Court File and Parties

Ontario Court of Justice

Date: June 15, 2020

Court File No.: Toronto DFO-14-11444

Between:

Joanne Butler Applicant

— AND —

John Allen Respondent

Before: Justice Maria N. Sirivar

Heard: October 31, 2018; November 15, 2018; December 7, 2018; February 4, 2019; March 19, 2019; May 6, 2019; January 30, 2020; February 6, 2020

Reasons for Judgment released on: June 15, 2020

Counsel:

• Jennifer Daudlin, counsel for the applicant
• John Allen, in person

SIRIVAR J.:

INTRODUCTION

[1] Prior to the commencement of trial, the parties settled several issues before the Court and a final order was made by Justice Pawagi.

[2] Throughout the course of the trial, further agreement was reached with respect to section 7 expenses and terms regarding access exchanges. When the parties attended on February 6, 2020, the Court allowed time for there to be a consent drafted regarding the issues that were agreed upon. Ultimately, however, Mr. Allen, who is unrepresented, was not prepared to execute the consent.

[3] Ms. Butler filed extensive materials for the trial. The exhibits attached to her trial affidavit filled six bankers' boxes. She gave brief viva voce evidence in chief and was then cross-examined by Mr. Allen. She called one witness, Anica Gwen Islon, whose evidence in chief was tendered by affidavit. She was also cross-examined by Mr. Allen.

[4] Mr. Allen did not file any materials. He gave viva voce direct evidence and was cross-examined by Ms. Butler's counsel.

[5] The parties were granted leave to file updating affidavits as there were significant developments during the period of adjournment. Ms. Butler filed an updating affidavit and was cross-examined on its contents by Mr. Allen.

[6] Mr. Allen did not file an updating affidavit. He gave viva voce evidence and was cross-examined by Ms. Butler's counsel.

ISSUES

[7] The issues to be decided are:

1. What terms, if any, should be imposed:

   • a. regarding access exchanges to ensure timely pick up and drop off;
   • b. regarding extended periods of missed access to minimize the risk of emotional harm to the child; and
   • c. during access to ensure safety around farm animals and equipment, veterinary tools and drugs, firearms, and the use of alcohol and drugs?

2. Should Ms. Butler be ordered to attend counselling to address her alleged interference with Mr. Allen's access?

3. What proportion, if any, should Mr. Allen contribute to the section 7 expenses claimed by Ms. Butler?

BACKGROUND

[8] Ms. Butler and Mr. Allen's relationship began in January of 2011. They started living together on February 20, 2013, when Ms. Butler moved from Toronto to Douro, Ontario. They have one child together, John Robert, born in 2013. Ms. Butler calls him J.R. and Mr. Allen calls him John.

[9] The parties separated on August 20, 2013. Ms. Butler moved back to Toronto with John. The Application was issued on March 3, 2014. John has resided with Ms. Butler since separation and Mr. Allen has exercised access, which has increased over time.

[10] Mr. Allen works as a veterinarian and resides on a farm. Travel between Toronto and Douro takes at least two hours.

[11] Ms. Butler works part-time as a tattoo artist when John is not with her. She is also in school studying commercial photography.

EVIDENCE AND POSITIONS OF THE PARTIES

1. a. What terms, if any, should be imposed regarding access exchanges to ensure timely pick up and drop off?

[12] Ms. Butler seeks the following orders:

General

1. The Respondent shall ensure, as much as possible, that he is present at access exchanges on time. In so doing, he will account for foreseeable delays such as heavy traffic or inclement weather, when planning his trip.

2. The Respondent shall advise the Applicant, by text message, if he will be delayed more than half an hour to an access exchange and will provide an estimated time of arrival and reason for the delay.

Pickups Not Occurring at School

3. In the event the Respondent is more than half an hour late picking up the child, but has notified of the delay, access shall occur, and he shall return the child at the regularly scheduled time.

4. In the event that the Respondent is more than half an hour late picking up the child without notice, the Applicant shall be permitted to go about her day, with the child, and the Respondent will have foregone that access visit.

Drop Offs

5. For the purpose of this section, a "reasonable cause for delay" may include any unforeseen events such as heavy traffic or inclement weather which the Respondent could not reasonably account for prior to his departure for the access exchange. A reasonable cause for delay shall not include a late departure to access exchange.

6. In the event the Respondent is more than half an hour late dropping off the child without notice to the Applicant, or without providing a reasonable cause for delay, the start time of the Respondent's access on the next scheduled visit will be postponed in a time equal to the duration of the delay, rounded to the nearest quarter hour ("penalty clause").

