Superior Court of Justice - Ontario

COURT FILE NO.: FS-22-00045214-0000 DATE: 2024-05-02

BETWEEN:

KARPOV, Igor Applicant

• and -

VASILYEVA, Roza Respondent

BEFORE: Lemay J

COUNSEL: Lyna Perelman, for the Applicant Josh Cohen, for the Respondent

HEARD: February 14th, 2024

Reasons for Judgment

[1] The parties were married in Moscow, Russia on June 29th, 2013 and relocated to Canada in 2014. The only child of the marriage, Alexander, was born in August of 2015. The parties relocated to Russia in 2021. Shortly after the parties relocated, their relationship broke down and the Respondent absconded with Alexander and returned to Canada. The Applicant followed the Respondent and Alexander to Canada and brought proceedings in this Court to have Alexander returned to his care. An interim order returning Alexander to the Applicant’s care and giving him decision making authority was made by Doi J. in early June of 2022. The merits of the Applicant’s motion were then scheduled in August of 2022.

[2] On November 14th, 2022, Doi J. ordered, on an interim basis, that the Applicant would continue to have decision-making authority for Alexander and that the Respondent would have supervised and video parenting time with Alexander only. Doi J. indicated that this Order would apply for a period of eight months and then the Respondent could revisit the Order. The Respondent brought this motion to vary the order, which was heard before me.

[3] For the reasons that follow, I decline to vary the Order, and confirm that the order of Doi J. shall continue as an interim order. I have also provided directions to ensure that the parties shall cooperate in the implementation of that Order as well as providing some direction in an attempt to assist the parties in reducing the conflicts and improving the Respondent’s relationship with Alexander.

Background

a) The Parties, Their Relationship and Doi J.’s Order

[4] The parties were married in Moscow, Russia on June 29th, 2013. The Applicant relocated to Canada in 2013 and sponsored the Respondent’s immigration to Canada in 2014. The parties lived in Hamilton, where Alexander was born in August of 2015.

[5] The Applicant worked as a security guard for a period of time. He then worked as an electrician, and then began working with Herbion, a company owned by his brother-in-law. Prior to Alexander’s birth, the Respondent had worked as a teacher and has also been employed as a daycare worker. While in Hamilton, however, the Respondent remained at home to care for Alexander. She went back to working in a daycare when the parties moved back to Russia.

[6] The parties moved back to Russia in 2021. The Respondent and Alexander moved at the end of May of 2021 and the Applicant moved in September of 2021. The Respondent and Alexander lived Cheboksary, a city approximately 700 kilometers south of Moscow. There is a dispute about where the Applicant spent most of his time after the parties moved back to Russia. That dispute is outlined in detail in Doi J.’s November 14th, 2022 endorsement and I need not review it here.

[7] After returning to Russia, the parties’ relationship deteriorated, and the Applicant sought a divorce in December of 2021. In January of 2022, the Applicant retained a Canadian lawyer when he discovered that the Respondent was planning to abscond to Canada with Alexander. That lawyer wrote to the Respondent to advise her not to abscond to Canada. The Applicant also obtained travel restrictions in respect of Alexander from the Russian Ministry of the Interior in January of 2022.

[8] Between January and April of 2022, there was a history of conflict between the parties over parenting time for Alexander. That history is detailed in Doi J.’s endorsement and I need not repeat it here. In any event, on April 22nd, 2022, the parties were granted a divorce by the Court in Cheboksary. The Respondent took the position that, as a result of the Russian Court’s order, she had de facto decision-making authority and primary residency over Alexander, and that the Applicant could not interfere with her decision to move Alexander out of Russia.

[9] I briefly pause to note that, in her January 14th, 2024 Affidavit, the Respondent provided proof that the Russian Courts had rescinded the Order in respect of her ability to travel outside of Russia with Alexander. This information does not assist the Respondent in any way for two reasons:

a) The decision of the Russian Court was made after the Respondent absconded with Alexander. It does not change the fact that she availed herself of a significant self-help remedy and does not change the analysis in Doi J.’s decision.

b) The decision of the Russian Court seems to have been reached, at least in part, on the basis that the family was all in Canada and that the Canadian courts were going to decide the issues. Again, this does not change the analysis underlying Doi J.’s decision.

