Court File and Parties
Date: May 4, 2020
Court File Number: 323/20
Ontario Court of Justice
Applicant: L.M.B.
Counsel: Glen Cook
Respondent: F.J.D.
Counsel: Shokeen Singh
Endorsement
Justice M. Cheung
Overview
[1] This case is about the children, S.D., born [….2013] and F.D., born [….2015].
[2] The Applicant is their mother and the Respondent is their father.
[3] On April 28, 2020, the court heard a motion regarding each party's request for temporary parenting orders concerning these children. These are the court's reasons and decision.
Background Facts
[4] The parties separated in April 2017.
[5] There is no pre-existing court order, nor is there a domestic agreement, that governs the parenting arrangements for these children.
[6] Until the weekend of March 20, 2020, the parties have been operating on the basis of an informal parenting arrangement, which has not been reduced into any written form.
[7] Generally, the children had been residing during the weekdays with the mother and on certain weekends with the father.
[8] Both parties' evidence was consistent that other visits between the children and the father, outside of weekend time, were arranged periodically between the parties in the past, albeit inconsistently.
[9] The children attend elementary school in Peel. S.D. is in grade one and F.D. is in junior kindergarten.
[10] The mother is a stay-at-home parent, for the most part, receiving Ontario Works but working odd jobs, sporadically. The mother resides in a home which was owned by her grandfather (the children's great-grandfather), who passed away in December 2019. The home is currently part of her grandfather's estate and while the long-term plan is to sell it, there is no imminent sale of this home.
[11] The father is a self-employed carpenter, who works Monday to Friday. He resides in a basement residence on his own.
[12] Both paternal and maternal grandfathers have ongoing and regular relationships with the children and they each swore an affidavit filed for this motion.
[13] The parties live in different cities, approximately 45 minutes away by car. The mother does not drive currently, as a result of an outstanding charge for impaired driving laid in February of 2019. This charge remains before the court, awaiting trial dates or other resolution.
[14] The paternal grandfather has been the individual who was generally picking up and dropping off the children for the access exchanges. The paternal grandfather generally picks the children up from school on Fridays and returns them to the mother on Sundays.
[15] On the weekend commencing March 20, 2020, the children went to visit their father. On Sunday, March 22, 2020, the father did not return the children to the mother. The father informed the mother that he was keeping the children. The father also informed the mother that, if she wanted to see her children, she would need to visit them at the home of the paternal grandfather, where the father would supervise her from afar.
[16] Since that time, the children have not seen their mother in person except on one occasion, on April 23, 2020, at the home of the paternal grandfather, for several hours.
[17] The Peel Children's Aid Society (PCAS) has been involved with this family, working on a voluntary basis. The protection concerns, from September 2018 until March 2020, have been in relation to the parenting of the mother. The PCAS has been involved with the mother as a result of worries about the children's "exposure to partner violence and caregiver capacity causing risk of harm".
[18] In 2018, the mother was in a short-term, intimate relationship with S.R., an individual who has assaulted and harassed her. In the fall of 2018, this individual fired a gun at her home. It happened to be while the father was at the home as well, sharing Halloween with the children. This individual is currently incarcerated, awaiting a trial in September 2020.
[19] The mother and the children have had an ongoing PCAS worker visiting them on a monthly basis. The PCAS worker provided a letter dated April 23, 2020, outlining the PCAS involvement. The PCAS has said that, during the monthly meetings, the children's emotional and physical well-being needs appeared to be met. The worker has observed the children to be comfortable in the mother's presence and no safety concerns were noted. The worker also met with the children at school and the children did not report any concerns about the mother's care of the children.
[20] The PCAS worker's last meeting with the mother and the children was on March 11, 2020. On that date, the PCAS intended on closing the child protection file, because the protection concerns (of exposure to partner violence and of caregiver capacity causing risk of harm), had been adequately addressed by the mother.