[13] Throughout the course of this litigation, timeliness for access exchanges has been an issue. Justice Jones made a temporary order on July 20, 2015, imposing terms to address the lateness.

[14] The terms sought by Ms. Butler in subparagraphs 2, 3, 5, and 7 above are similar to the terms in Justice Jones's order with the following modifications:

1. the length of permissible delay is reduced from 1 hour to 30 minutes;
2. there is an added requirement that the cause for delay be "reasonable"; and
3. the penalty clause allows for the deduction of access time to be made at the start of the next access visit rather than requiring the early return.

[15] Ms. Butler testified that Mr. Allen is regularly more than one hour late for access pick up and that he often does not provide notice that he is fifteen minutes away, as required. Consequently, she and John do not know when to leave to meet him and risk waiting for him at the exchange location.

[16] When Mr. Allen is late returning John from access, it disrupts John's routine and makes it more difficult for him to get up in the morning to get ready for school. According to Ms. Butler, Mr. Allen rarely gives her notice that he will be late.

[17] Ms. Butler takes the position that the terms of Justice Jones's order should continue with modifications because Mr. Allen continues to be non-compliant. She argues that the only way for the penalty clause to have meaning and to achieve its purpose is to deduct the time before the next access visit begins. Ms. Butler is of the view that the application of the penalty clause does not affect John at this age.

[18] Mr. Allen does not dispute that he is chronically late to access exchanges. He explains that he is responsible for all the driving and that it can take as long as seven hours to drive from Douro because of traffic, accidents on the road and weather. He insists he cannot provide notice of his lateness or an estimated time of arrival because texting while he is driving is not appropriate. He reasons that pulling off the highway to do so is not practical because it would cause him to be even later.

[19] In cross-examination, he conceded that he only leaves two hours before he is to be at the access exchange location despite knowing that it can take much longer. He does not leave earlier than two hours because it would cut into his access time.

[20] Mr. Allen acknowledges not responding to and sometimes not reading Ms. Butler's communication through text messages and Our Family Wizard. He did not engage because he believes that Ms. Butler was communicating in writing in order to generate evidence for this trial.

[21] Mr. Allen's position is that the penalty clause should be removed. He argues that given that he is responsible for all the driving it is unfair that he should have to bear the consequences of the unpredictable travel time. He views the penalty clause as a tool to reduce his access. He expressed frustration at the process he endured to get the access he has.

1. b. What terms, if any, should be imposed regarding extended periods of missed access to minimize risk of emotional harm to the child?

[22] During the period of adjournment, Mr. Allen was over three hours late returning John from an access visit. He did not communicate with Ms. Butler, despite her repeated attempts to reach him.

[23] Given the distance between the two homes, Ms. Butler testified that she was very concerned. She first contacted Mr. Allen's family members to see if anyone had heard from him. She then called the police to see if there had been any motor vehicle accidents involving Mr. Allen and John. She contacted the police again to seek assistance in locating them. She testified that the issue of an amber alert was discussed. Mr. Allen and John arrived while she was on the phone with the police.

[24] After this incident, Mr. Allen stopped attending access and stopped communicating with Ms. Butler and John.[1] At the end of the trial, he had not seen John for six months.

[25] Ms. Butler testified that she is concerned about Mr. Allen's:

1. refusal to follow court orders;
2. refusal to communicate with her;
3. chronic lateness; and
4. unilateral decision to stop exercising access.

[26] She is most concerned about the impact of Mr. Allen's behaviour on John. She argues that the extended period of missed access is confusing and emotionally damaging to John.

[27] As such, Ms. Butler requests that the current access order be suspended and that Mr. Allen and John attend reunification therapy. She further seeks a gradual increase in access, when it resumes, until it reaches the normal schedule. She argues that access should initially be supervised.

[28] Mr. Allen does not deny that events unfolded as Ms. Butler described. He explained that he did not respond to her text messages because he "didn't want to deal with her picking a fight". He questioned her decision to call the police after three hours "after transporting John safely for five years".

[29] After the incident, he says that he did not want to drive all the way and risk exposing his son to conflict. In his view, he could not risk having the police called and being accused of child abduction. Mr. Allen explains that he made no effort to communicate with Ms. Butler after the incident because she had accused him of harassing her. He conceded in cross-examination, however, that he did not contact Ms. Butler's counsel to arrange access either.

[30] Mr. Allen's position is:

1. access should be extended to allow him to leave earlier;
2. resumption of access should be gradual; and
3. there should be a police enforcement clause in the order.

[31] Mr. Allen did not take a position with respect to the request that he be ordered to attend reunification therapy with John because he had not spoken to John in many months and did not know "where he is at". He was not able to propose a plan for the resumption of access for the same reason.

