties, were heard on that date.

[13] On his motion, the father seeks access based on the parties having equal time with the Children. He recognizes that if he is successful, it will be necessary to gradually increase the access the Children have with him from that set out in the Schedule to 50 per cent of the time.

[14] On her motion, the mother seeks a reduction in the Children’s weekend time with their father (to a single overnight visit), while maintaining the mid-week after school visit. The mother also requests relief related to the father’s alleged regular use of marijuana and his alleged failure to abide by medical recommendations with respect to the Children’s respective dietary issues.

[15] At the conclusion of submissions on December 17, 2019, the parties were given an opportunity to resolve the issue of the Children’s access with the father during the 2019 holiday season. The parties were unable to resolve that issue. An interim endorsement was released on December 20, 2019, which addressed (a) the Children’s access with the father during the holiday season, and (b) the return thereafter to the Schedule.

[16] The decision on the parties’ respective motions was reserved.

The Issues

[17] The issues to be determined on these motions are:

1. What access schedule for the Children with the father is in the Children’s best interests?
2. What additional terms, if any, other than a schedule for access, are required?

Issue No. 1 – What access schedule for the Children with the father is in the Children’s best interests?

a) Positions of the Parties

[18] The father’s position is that the status quo prior to separation was that the parties shared the caregiving responsibilities for the Children equally. He seeks a return, on a gradual basis, to that status quo. He submits that the mother’s actions since separation constitute a course of deliberate conduct aimed at (a) restricting the Children’s time with their father, and (b) negatively impacting the father’s relationship with the Children.

[19] The father submits that the Agreement did not create a new, post-separation status quo. The father’s position is that the terms of the Agreement are to be disregarded. The father submits that he signed the Agreement as a measure of last resort; by June 2019, he was driven to the point of taking what he could get at that time from the mother, specifically with respect to access.

[20] The mother’s position is that the Children’s weekend access with their father needs to be reduced, from two overnights to a single overnight. The mother submits that the father’s disregard for the Children’s respective dietary needs has been having and continues to have a negative impact on the Children’s well-being; the access order must include terms to ensure that the Children’s needs are met.

[21] The parties agree that, for whatever access is ordered, specific terms are required with respect to pick up and drop off. The purpose of these additional terms is to minimize the potential for conflict between the parties, including in the presence of the Children.

b) The Law

[22] The principles that govern custody and access in the context of an application for divorce are set out in s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) (the “Act”). Pursuant to s. 16(2), the court may make an order for interim custody and access pending determination of the application.

[23] Section 16(8) provides that the sole factor to be considered when determining custody and access is “the best interests of [the Children] as determined by reference to the condition, means, needs and other circumstances of the child.” The Act addresses two concepts: past conduct and maximum contact.

[24] The past conduct of a party is not taken into consideration unless that conduct “is relevant to the ability of that person to act as a parent of a child”: s. 16(9). Addressing the concept of maximum contact, a child of the marriage is to have as much contact with each parent as is consistent with the best interests of the child. The court must consider the willingness of the party seeking custody to facilitate such contact: s.16(10).

[25] The court is entitled to refer to provincial legislation, which sets out criteria to consider when carrying out the “best interests” analysis: T. (K.A.) v. T. (J.) (1989), 23 R.F.L. (3d) 214 (Ont. Unif. Fam. Ct.). In determining the motions before the court in the present matter, reference is therefore had to the Children’s needs and circumstances, including those listed in ss. 24(2) (a)-(h) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

c) The Record on the Motions

[26] The documents exchanged on these motions are numerous and include the following:

Oct. 24/19 – the father’s notice of motion Oct. 24/19 – the father’s affidavit Nov. 19/19 – the father’s supplementary notice of motion Dec. 6/19 – the paternal grandfather’s affidavit (18-paragraph “Sears Affidavit”) Dec. 6/19 – the affidavit of the father’s aunt (13 paragraphs) Dec. 7/19 – the father’s affidavit (135 paragraphs) Dec. 7/19 – the affidavit of the Children’s nanny (21 paragraphs) Dec. 7/19 – the affidavit of two friends of the father (21 paragraphs) Dec. 9/19 – the mother’s notice of motion Dec. 6/19 – the affidavit of the mother’s aunt (29 paragraphs) Dec. 6/19 – the affidavit of the mother’s sister (46 paragraphs) Dec. 9/19 – the mother’s affidavit (86 paragraphs) Dec. 10/19 – the affidavit from the mother of Vivian’s friend, Emma (9 paragraphs) Dec. 11/19 – the affidavit of Dr. Paula Moncion (4 paragraphs) Dec. 11/19 – the affidavit of lawyer, Stacey Monic (20 paragraphs) Dec. 12/19 – the mother’s affidavit (46 paragraphs and an 11-page exhibit in which the mother responds to other affidavits) Dec. 12/19 – the father’s affidavit (26 paragraphs)

[27] The mother points to the fact that the father delivered two notices of motion. The first was delivered in late October and the other, approximately four weeks later, in the latter half of November. In the first notice of motion, the father sought access in accordance with the terms of the Agreement, including the Schedule.

[28] The father’s first affidavit, sworn in late October 2019, is nine paragraphs long. In it, the father refers to the October 23, 2019 case conference, the endorsement of Desormeau J., and his desire “to schedule as soon as possible” the urgent motion as ordered by Desormeau J. At para. 8 of that affidavit, the father says, “I will be in a position to file at a later date a more fulsome affidavit in support of my request for access to the children.” The father’s first affidavit does not include any substantive evidence with respect to the issue of access.

[29] In his supplementary notice of motion, the father adds to the relief originally sought. He requests that the Children reside with the parties on an alternating weekly basis. In her written submissions, the mother describes the addition of the request for equal time as “opportunistic”. She alleges that relief in the form of equal time was not contemplated when the father’s urgent motion was scheduled.

[30] The father’s first notice of motion and affidavit are dated the day immediately following the date of the case conference. I draw an inference and find that those documents were prepared and delivered for the sole purpose of scheduling the father’s urgent motion.

[31] It is not surprising that, with the passage of time and upon reflection following the case conference, the father chose to seek additional relief in the form of equal time. I do not find the father’s request for additional relief to be opportunistic.

[32] The substantive affidavits are dated between December 6 and 12, 2019. In the space of seven days, a mere five business days, 13 affidavits were exchanged. There were no cross-examinations. As a result, the court is faced with “the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other”: Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont. S.C.), at paras. 1 and 2.

[33] Assessing the relative merits of the parties’ respective positions on these motions is particularly difficult because there is contradictory evidence with respect to most of the events and circumstances described in the affidavits. There are simply too many contradictions to list in this ruling. Many of the matters about which the parties significantly disagree are not relevant to the issue of and terms for the Children’s access with their father.

[34] By way of example, the following is an abbreviated list of some of the matters relevant to the issue and terms of the Children’s access with their father and about which the parties disagree entirely:

• Each of the parties describe the other party as controlling, demanding, and unwavering, albeit in different ways. The mother describes the father as physically domineering and someone who uses both physical threats and threats with respect to the Children to leverage his position on a given subject. The father describes the mother as unreasonably demanding of him and others, the latter to the point of having conflictual relationships with people involved in the Children’s lives (i.e. nannies, teachers, and other professionals).
• For the pre-separation period, the father relies on the mother’s status as the “superior earner” in the couple. He portrays the mother as prioritizing her career over family life. He describes himself as typically more involved, than the mother, in the day-to-day parenting tasks and coordination with respect to school, activities, and appointments. The mother’s description of the father is that of an uninvolved and disinterested parent who was content to leave much of the responsibility for the Children to the mother. The mother portrays the father as having disregard for the demands of her career, as a self-employed professional.
• For the post-separation period, the father once again describes the mother as controlling and unreasonably demanding. He alleges that the mother deliberately and/or unreasonably made the Children’s access visits with their father difficult or denied visits entirely. The mother’s evidence is that the father continued to be uninvolved and disinterested in the Children. Her evidence is that the father was unreliable, frequently cancelled access visits at the last minute, and on several occasions chose personal travel with friends over the Children’s weekend access visits with their father.

[35] The parties each rely on affidavits from their respective family members and friends. Not surprisingly, at a minimum, the family members and friends describe the party to whom they are close in favourable terms as a parent. As an example, the father’s maternal aunt describes the father as a “patient and conscientious father”. The mother’s aunt describes the mother as “a devoted mother who goes out of her way to make sure the Children feel safe and happy.”