[10] As a result, the Respondent moved Alexander to Canada without telling the Applicant that she had left. She travelled by a circuitous route that involved travelling to Minsk in Belarus and then to Istanbul, Turkey and London, England. The precise dates on which the Respondent and Alexander travelled are not clear on the record and are not relevant to the issues that I must determine.

[11] The Applicant pursued the Respondent and Alexander to Canada and began legal proceedings to have Alexander returned to his care. Doi J. granted an urgent ex parte motion on June 3rd, 2022 returning Alexander to the Applicant’s care. Doi J.’s order was ultimately enforced by the police on June 4th, 2022. In June of 2022, Doi J. made a series of further procedural orders as well as an interim decision-making authority and parenting time Order.

[12] On August 16th, 2022, Doi J. heard the merits of the Applicant’s motion. He released his reasons on November 14th, 2022. These reasons contained, inter alia, the following general directions:

a) The Applicant was to have interim sole decision-making authority and residence of Alexander.

b) On days where there was no in-person parenting time, the Respondent shall have video parenting time with Alexander for fifteen minutes each day.

c) Alexander shall have two (2) hours of supervised access with the Respondent each week, with the ability for the amount of supervised access time to increase by two (2) hours a week after each two months if there were no issues.

d) Either party could bring a motion to revisit the access after eight (8) months had passed from the release of Doi J.’s decision.

e) The Respondent was prohibited from being within 500 meters of any place where the Applicant or Alexander were other than at supervised visits.

f) Neither party was permitted to either remove Alexander from the GTHA (and other named communities) or to discuss the family litigation or disparage the other party in Alexander’s presence.

[13] It has been almost eighteen months since Doi J.’s Order was made. I will now turn to the events that have taken place since his Order was made.

b) Parenting Time Since the Order

[14] The Applicant has provided a detailed Affidavit outlining events since November of 2022. That Affidavit is thirty-eight single spaced pages and outlines the Applicant’s views on the events that have taken place. Although the Affidavit includes factual assertions, it also includes argument, which is not something that should be included in an Affidavit.

[15] An example of the argument in the Applicant’s Affidavit can be found in paragraph 3, where he states “[the Respondent] disregards the impact her behaviour has on Alex. As a mother, she should be the one who understands the emotions of the child. She blames me for everything. The reason behind such behaviour is that [the Respondent] doesn’t consider herself at fault and shows no remorse for her conduct.”

[16] In assessing this Affidavit, I am cognizant of the need to separate the argument from the factual assertions that the Applicant is making. When the factual assertions are reviewed, the following points emerge:

a) There is still a significant amount of conflict between these parties.

b) If the Applicant’s Affidavit is accepted, Alexander is being drawn into that conflict on a regular basis by the Respondent and the Respondent is making inappropriate comments to Alexander on their video calls.

c) Alexander is being made to feel uncomfortable by this conflict.

[17] The Respondent has also provided updated Affidavits outlining the events since November of 2022. These Affidavits show that the Respondent has ceased working full-time and is now a student at Humber College. She is taking a two-year program called English for Academic Purposes. I have very little information on how this program will assist the Respondent with her employment prospects or why it is necessary for her to pursue it at this point. All I have is a statement that she has been intent on pursuing a master’s degree and that she is pursuing this program to improve her and Alexander’s prospects.

[18] The Respondent’s Affidavits also shows the following:

a) The Respondent is seeking to reduce the payments on account of both costs and child support that she is currently paying. She is seeking this reduction because she is now a full-time student.

b) The Respondent is continuing to assert that she did nothing wrong in absconding with Alexander and coming to Canada in spite of Doi J.’s decision to the contrary. In that respect, I note that paragraph 11 of her January 19th, 2024 Affidavit states “The Applicant twisted the facts of my return home with my son and framed it as an international abduction and succeeded in having my child taken away from me. By doing so, Applicant is pursuing his financial gain to avoid paying spousal support and sharing the money he has accumulated during their life together.” The Respondent’s Affidavits contain numerous assertions of this type.

c) The Respondent’s January 14th, 2024 Affidavit states that the video calls are a torture for her and Alexander. She also states that the Applicant and his new partner are interfering with the video calls. However, there are no specific examples of this interference provided, other than the statement that the Respondent has noticed that Alexander is looking away from the screen at times.

d) The Respondent also asserts that the Applicant has been, and continues to, deliberately put barriers up to prevent her from having a meaningful relationship with Alexander.