1. c. What terms, if any, should be imposed during access to ensure safety around farm animals, farm equipment, veterinary tools and drugs, firearms and the use alcohol and drugs?

[32] Ms. Butler seeks the following orders:

Smoking, Non-prescription Drugs and Alcohol

1. Neither party will smoke cigarettes or marijuana, nor permit third parties to smoke, indoors or in their vehicle(s), while in the presence of the child.

2. Neither party will be intoxicated by alcohol or non-prescription drugs while in a caregiving role for the child.

Farm Safety

3. The child shall not be permitted to operate nor be a passenger on a tractor or other farm vehicle, until the child is fourteen years old and is old enough to obtain his learners' permit to operate and ride in these vehicles.

4. The Respondent shall not have the child with him while he is treating any animal that requires drugs or sedation as part of the treatment, whether in his professional capacity, or not.

5. The Respondent shall ensure that all drugs associated with his practice of veterinary medicine, shall be securely stored in a locked cabinet or room which is not accessible to the child.

6. The Respondent shall not take the child with him during work calls, nor have the child with him while he is treating animals in his professional capacity, until the child is ten years old.

[33] Mr. Allen's farm has livestock and equipment such as a truck and tractor. In the course of his work, Mr. Allen tends to sick animals and administers medication such as vaccines and hormones. His tools, including medication for animals, are on the farm. Ms. Butler alleges that there are also firearms on the property.

[34] Ms. Butler seeks the imposition of what she calls "safety protocols" for access. She explains that she is concerned about John's safety as he is exposed to farm animals and has ridden on farm equipment. She alleges that John is potentially exposed to narcotics used in the veterinary practice, that Mr. Allen misuses alcohol and drugs and that John may be exposed to improperly stored firearms.

[35] She conceded in cross-examination that she does not know what happens at Mr. Allen's farm as she has not been there in five years. She further conceded that she does not know anything about Mr. Allen's veterinary practice and that she was not aware that his practice does not use controlled substances and that his licence would be revoked if he did.

[36] Ms. Butler testified that she contacted the Children's Aid Society ("CAS") regarding her concerns and allegations around vehicle safety, safety around livestock, drugs and firearms.[2] The CAS investigated. Ms. Butler's allegations were not verified. They found no safety concerns. The CAS did, however, verify concerns regarding John's exposure to conflict between his parents.

[37] Ms. Butler argues that the CAS investigation was inadequate. She does not provide particulars regarding the alleged inadequacies. Instead, Ms. Butler conducted internet research and attached dozens of pages of print outs of internet sites about farm safety to her trial affidavit.

[38] Mr. Allen's evidence was that during the investigation, the CAS worker spent the better part of a day at the farm. The worker inspected his home, truck, and medication storage. He also described to the worker where John rides in the vehicle and she inspected the car seat.

[39] Mr. Allen testified that he is a trained professional and is responsible for people's safety around animals and his professional tools, including medication. He is aware of and has implemented safety protocols for the drugs in his practice. He does not carry narcotics in his practice, and he denies misusing drugs or alcohol. He also denies having any firearms on his property.

[40] Mr. Allen alleges that Ms. Butler is relying on stories she heard from others that date back to before they met. In his view, Ms. Butler is misinformed about aspects of farm and veterinary safety. She is, therefore, not in a position to dictate "safety protocols" from Toronto. For instance, she insists that John not be permitted on farm equipment until he is 14, the age he can get a licence. According to Mr. Allen, however, there is no such age. This was ultimately conceded by Ms. Butler.

[41] Mr. Allen argues that children should be exposed to animals and farm equipment in an age-appropriate manner, so they learn how to be around them safely. As such, he disagrees with the safety protocols Ms. Butler seeks to impose.

LAW AND LEGAL PRINCIPLES

[42] In deciding issues related to access, the Court must consider the best interest factors outlined in subsection 24(2) of the Children's Law Reform Act. The determination of what is in a child's best interest turns on the specific circumstances of each child and his or her family.[3]

[43] Although the best interests of the child have been found to be met by having a loving relationship with both parents, it cannot pose a risk to the child's physical or mental well-being. In other words, the child's best interests are paramount to the maximum contact principle.[4]

[44] Courts have found that inconsistent access may cause a child emotional harm. Similarly, long absences in seeing a parent can be emotionally damaging to a child. In such situations, gradual increases in access are appropriate.[5]

[45] A failure or refusal to follow court orders as they relate to access can result in changes being made to an access order or sanctions being imposed.[6]

[46] In Lahey v. Gauthier, for instance, Justice Kurz granted the mother "the discretion to appropriately apply judicially approved predetermined consequences to Mr. Gauthier's breaches of access orders", because the father failed or refused to return the child from the access in accordance with the court order.