[36] Some of the affiants go so far as to criticize the “other” party based on personal traits and/or parenting abilities. The evidence from the non-parties is of limited, assistance in assessing the merits of the parties’ respective positions. None of that evidence has been tested on cross-examination. The credibility of one or more of the non-party affiants may be affected by factors unrelated to the dispute between the parties. The Sears Affidavit provides an example of the latter problem with the evidence from the non-parties.

[37] Lawrence Sears (“Mr. Sears”), is a defendant in a lawsuit commenced by the mother. The lawsuit arises from an incident that occurred at the Sears family cottage in the fall of 2017. In the action, the mother claims damages, said to exceed $2,000,000. The mother alleges that she suffered a traumatic brain injury as a result of the incident, for which she says Mr. Sears and others are responsible. While I make no finding in this regard, it would not be surprising if Mr. Sears’ view of his daughter-in-law is in some way negatively affected because of the lawsuit.

[38] Some of the other affidavit evidence is problematic because the affiants express opinions, at times characterized as beliefs, on subjects about which the affiants lack the requisite expertise. For example, in support of the mother, a friend and colleague says, “I have also witnessed the children’s behaviour since [the father] is no longer living in the home. Both Vivian and Tristan seem to be doing much better. Vivian, in particular, seems much more calm when [Jason] is not around and the children appear to be happy.” The friend and colleague concludes the substantive portion of her affidavit with the following statement: “I would be concerned about the impact on Tristan and Vivian if Jason were awarded more time with the children.”

[39] First, there may be any number of reasons why the Children appear to be doing better since the parties separated. The reduction or elimination of the Children’s exposure to adult conflict may be one such reason. Observations made by individuals without the requisite expertise do not assist the court in making a finding as to the extent to which the father’s involvement has an impact on the Children’s lives, overall well-being, and happiness.

[40] In addition to affidavits from friends and family, the mother relies on an affidavit from child psychologist, Dr. Paula Moncion. Vivian has been seeing Dr. Moncion since February 2019 and regularly so since April 2019. The affidavit is problematic. The only substantive evidence set out in the affidavit is confirmation from Dr. Moncion that she is the author of a letter, dated November 28, 2019, that was sent to the mother. Dr. Moncion does not in any way adopt the contents of the letter.

[41] As has already been noted, 13 affidavits were exchanged in very short order. The Moncion Affidavit was sworn on December 11, 2019. In the circumstances, I draw an inference and find that

a) the Moncion Affidavit was prepared with the goal of expedient delivery for the purpose of an interim motion, and b) Dr. Moncion’s intention was to confirm that the opinions expressed in the November 2019 letter are hers.

[42] There is, however, a second problem with the Moncion Affidavit and November 2019 letter. Limited information is provided about Dr. Moncion’s professional qualifications. In the line below her signature Dr. Moncion is identified as a “Clinical Psychologist”. At the bottom of the first page of the letter she is identified as having a “PhD C. Psych”. A copy of Dr. Moncion’s curriculum vitae is not included as an exhibit to her affidavit. Experts’ reports frequently include an introductory paragraph in which the expert summarizes their qualifications. The November 2019 letter does not include such a paragraph.

[43] It would be reasonable to infer that Dr. Moncion is a child psychologist. Hopefully Vivian is being seen by a professional with the necessary qualifications. Even if that inference can be drawn, it is difficult to determine the weight, if any, to be assigned to the evidence from Dr. Moncion.

[44] Based on the record summarized above, I turn to the task of determining what level of access for the Children with the father is in their best interests.

d) Analysis

[45] Given the contradictory evidence, it is impossible to determine what the status quo was for this family in the years prior to the date of separation. I therefore do not use the pre-separation status quo as a measure in determining the issue of the Children’s access with the father. I am, however, able to make some findings with respect to the circumstances subsequent to the date of separation.