[21] However, since that time, the PCAS has re-initiated their involvement with this family as a result of the escalating adult conflict between the parties and due to the parties' worsening custody and access dispute.
Positions of the Parties
[22] Each party's requests when the motion was argued, deviated slightly from what was pleaded in their Notices of Motion.
[23] On April 28, 2020, the mother's position was that:
a. She should be granted an order of temporary sole custody and that the children reside primarily with her;
b. The father be prevented from removing the children from the GTA;
c. The court should make a police enforcement order; and
d. The father's access with the children should be every other weekend from Fridays at 5 pm to Sundays at 6 pm.
[24] On April 28, 2020, the father's position was that:
a. He should be granted temporary sole custody of the children and that the children reside primarily with him;
b. The mother should exercise daytime access that takes place at the home of the paternal grandfather, weekly for several hours on a weekday and every other weekend from 12-5 pm. At the time of the motion, the father's position had deviated with respect to the level of supervised sought. In his Notice of Motion, the father sought that he be entitled to supervise the mother's access from afar but at the time of the motion, he sought that the access take place at the paternal grandfather's home while the father or paternal grandfather was on site, but it did not need to be supervised;
c. The children should have daily Skype or FaceTime contact with the mother; and
d. The court should make a police enforcement order.
Issue
[25] The issue to be decided by the court is:
What temporary orders relating to primary residence, custody and access are in the best interests of S.D. and F.D. pending the final disposition of this application?
Statutory Framework
[26] s.28 of the Children's Law Reform Act permits the court to grant custody of or access to the children to one or more persons and to make such additional orders that the court considers necessary and proper in the circumstances.
[27] The legal framework within which a request for custody, whether temporary or permanent, should be made is set out in s. 24 of the Children's Law Reform Act. Essentially, it is a best interests analysis.
Merits of Application for Custody or Access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best Interests of Child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past Conduct
(3) A person's past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.
Violence and Abuse
(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child.
[28] Under section 20 of the Children's Law Reform Act, both parents are equally entitled to custody of a child. Where the parents live separate and apart, and the child resides with one parent with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, to make inquiries, and be given information as to the child's health, education, and welfare (see sections 20(1), (4), and (5) of the Children's Law Reform Act).
Analysis
The Significance of the Status Quo
[29] On a temporary motion, courts should be cautious against ordering a disruption to a defacto situation or a "status quo" arrangement that has existed. In Batsinda v. Batsinda, 2013 ONSC 7899, Justice Chappell wrote:
In a number of cases, this court has held that as a general rule, changes to existing custody, residence and access arrangements that have evolved either as a result of temporary orders or otherwise should not be made pending trial unless there are compelling circumstances which render a change absolutely necessary in order to satisfy the child's best interests. (Doell v. Cassar, 2009 CarswellOnt 7217 (S.C.J.); Osama v. Sayegh 2004 CarswellOnt 3732 (S.C.J.); David v. McCain, 2005 CarswellOnt 7183 (S.C.J.); Kimpton v. Kimpton, [2002] OJ. No. 5367 (S.C.J.))
However, I rely on the principles which the Ontario Court of Appeal set out in Papp v. Papp, [1970] 1 O.R. 331 (C.A.) respecting the weight to be accorded to de facto custodial and access arrangements in the context of motions for temporary custody and access. In that case, the court recognized that the existing arrangements, and how well they are working for the child, are relevant factors in deciding such motions. It stated that as a working rule, a disturbance of the status quo at the interim stage requires more cogent evidence than may be required to disrupt the status quo after trial.
[30] However, that is not to say there is a strict presumption in favour of the status quo. The applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the existing arrangements. (See Batsinda v. Batsinda, 2013 ONSC 7899, paragraphs 26-27).
[31] In determining what was the "status quo", situations unreasonably or unilaterally created by one party to the detriment of the other, to create a tactical advantage, should not be considered the "status quo". The status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party. (See Batsinda v. Batsinda, 2013 ONSC 7899, paragraph 28 and Kimpton v. Kimpton, [2002] OJ. No. 5367 (SCJ), paragraph 1).