[19] There was also a dispute between the parties as to whether the supervised parenting time was set up fast enough after it was ordered by Doi J., and who was responsible for the delays. Each party blames the other party in both e-mails and Affidavits. It is not a dispute that I can resolve on a paper record and it is doubtful that either party is solely to blame for the issues. However, I can (and do) conclude that both parties will argue over almost anything and that both parties require very specific directions from the Court in order to reduce the risk of further disputes. I will return to those directions below.

[20] One of the disputes that the parties had was whether the Order of Doi J. permitted an automatic increase in the parenting time if there were no issues in terms of visits. On this dispute, it appears that the Order permitted an expansion if the access was “without incident” for two months in a row. The parties had a dispute as to whether the access has been “without incident”. Given the Respondent’s conduct during the supervised parenting time visits, I am of the view that it has not been without incident and that an expansion of access time is not yet justified.

[21] At this point, the supervision notes from the supervised access centre as well as e-mails with the access centre show that Alexander does not even want to have visits that are as long as two hours.

[22] As far as I can tell, neither party included all of the supervision notes in their materials. The Respondent, in particular, included one note from June 25th, 2023 that was excluded from the Applicant’s materials. He provided me with the supervision notes from parenting time for both before and after the June 25th, 2023 supervision note.

[23] The note from June 25th, 2023 shows that a pen was dropped from Alexander’s fanny pack during the visit. On investigation by the access supervision centre, it appears that this pen was a recording device. The only inference I can draw is that the Applicant was recording Alexander’s supervised parenting time, even though he was not permitted to be present. This is, in my view, very problematic conduct on the part of the Applicant. It raises concerns for me that the Applicant may be attempting to alienate Alexander from the Respondent.

[24] However, the Respondent also provides an inaccurate description of the time she is spending with Alexander at the supervised access centre. Having provided only the June 25th, 2023 supervision note, the Respondent goes on to state, at paragraph 48 of her January 14th, 2024 Affidavit:

48. My visits with Alexander, at Renew, had been positive until August 2023. The following months Alexander appeared intimidated, did not make contact, and felt very hostile towards me. More than once he came to meetings with red and swollen eyes. He does not answer my questions, but always says memorized phrases accusing me of everything at the beginning of the meeting. These facts have been acknowledged by the Renew Supervisors.

[25] This statement is inconsistent with what I see in the rest of the supervision notes. Even the notes in June and July of 2023 show that Alexander was not happy in the parenting time visits. Those notes also reveal a number of issues, as follows:

a) During the supervised parenting time, the Respondent regularly raises issues in respect of the relationship between herself, Alexander and the Applicant. For example, on the October 1st, 2023 visit, the notes indicate that the Respondent “conveyed her dissatisfaction with [the Applicant]. The writer suggested that [the Respondent] refrain from discussing certain topics during their visits, such as questioning Alexander’s love or the possibility of reuniting.” There are several other occasions where the supervised access visit notes indicate that the Respondent had to be told to redirect the conversation that she was having with Alexander.

b) More generally, the Respondent engages in asking Alexander questions about the dispute and the circumstances that they find themselves in. She also makes comments such as a “mother should not have to live without her son.”

c) Alexander has expressed, on repeated occasions, that he is not comfortable with the visits and that he wants to go home. This discomfort appears to arise from the discussion of the parenting time dispute and/or from occasions when the Respondent has, according to Alexander, been “mean” to him during their video calls.

[26] With this factual background in mind, I now turn to the procedural history of this matter.

c) The Procedural History Since the Order

[27] After his decision on November 14th, 2022, Doi J. addressed costs. He concluded that the Respondent should be required to pay approximately $40,000 in costs to the Applicant. These amounts were enforced by way of a garnishment through the Family Responsibility Office (“FRO”).

[28] The next step that was taken was a case conference on July 7th, 2023. At that time, the Respondent was given leave to move for both unsupervised parenting time and an expansion of her parenting time. She duly brought this motion.

[29] This motion was originally scheduled for October 12th, 2023, and it is not clear from the record before me as to why the matter did not proceed then. It was then scheduled before Chozik J. on November 20th, 2023. No one appeared at the hearing of that that motion and materials were not uploaded. As a result, the matter was struck from the list and Chozik J. ordered that no further motions could be brought by either side without leave.