[46] The parties agree, and I find, that the Children’s access with the father has been neither consistent or regular since the date of separation.

i) No Post-Separation Status Quo

[47] The parties offer strikingly contradictory explanations as to why, in the post-separation period, the Children’s access with the father has been inconsistent and irregular. I find that each of the parties bears some of the responsibility in that regard. I make no finding as to the parties’ respective degrees of responsibility for the Children’s lost time with their father. It is important, that, from this point forward, the parties conduct themselves in a manner intended to foster a positive relationship between the Children and both parents.

[48] In her written submissions, the mother points to the undisputed fact that the Children have resided primarily with her since the date of separation. At paragraph 12 of her factum, the mother says, “Jason acknowledged this lengthy status quo in the interim agreement he and Sarah signed in June 2019.” The Agreement provides that the Children are to reside primarily with their mother, subject to alternate weekend access ending Sunday evening and mid-week, non-overnight access.

[49] The mother fails to mention that the parties’ execution of the Agreement was not intended to create a status quo, including with respect to access, to which either of the parties could point for the purpose of an interim motion. In section 1.5 of the Agreement, under the heading “Background”, the parties agreed “to be bound by [the Agreement] on an interim basis, in respect of child support and parenting schedule and is entered into on a without prejudice basis.”

[50] After many months of back and forth on the terms of a without prejudice agreement, the parties agreed that the father’s parenting time with the children would be as set out in paragraph 7, above.

[51] Based on the parties’ respective evidence, I find that throughout the calendar year 2019, the Children did not have access visits with their father in accordance with the Schedule. Before consideration can be given to increasing the Children’s access with the father, the first step is for both parties to begin conducting themselves in accordance with the Agreement. A routine for the Children needs to be comfortably in place before increased access can be considered.

ii) Remainder of the Academic Year

[52] As of the date of release of this ruling, there remain approximately four months in the academic year. Both Children attend Woodroffe Avenue Public School. The father does not live within the catchment area for the school. If the Children were to stay with him overnight on a school night, then he would be required to drive them to school. The Children take the bus to and from school when they are with their mother. I find that it is in the best interests of the Children that they continue to take the bus to and from school, five days per week.

iii) Three Referrals to the Children’s Aid Society

[53] Three referrals were made to the Children’s Aid Society for this family in the post-separation period. The referrals were made in February, May, and September 2019. The Society’s three file closure letters are included as exhibits to the father’s second affidavit. In two of the letters, the author confirms that the Children are at risk of emotional harm due to post-separation conflict to which they are exposed.

[54] A letter attached as an exhibit to an affidavit from someone other than the author of the letter is not the best evidence. That said, based on the evidence of the parties, which is replete with examples of conflict, it is easy to understand why the authors of the letters from the Society reached that conclusion.

iv) The Children’s Well-Being

[55] The mother requests that the Children’s access with the father be reduced from two consecutive overnights to a single overnight on alternating weekends. That request is based on (a) the mother’s belief that the father fails to acknowledge and feed the Children in accordance with medically recommended dietary restrictions, and (b) Vivian’s anxiety, as perceived by the mother and others, around visits with the father.

▪ Dietary Restrictions

[56] The mother’s evidence is that the Children repeatedly, if not routinely, return from visits with their father in an unwell state. The mother attributes the symptoms she observes to the father providing the Children with or permitting them to consume food or beverages that are contra-indicated. The father’s evidence is that he abides by the dietary recommendations for the Children; he denies that he feeds or permits the Children to consume inappropriate food or beverages.

[57] The dietary restrictions for the Children have, for several years, been a source of conflict between the parties. The father describes the mother as hyper-vigilant with respect to the children’s diet. He believes that the mother’s hypervigilance contributes to the anxiety that the Children, Vivian in particular, experience around food. The mother’s view is that the father’s disregard for the Children’s dietary restrictions places the Children’s well being, again specifically Vivian’s, at risk.

[58] There is no first-hand evidence from a medical professional about the Children’s respective dietary restrictions. Copies of records from physicians, by whom one or both Children have been seen, are attached as exhibits to the parties’ affidavits. Absent first-hand evidence, the best evidence available is in the form of two letters written by the Children’s family physician, Dr. Sara Gunnick. The letters were prepared in September 2019, with one letter for each of the children. The letters were prepared at the father’s request.

