Court File and Parties

Court File No.: Toronto D72178-14 Date: January 6, 2020 Ontario Court of Justice

Between:

P.M.B. Applicant

— AND —

A.R.C.-A. Respondent

Before: Justice Roselyn Zisman

Heard on: December 10 and 11, 2019

Reasons for Judgment released on: January 6, 2020

Counsel:

• Lisa Evans, for the Applicant
• Diane LaFleur, for the Respondent
• Deborah Stewart, Counsel for the Office of the Children's Lawyer, legal representative for the child

Endorsement

Zisman, J.:

Introduction and Background

[1] The Respondent ("father") commenced this Motion to Change on February 1, 2018 seeking to change the orders of Justice Sherr dated July 10, 2015 that granted the Applicant ("mother") sole custody of the children and the order of December 14, 2015 that granted him a detailed access order. He also sought to terminate the restraining order granted by Justice Sherr on December 14, 2015.

[2] In order to understand the context of these proceedings and the parties' relationship with each other it is necessary to briefly review the background.

[3] The parties are the parents of the two children before the court, a son R. born […], 2004 and a daughter L. born […], 2007. They also have an adult daughter who is not part of this proceeding and who has no contact with the father.

[4] The parties and children initially resided in Ottawa. The parties separated in November 2010. The mother and children moved to Toronto on July 1, 2014.

[5] The mother commenced an application on December 8, 2014 and obtained an urgent ex parte order for custody, return of the children's passport, access to the father as agreed to on 48 hours notice and an order that the father not remove the children from Toronto. The basis of the order was that the father had threatened to remove the children to Ottawa. A temporary restraining order was also issued on that date prohibiting the father from coming within 500 metres of the mother's home or workplace and prohibiting him from communicating with the mother except by text or email sent directly to her and not through the children.

[6] There were about 8 subsequent attendances dealing with child support and access issues.

[7] On July 10, 2015 the mother was granted final custody of the children and a final child support order was made. The existing temporary orders for access, health plan coverage and the restraining order were continued.

[8] On September 4, 2015 the parties agreed to a focused trial on the temporary issues and the issue of retroactive child support.

[9] A hearing was held on November 6, 2015 with additional written submissions completed on December 8, 2015.

[10] On December 14, 2015 Justice Sherr released his decision. Justice Sherr found that despite the father's position that the mother was a bad parent the court had no concerns about the mother's parenting. Justice Sherr held that despite the concerns of the father, the mother was able to recognize the importance of the two younger children having a positive relationship with their father and that she had facilitated access with the father and proposed a generous access schedule.

[11] On the other hand, Justice Sherr found that the father acted unilaterally and demanded access on his own terms, often with little or no notice to the mother.

[12] Justice Sherr found that the father had been engaged in a campaign to discredit the mother since she started the case. The father had made multiple complaints to the children's aid society about the mother, all of which were not verified. He also reported his abuse allegations to the police resulting in the children being subjected to a police interview and again no physical abuse by the mother was verified.

[13] Justice Sherr found that the mother had legitimate safety concerns about the father and granted a final restraining order.

[14] Justice Sherr made a very detailed access order. The order required that the access exchanges occur in Toronto whereas the father had requested that the exchanges occur mid-way in Kingston.

[15] Justice Sherr held that the father was not consistent with the exchange times and the children should not be in a different city wondering if the father would arrive on time and further exchanges would be safer for the mother in a locality with which she is familiar. Further, the mother testified that she did not drive on highways and if would be very difficult and stressful for her if the exchanges took place in Kingston.

[16] The Order provided that the father provide the mother with 4 days written notice that he would be exercising access for each scheduled visit, failing which the visit would not take place, unless otherwise agreed. All exchanges were to take place at the 42 Division police station or such other place as agreed upon by the mother.

[17] The father was to communicate all scheduling or access related issues directly to the mother using email or text messages and the mother was to respond within 48 hours. There were several clauses with respect to conduct and inappropriate subjects that the father was not to discuss with the children.

[18] Despite the very detailed parenting order of December 15, 2015 there have been ongoing issues with respect to telephone and in person access and with communication between the parties.