[30] In the meantime, the Respondent sought relief on account of the costs award because she has become a full-time student. On January 25th, 2024, Mills J. ordered that the amount that the Respondent was paying on account of the costs awards against her was to be reduced to $150.00 per month while the Respondent was a full-time student at Humber College.

[31] The motion on parenting time was argued before me on February 14th, 2024.

Positions of the Parties

[32] The Respondent is seeking to have unsupervised parenting time with Alexander. She argues that she is no longer a flight risk, she has roots in the community and she is willing to relinquish her passport in order to address any concerns about her being with Alexander on her own. As a result, the Respondent argues that the order for supervised parenting time is no longer necessary. The Respondent also argues that supervised access is too costly for her to continue to pay for given that she is now a student.

[33] Regardless of whether I change the Order for parenting time, the Respondent also seeks to have either a section 30 assessment ordered or that the Office of the Children’s Lawyer (“OCL”) become involved in this case.

[34] The Applicant argues that there should be no changes to the supervised parenting time. He argues that the Respondent remains a flight risk, that she is engaged in inappropriate conduct with Alexander on the occasions when she does have parenting time, and that she has failed to pay the various costs orders in respect of this matter.

[35] From these positions, it follows that I have two issues to resolve. First, whether there should be any in-person parenting time for the Respondent prior to the trial of this matter. Second, whether the OCL should be involved. I will deal with each issue in turn. Before conducting my analysis, I should note that neither party provided me with any case-law in support of their positions.

Issue #1 - Should The Respondent Have Unsupervised Access?

[36] In answering this question, I must remain focused exclusively on what is in Alexander’s best interests. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 16. Section 16(3) of the Divorce Act sets out the requirement that I consider all factors relating to the child, and then lists some specific factors to consider.

[37] In this case, I have concluded that the Respondent should not have unsupervised access on an interim basis. This order can be revisited either at the trial of this matter, where there is a full evidentiary record or if the OCL provides a report making recommendations for a change in the parenting time regime. I have reached this conclusion for the following reasons.

[38] First, Alexander requires stability and predictability. He has been back and forth between schools and countries a number of times over the past few years and he needs to get into a routine that will allow him to learn, grow and develop. He is also at an age where he needs stability in order to reach his full potential.

[39] Unfortunately, the Respondent has demonstrated that she is not willing to foster a stable environment for Alexander. Instead, she has continued to try and engage Alexander in the conflict between the parties. The points described at paragraph 25 are illustrative of this problem.

[40] Second, and more generally, the Respondent has not demonstrated any willingness to acknowledge that her decision to abscond with Alexander was, in any way, wrong. Indeed, her Affidavits on this motion were replete with evidence to justify her decision to abscond with Alexander even though the Court has already found against her on this issue.

[41] The Respondent’s position is concerning for two reasons:

a) It raises real questions as to whether the Respondent would attempt to abscond with Alexander again.

b) It causes her to assert, even to Alexander, that there was nothing wrong with her behaviour and that “a mother should not have to live without her son.” This is part of a larger pattern of behaviour that shows that the Respondent is prepared to draw Alexander into the adult conflict.

[42] The Respondent argues that she is willing to relinquish her passport and that this eliminates any risk that she will abscond with Alexander. This is not a sufficient answer to the concerns I have for two reasons. First, the fact that she relinquishes one passport does not mean that she has relinquished all of her travel documents or that she could not attempt to abscond with Alexander to somewhere else in Canada. The Respondent’s failure to acknowledge her wrongdoing in this case raises the risk that she may attempt to engage in the same wrongdoing again. It also raises concerns that the Respondent may not act in Alexander’s best interests.

[43] Second, and more importantly, the mere fact that the Respondent is much less of a flight risk now than two years ago does not assist in answering the question of what is in Alexander’s best interests. To answer that question, I must focus on the conduct of both parties since Doi J.’s decision.

[44] The records from the supervised access centre demonstrate that the Respondent has engaged in inappropriate discussions with Alexander on several occasions since Doi J. ordered supervised parenting time only. These inappropriate conversations reveal the Respondent’s inability to put Alexander’s interests above her own. They also reveal the Respondent’s inability to follow Court orders, as Doi J. specifically prohibited either party from communicating with Alexander about the ongoing litigation.