[59] Based on the parties’ respective affidavits and the communication between them over time (the latter as appears in numerous exhibits), I find that the father is skeptical that

a) Vivian has Celiac disease and needs to follow a gluten free diet, b) Vivian has an intolerance to one or both of lactose and milk protein, and c) Tristan has an intolerance to one or both of lactose and milk protein.

[60] In her letters, Dr. Gunnick carefully and clearly explains why she recommends that, for the foreseeable future, Vivian follows a gluten-free and dairy-free diet and Tristan a dairy-free diet. Those recommendations are based on test results to date. Dr. Gunnick refers to the difficulties in carrying out further tests in young children and in relying on children to describe symptoms and express how they are feeling.

[61] I find that the father fails to appreciate that the inability of medical professionals to make a definitive diagnosis does not mean that the Children do not have the intolerances described above. Rather, it means that making a definitive diagnosis will have to wait. In the interim, and for the well-being of the Children, they are each to follow a restricted diet. The father must set aside his skepticism on this issue.

[62] The mother approaches the Children’s dietary restrictions from the perspective of an adult who also has dietary restrictions. It is not surprising that she exercises a degree of care required to minimize the potential for the Children to end up with life-long dietary intolerances.

▪ Vivian’s Anxiety

[63] While I am concerned about the quality of the evidence from Dr. Moncion, her November 2019 letter provides guidance for the parties in their efforts to minimize the anxiety, if any, that Vivian is experiencing with respect to her time with her father. In her letter, Dr. Moncion says that Vivian “enjoys” the visits with her father.

[64] The anxiety that Vivian expressed to Dr. Moncion was around dietary issues and having to explain not only to her father, but to other relatives, the requirement to follow a gluten-free diet. Dr. Moncion describes this issue as causing Vivian “considerable distress” and contributing to her request that visits with her father be reduced to one overnight from two.

[65] An alternative to reducing the visits from two overnights to one is for the mother to provide Vivian with prepared meals to take to the father’s home. Vivian could then eat a combination of meals prepared by the mother and others prepared by the father. Once Vivian gains confidence in the father’s understanding of her gluten issues, she will be able to rely solely on her father for meals when with him.

[66] The Children’s dietary restrictions should not be a point of conflict for the parties. If the father is genuine in his intention to abide by those restrictions, then acting in accordance with that intention might lead to a decrease in Vivian’s anxiety and in symptoms observed by the mother when the Children return from time with the father.

v) May 2019 Incident

[67] In her first affidavit, the mother describes a May 2019 incident in which the father took Vivian (but not Tristan) from school mid-day and without any prior discussions with the mother. According to the mother, an access visit had not been planned. The father kept Vivian for the weekend and failed to respond to numerous messages from the mother.

[68] I raise this incident for two reasons. First, because the father does not deny that it occurred. Second, because despite this incident having occurred, within a matter of weeks thereafter, the mother executed the Agreement. The incident did not deter the mother from agreeing to the Children having access with their father in accordance with the Schedule. I draw an inference and find that, whatever the mother’s concerns about the May 2019 incident, those concerns had subsided to a sufficient degree that the mother believed it was in the Children’s best interests that they see the father in accordance with the Schedule.

[69] I also raise this incident because of the description provided by the mother and her sister of Vivian’s behaviour during subsequent weeks. Both individuals describe a night on which Vivian experienced a nightmare of her father coming to steal her; they also both describe Vivian being extremely distraught. The mother’s evidence is that for several weeks thereafter, Vivian was hypervigilant about the doors to the house being locked so that no one could steal her.

[70] The mother signed the Agreement on June 25, 2019. I draw an inference and find that, despite the impact of the May 2019 incident on Vivian, the mother still considered it in Vivian’s best interests that Vivian have access with the father in accordance with the Schedule.

vi) Safety Concerns

[71] The mother’s evidence includes descriptions of incidents and events that cause her concern for the Children’s safety and well-being when they are in the father’s care. Some of these incidents and events are singular; others are indicative of a pattern of behaviour. Areas of concern include the father’s smoking or ingestion of cannabis, unsafe driving, failure to secure the Children in their respective car seats when travelling in the father’s or his relatives’ vehicles, and failure to attend to the Children’s hygiene needs. Some of these concerns predate, others post-date, and some both pre-date and post-date the mother’s execution of the Agreement.