[19] It appears that despite the order granting the father access once a month, this was not being exercised.

[20] There is a disagreement between the parties as to who is at fault. The mother's position is that the father was not adhering to the schedule and the terms of the court order.

[21] The father's position is that the mother was being unnecessarily rigid and punitive and that she was restricting his telephone calls with the children. However, the father sent inappropriate text messages and made accusations about the mother's parenting that only further inflamed the conflict. It was also the father's position that he could not afford to exercise access in Toronto.

[22] The father commenced this Motion to Change on January 25, 2018.

Position of the Parties on the Motion

[23] Although the father initially sought custody of the children, he withdrew that claim in the Spring of 2019. At the trial management conference and the opening of his case, it was his position that he was only requesting telephone access and access every Thanksgiving and every Easter. It was his position that he was only able to exercise limited access as due to being off work for some time he was in debt and was unable to afford to come to Toronto as he had to rent a car and stay in a hotel.

[24] He sought an order that the children travel by train or bus to Ottawa or in the alternative they travel by train or bus to Kingston and he would transport them to his home. He sought an order that each party pay the cost of their portion of the transportation.

[25] It was the position of the mother that the father exercise access once a month from Saturday at 11:00 a.m. to Sunday at 6:00 p.m. with access to be extended on a professional development day or holiday week-end. The father was to exercise access in Toronto. There were also provisions for holiday access with alternate March breaks and a sharing of the Christmas breaks, alternate Family Day, Thanksgiving and Easter week-ends and for two weeks in July and August. The mother sought 7 days written notice confirming that the father would be exercising access and that all communication to be by email.

[26] It was the position of counsel for the children that the children wished to spend more time with the father. A detailed access schedule was filed at the outset of the trial and then a further revised schedule was filed, with the consent of all counsel, a few days after the trial concluded based on the evidence and the position of the parties.

[27] At the outset of the trial, the parties entered a consent with respect to telephone access and that the parties only communicate by email.

Evidence Regarding the Children's Wishes

[28] The first witness in the trial was Darya Greengarten, a clinical investigator with the Office of the Children's Lawyer, who was assigned in October 2018 to assist Deborah Stewart who is the children's counsel. Ms Greengarten filed an affidavit summarizing her extensive contact with the children and collaterals. She was subject to cross-examination.

[29] Ms Greengarten deposed that the children have a loving and caring relationship with both parents. Neither child has a concern about the care they receive when with either parent.

[30] Ms Greengarten deposed that the children are not aware of any conflict between their parents anymore and she notes that this is a significant change from when she first became involved in the case.

[31] In summary, the views and preferences of the children as ascertained by Ms Greengarten and Ms Stewart are as follows:

a) Both children wish to see their father more often and as much as he can manage. They love and miss him and enjoy spending time with him;

b) They do not care if the visits are in Toronto or Ottawa;

c) If the visits are in Ottawa then they want them to be long week-ends or school breaks;

d) They want to keep their Sunday evening telephone calls with their father;

e) They want advance notice as to when the visits will take place and ideally, they want a schedule;

f) They like extended time with their father during March break, Christmas and summer and would like these holidays shared or alternated; and

g) They do not want exchanges to be at a police station.

[32] The children were unclear about how often they had seen their father or what the schedule was.

[33] Since the appointment of counsel for the children and based on the children's memories, access appears to have occurred for 3 weeks in August 2018, Thanksgiving 2018, a week-end in December and some Christmas time in 2018. In 2019, there was access in January, April or May and late August.

[34] With respect to transportation, R. who is 15 years old was prepared to use VIA rail or bus to get to and from Ottawa. L. who is 12 years old was much more cautious and unsure. She would want her father to do a trial run of such a trip and/or would be more comfortable initially just going half way to Kingston. Although R. expressed that he was prepared to travel and be responsible for his sister, she was still not comfortable relying on her brother. However, if R. was going to see the father she would not want to miss the visit.

[35] After the father testified and was cross-examined by counsel for the mother, he was cross-examined by counsel for the children. During that cross-examination, he suddenly changed his position and indicated that he wished access once a month and on the holidays. He agreed that such access was in the best interests of the children.

