WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) ORDER EXCLUDING MEDIA REPRESENTATIVES OR PROHIBITING PUBLICATION — The court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
(9) IDEM: ORDER RE ADULT — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) IDEM — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Date: 2017-09-05
Court File No.: Toronto CFO-15-13025 – A1
Between:
Children's Aid Society of Toronto Applicant
— AND —
S.C. and S.O. Respondents
Before: Justice Alex Finlayson
Heard on: Friday, September 1, 2017
Reasons for Judgment released on: Tuesday, September 5, 2017
Counsel
Kenneth Atkinson — counsel for the Applicant
Victoria Boger Mull — counsel for the Respondent Mother S.C.
Lance Carey Talbot — counsel for the Respondent Father S.O.
Patrick Senson — counsel for the Office of the Children's Lawyer, legal representative for the child, J.D.D.
Reasons for Judgment
Alex Finlayson J.:
Nature of this Motion
[1] This motion concerns a child, J.D.D., age 8. This is my ruling regarding the mother's motion to vary the temporary care and custody order of Justice Spence dated June 17, 2015, in which Spence J. placed the child in the care and custody of the father on terms, and for other terms primarily relating to access.
[2] The father opposes the mother's motion. He filed a Cross-Motion asking that I continue the placement and he sought different terms respecting access.
[3] The Society did not file a Notice of Motion, but supports a temporary placement with the mother, albeit with different access terms from those sought by either parent.
[4] Mr. Senson, from the Office of the Children's Lawyer for J.D.D., told me that he was taking the "unusual step" of expressing concern about the independence of the child's views and preferences.
[5] Both parents' motions seek to curtail the generous, week on, week off, access schedule that has been in place over the summer pursuant to Cohen J.'s ruling of May 23, 2017.
[6] This motion was heard on Friday, September 1, 2017 in the afternoon, just before the Labour Day weekend. Embedded in the dispute between the parties is the time sensitive issue about where the child will attend school commencing on Tuesday, September 5, 2017. I stayed late to hear complete submissions, but told counsel that I intended to reserve but that I would render reasons as quickly as possible.
Background
[7] This child protection proceeding began on June 17, 2015. On that day, Spence J. placed the child, J.D.D. in the care of the father, S.O., on conditions, and ordered that the mother would have access for a minimum of 2 visits per week at the Society's office, with the level of supervision to be in the discretion of the Society. The conditions Spence J. imposed are:
(a) The father would ensure that J.D.D. is not exposed to any adult conflict;
(b) The father would make reasonable effort to refrain from using a raised voice when interacting with J.D.D.;
(c) The father shall access and complete a parenting resource;
(d) The father shall inform the Society of any changes of address or contact information within 48 hours;
(e) The father shall notify the Society in advance if he is leaving the country;
(f) The father shall work cooperatively with the society; and
(g) The father shall allow scheduled and unscheduled visits to his home and allow private meetings with J.D.D.
[8] Because there was already a domestic proceeding ongoing in this Court, Spence J. transferred the child protection proceeding from the Ontario Court of Justice at 47 Sheppard Avenue, Toronto, Ontario to the Ontario Court of Justice at 311 Jarvis Street, Toronto, Ontario. The domestic proceeding is currently stayed.
[9] The mother was J.D.D.'s primary parent prior to the apprehension. The child resided with the mother from birth until the apprehension. The domestic proceeding began in 2012 when J.D.D. was 3 years old. Specifically, on September 19, 2012, the father commenced that proceeding in which he asked for "a Paternity DNA Test Confirmation", "full custody" or "50/50 access" in the alternative. There had been a number of orders made in the domestic proceeding providing for increasing access between the father and J.D.D. and other things, but at the time of the apprehension, the temporary order of Justice Cohen dated December 19, 2014 was in place. That order provided that the mother would have temporary custody and the father would have alternating weekend access from Friday after school until Monday morning, and then from Tuesday after school to Friday morning.