[72] Once again, regardless of those concerns, the mother executed the Agreement in late June 2019. I draw an inference and find that, despite the concerns she had at the time, the mother believed it to be in the Children’s best interests for them to see the father in accordance with the Schedule.

vii) Criminal Charges Against the Father

[73] The safety and other concerns described by the mother are independent of criminal charges against the father. There is minimal evidence with respect to the status of those charges. The mother’s evidence is that the father was charged with assault, sexual assault, and criminal harassment for historical conduct towards the mother. The only documentary evidence with respect to criminal matters is a copy of an Undertaking given by the father on June 21, 2019.

[74] The Undertaking relates to a charge of assault under s. 266 of the Criminal Code, R.S.C., 1985, c. C-46. Pursuant to the Undertaking, the father is not permitted to be within 100 meters of the mother’s “residence, place of work, place of school or any other place that [the] mother may be.” Conditions of release, if any, with respect to the charges of sexual assault and criminal harassment are not before the court.

[75] On the return of the motions, counsel for the father informed the court that “the charges” against the father have been withdrawn. Counsel understood them to have been withdrawn a matter of days prior to the return of the motions. The mother does not dispute that the charges were withdrawn. She asks the court to take judicial notice, if necessary, that the process for laying charges includes a decision by the Crown Attorney’s office.

[76] There is a lack of evidence about the criminal charges. I am unable to (a) make findings of fact, or (b) take judicial notice of any part of the criminal proceeding. I am, in any event, cautious of any interplay between the criminal proceedings and this proceeding.

[77] I note, for example, that the Undertaking was signed by the father ten days after he signed the Agreement, and four days before the mother signed the Agreement. The father’s evidence is that he learned of the criminal charges after he signed the Agreement. It appears that the charges were not a factor in the father’s decision to enter into the Agreement. The timing of the charges is, however, relevant to the mother’s decision to enter into the Agreement.

[78] I draw an inference and find that, well before the mother entered into the Agreement, she was aware of the potential for the charges to be laid. I also find that, despite the potential for the charges to be laid and/or the charges being laid, the mother still believed that it was in the best interests of the Children for them to see their father in accordance with the Schedule.

viii) Conclusion

[79] I am not satisfied that the present circumstances are dramatically different, if different at all, from the circumstances in the summer of 2019 when the Agreement was signed. The most significant change since then is that the father now has a home in Ottawa, in which he will be living for the next year or so. He moved into that home in late 2019. The parties and the Children did not have an opportunity, prior to then, to implement/follow the Schedule with the father living in Ottawa.

[80] As a first step, the parties must demonstrate that they are able to implement and consistently follow the Schedule. The stability that the father’s Ottawa home offers may help to alleviate the stress, if any, that either of the Children are experiencing around visits with the father.

[81] The only evidence that either of the Children has expressed a desire to reduce the duration of their weekend visits with the father is from Dr. Moncion. That evidence relates only to Vivian. The dietary concerns expressed as the basis for Vivian’s request can be addressed by the parties. It is incumbent upon them to see that Vivian’s physical, psychological, and emotional needs are being met.

[82] The parties collectively must work towards the Children developing a level of comfort with the father to build a base from which to gradually increase their time with him. Given that the Children have been in the middle of the parties’ highly conflictual relationship for more than two years, the re-integration of the father as a committed, regular presence in their lives will take time and patience. That process needs to begin in a way that allows the Children to complete the school year with minimal disruption and anxiety.

[83] I find that for the parties to implement and consistently follow the Schedule through to the end of the current school year is in the best interests of the Children. The Children shall have access visits with their father in accordance with the Schedule.

[84] Pursuant to the court’s December 2019 endorsement in this matter, following the holiday season, the Children’s first weekend access visit with their father was to commence on January 10 and end on January 12, 2020. Assuming that access visit occurred, and the Schedule has since been followed, the Children’s next weekend access visit with their father is scheduled to commence on March 6 and end on March 8, 2020, with Wednesday evening visits continuing on a weekly basis.

Issue No. 2 – What additional terms, if any, other than a schedule for access, are required?