[36] When asked why he changed his position, he testified it was after hearing the evidence of Ms Greengarten. I note that Ms Greengarten's affidavit was sworn September 16, 2019 and served the same day on counsel. Nevertheless, the father's change of position is in the children's best interests.

Evidence Regarding Miscommunication and Access Issues

[37] Both parties in their affidavits and oral evidence outlined instances of miscommunication about access and both referred to one access visit of concern. A few examples are illustrative of the issues between the parties.

[38] Regarding the week-end of November 17, 2017 the father sent the mother a text stating that he wanted to children from Thursday until Sunday as he resided 5 hours away. After a series of text messages back and forth with the mother indicating that she could not accommodate that request, the father sent a text on Tuesday November 14th that he would not be coming.

[39] Despite this the mother took the children to the meeting place on November 17th. The mother testified that the children were very upset and angry that the father did not attend. The mother did not include in her materials the full text exchange between the parties that clearly shows the father told her he was not coming. When asked why she took the children when the father told her he was not coming, she replied that he may have turned up.

[40] The father did not help matters by the tone of his text messages and by threatening to cut off child support.

[41] Regarding Christmas of 2017, on December 16th, the mother sent a text to the father advising that he could pick up the children on December 23rd at 8:00 a.m. and drop them off on December 30th at 9:00 a.m. and advising him that she needed to know where he would be staying with the children. The father replied that the mother could not be serious about dropping the children off at 9:00 a.m. as that would have meant he needed to wake them up at 3:00 a.m. to arrive in Toronto by 9:00 a.m. The father indicated that he would drop the children off at 3:00 p.m.

[42] On December 20th the mother sent another text advising that if the father did not provide his address by that day, as the court order required 4 days notice, then she would not be showing up at the police station to exchange the children.

[43] On December 22nd counsel for the father wrote to the mother confirming the father would be staying at his sister's address in Gatineau Quebec and confirming that the father would be at the police station to pick up the children as previously arranged at 8:00 a.m. on December 23rd.

[44] For reasons that are not clear, the mother then sent a text stating that access would occur on December 24th at 9:00 a.m. The mother did not attend on December 23rd but instead took the children to the police station on December 24th and sent a text stating that the children were very disappointed that the father did not show up. The mother was aware the father never said he would attend on December 24th.

[45] The mother could not explain why in November she had taken the children for access on a day that the father had told her he was not coming just in case he showed up, but for this access she did not turn up on December 23rd just in case he came.

[46] In answer to a question from the children's counsel the mother could not explain why she had not just gone on her own to the police station to see if the father attended as opposed to taking the children since the station was only 5-10 minutes from her home.

[47] The father did not help this situation by not simply advising the mother that he would be spending time with the children at his sister's residence in Gatineau whether on not he believed she already knew that. The exchange between the mother and father's counsel was also out of proportion and inappropriate. Counsel should not have involved herself in increasing the conflict between the parties.

[48] However, the mother unnecessarily put the children in the situation of being upset, disappointed and believing that their father did not care about them.

[49] Shortly after this incident the father began his Motion to Change.

[50] Attempts to organize March break for 2019 also did not occur despite the intervention of counsel for the children.

[51] By way of another example, the father exercised access on August 24-25, 2019. The father was supposed to return the children at 7:00 p.m. At 7:07 p.m. the mother emailed the father asking where he was. Unfortunately, the father responded by text saying, "Kids just had dinner coming. So Sorry your majesty."

[52] At 7:24 p.m. the father sent another text that reads as follows, "They just had dinner something that don't get in your so called household. When they are with me they actually have real food good. Not the garbage that you feed them."

[53] The mother had instructed her friend F.C. to video the father's arrival. They had arranged for the exchange to occur at the Tim Horton's. When the father arrived, he then also began to video tape. Both men became angry. Although there was no violence the situation was upsetting to the children.

[54] The mother testified that she did not think telling Mr. C. to video tape the father arriving late would cause a problem despite the history of conflict.