The Status Quo
[32] The parties have been separated for three years.
[33] The starting point is the determination of what was the status quo in the period of time leading up to the weekend of March 20, 2020.
[34] The status quo is not the situation that has been in place since the weekend of March 20, 2020 – in other words, the children living exclusively with the father – because that was a situation made unilaterally by the father.
[35] The evidence is unequivocal that, from the time of separation until the weekend of March 20, 2020, the children resided from Monday to Friday with the mother and on certain weekends, with the father.
[36] The parties were not in agreement with respect to the amount of weekend time that the children were generally spending with the father. The mother says that the children generally spend every other weekend with their father and the father says that the children had been spending three weekends per month with him.
[37] Although it is disputed how many weekends per month the children spent with the father, I find that it is not material for the court to determine this fact precisely.
[38] Even if I accept that the children were with the father on three weekends every month, I would still find that the children had been primarily resident with and primarily cared for by their mother. The father was working on the weekdays, the mother generally was not and the children were registered and attending school in Peel.
Father's Request for a Change to the Status Quo
[39] The father now seeks to change the children's primary residence and caregiving situation and he also seeks to restrict the mother's contact with the children.
[40] The father's request for a change in the existing status quo, if granted, would be a very significant and serious restriction on the relationship between the mother and her children.
[41] The court considers this request within the context of a number of established principles of law:
a. With very few exceptions, all children benefit from having a loving relationship with both parents. In those unfortunate cases where parents separate and the child must live with only one parent, either the parents or the court will usually attempt to provide for "typical" or "normal" access to the non-custodial parent. This may be something like: alternate weekends, sharing of holiday time, special occasions, and so on. A parent who seeks to reduce normal access will usually be required to provide a justification for taking such a position. And the greater the restriction sought, the more important it becomes to justify that restriction. The most restrictive form of access is supervised access. See A.(M.) v. D.(J.);
b. The general rule is that a child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; and
c. The jurisprudence is clear that the court ought not to change the status quo for the children – that which existed prior to the unilateral actions of the Respondent – on a temporary basis, absent compelling reason to do so. See Batsinda v. Batsinda, 2013 ONSC 7899.
[42] On the facts of this case, do such compelling reasons exist that would warrant a change in the status quo that existed prior to the Respondent's actions?
[43] Firstly, the father submits in his evidence, his view that the mother has a mental health problem.
[44] A review of the evidence on this motion establishes that the father's assertions that the mother has mental health problems are speculative and unsupported by any tangible evidence that is filed with the court.
[45] Secondly, the father alleges that the children are being neglected and put at risk of physical harm when parented by the mother.
[46] The evidence tendered by the father, which includes an affidavit from the paternal grandfather, claims that the children's instrumental needs are not being met. The paternal grandfather deposed that the children are hungry at the end of the school day, their lunch bags and knapsacks are unclean and "disgusting". The evidence tendered by the father asserts that the children go to school, to their activities and to the father's home, missing essential needs or having inadequate pieces of clothing as a result of the mother's neglect.
[47] The evidence tendered by the mother, which includes an affidavit from the maternal grandfather, contradicts the father's evidence and indicates that the children are well fed and cared for. The mother also filed the letter dated April 23, 2020 from the PCAS.
[48] Thirdly, the father contends that the mother's erratic behaviour has placed the children at risk. With examples from the past, he describes the mother as disorganized, unpredictable and having made irresponsible decisions that placed the children at risk.
[49] More recently, the father states that there are safety concerns about the condition of the mother's home, as a result of attic insulation that has entered the living space. The father describes his belief that the mother irresponsibly entered into the attic, in search of valuables which she believed was hidden there. He complains that the mother's decision to open up the attic, unleashing harmful insulation into the children's living area, was irresponsible and dangerous.