[85] On her motion, the mother requests that the court impose terms specifically intended to address the Children’s dietary restrictions, the father’s alleged consumption of marijuana, and the father’s alleged involvement of the Children in the litigation. With respect to the latter, the father’s evidence is that he believes the mother is involving the Children in the adult conflict.

[86] As noted in the Background section of this ruling, the parties agree that terms governing the pick-up and drop-off for the Children are required.

a) Pick-up and Drop-off

[87] When the parties executed the Agreement, they were prepared to be in each other’s presence for the purpose of exchanges. That did not go well, and the parties switched to exchanges facilitated by a third party. At the time, exchanges were to take place at the Starbucks located at the intersection of Carling and Woodroffe Avenues.

[88] At one time, Mr. Sears was the third party upon whom the parties relied. In their respective affidavits, the mother and Mr. Sears identify conflict between them at the exchanges. In addition, the mother’s evidence is that Mr. Sears was not as mindful as is necessary for the safety of the Children. It is Mr. Sears’ evidence that, at the most recent exchange in which he participated, he was served with the statement of claim in the mother’s personal injury litigation. For those reasons, Mr. Sears is not a good choice as a third party to facilitate the exchanges.

[89] At the October 2019 case conference, the parties agreed to a number of terms related to the exchanges. At that time, the father was residing in Mont-Tremblant. Now that he is living in Ottawa, the Hawkesbury, Ontario location specified for the exchanges is no longer appropriate.

[90] The Order provides for a “neutral access exchange person” to facilitate exchanges on Wednesdays and on the alternating weekends. The father’s evidence is that, in early November 2019, the parties agreed, on an interim basis and as “a stop-gap measure”, to a third party who would, for a $5.00 fee, facilitate exchanges. The intention is that the Children are dropped off by the mother, ten minutes before pick-up by the father on Wednesday afternoon and on alternating Fridays. The return of the Children is through this individual on Wednesday evening and through Family Services Ottawa on Sunday evenings.

[91] The father would like to pick the Children up directly from school on Wednesdays and Fridays. The mother’s evidence is that she believes that it is important for Vivian to see the mother after school on Wednesdays and alternating Fridays, before Vivian spends time with the father.

[92] Once again, it is important for the Children that the parties adopt and follow a routine for a number of months before the Children are faced with adjusting to significant changes. The evidence of the parties, and of their respective friends and family members, demonstrates that for at least two years (i.e. including the pre-separation period), the Children have been exposed both directly and indirectly to adult conflict. The Children need to regain confidence that the parties can provide a loving and stable environment.

[93] The parties have yet to demonstrate that they are, individually and collectively, able to comply with the terms to which they have agreed thus far. Each of the parties is unwilling to let go of personal prejudices against the other. It is regrettable that the parties have been unable to make the personal adjustments required post-separation for the benefit of the Children. The parties need to reflect on their individual conduct to date. They must develop mechanisms that will permit them to cope better personally and, in turn, enhance the ability of the Children to cope better in this post-separation period.

[94] When it comes to time with the Children, the father wants more than he currently has; the mother wants to reduce what the father has. I am not confident that the parties or most important, the Children, will fare any better than they have to date if even minor adjustments are made to the existing schedule and exchange arrangements. I find that it is in the Children’s best interests to continue with exchanges in accordance with the neutral exchange agreement reached in November 2019.

b) The Parties’ Respective Conduct

[95] In the Agreement, at the October 2019 case conference, and in the November 2019 exchange agreement, the parties addressed a number of the terms the mother requests on her motion. Terms with respect to the parties’ (not only the father’s) respective use of marijuana, the Children’s dietary restrictions, and communication with the Children are therefore included in the relief granted. If the parties are truly genuine in their interest to foster a caring and stable environment for the Children, then they will have no difficulty in complying with the order made below.

Order Made

[96] For the reasons set out above, neither an increase nor a reduction in the Children’s time with their father is appropriate at this time. The father’s request for an increase in access and the mother’s request for a reduction in the Children’s weekend time with their father are dismissed. The mother’s request for relief pertaining to the conduct of the parties is granted. Modifications relating to pick-up and drop-off are made.

[97] In the event the parties are unable to agree upon an access schedule for the summer months and the academic year 2020-21, they shall take the steps necessary through the case management process to schedule any motions in that regard. I remain seized of the issues of primary residence and access.