[55] Both children told their counsel and Ms Greengarten that they were very embarrassed and L. was very upset by the behaviours of both the mother's boyfriend and her father. She was prevented from saying a proper good bye to her father and the end of the visit was ruined for her.

[56] The father apologized for this text when he testified and agreed that it was not appropriate. The father could have also sent a text stating he was going to be late as he was taking the children to eat. On the other hand, the mother and Mr. C. completely overreacted to the father being a few minutes late and escalated the situation for no appropriate reason.

[57] It is important for the children to maintain telephone calls with their father. The mother only permitted the children to communicate with the father using the mother's cell phone.

[58] However, in late 2018 counsel for the children learnt that there is a landline in the home and that R. had a cell phone but neither child was permitted to use the landline or the cell phone to have contact with their father.

[59] The mother in cross-examination did not deny these facts. The mother testified that R. had lost his phone and did not receive another phone as a punishment. The mother was vague with respect to when this happened or how long this punishment would continue.

Discussion Regarding Access and Transportation Issues

[60] It is trite law that the children should have maximum contact with both parents if it is consistent with their best interests. (See Gordon v. Goertz, [1996] 2 S.C.R. 27.)

[61] In this case, it is important for the children to see that their mother values their relationship with the father and encourages and facilitates both their telephone and in person contact with their father.

[62] It is just as important for the children to see that their father respects and values the care that the mother is providing to the children and that she is not seen as demeaning or criticizing her.

[63] There is a history of considerable conflict between these parents and lengthy court proceedings. But the parents need to move forward.

[64] It is not enough for the mother to give lip service to the need for the children to have a meaningful relationship with their father. She has been unnecessarily rigid with respect to arrangements for access and telephone contact.

[65] The father has also not helped by making many changes to the schedule, making demands and being stubborn about not providing information to the mother.

[66] The parties and the children all agree that a schedule that is workable is necessary and that the children and the mother need to know if the father can exercise access.

[67] Counsel for the children submitted that given the distance between the parents' home and the children's wish to have more contact with their father that there should be greater use of electronic communication.

[68] The children advised that the mother's home has internet but the children are only allowed to access it on their mother's cell phone. There is a computer in the home but it is not accessible to the children as it belongs to the mother's boyfriend who according to the children does not reside in the home but spends most weekends there.

[69] The benefit of the children having a cell phone or tablet with access to Skype or Facetime to permit them to have more contact with the father and to reduce any conflict between the parents would far outweigh the expense of such devices. Although the court cannot order either parent to purchase these devices for the children, I would recommend that this be seriously considered.

[70] However, as a safety measure if the children are travelling on their own to visit their father, the mother must ensure that they have a cell phone so that they can contact the father if they are arriving later than scheduled or to ensure that they meet him at the proper meeting place. The mother agreed that a cellphone for this purpose would not be expensive to purchase.

[71] Based on the ages of the children and despite the trepidation of L. I find that the children should be able to travel on their own at least to Kingston to visit their father. It is important that the mother participate and share both in the arrangements for travel and the cost of such travel.

[72] Although the mother and Mr. C. both testified that they were not able to drive the children half way to Kingston, they reluctantly agreed that they could arrange for the children to be taken to Union Station. The father would then meet them at the Via train station in Kingston and drive them to his home in Ottawa or to visit and stay with the paternal aunt who resides in Gatineau.

[73] There was also a proposal that the children travel by either train or bus. However, as I have determined that the children can travel to Kingston on their own, I am reluctant to then complicate matters by permitting alternative travel by bus as the pick up is to be at the Via train station and there was no evidence as to the location of the bus station in Kingston. If the mother or her designate is willing to drive the children to Kingston then this would be an acceptable alternative otherwise, the children will travel by train.

[74] With respect to the actual schedule, after the father changed his position there were only a few holidays in dispute. The mother wished to alternate the Family Day long week-end in February but given the distance, I find that the father should be able to see the children on any long week-end if he can arrange time off work. It is entirely possible that he may not be able to exercise access every Family Day week-end but it is the best interests of the children that he be given the option to do so.