[50] He also alleged that the mother acquired a puppy, introduced the puppy to the children, who got attached to it and then, the mother neglected the puppy and gave the puppy away, which upset the children. He also raises alarm that the mother's decision to remove the puppy was because she felt her home environment was not safe for the puppy, yet the mother has no concern for her children living in that same environment.
[51] The mother's evidence provides the court with a different perspective with respect to each of these concerns the father has raised. She explains that the house is undergoing some renovations in view of an eventual sale of the house and that she still owns the puppy but simply has the puppy staying elsewhere during the renovations. While she concedes that she entered the attic, and that insulation came out and into the home, she indicates that she took steps to keep the children away from the insulation and that she now has cleaned it up so there is no further concern. Her evidence included a picture of the door panel to the attic and the surrounding area, which appears clean and empty.
[52] The parties' evidence is diametrically opposed. Each party has tendered sworn evidence of their own and each party has an affidavit sworn by their respective fathers in support of them.
[53] Temporary orders are holding orders determined on incomplete and evolving evidence. Temporary orders are not intended to be perfect. They promote some measure of interim fairness while matters progress to a final resolution or determination. At best, temporary orders create or maintain interim stability and fairness. P.W. v. P.T.W., 2017 ONSC 5593 and Hatuka v. Segal, 2017 ONSC 5623.
[54] However, given the length of time that it can take for a matter to reach a trial hearing, temporary orders have the potential of creating significant advantage for a party.
[55] There are inherent frailties of adjudication on temporary motions, where the court does not have the benefit of evidence that has been tempered, or alternatively, brought into sharper focus by the tool of cross-examination.
[56] The court must therefore be cautious in coming to conclusions in a motion, where evidence of the parties has appeared to conflict.
[57] The source of a good portion of the information supporting concerns raised by the father are statements from the children. It is clear to the court that the children's statements are tendered for the purpose of establishing the truth of the contents of the statements.
[58] S.D. and F.D. are 7 and 4 years of age, respectively. The children are very young. In the evidence, there is little context surrounding the circumstances within which these statements of the children came forth. In addition, there is little information about the cognitive, developmental or experiential background of these children to enable the court to properly assess the reliability of their statements. These factors weigh against the reliance by the court on the statements of the children for the truth of what the father states the children said.
[59] The father states in his affidavit that the back story surrounding the mother's entry into the attic is "as confusing as it sounds." In the father's evidence, the narrative originates from S.D.'s statement which in turn comes from another statement that S.D. heard from "her mother's friend". This evidence is not reliable presented in this manner.
[60] The mother does not deny that she went into the attic and that some attic insulation entered into the home living environment, but she states that she kept the children away from it and that she has cleaned it up. The mother denies that there was even any mess or health risk to the children.
[61] The father, himself, has not been in the home since October 2018. He has therefore not observed the condition of the home.
[62] The father's affidavit sworn on April 7, 2020, at paragraph 45, states that it was in December 2019 that the mother ascended into the attic and allowed the insulation to fall into the house.
[63] The father speculated that F.D.'s chest infection was as a result of or aggravated by the attic insulation. He deposed:
"I have no idea whether it was the mess with the insulation that caused the breathing problems, but I am sure it didn't help matters as my youngest reported difficulty breathing in that room."
[64] There is also no medical evidence before the court that supports the nexus the father says might be linking F.D.'s chest infection and the insulation from the attic.
[65] The letter dated April 23, 2020 from the PCAS has provided helpful information to the court, even though it is not in the form of a sworn affidavit. The PCAS is not a party to these proceedings and has no vested interest in the outcome of this motion.
[66] The PCAS letter indicates that, issues in relation to the ongoing parenting concerns with the mother, have been overseen by the PCAS for a year and a half, from September 2018 until March 2020.
[67] The children have been seen with their mother at their home on a monthly basis and the children have been interviewed independently at their school. Any observations and concerns about the health or hygiene of the children at the school would have been reported by the school to the PCAS, under the school's professional duty to report.