[10] There has not yet been a finding that J.D.D. is in need of protection in this proceeding. Although Spence J.'s order of June 17, 2015 was a temporary without prejudice one, I was told that there had been no return of the temporary care and custody motion for a full hearing. This litigation has been underway for 26 months, there have been a number of appearances, adjournments, and at least two other substantive motions, one respecting the mother's access and another in which the Society unsuccessfully sought to withdraw the protection application. On May 23, 2017, Cohen J. released reasons respecting the latter and made an access order that governed the parties over the summer months. Although there had previously been a trial management conference on June 13, 2016, on May 23, 2017 Cohen J. also directed that a further trial management conference proceed before September 2017 so that this matter could proceed to the September assignment court. This has not happened.
[11] Given the aforementioned history, I asked the parties to advise me whether this motion was governed by s. 51(6) of the Child and Family Services Act, R.S.O. 1990, c. 11, as amended. All counsel agreed that I should treat Spence J.'s temporary without prejudice order as no longer being "without prejudice" and that I was indeed governed by s. 51(6). The mother bears the onus of establishing the change sought to the placement pending trial. But counsel did not agree with the applicable legal test that applies under s. 51(6).
Applicable Legal Principles Regarding the Request to Change the Temporary Placement
[12] Regarding the request to change the child's temporary placement, the mother argued that the test was simply a best interests test. I do not accept this submission. In Children's Aid Society of Toronto v. K.D. and R.B., 2011 ONCJ 55, Spence J. canvassed some case law decided under s. 51(6) of the Act and articulated a helpful four step test. I quote ¶ 28-30 of Spence J.'s decision:
[28] So what is the "test"? First, what the test is not, is "best interests" simpliciter. If I were to accept the society's position that the test is "best interests", the following scenario could materialize. On day 1, the court makes a temporary supervision order with the parents; on day 10, the parties agree to a finding in need of protection, but no final disposition; and then on day 11, the society comes back to court seeking an order that the children be brought into care, without any change in circumstances whatsoever, arguing that such an order would be in the "best interests" of the children. This strikes me as entirely illogical, given the thrust of Part III of the Act.
[29] As well, from all of the foregoing, and bearing in mind the stated purposes of the Act, I have concluded that the tests of "material change in circumstances", alone, or "paramount purposes" of the Act, alone, do not adequately capture the intent of Part III of the Act. Rather, all of those considerations are germane. And because of that, I have decided on the following four-step path — a flow chart, if you will — that takes into account all of the necessary considerations that must be examined on a motion to vary:
Has there been a material change since the making of the previous temporary order?
If so, is that material change risk-based? In other words, is it a change that makes it either more likely, or less likely, to affect the risk of harm to the child?
If the material change is risk-based, is it significant enough to vary the child's placement, having regard to the length of time that the status quo has been in place and how soon trial is likely to occur?
In considering step number 3, is the requested variation proportional to the change in circumstances, having regard to the court's mandate to be guided by the paramount purposes, as stated in subsections 1(1) and (2) of the Act?
[30] These four steps are not individual factors to be weighed one against the other, or considered as a collective stew, but rather, a discrete step-by-step path to follow. If the court cannot answer "yes" to each of these steps then, in my view, it is not appropriate to move on to consider whether the court should exercise its judicial discretion in favour of the requested variation.
[13] I do agree however that I must also be guided by the paramount and other purposes of the Act in s. 1(1) and 1(2) which of course require best interests considerations within the meaning of those sections. I intend to follow Spence J.'s four step analysis, while viewing the evidence put before me through the lens of s. 1 of the Act.
[14] Based on my application of these factors to the evidence before me, I decline to change J.D.D.'s interim placement, but I intend to make a new access order for the reasons that follow. I also intend to make a number of orders to ensure that the parties take the necessary steps to organize this case for trial, if it is not going to settle.