[75] With respect to the summer, the mother proposed that the father have two weeks in July and two weeks in August. But in cross-examination by counsel for the children, it was pointed out that R. attended summer school in July before he entered high school and it is possible that L. may wish to do the same or that both children may wish to attend summer school at some point. Further, spending one month with each parent would eliminate extra travel for the children, reduce costs and would coincide with their preferences.

[76] A detailed proposal regarding access, transportation and communication issues was prepared by counsel for the children. I have adopted most of that proposal as I find that it is consistent with the children's views and preferences and in their best interests.

[77] However, counsel for the children's draft proposal differentiated the transportation arrangements for long week-ends and the extended holidays. On the holidays, counsel proposed that the father be required to travel to and from Toronto. I see no reason why the children should not be able to travel with their luggage for these longer holidays if they are able to travel by train for the long week-ends. Further, having found that the mother should share in the travel arrangements there is no principled reason to differentiate between the long week-ends and the holidays.

Discussion Regarding Restraining Order

[78] In granting a restraining order, the court must be satisfied that there reasonable grounds for the party to fear for his or her safety or for the safety of any child in his or her custody. (See Family Law Act, s. 46 and Children's Law Reform Act s.35.)

[79] The case law has interpreted these provisions to mean that the fear must be reasonable, the fear may be entirely subjective as long as it is legitimate and the fear may be equally for psychological safety as well as for physical safety.

[80] Justice Paulseth in the decision of Children's Aid Society of Toronto v. L.S., [2017] ONCJ 506 at paragraph 44 summarizes the case law as follows:

• Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

• A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person's ability to work. It may affect a person's immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

• It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring, 2004 ONCJ 195.

• Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child". See: McCall v. Res, 2013 ONCJ 254.

• The person's fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154; McCall v. Res, supra.

• A person's subjective fear can extend to both the person's physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

• It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

• A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

• A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. See: Fuda v. Fuda, supra.

• Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.

• In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.

• It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.

• A no-contact or communication order made pursuant to section 28 of the Children's Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

[81] In his decision of December 1, 2015 Justice Sherr found that the mother's request for a restraining order limited to herself met these criteria.

[82] The father deposed that since the imposition of the restraining order he has not breached the terms, he has not had contact with the mother except by text or email or when she is present at access exchanges. However, he deposed that for the last several years the mother has not been present at such exchanges but that Mr. C. is present at the exchanges. The mother confirmed in her testimony that Mr. C. has been doing the access exchanges since early 2017.

[83] The father deposed that having a restraining order has negatively impacted his living circumstances and job prospects. He had to move out of his sister's home as she runs a home daycare and a background check was required for anyone living in the home. He works part-time at a retirement home and if his employer does a background check he would be in jeopardy of losing that employment. Further, he is experiencing workplace harassment at his present workplace and he is prevented from applying for a new job as if a background check is done the restraining order will appear on his file.

[84] The mother testified that she continues to fear for her safety. The children spoke of seeing their mother run to the washroom to vomit when she had contact with the father. However, in an interview on September 12, 2019, L. reported that to her knowledge the mother no longer reacts in this manner at home.

[85] The mother testified that on at least one occasion she saw the father around her home. This was denied by the father and given the mother's alleged fear of the father it is inconceivable that she would not have reported such a breach to the police.

[86] The mother testified about an incident where at an exchange in the police station the father threatened her in Spanish. She stated that this happened in 2017 or 2018 but could not recall the exact date. The mother testified that she reported this to the police officer but was told that the restraining order was not clear and she should speak to her lawyer. However, the mother never returned to family court. The only police report filed is dated November 14, 2017 when the mother reported that she just discovered that on August 1, 2017 the father has emailed their son to obtain her new address. The mother did not report any assault or threat by the father.

[87] Although the text messages reproduced by the mother shows the father calling her names, being condescending and sarcastic, there is no actual threat to her safety.

[88] The mother further alleges that at a court attendance on November 26, 2018, the father as he was leaving the courtroom made threats towards Mr. C. Mr. C. testified that the father said, "afuera" which is slang in Spanish for, something along the lines of "wait until I get you outside." Mr. C. also testified that he saw the father make a "pointed-finger gun" gesture. As a result of this incident the mother testified that she is fearful of the father even though she did not personally witness this incident. The mother now requests that there be security in the courtroom.