Reunification Therapy

[47] The Court has jurisdiction to order reunification therapy by virtue of sections 24(2) and 28(1)(b) and (c)(viii) of the Children's Law Reform Act.

[48] Such orders, however, are to be made sparingly. There must be compelling evidence that the therapy will be beneficial. Moreover, the request ought to be supported by a detailed proposal identifying the proposed counselor and what is expected.[7]

2. Should the Court order Ms. Butler to attend counselling to address her alleged interference with Mr. Allen's access?

[49] Ms. Butler and Mr. Allen have been in litigation for most of John's life. They have been unable to parent cooperatively because of the level of conflict between them. They have required numerous court attendances to address virtually every significant parenting decision.

[50] Mr. Allen argues that Ms. Butler has been attempting to "alienate" him from John and to "take away" his access. He contends that Ms. Butler tries to control him and his parenting. He seeks an order compelling Ms. Butler to attend counselling to address her interference with his access. He believes Ms. Butler's behaviour stems from her childhood experience with alienation. As examples he points to the "safety protocols" she asks the Court to impose, her scheduling activities during his access and the way she implements the penalty clause.

[51] Ms. Butler denies that she interferes with access. She testified that she supports a relationship between John and Mr. Allen. Her intention is to ensure that access is safe for John, that it is consistent and that it does not unduly disrupt his routine at her home.

[52] She testified that she does not require counselling as alleged and that she does not consent to participating therein. She argues that, in the absence of her consent, the Court does not have jurisdiction to order her to attend counselling.

3. What proportion, if any, should Mr. Allen contribute to the section 7 expenses claimed by Ms. Butler?

[53] The Application was amended on January 25, 2018, to include a request that Mr. Allen contribute to section 7 expenses incurred by Ms. Butler. The relevant period is from John's birth to October 1, 2018. She seeks contribution for the cost of childcare, counselling, swimming lessons and a kindergarten preparation program. She received financial assistance with childcare and activities from Ontario Works.

[54] Ms. Butler testified that she did not ask for contribution earlier because she was afraid of Mr. Allen. She did not want to "set him off" because he had threatened her and her dog in the past. She described him as having been financially controlling and volatile during their relationship.

[55] Mr. Allen testified that he first received a request for contribution to section 7 expenses in October 2018. According to him, Ms. Butler was adamant that she was independent. She only provided receipts for the expenses in 2018. He asked for her hours of work after receiving the childcare contribution request and she did not provide the hours.

[56] Mr. Allen does not dispute the retroactive nature of part of the claim. Similarly, Mr. Allen does not resist the claim for contribution to John's medical expenses for counselling. He explains that his only quarrel was that he did not know why John was in counselling. Ms. Butler claims contribution to $138.00 representing the portion of two therapy sessions that are not covered by benefits.

[57] Ms. Butler conceded in cross-examination that Mr. Allen gave her $4500 early on. The evidence that Ms. Butler proffered as proof that she made requests in 2015 show that she did not ask for contribution. She acknowledges in cross-examination that they are confirmations of enrollment, there is no request for contribution and no invitation to participate.

[58] Ms. Butler does not particularize which childcare expenses were incurred for work, school and personal appointments. Ms. Islon's evidence was that she provided childcare for John until July of 2018. Receipts of payments made to her were also filed. In cross-examination she conceded that she took care of John when Ms. Butler went to appointments, including meeting with her lawyer.

[59] Ms. Butler's evidence was that she works when John is not with her and she attends classes when John is at school. She incurred the child care expenses when she attended appointments with her lawyer, her doctor and her counsellor. Ms. Butler argued that one can seek contribution to childcare expenses even if the expense was incurred for purposes other than attending work and school.[8]

[60] Ms. Butler asks that I order that Mr. Allen pay 70% of the section 7 expenses she claims, the proportion used by Justice Pawagi with respect to prospective section 7 expenses. She argues that this is fair because Mr. Allen failed to file any financial information including the financial statement he was ordered to file before the commencement of the trial.

[61] Mr. Allen does not agree to contribute to the cost of swimming lessons because he pays for hockey. Additionally, he argues that activities were scheduled without his consent and to interfere with access. Mr. Allen objects to contributing to childcare expenses associated with Ms. Butler attending meetings with her lawyer.

APPLICABLE LAW AND LEGAL PRINCIPLES

[62] An order for contribution to special and extraordinary expenses under section 7 of the Child Support Guidelines is discretionary as to both entitlement and amount.