Application of the Test Regarding the Request to Change J.D.D.'s Temporary Placement
The Initial Protection Concerns
[15] In its Application, the Society seeks a finding that J.D.D. is in need of protection pursuant to s. 37(2)(b)(i) of the Act. The initial protection concerns identified in the Application and the accompanying affidavit of child protection worker Olayinka Madamidola sworn June 17, 2015 were:
(a) The mother misused alcohol and this impacted her ability to care for J.D.D. adequately;
(b) J.D.D. missed school under the mother's watch; and
(c) Conflict between the parents.
[16] The Society had been involved with the family since April of 2012. Ms. Madamidola's affidavit also identifies that the mother was involved in at least one relationship in which she was the victim of serious domestic violence in the presence of the child, and that she was facing deportation proceedings. The possibility of deportation remained a very live issue at the outset of this proceeding when Spence J. made the initial order. The state of affairs respecting the deportation is referred to in Cohen J.'s recitation of the prior proceedings in her ruling of May 23, 2017. Among other things, on September 25, 2015, counsel for the Federal Department of Justice attended this court to advise that the mother was subject to deportation and was "removal ready".
The Mother's Positive Changes
[17] I find, based on the evidence filed, that there has been a material change in circumstances since Spence J.'s Order dated June 17, 2015. In accordance with the test, the change is risk-based and the risk of harm to J.D.D. has decreased.
[18] Regarding the concern about alcohol, there is no evidence that the mother is misusing alcohol at this time. Both the mother's counsel and the Society referred me to evidence that the mother has attended programming to address her alcohol use and no one pointed me to any credible and trustworthy evidence of ongoing or current problematic alcohol use.
[19] Cohen J. already addressed this issue in her ruling of May 23, 2017. Despite that, the father argued that there is fresh evidence of alcohol misuse post-May 23, 2017 that I ought to take into account. The father relies on the child's statements to support this argument. I do not accept this evidence as credible and trustworthy at this stage. In both the mother's affidavit sworn August 15, 2017 and the affidavit of child protection worker Mary Highstead sworn August 29, 2017, there are strong suggestions that the father is involving the child in inappropriate discussions, coaching the child to make statements about the mother, and not promoting the child's relationship with the mother. Many of these statements concern allegations of alcohol consumption.
[20] While I appreciate this evidence is not tested at this stage, if it is proven true at trial that the father is coaching the child, then not only would this be completely inappropriate and harmful, but this conduct may very well be a breach of one of the conditions of Spence J.'s June 17, 2015 order (see paragraph 7(a) above). In making this comment, I also rely on Mr. Senson's concerns about the lack of independence of J.D.D.'s instructions, in his dealings with him.
[21] Regarding the concern about historic domestic violence, there is also no evidence that mother is in an abusive relationship any longer. The only evidence in the record is that the mother is now in a stable relationship and has a young child with her current partner.
[22] Similarly, regarding the threat of deportation, the uncontested evidence before me is that this too is no longer an issue. Incidentally the issues of historic domestic violence and the mother's immigration troubles were fully considered by Cohen J. in her ruling of May 23, 2017 and there is no new evidence concerning these issues since then either.
Areas of Ongoing Concern
[23] Despite the improvements, I have a number of concerns about returning J.D.D. to his mother's care at this time. I cannot accept the mother's counsel's submission that there are no ongoing protection concerns, or the Society's submission that there isn't a risk of harm to the child in either party's homes.
[24] First, these submissions are contrary to a recent finding of this Court. Again, on May 23, 2017, Cohen J. already refused to let the Society withdraw the protection application based on ongoing parental conflict. Unlike the other evidence of the mother's individual improvements, there is no evidence of decreased parental conflict; to the contrary, it has very clearly continued over the summer.
[25] I also reject the mother's submission that a return of the child to her care would not be disruptive to him and would amount to a mere "adjustment". One of the core protection concerns identified in the protection application was school attendance under the mother's watch. More generally, this was a concern that the child's educational needs were not being met. In his materials, the father provided me with the child's report cards prior to J.D.D.'s placement in his care and after. Under mother's watch, there were a number of lates and absences, and there has been a marked difference respecting attendance as reflected in the child's report cards since 2015 under father's watch.