[89] The mother and Mr. C. reported this incident to court security. Mr. C. later reported this incident to the police but no charges were laid. He then filed a private information with the justice of the peace which is outstanding.

[90] Mr. C. is 6 feet 1 inch tall and weighs 235 pounds. He is considerable bigger and taller than the father. He works in construction and as a security guard. I found his evidence that he feared for his safety from the father and his description of the incident in court on November 26, 2018 to be improbable.

[91] I find that although the mother may subjectively fear the father, at this time and with the passage of time I do not find that her fear is reasonable or justifies the imposition of a restraining order on the father. The father's evidence that the imposition of the restraining order has caused him difficulties and will impact on his ability to find new employment was not challenged in cross-examination.

[92] The parties have not had any physical contact since at least 2017 and they have agreed on new terms of communication. I expect the father will be more appropriate in his future communications with the mother. Further, there should be even fewer instances requiring the parties to communicate at all.

[93] I find the imposing a conduct order pursuant to section 28 of the Children's Law Reform Act will give the mother some peace of mind and eliminate some of her concerns.

Order

[94] There will be an order varying and replacing paragraphs 1, 2, 3, 4, 6, 7, 11, 13, 14, 15, 16, 17, 18, 20 (g) and (h) and 28 the order of Justice Sherr dated December 14, 2015 as follows:

1. Access Schedule

a) The Respondent father shall have access to the children namely L. born […], 2007 and R. born […], 2004, (referred to collectively as the "children" or individually as the "child") at a minimum of one weekend each month.

b) The Respondent father's access to the said children shall include the following schedule, with respect to the February Family Day weekend, alternate Easter long weekend, Victoria Day long weekend, alternate Thanksgiving Day weekend, Christmas and August (also referred to as "holiday access") and shall be in lieu of the monthly access for that specified month as follows:

(i) February Family Day weekend: that includes Family Day Monday from Friday afternoon to Monday afternoon and if the Friday is a PA day for either child, access shall commence on Thursday afternoon, subject to the other terms herein re notice;

(ii) March Break week: shall alternate between the parties. Commencing in 2021 the March break week shall be with the Respondent father commencing on Friday afternoon and if the Friday is a PA day for either child, access shall commence on Thursday afternoon;

(iii) Easter long weekend: shall alternate between the parties. Commencing in 2020 the children shall be with the Respondent father from Thursday afternoon to Sunday afternoon;

(iv) Victoria Day May long weekend: shall be with the Respondent father from Friday afternoon to Monday afternoon and if the Friday is a PA day for either child, access shall commence on the Thursday afternoon, subject to the other terms herein re notice;

(v) Father's Day: such access shall be on the weekend where the Sunday is Father's Day, which is the third weekend of June and shall occur in Toronto/GTA from Saturday at 11:00 a.m. to Sunday at 7:00 p.m.;

(vi) Summer - The children shall spend the month of July with the Applicant mother. The children shall spend the month of August with the Respondent father, as follows:

a) Respondent father's time with the children will commence on the first Saturday of the month in the afternoon;

b) The Respondent father shall return the children at the end of his summer access to Kingston as follows:

(i) In even years commencing 2020, the children shall be returned by the Respondent father on the Saturday of Labour Day weekend, by the afternoon;

(ii) In odd years, commencing 2021, the children shall be returned by the Respondent father on the Sunday immediately prior to L.'s birthday by the afternoon;

(vii) October Thanksgiving long weekend – the children shall alternate Thanksgiving weekends with the Respondent father so that they are with him in odd years which shall commence in 2021. The weekend shall commence on Friday afternoon and continue to the Monday afternoon and if the Friday is a PA day for either child, access shall commence on Thursday afternoon, subject to the other terms herein re notice;

(viii) Christmas school break – The children shall spend a week with the Respondent father at Christmas school break. The children shall be with the Respondent father from the first Saturday of that two week school break, commencing Saturday afternoon until the second Sunday afternoon, being the end of the first full week of the school break; the second week of this school break shall be spent with the Applicant mother;