[98] Given the level of conflict between the parties and the length of time that the Children have been living in a highly conflictual environment, it is important that this matter be brought to a resolution as soon as possible. Procedural matters are addressed in the order.

[99] On an interim basis, an order shall issue as follows:

Access Schedule

1. The Children shall reside primarily with their mother.
2. The Children’s access visits with their father shall occur in accordance with the Schedule set out at paragraph 2.2 of the June 2019 “Interim Without Prejudice Separation Agreement”, namely: a) The children’s father shall have parenting time with the Children on alternating weekends from Friday at 4:30 p.m. until Sunday at 6:00 p.m., every Wednesday evening from 4:30 p.m. to 7:30 p.m., and such further access as agreed upon by the parties; and b) Unless the parties agree otherwise, the Children’s next weekend access visit with their father shall commence March 6 and end on March 8, 2020.
3. This Schedule shall be followed unless the parties agree otherwise or the Court orders otherwise.

Pick-Up and Drop-Off

4. Pick-up and drop-off shall be supervised transitions and shall occur as follows a) At a mutually agreed upon exchange location; b) Facilitated by a mutually agreed upon neutral access exchange person (except for return on Sunday), with the expenses for this individual shared equally by the parties; c) The drop-off shall be facilitated by the neutral access exchange person, and the children shall be dropped off by the mother, ten minutes before pick-up by the father on Wednesday afternoon and on alternating Fridays. d) The return of the Children shall be through the neutral access exchange person on Wednesday evening and through Family Services Ottawa on Sunday evenings.

Conduct of the Parties

5. Neither party shall consume marijuana within 12 hours of the Children’s time with that party or while in a caregiving role.
6. Neither party shall discuss adult issues with the Children nor shall the parties speak disparagingly about the other party or their family.
7. Tristan shall attend counselling as soon as possible if he is not already doing so and as directed by the health professional by whom he is seen for that purpose.
8. Both parties shall strictly comply with the dairy-free diet for both children and gluten-free diet for Vivian.

Procedural Matters

9. The parties shall, as soon as possible, arrange to proceed with a settlement conference before Justice Desormeau and to schedule the trial in this matter.
10. The parties shall complete a Trial Scheduling Endorsement Form in the ordinary course as a pre-requisite to being assigned a trial date.
11. I remain seized of the issues of the Children’s primary residence and the terms of their access with the non-residential party.
12. If the parties are unable to resolve the issue of the Children’s access with their father throughout the summer months in 2020 and for the academic year in 2020-21, they shall take the steps necessary through the case management process to schedule any motions in that regard to proceed before me.

Costs

[100] The parties filed their respective costs outlines for the motions. The father seeks costs on the substantial indemnity scale in the amount of $7,300 and the mother on the same scale and in the amount of $17,780. Both amounts include fees, disbursements, and applicable HST.

[101] The difference in the amounts claimed is explained by the experience and qualifications of the individual who did most of the work for each of the parties. For the father, much of the preparation of documents was done by a law clerk. That individual’s full indemnity hourly rate is $150. For the mother, the vast majority of the work was done by counsel. His full indemnity hourly rate is $395. The full indemnity hourly rate of the father’s counsel is $390.

[102] The mother’s counsel was retained shortly before the motions were argued. I find that it was reasonable for counsel to prepare the documents for the motions. It would have been challenging for him, in the short time available, to have familiarized himself with the file, delegated the work, and been prepared to argue both motions.

[103] Each of the costs outlines reflects work totaling approximately 40 hours. Given the volume of the materials exchanged, the hours docketed are reasonable.

[104] Both counsel were well prepared, were efficient in their advocacy, and had a solid command of the motion materials when making their respective submissions. Despite the quality of the advocacy, neither of the parties achieved significant success on the motions. That lack of success is not a reflection of the conduct of the motions; it reflects the parties’ conduct in the post-separation period.

[105] I find that neither party is entitled to their costs of the motion at this time. I therefore fix the costs of each party and order that the costs of the motions are reserved to the trial judge. The father’s costs, on the substantial indemnity scale are fixed at $7,300 and the mother’s at $17,780.

Madam Justice Sylvia Corthorn Released: March 6, 2020