[26] The mother's counsel argued that if the child is returned to her care, she is prepared to get the child to school. She wants the child to resume attending the school in her neighborhood, where he attended prior to the apprehension. The difficultly I have with this submission is threefold.
[27] First, I cannot ascertain based on the record before me what the cause of the lates and absences was, whether they were related to the problems that the mother has since overcome, or due to other reasons. I am unable to determine at this stage whether J.D.D.'s attendance problems will resume under mother's watch.
[28] In fairness to the mother, she has not been given an opportunity to demonstrate that she will get J.D.D. to school consistently and on time since the improvement to her circumstances post-apprehension, because the child has been in the father's care.
[29] The father resides in the beaches area of Toronto and so the child now attends school in that neighborhood, and the mother lives in North West part of Toronto. The distance between homes is 38 kms. The father's drives; the mother does not. To get from one location to the other, by TTC the mother would need to take a bus, subway and street car and she has not had the child in her care overnights on a school night since the apprehension.
[30] Second, it is not just the attendance issue that concerns me. There is new evidence that the child may have both learning issues and perhaps ADHD. None of the parties, including the Society, provided me with comprehensive evidence about the child's current educational needs, and my questions during the motion about this went unanswered. To his materials, the father attached an undated letter from a resource teacher at the child's current school indicating that the child has "below grade expectations in reading and writing", that he has "difficulty focusing on tasks including writing, and seems to have difficulty with production in both math and language", that he has "focus issues" and that he had been referred for a pediatric referral at a certain clinic. Although undated, the letter refers to J.D.D. as being in grade 2, and so it was clearly authored during the 2016-2017 school year.
[31] In her letter, the resource teacher said that she awaited "this report [the named clinic] before any further assessments on [J.D.D. would] be done". I read this letter in tandem with the child's report cards, that also reflect that he is struggling in certain areas. I was not given any evidence about the status of this referral, whether it had been followed through upon, or what the report obtained, if any, said, or whether any further remedial steps had been taken at J.D.D.'s school or elsewhere. This is all evidence that has to be in the knowledge of the father, but he did not share it with the mother or the Court or seemingly the Society. There is some also suggestion in the affidavit of the father's partner L.J. sworn August 28, 2017 that J.D.D. may have ADHD and that he has "literacy problems", but I was given very little information about this purported ADHD diagnosis either, or his needs if such a diagnosis exists.
[32] If J.D.D. is returned to the mother' care, the mother says that she will take the child to the library to address the literacy issues. She also intends to ask for assistance to get a tutor for him. But the mother provided me with no evidence about what she has done to learn about the child's apparent learning difficulties and special needs. In fairness to the mother, I was told that she had only just received the undated letter from the resource teacher on August 17, 2017 with the father's motion materials. As it is the summer, the child's school is closed. So I do not fault the mother for not having made appropriate inquires to the school after receipt of this letter. But I am also unclear about the amount of contact she has had, prior to this, with the child's school about the child's progress. I imagine this will be fleshed out at trial, but the plan to return the child to the mother is incomplete.
[33] Although I am not prepared to place the child with the mother pending trial, any impediments to the release of information to the mother must be removed so the mother may get involved in J.D.D.'s education pending trial should she wish to do so. I also intend to make orders concerning disclosure to facilitate the free flow of information to the appropriate persons. But on this motion, I am left with an evidentiary gap that has necessarily impacted my decision.
[34] Third, I do not know whether J.D.D.'s return to the mother at this stage would be destabilizing for him. The mother has re-partnered and has a 1 ½ year old girl of that relationship. I am told that J.D.D. has a close sibling relationship with her. However, I am also told that the mother has three teenage children from St. Vincent whom she is sponsoring to come to Canada. During argument, I asked for more information about the status of the sponsorship, but was not provided with any additional information. Specifically, I do not know about timelines for their arrival, the full nature of their relationship with the mother, the nature of their relationship with the mother's partner or J.D.D., what the residential arrangements will be when/if the three children arrive, and in general, whether or not their arrival may be destabilizing to the existing family unit. The Society's affidavit does not speak to this either.