[68] It is clear from the evidence filed in this motion, that the father has also had contact with the PCAS and has had the opportunity to report his concerns about the mother to the PCAS.
[69] The timespan of the PCAS involvement and the timing of the issue related to the attic insulation are important. The father's evidence suggests that the issues with the attic insulation happened in December 2019, which was within the timeframe that the PCAS was visiting with the mother and the children at the home. The assessment of the PCAS as indicated in the letter dated April 23, 2020 is that, as of March 11, 2020, the mother had addressed the concerns that gave rise to child welfare involvement in the fall of 2018. There is no indication in the PCAS letter that points to any outstanding concern related to the attic insulation.
[70] The father raised a concern that the children might have been coached by the mother not to tell the PCAS certain things, however, I also take into consideration that the children had been interviewed at the school, and not in the presence of the mother.
[71] The father also submitted that S.D. has not wanted to speak with her mother. This evidence is not consistent with the PCAS worker's observations that, throughout its year and a half involvement, the PCAS has observed the children to be comfortable in the presence of their mother.
[72] I accept that the father is concerned about the impact of the mother's behaviour and judgment on the children. But, considering the three year status quo that has existed and considering the PCAS' current assessment of the mother's parenting, the evidence in this motion is not compelling enough, to justify as drastic a change that the father is requesting.
[73] The mother is cautioned, however. She should not interpret the court's decision on this motion, to mean that the court is not worried.
[74] The description of many of the past choices made by the mother and her circumstances, has given the court cause for concern.
[75] It is concerning that several of mother's intimate or close relationships appear to be highly dysfunctional and conflictual.
a. Other than her relationship with the father, the mother appears to have had a highly conflictual relationship with her brother which, in the summer of 2019, culminated in an intoxicated altercation which resulted in the police being called, and to which the children were exposed. The father's account of this incident is not addressed by the mother in any way in her materials; and
b. Also, the mother's unhealthy relationship with S.R. put the entire family in harm's way in 2018.
[76] It is concerning that the mother's DUI charge has interfered with her ability to drive the children to places, like their activities, creating an inconvenience and hindrance on the mobility of the children when they are with her. Moreover, this particular restriction contributed to a near disruption of the children's school mid-academic year.
[77] Worrisome to the court, also, is the mother's desperate and frantic text messages to the father, including a threat to remove the children and prevent the father from seeing the children in the future. It is troubling to the court that the mother would make such an immature statement – whether or not she truly intended to act on this threat.
[78] In submissions on this motion, in answer to a question by the court, the mother made a statement of her intentions to bring her children along with her to her workplace, a food establishment, where she packages food for take-out or delivery. The mother volunteered the information in response to the court's request for information about the nature of her part-time work, which was not adequately described in her motion materials.
[79] The court acknowledges that there was no sworn evidence in relation to the statements of the mother during argument of the motion.
[80] The court questioned the mother's plan to have the children accompany her to her workplace, given the current COVID-19 restrictions and public health recommendations and the mother did not further elaborate what, if any, COVID-19 precautions would or could be taken for herself or her children in this stated plan. The mother and her counsel indicated, in response to the court's questioning, that the mother need not keep this job, if the children were returned to her and that the mother would terminate her employment if the court was uncomfortable with the children coming along with her to her work.
[81] This case was not a case that was triggered by COVID-19 parenting issues. The mother's statements of her intention in submissions, albeit not contained in the evidence, did however, give the court cause for concern.
[82] The court's expectation will be that both parties must do whatever they can to ensure that neither of them, nor the children, contracts COVID-19. Every precautionary measure recommended by governments and health authorities in their municipalities as well as in Ontario and Canada, must be taken by both parties and, with their help, by the children. Neither party should do anything that will expose themselves or the children to an unnecessary, increased risk of contracting the virus.