(ix) In any month where there is not already a pre scheduled access visit as set forth above, the Respondent father may exercise access to the children in Toronto on the third weekend of the month, with third weekend defined as starting on the third Saturday of the month at 11:00 a.m. to Sunday 7:00 p.m. It is expected this will only occur, if at all, in January, June (already scheduled above for Father's Day weekend), September and November. It shall not occur in any month where an access visit is scheduled to occur in alternating years (March, April, October) or in July or August. The Respondent father shall notify mother by email and each child by phone, at least 10 days prior to the access occurring to inform them whether he will be attending on such third weekend of the month access with such access to occur in Toronto GTA area;

(x) The Respondent father shall notify the mother by email and each child by phone at least 10 days prior to the access occurring as scheduled in (i) to (viii), if he is not able to attend such scheduled access, subject to emergencies arising;

(xi) Any access time that only involves one overnight for the Respondent father and the children, shall be exercised in the Toronto GTA area;

(xii) Both parents shall verbally inform the children of all access visits and any changes at least 10 days in advance. The Applicant mother shall ensure each child has a yearly calendar of the visits schedule as set out above;

(xiii) All communication by the Respondent father and the Applicant mother shall be by way of email except in emergency time sensitive matters related to either child's safety, in which case phone or text may be used for only that limited purpose;

(xiv) Changes and additional access only as agreed between the parents, in consideration of the children's wishes, and all such requests and responses to be in writing and by email on at least 10 days notice, unless urgent circumstances for either parent or children preclude that amount of notice;

(xv) The Applicant mother shall notify the father at least 60 days in advance of any of the "Holiday Access" times that have a PA Day on the Friday; the Respondent father shall inform the mother within 45 days of the start of the "Holiday Access" that has a PA Day on the Friday whether he will exercise his access with an exchange in Kingston on the Thursday evening or the Friday evening, so as to allow appropriate arrangements by the mother, including train ticket purchase being made. Failure by the Respondent father to respond as required will result in the exchange being deemed to occur on the Friday and not the Thursday, so the Applicant mother may purchase train tickets if she chooses that method of transportation in advance;

(xvi) Additional safety provisions:

On any of the exchanges that are to occur at the Kingston VIA rail station (the Holiday Access), the following shall occur:

a) The Respondent father shall confirm by text with Applicant mother on the day of the visit that he is attending for the exchange in Kingston;

b) In the event the child is travelling by means of VIA rail, without a parent or responsible adult, the mother shall ensure the child has use of a cell phone with voice and text available;

c) In the event the child is travelling by means of VIA rail without the Applicant mother or a responsible adult, the Respondent father shall text the Applicant mother once the children have safely arrived at the Kingston exchange, or on the children being placed on any VIA rail train on the return, and waiting and then confirming the train has departed; and the Applicant mother shall text the Respondent father once the children have safely arrived on return at the Toronto Union station, or on the children's train having departed from Toronto Union station;

d) The Applicant mother to inform the Respondent father at least 10 days in advance of the Holiday Access, whether the children are arriving at the Kingston VIA rail exchange location or by private vehicle, and all details of same (driver or train scheduled).

2. Exchanges

Holiday access:

a) On Holiday Access, the exchange will occur at Kingston VIA rail station in Kingston Ontario;

b) The pick up by the Respondent father at the start of the Holiday Access shall occur in Kingston at 20:00;

If the VIA train transportation method is chosen by mother, the children shall depart Toronto Union station by about 17:00 and the scheduled train that arrives at as close to 20:00 as possible in Kingston, currently being the VIA rail train #54 departing Union at 17:40, and arriving Kingston at 20:09 shall be used by the children;

c) The return by the Respondent father at the end of the Holiday Access shall also occur at Kingston VIA rail station on the Monday (or Sunday) at 17:00;