Trial Readiness
[35] The test articulated in Children's Aid Society of Toronto v. K.D. and R.B. requires me to consider the length of the status quo, the proximity of trial dates and whether the change is sufficient to change the status quo pending trial having regard to the proximity of a trial. I am also mindful of the principles in s. 1 of the Act in considering this. Neither counsel made complete submissions about how trial ready this matter is, or how much trial time is required.
[36] Initially, the father's counsel told me that this matter would take 4 days to be tried. When pressed, he gave me a longer list of witnesses and his estimate of trial time expanded. I then heard from the Society that there may be different witnesses from those listed by the father and that pleadings need to be amended. I also heard there are disclosure issues. In writing this decision, I reviewed Cohen J.'s endorsement of June 13, 2016 from the first trial management conference and saw the parties estimated an 8-9 day trial. But Cohen J. also ordered a further trial management conference to update the situation, which as I said above, has not occurred.
[37] While the case may appear at first blush not to be trial ready, in my view, this alone is insufficient to disturb the 26-month status quo given the concerns I have just highlighted. I can address the trial readiness issue through active case management.
[38] On September 1, 2017, before I reserved, I ordered the parties to re-attend before me on September 11, 2017 for a trial management conference. I gave some preliminary oral comments about what should form part of the parties' Trial Management Conference Briefs, but I will give further and better directions in writing below. I am further extending the time for the parties and the Children's Lawyer to exchange and file their Trial Management Conference Briefs from that which I set out in my Endorsement of September 1, 2017. The parties may do so on or before Friday, September 8, 2017 at 2:00 pm.
The Request to Change Access
[39] While I have declined to change the temporary placement pending trial, section 51(6) of the Act also confers upon me the authority to vary the existing access order. I find that there has been a sufficient change in circumstances to warrant changing the access schedule pending the trial. I am also governed by s. 58 of the Act and the best interests of the child.
[40] Cohen J.'s March 23, 2017 order provides that the parties have week on, week off access over the summer is reviewable at the end of the summer. During the motion, I asked the parents to tell me whether there was an order I could craft that would allow for the 50-50 parenting schedule to continue. Neither parent offered a realistic solution, and both simultaneously objected to this.
[41] I find it is appropriate to maximize contact between J.D.D. and both of his parents, but I am also mindful of the distance between the households, the logistics of travel, and the need to ensure that the child gets to school. To address this, I am making an order that provides that the child will be with the mother on weekends and extended holidays.
[42] In her Notice of Motion, the mother has asked me to order a holiday schedule into the future; the relief sought, as drafted, is essentially in the nature of a final order. I decline to make those orders and leave this issue to the trial judge, but I was told that the mother had been denied holiday time with J.D.D. post-apprehension and so I want to ensure that she has some holiday time with the child until this matter is tried. Not yet knowing when the trial will proceed, I will make holiday orders to cover the time up to March Break 2018. This is not intended to be a statement about when the trial will commence or end, only that I do not wish to invite further interim motions about holidays inadvertently by failing to address holidays far enough into the future. As the parents have given me no realistic plan by which I can continue the 50-50 schedule such that it has to be changed, I would have ordered generous holiday time in any event, even if the mother had not been denied holidays in the past.
[43] The mother does not drive. Therefore, the father shall be responsible for transporting the child to and from the 31 Division police station before and after the regular visits and holiday visits. I do not intend to change the location of access exchanges to an area near the father's home as the father has asked me to do. It is important that J.D.D. sees his mother as much as possible. I am unclear as to the time of the access exchanges historically, and so I require further submissions as to what time I should set where I have used the words "after school" in the schedule set out below.