[83] The concerns raised by the father, about the parenting of the mother, will certainly be relevant to the long-term plan for the children. The evidence of these concerns may even be cogent enough, following a trial, to disrupt the existing status quo.
[84] However, on a temporary motion, given the current evidence of the PCAS that the children's emotional and physical well-being needs appear to have been met, and given the length of time that the children have been residing with their mother, I do not find that the evidence in this motion is compelling enough to disturb the status quo pending trial.
The Mother's Concerns About the Father's Parenting of the Children
[85] In this motion, the mother also made allegations against the father.
[86] The mother asserts that the father is violent and has anger management issues.
[87] The mother states that the father was abusive to her throughout the relationship and that "he assaulted me all the time". The parties indicated in their materials that the father was charged on two occasions for having assaulted her. One time was during the relationship and one time was at the end of the relationship. The mother states that all of the abuse and violence was in the presence of the children. The father denies that he was or is abusive to the mother. The father describes the charges as false charges. The father states that the both charges were resolved and there remains no outstanding charges and no convictions, according to the father's 35.1 affidavit.
[88] The absence of outstanding charges or convictions of assault by the father is not dispositive on the issue of violence between the parties in their relationship. However, weakening the mother's assertions of the father's violence towards her, is the evidence that she sent text messages to the father in October and November 2019 asking to reconcile and again, in March 2020 wanting the father to move into her home.
[89] The mother asserts that the father "was and probably is an alcoholic. He would drink an entire 18 to 24 beers each night after work". The mother indicated in her affidavit that the drinking was linked to the violence. The father outright denies that he has any addiction issues.
[90] There was no tangible evidence filed in this motion that supports the mother's contention that the anger and addictions issues on the part of the father should be of concern when considering the father's parenting time with the children.
[91] The mother's position that she supports every other weekend access by the father, and has supported and facilitated it since separation, would tend to contradict her assertion that the father has either anger issues or addictions issues that would interfere with the safe parenting of the children by him.
[92] Given the reciprocal allegations raised by the parties and the clear discord between them, the court is re-assured that the PCAS has chosen to remain involved in a supportive role to assist the family through the damaging conflict that has arisen within their custody and access dispute. It is important that the PCAS worker has a copy of this endorsement.
Primary Care of the Children to Remain with the Mother with Specified Access by the Father
[93] Taking into consideration the factors outlined in s.24 of the Children's Law Reform Act and the principles of law previously set out in these reasons, the court finds that it is in the best interests of the children to remain primarily resident with their mother but maintain frequent and regular contact with their father.
[94] It is important, in the circumstances, that the children maintain frequent contact with their father. This will be achieved by the children visiting with their father on most weekends, as well as the children having an overnight mid-week visit every week, and also additional Skype / FaceTime access.
[95] One aspect of the status quo that has clearly stopped working for the parties, is their ability to arrange the parenting schedule responsibly and without conflict, something which they had appeared somewhat able to do, at times, during the period between their separation and the commencement of this court case.
[96] At this time, the parents and the children require a regular parenting schedule. A schedule that is routine and predictable will benefit not only the children but also the parents. It is hoped that a court-ordered schedule will result in the dissipation or reduction of conflict between the parties.
[97] The existing status quo is such that there is no custody order in place. The court will not be making any temporary custody order. The parties have an almost three-year history between April 2017 and March 2020 during which decision-making for the children occurred without the need for court intervention. There is no pressing issue identified by either party that requires a temporary custody order. In fact, more recently, while the children were still with the mother, a decision needed to be made with respect to whether the children ought to be transferred to another school. The parties' views did not at first align. Despite that, although with some difficulty, the parties were able to reach resolution on the issue. Accordingly, the issue shall be left for determination on a final basis by the court through a trial, along with all other outstanding issues, if it cannot be resolved between the parties.