[45] This brings me to the conduct described by the Applicant in his Affidavit. There is a great deal of information in the Applicant’s Affidavit and I do not intend to review it all. The granular detail included in the Affidavit suggests to me that the Applicant has been hypervigilant in his monitoring of Alexander’s interactions with the Respondent. That hypervigilance is concerning to me, especially in light of the incident with the pen. However, there is some justification for it.

[46] The Applicant’s Affidavit reveals conduct that is both consistent with the problems I have identified with the Respondent’s conduct at the supervision centre (see paragraph 25) and consistent with the concerns that Alexander has expressed to the supervisor when he visits with his mother. Two examples will illustrate this point:

a) During one of the visits, Alexander told the Respondent that he was uncomfortable with her derogatory comments about Pakistanis during their video call the previous day. This same conversation is reflected in the Applicant’s Affidavit.

b) During several of the visits, Alexander has said that the Respondent is mean to him and says negative things about the Applicant. Although this is a less specific series of events than the first one I have described, it is still reflected in the Applicant’s Affidavit. Therefore, on the record I have, I accept that this has occurred (and is occurring) on a regular basis.

[47] During the course of the visits, the Respondent seemed to suggest to Alexander that the Applicant might have been putting words in his mouth. Making this suggestion to Alexander is, in and of itself, inappropriately engaging him in the adult conflict. It is also difficult to accept, because Alexander is sharing these concerns with the Respondent in the absence of the Applicant and in the presence of a neutral third party. It is, therefore, more logical to conclude (at least on the record I have) that Alexander genuinely has these concerns and that these events really happened.

[48] I acknowledge that it is possible that the Applicant has been attempting to alienate Alexander from the Respondent. In that respect, I am extremely troubled by the incident involving the pen in Alexander’s fanny pack as well as the Applicant’s hypervigilance in the calls that Alexander and the Respondent have. I am providing the Respondent with some limited remedies to address my concerns in this respect.

[49] However, on the facts that I have, a third party has reported that the Respondent is engaging Alexander in inappropriate discussions. Based on my review of the supervised parenting notes, I find that Alexander’s reluctance to engage with the Respondent is in large part as a result of the fact that she continues to draw him into the conflict between the Applicant and the Respondent. Therefore, it is reasonable to conclude that the Respondent is the source of a significant portion of the problems at this point. It is also reasonable to conclude that she is also drawing Alexander into the adult conflict during the video parenting time.

[50] All of this conduct has contributed to Alexander’s obvious discomfort with the Respondent. I should note that the continued development of a relationship between Alexander and the Respondent is important. However, that relationship has to be developed with Alexander’s best interests in mind. Permitting Alexander to be in the unsupervised care of the Respondent, who cannot seem to prevent herself from engaging Alexander in the adult conflict, is not in his best interests.

[51] As a result, supervised access should continue, and the Respondent should focus on age-appropriate activities and conversations with Alexander both during those visits and during the video visits. However, I am prepared to consider providing two directions to assist in improving the relationship between the Respondent and Alexander:

a) It appears that Alexander might benefit from attending counselling. I am of the preliminary view that counselling should be ordered and that the Applicant (as the parent with decision-making authority) should arrange and pay for the counselling. If there are any issues with respect to this suggestion, the Applicant may make submissions within seven (7) calendar days of the release of these reasons. I will then provide further directions. Failing any submissions, counselling will be ordered on these terms.

b) Information about Alexander should be provided to the Respondent. This information includes his school, his report cards and progress reports and any medical information. Providing this information to the Respondent will ensure both that she is more involved with Alexander as a parent and that she has things to talk to him about, such as his teachers, how he is doing in school and the like. I am aware that the Applicant objected to providing this information to the Respondent. However, my concerns about the risk of the Respondent absconding with Alexander do not rise to the same level. There is nothing in this order that will permit the Respondent to contact either the school or Alexander while he is at school.

[52] I reach this conclusion reluctantly, as supervised access should almost always be a way station on the road to restoring the parent-child relationship. However, in this case there is no indication that the Respondent has been successful in restoring trust with Alexander. Restoring that trust will require the Respondent to reconsider her approach and to be patient. It requires a further period of supervised parenting time so that Alexander comes to trust the Respondent not to either denigrate the Applicant or draw him into the conflict. It also requires the Respondent to consider a different approach to the video access.