[44] I also wish to give the mother an opportunity to take J.D.D. to school if is able to. I therefore invite the parties to make submissions in writing as to how I can order a Sunday overnight or a mid-week overnight and how the child will get to school. I am looking for logistics only (ie. which date, and times that I should order, if any). Alternatively, if the mother advises that this is not possible given the distance between households, then I will not entertain further changes to the schedule I am ordering.
J.D.D.'s Football or Other Extra-Curricular Activity
[45] The father enrolled J.D.D. in football close to his home. The mother provided me with some incomplete information about a football program that she said she wished to enrol J.D.D. in close to her home, had I changed the temporary placement. Although I have not changed his placement, I am ordering that J.D.D. reside with his mother each weekend, and the football he currently plays takes place on Saturday mornings. Now that the schedule I am ordering is known, I wish to also give the parties an opportunity to provide additional submissions in writing about J.D.D.'s extra-curricular activities. If she wishes to do so, the mother may give me specific details about a football or other extra-curricular activity in her neighborhood in which she wishes to enrol J.D.D., including the time and location of practices and games, and the logistics about how J.D.D. will get there and participate. If she does and the plan is workable, then I will consider it. The father, the Society and the Children's Lawyer may of course respond and make submissions about this too. Otherwise, J.D.D. may continue in his current football. But if the football remains the same, I need to hear from the mother about whether she is willing or able to take J.D.D. on Saturdays given the distance involved. Otherwise, I will entertain a request that the father shall be at liberty to pick J.D.D. up on Saturday morning at 31 police station and he shall return him there after the Saturday game is over, if he wishes. If so I need the specific times of access exchanges. Otherwise, if neither parent is willing or able to accommodate this, then pursuant to Cohen J.'s order of May 23, 2017, it may be that J.D.D. will not attend football on the weekends when in his mother's care. I am hopeful that the parents will provide me with child focused submissions with a workable plan about football or another activity within these parameters.
Order
[46] Based on the foregoing, I make the following temporary orders:
(a) The child, J.D.D. shall remain in the temporary care and custody of the father, S.O. and he shall continue to attend the same school as in the previous school year. The parties shall include the name of the school in the order to be issued and entered by this Court. I have omitted reference to it for reasons of confidentiality;
(b) I decline to vary any of the conditions that Spence J. imposed on June 17, 2015, which I reproduced in paragraph [7] above, and so those shall continue;
(c) The mother shall have access to the child each weekend from Friday after school until Sunday at 7:00 pm. If there are any P.A. days or school closures on a Friday or Monday, then the mother's weekends shall start on Thursday after school or end on Monday at 7:00 pm, as the case may be. This is subject to my receipt of further submissions about an additional mid-week overnight;
(d) The child shall also be in the mother's care for the following holidays:
(i) for Thanksgiving 2017, from Friday after school until Monday at 7:00 pm;
(ii) from Friday, December 22, 2017 after school until Saturday, December 30, 2017 at 7:00 pm. The father may pick the child up on December 26, 2017 at 9:00 am for the day and return him to the mother's care at 7:00 pm. The child shall then be in his father's care from December 30, 2017 at 7:00 pm until his return to school in the New Year;
(iii) for Family Day, from Friday, February 16, 2018 after school until Monday, February 19, 2017 at 7:00 pm;
(iv) for March Break 2018, from Friday after school before the break until the Sunday before the return to school at 7:00 pm;
(v) this holiday schedule is subject to be changed by the trial judge;
(e) The father shall be responsible for transporting the child to and from the 31 Division police station before and after the regular visits and holiday visits. The parents (and the Society and the Children's Lawyer if they wish to do so) shall provide me with written submissions about what time the father should be able to get J.D.D. to the 31 Division police station, wherever I have used the wording "after school" in this order, so that I can make a further order specifying a time. As I will not decide the issue until the Trial Management Conference on September 11, 2017, for Friday, September 8, 2017 only, the exchange time shall be 5:00 pm;