[98] Finally, both parties asked for an order of police enforcement. Given the potential for negative impact on children when a police officer must regulate exchanges of children between parents, in my view, police enforcement clauses should be used sparingly and only in the rarest occasions, when the facts of the case show a repeated pattern of failure to conform to court-ordered access requirements.
[99] In this case, I will give the parties the benefit of my trust that, moving forward, the terms of court-ordered access will be followed and that there will be no need for police enforcement nor assistance to achieve compliance. If my trust turns out to be misguided, the need for police enforcement can be revisited, at the request of either party.
Order
[100] There will be the following temporary orders to go:
1. Return of Children
The children will be returned to the care of their mother on Wednesday, May 6, 2020 at 10 am.
2. Primary Residence
The children will primarily reside with their mother. The children will remain registered in school in the region where they reside with their mother.
3-8. Access by the Father
Commencing Friday, May 8, 2020, the children will be with their father three weekends per month, on every weekend that starts with the 1st, 2nd and 4th Fridays of the month.
On those weekends, the children will be with their father from Friday afternoon until Sunday at 6 pm.
Commencing Wednesday, May 13, 2020, the children will also be with their father every Wednesday afternoon until Thursday morning.
If a pick up or drop off occurs on a weekday, the children shall be picked up or dropped off at the school at dismissal time or at the start of the school day, as the case may be.
If a pick up or drop off is on a weekday but there is no school, the afternoon exchange will be at 3:30 pm and the morning exchange will be at 9 am, at the mother's home.
The father will be responsible for all transportation of the children for the access exchanges. The father may delegate the transportation task to the paternal grandfather.
9-11. Summer and Special Holidays
Each party shall have two non-consecutive weeks with the children, scheduled within July or August. The parties will discuss and plan the specifics of the children's summer schedule in advance.
On Mother's Day, the children will be with the mother from 10 am until 6 pm regardless of the regular schedule.
On Father's Day, the children will be with the father from 10 am until 6 pm regardless of the regular schedule.
12. Skype / FaceTime Contact
Each parent, while the children are with them, shall ensure that the children do not go longer than 2 days without having some contact with the other parent. This requirement will be accomplished for the children by using Skype/FaceTime or other such electronic video contact with the other parent to allow some form of visual-audio interaction in order to bridge the gap between access exchanges.
13. Non-Removal
Neither parent shall be permitted to remove the children outside the GTA, without the consent of the other parent.
14. Flexibility with Consent
The parties may, on an ad hoc basis, deviate from the terms of this order, provided that the deviation is on consent of both parties and their agreement is recorded in writing in some form.
15. Extension – Father's Answer and Financial Statement
The father may have until May 15, 2020 to serve and file his Answer and Financial Statement.
16. Next Steps in the Proceeding
The case is scheduled for a first appearance on August 13, 2020 at 9 am. Should counsel for the parties agree that the exchange of pleadings is complete, the parties may send in a 14B, on consent, seeking to waive and vacate the first appearance date and have the case re-scheduled for an initial case management conference with myself.
17. PCAS
The mother's counsel is to ensure that the ongoing PCAS worker, Dora Wiredu, receives a copy of this endorsement.
18-21. Costs Submissions
The parties may address any claims for costs of this motion by serving and filing written costs submissions no later than 30 days following the date of this decision. Responding costs submissions may be served and filed 15 days following receipt of the other party's costs submissions.
Costs submissions are limited to 3 pages, double spaced, using 12-point font. Offers to Settle and Bill of Costs may be attached to the costs submissions without counting towards the 3-page limit.
Responding costs submissions are limited to 2 pages, double spaced, using 12-point font.
All costs submissions are to be filed by fax to my attention through the Judicial Secretary's Office.
22. Preparation of Order
Mr. Cook will take out this order.
23. Release of Endorsement
This decision will be released, by email, to counsel of record by the judicial secretary, at the following email addresses:
Applicant's counsel, Glen Cook
Respondent's counsel, Shokeen Singh
Justice M. Cheung