If the VIA train transportation method is chosen by the Applicant mother, the scheduled train to be used by the children shall depart from Kingston close to 17:00, and arrives at as close to 20:00 as possible at Toronto Union station, currently being the VIA rail train #55 departing Kingston at 17:38, and arriving Toronto at 19:57 shall be used by the children;

d) If the Friday prior to the Holiday Access is a PA Day, the exchange shall occur on the Thursday, with the same arrangements otherwise, subject to the notice requirements by Applicant mother to the Respondent father and the Respondent father to the Applicant mother herein;

e) Each child shall have his or her own (return if applicable) train ticket in his or her possession;

f) Each parent shall be responsible for arranging the transportation of that parent's choice for the children to the Kingston Via rail station for the exchange;

g) It shall be the responsibility of the parent transporting the child to or from either Toronto in the case of the Applicant mother, or to or from the Ottawa area in the case of the Respondent father, to the exchange location for the Holiday Access exchange location in Kingston, to ensure the children have had proper preparation for safety and only use the Via train once the child or children are comfortable and it is safe for the child or children to do so, and for the parent to pay such costs;

h) Each parent shall keep the other informed as to the method of transportation to or from Kingston whether by private vehicle or public transportation, including exchange person driving the children if a private vehicle is used, and all specifics related to the Via train used by the children, including train number, departure and arrival times;

i) The Applicant mother shall ensure the children have the use of a cell phone with voice and text access for use being used for the exchanges in Kingston.

Other access exchanges

(j) On all other visits other than the Holiday Access, the pickup and drop off shall occur at the Tim Horton's, 5250 Dundas Street West, Toronto. Pick Ups shall be Saturday at 11a.m., and return on the designated day Sunday at 7p.m.

3. Communications Between the Parents

All communication between the parents shall be by email, and only focused on the children, their needs, and the access arrangements, except in urgent time sensitive matters related to the children's safety or day of time changes to the access, in which instance text may be used.

4. Information Re Children

Both parents shall keep the other informed of any significant events or concerns with respect to either child, including any matters related to their health, education and well being. The Applicant mother shall ensure the Respondent father is provided with school report cards in a timely manner as received by her. All such exchange of information shall occur by email.

5. Children to Be Kept Informed of the Schedule by Both Parents

a. Both parents shall ensure that he or she has kept the children fully informed of the access plan and any changes to it; as such plans and any changes occur. The parents shall both respect that the children value their time with the Respondent father but must also have their own need to schedule the rest of their life respected. To do so, the children shall be kept fully informed regarding the schedule and updates by both parents. Emails shall be responded to within 48 hours, unless urgency requires a more immediate response.

b. The Applicant mother shall be responsible for providing to each child a calendar that sets out the visit schedule for each calendar year no later than January 15 of that year, and a copy shared with the Respondent father to avoid and limit conflict and confusion. Both parents are responsible for ensuring the children each individually are informed of the schedule and any modifications, with at least 10 days notice except in urgent unexpected circumstances.

6. Telephone Calls

On consent the parties agree that the children shall have telephone and electronic communication with the Respondent father as follows:

a) every Sunday at 7:30 p.m.;

b) at any other times as either child may wish on any device in the home including landlines, tablet, cell phone; and

c) telephone calls shall be in private.

7. Restraining Order

The restraining order made on December 1, 2015 is terminated.

8. Conduct Order

Pursuant to section 28 of the Children's Law Reform Act,

a) the Respondent father shall not contact or communicate directly or indirectly with the Applicant mother except as permitted by this Order;

b) the Respondent father shall not come within 500 metres of the Applicant mother's home or her workplace except for the purposes of exercising access to the children or except for attending a school or extracurricular event that either child is participating in.

[95] In the event the issue of costs cannot be resolved, the party requesting costs shall within 30 days submit brief written cost submissions, not to exceed 3 pages, with a Bill of Costs and any offer to settle attached. The responding party shall within 30 days of receipt of the cost submissions of the other party, submit brief written cost submissions, not to exceed 3 pages, with any offer to settle and a Bill of Costs, if desired. All cost submissions to be submitted to the trial co-ordinator's office. If case law is been referred to, copies of the cases are not necessary.

Released: January 6, 2020

Signed: Justice Roselyn Zisman