[53] I had considered giving the Respondent the ability to return to Court to vary the supervised parenting time order. However, it has been a year and a half since Doi J.’s order. It appears to me that a trial is the logical next step in this matter, and so I am not permitting an automatic review of my interim order unless the OCL becomes involved in the case and provides some additional recommendations to the parties. I will provide some direction about moving this matter forward in my analysis of the second issue.

[54] This brings me to the Respondent’s assertion that she cannot afford the supervised visits. While I am sympathetic to the Respondent’s concerns about the costs in this case, I must also note that the Respondent is the source of a lot of the problems that have resulted in supervised access being necessary as well as being responsible for the costs of the proceedings before Doi J.

[55] The Respondent has also not provided a great deal of evidence about either her financial situation or the costs of the supervised parenting time. For example, there is no clear evidence as to how the program the Respondent is enrolled in will improve her income earning potential, whether she is able to work part-time or what other sources of funds she has. The Respondent’s bald assertions in this regard are of limited assistance. On that factual matrix, it is difficult to conclude that there is a genuine hardship in this case, especially since Mills J. has provided the Respondent with relief from the costs that she is required to pay. In any event, however, the focus of my analysis must be Alexander’s best interests.

[56] I would also note that one of the costs that the Respondent has claimed is her cost to travel by Uber back and forth between her home and the supervised parenting time centre. The cost of this travel is $500.00 per month. There are, on average, four supervised parenting time visits a month. This works out to the Uber rides costing the Respondent $62.50 each way. Her explanation for that cost was that she had games and food that she needed to bring with her required her to have a car rather than taking public transportation. If the Respondent has these significant financial limitations, the significant cost of Ubers can be avoided by simply reducing the amount of stuff that she is taking with her for a visit and using public transport.

[57] Finally, given the history of this case, the Applicant should not be responsible for the bulk of the costs of supervised parenting time. The supervised parenting time was originally necessary because the Respondent engaged in self-help measure. It remains necessary primarily because the Respondent is drawing Alexander into the adult conflict. As a result, the supervised parenting time shall continue for two hours once a week, and the Respondent shall be responsible for 75% of the costs charged by the supervised access centre. The Applicant will be responsible, from the date that this decision is released, for 25% of the costs charged by the access centre. Costs for the Respondent to get to the access centre will remain her responsibility.

[58] As I have said elsewhere in these reasons, I am concerned that the Applicant may be attempting to alienate Alexander from the Respondent. It is for that reason that I have assigned some of the responsibility for the costs of supervised access to the Respondent. In order to further alleviate my concerns, I am also ordering the Applicant to ensure that he facilitates both the video parenting time and the supervised parenting time. To that end, the Applicant is directed to ensure that all paperwork is completed in a timely manner, that Alexander is brought for all scheduled visits and that the video access continues uninterrupted and without the participation of either the Applicant or his current partner. For clarity, without the participation means that the Applicant and his current partner are not to be in the same room or within Alexander’s sight lines when he is speaking to the Respondent. They may be in an adjacent room within earshot.

[59] To summarize my directions on this issue:

a) The Order of Doi J. from November of 2022 is to continue in force.

b) The supervised parenting time is to be limited to two hours once per week until either trial or until the OCL has considered the matter and provided further recommendations to the parties.

c) The Respondent is to continue to pay for 75% of the costs charged by the supervised parenting centre. The Applicant shall be responsible for 25% of those costs from and after the date that this decision is released.

d) The Applicant is to facilitate Alexander’s participating in the supervised parenting time.

e) The Applicant is required to ensure that neither himself nor his current partner interfere, in any way, with the video access that is provided to the Respondent. They are not to be within Alexander’s sight lines or in the same room with Alexander during those video calls. They are permitted to be within earshot.

f) The Applicant is to provide the Respondent with information in respect of Alexander. This information includes his school, his report cards and progress reports and any medical information.

g) Unless the Applicant objects within seven (7) calendar days, the Applicant is to arrange and pay for Alexander to attend at counselling. The counselor is to be identified to the Respondent, as the counselor may wish to speak to the Respondent. The counsellor is also to confirm to the Respondent that counselling has taken place, but is not required to disclose what was discussed.

[60] I should conclude this section of my analysis by observing that my conclusions are based on the record before me. I did not hear any viva voce evidence and, as a result, my conclusions cannot bind the trial judge when this matter does go to trial.

Issue #2 - Should the OCL Be Asked to Become Involved?