(f) The parents (and the Society and the Children's Lawyer if they wish to do so) shall make submissions in writing as to how I can order a Sunday overnight or a mid-week overnight with the mother, and how the child will get to school. The submissions shall be as to logistics only (ie. which date, and times that I should order, if any). Alternatively, if the mother advises that this is not possible given the distance between households, then I will not entertain further changes to the schedule I am ordering;
(g) The parents (and the Society and the Children's Lawyer if they wish to do so) shall provide me with submissions about football or another extra-curricular activity within the parameters paragraph 45 above;
(h) The father shall immediately advise the Society and the mother in writing about the following, and he shall also include this information as a schedule to his Trial Management Conference Brief:
(i) the date he received the letter from the resource teacher referred to above;
(ii) a written explanation about what steps he has taken to follow through with the referral;
(iii) all reports obtained as a result; and
(iv) a written explanation as to what steps, if any, the father has taken in furtherance of the above;
(v) a list of all health and educational professionals involved with J.D.D. and the dates of their involvement;
(vi) a list of all health and educational appointments or events currently scheduled; and
(vii) on a going forward basis, the dates and times of all future health and educational appointments or events concerning J.D.D. as soon as they are known to him and in advance of the upcoming appointment or event having occurred;
(i) The parties and the Children's Lawyer shall also advise me as to what disclosure orders are required, what orders I should make to permit the mother's attendance in and participation at health, educational and other appointments or events concerning J.D.D. pending the trial, what further orders, if any, that I should make about J.D.D.'s assessment referred to in the undated letter from the resource teacher if it has not happened or if further steps are required, and what involvement the Society ought to have in facilitating that;
(j) The parties and the Children's Lawyer shall make submissions in writing as to any other terms or conditions that I ought to impose pursuant to section 51(3.2) now that I have released these reasons. They shall specifically address whether I should impose any additional conditions respecting the parental conflict and if so, what terms;
(k) To satisfy my order requiring written submissions about various topics, each party may file a 3 page summary, plus a separate sheet(s) containing specific draft terms that they propose that I order, concerning the outstanding topics only. This summary shall be attached as a Tab to the parties' and the Children's Lawyer's Trial Management Conference Briefs, and I will make the necessary orders relating to the outstanding and ancillary issues at the Trial Management Conference. To be clear, I am specifically requesting specific proposed terms that can be incorporated into an order in addition to the submissions;
(l) The parties and the Children's Lawyer shall serve and file Trial Management Conference Briefs on or before September 8, 2017 at 2:00 pm;
(m) Further to my oral direction on September 1, 2017, the parties and the Children's Lawyer shall address the following points in their Trial Management Conference Briefs:
(i) a timetable for the amendment of pleadings;
(ii) the names of witnesses;
(iii) whether their evidence in chief can be obtained by way of affidavit;
(iv) how much time is required for each witnesses' testimony;
(v) who will be calling the witnesses and a plan for the order of presentation of the evidence;
(vi) any outstanding disclosure issues if not addressed in the written submissions required as set out above and a plan as to how those disclosure issues shall be addressed;
(vii) any evidentiary issues for trial; and
(viii) how the trial can be focused to save on trial time.
For Clarification
[47] For extra clarity, in addition to the detail that I require in the TMC Briefs as set out in paragraph 46(m) above, what remains outstanding by way of written submissions and proposed terms to be attached to the TMC Briefs, so that I may complete my ruling is:
the time for access exchanges to take place at the 31 Division police station where I have used the word "after school" in my order regarding the access schedule;
the Sunday overnight or mid-week overnight issue;
the football or other extra-curricular activity issue;
the information from the father regarding J.D.D.'s health and education that is required pursuant to paragraph 46(h) of this order;
the proposed terms regarding disclosure, to facilitate the mother's involvement in J.D.D.'s health and education, and regarding J.D.D.'s assessment, set out in paragraph 46(i) above; and
the proposed other terms pursuant to s. 51(3.2) as requested in paragraph 46(j) above.
Released: Tuesday, September 5, 2017
Signed: Justice Alex Finlayson
[1] Spence J. defines the word material as requiring a "meaningful" change.