[61] Yes.

[62] This is a high conflict case. While I am of the view that, at this point, the Respondent’s parenting time should be limited to supervised and video visits, I am also of the view that the Applicant may bear some of the responsibility for the problems in the relationship between Alexander and the Respondent. However, on this record, it is difficult to precisely determine what role each parent is playing the current problems. The involvement of the OCL would greatly assist the Court in making that determination and in taking steps to reduce Alexander’s exposure to the conflict.

[63] More generally, Alexander has been through a traumatic series of events over the past few years and has faced significant upheaval. It will be of great assistance for the Court to understand what effect these events have had on Alexander and what steps can be taken in order to ameliorate those effects. Again, those are issues that can be addressed if the OCL chooses to become involved in this case.

[64] In addition, as I set out above, the Applicant’s approach to the time that Alexander does spend with the Respondent is hypervigilant. It would be useful to know what effect the Applicant’s approach to parenting is having on Alexander’s relationship with the Respondent as well as how those effects can be managed.

[65] Finally, given the conflict between the parties, the assistance of a third party evaluator would be helpful for the parties to more fully understand what is in Alexander’s best interests. As a result, I am requesting that the Office of the Children’s Lawyer become involved in this file.

[66] If the OCL is not prepared to become involved in this file, then it may be necessary to have an assessment performed under section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. I have asked the OCL to become involved first because of the costs associated with the section 30 assessment. It is not clear to me that the parties can afford such an assessment.

[67] Finally, this matter needs to be moved towards trial or some other more permanent resolution. To that end, I am directing as follows:

a) The parties are both to complete the paperwork necessary to refer the matter to the OCL by May 8th, 2024.

b) The parties are to jointly submit the OCL paperwork to the trial office in Milton by May 10th, 2024 so that I may complete my portion of it and ensure that it reaches the OCL promptly.

c) The parties are both to take all reasonably necessary steps to facilitate a prompt consideration of this file by the OCL.

d) In the event that the OCL does not accept the referral of this matter, either party may bring a motion to have a s. 30 assessment ordered.

e) The parties are to cooperate with each other in moving the rest of the litigation forward. Although I am not placing the matter on a trial list, I would anticipate that the parties would be ready for trial (with either an OCL report or a s. 30 assessment if one is being done) by the end of this calendar year.

[68] I am not seized of any of these issues except for the completion of the paperwork referring the matter to the OCL and the issue in respect of counselling. To the extent necessary, the Order of Chozik J. prohibiting motions is varied to permit the parties to bring motions in respect of the s. 30 assessor if the OCL is not prepared to become involved in this file.

[69] Should the parties wish to bring motions on other issues, including disclosure, support or other financial matters, then they should conference those issues first. If either party brings such a motion without a further conference, then they would be required to explain why Chozik J.’s prohibition on further motions would not apply to it.

Conclusion and Costs

[70] For the foregoing reasons, the temporary Orders issued by Doi J. shall continue until trial or until further Order of this court. The only exception is that neither party has the automatic right to bring an application to vary the Order in advance of trial. The usual tests for varying an interim order will apply. If there is any difficulty in setting out the terms of the Order, I may be spoken to. However, it should generally track the terms as set out in Doi J.’s November 14th, 2022 endorsement along with the points made in paragraphs 59 and 67, above.

[71] This brings me to the issue of costs. The parties are strongly encouraged to agree on the costs of this motion. If they are unable to agree on the costs, then the Applicant may serve and file costs submissions of no more than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law within fourteen (14) calendar days of today’s date.

[72] The Respondent may then serve and file costs submissions of no more than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case-law within fourteen (14) calendar days of receiving the Applicant’s costs submissions.

[73] Costs submissions are to be filed with the Court office and uploaded to CaseLines. A copy of the submissions are to be provided to my judicial assistant, Susan Pickles (susan.pickles@ontario.ca). Finally, there are to be no extensions for costs submissions, even on consent, without my leave. In the event that costs submissions are not received within the time limits set out above, then there will be no costs.

[74] Finally, the submissions on counselling (if any) are to be provided by the Applicant within seven (7) calendar days of today’s date. Those submissions are also to be uploaded to CaseLines and provided to my judicial assistant. In the event that submissions are received, I will review them before requiring (or permitting) any reply from the Respondent.

LEMAY J Released: May 2, 2024