[63] The process to be followed in awarding section 7 expenses was enunciated by the Ontario Court of Appeal in Titova v. Titov and includes the following steps:

1. calculation of each party's income for child support purposes;
2. determination of whether the claimed expenses fall within one of the enumerated categories;
3. determination of whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation."
4. If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, determination of whether the expenses are "extraordinary".[9]

[64] The relevant provision of the provincial Guidelines reads:

7. (1)

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(f) extraordinary expenses for extracurricular activities.

[65] The Guidelines define "extraordinary" as follows:

1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or…

[66] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances.[10]

ANALYSIS AND CONCLUSION

1. Limited terms will be imposed regarding access to ensure timeliness at exchanges and to reduce the risk of emotional harm to the child.

[67] I am guided by the principle that access must be in the best interest of the child not the parent. John's interests include:

1. being physically and emotionally safe before, during and after access;
2. not being exposed to his parent's conflict;
3. having consistent access;
4. being picked up and dropped off on time; and
5. having access not impact his ability to prepare for and be ready for school.

[68] I find that Mr. Allen consistently failed or refused to attend access exchanges on time and to communicate with Ms. Butler as required by Justice Jones's order. Furthermore, he unilaterally stopped exercising access and communicating with John for over six months.

[69] Mr. Allen's justifications for his refusal to abide by the court order are rooted in his views about what Ms. Butler is doing to him. Specifically, that she is taking away his access, alienating him, trying to control his parenting, and accusing him of child abduction. Absent are considerations of John's best interest.

[70] He insists the terms are unfair. Rather than taking steps to vary the aspects of the order that he believes are not working, he simply proceeds as he wishes.

[71] Time has revealed that the terms sought by Ms. Butler are not effective. Rather, they fuel the cycle of conflict between these parents. The cycle operates in the following manner:

1. Mr. Allen is late to an access exchange for instance;
2. Ms. Butler reminds him of the applicable term in the order;
3. Mr. Allen sees Ms. Butler's attempts to enforce the term of the order as furtherance of her agenda (i.e. alienation, control, reduce access);
4. Mr. Allen breaches a term as a form of protest (i.e. ignores texts, arrives late);
5. Ms. Butler becomes more frustrated and attempts to implement the penalty clause.

[72] This cycle of conflict is exacerbated by the ongoing litigation. The length and level of acrimony affect how parties engage with each other. An example is Mr. Allen not responding to communication from Ms. Butler because he believes she is only communicating in writing to generate evidence for the litigation. Ms. Butler generated a significant number of records of his non-compliance.

[73] Both Ms. Butler and Mr. Allen are invested in and contribute to the dynamic. A warning in the form of each parent being advised by the Children's Aid Society that John was at risk of harm because of their conflict did not disrupt the cycle.

[74] An order will, therefore, be made, to disrupt the cycle of conflict and allow John to enjoy his time with each parent in a manner that does not place him at risk of emotional harm. Moreover, it will minimize the harm that might flow from any future unilateral decision by Mr. Allen to cease communicating with him and exercising access.

[75] Mr. Allen refuses to communicate essential information, extend any parental courtesy and follow the operative order. This will not be tolerated. To be clear, if Mr. Allen continues not to comply, he risks having his access to John restricted.

[76] Ms. Butler will be given the authority to impose limited sanctions in the event of non-compliance. I will remain seized in the event that the matters must be brought back before the court due to failure of either party to follow court orders regarding access.

[77] Access must resume gradually, beginning with video and/or telephone access. Ms. Butler will determine whether John is ready to move to the next stage, as she is with him daily and is best positioned to assess how he is adjusting.

[78] A gradual resumption of access will allow John to become reacquainted with Mr. Allen. As such, supervision of access is not necessary. Similarly, I find that Ms. Butler has not established that reunification therapy is warranted in this case. She has not proffered any evidence that it will be beneficial or a detailed proposal identifying the proposed counselor and what is expected.

The Proposed Safety Protocols will not be imposed.

[79] Ms. Butler's concerns with respect to safety during access are based on speculation and hearsay. She has not established that John is at risk while exercising access on the farm. Ms. Butler conceded that she did not know what occurs on Mr. Allen's farm or what happens in his veterinary practice. It was also clear, through cross-examination, that her knowledge of farm safety is very limited. There was no evidence regarding use or misuse of alcohol or drugs by Mr. Allen and improper storage of firearms. I accept Mr. Allen's denial in this regard.

[80] I find that Mr. Allen has taken appropriate steps to ensure that John is safe on the farm including: age appropriate exposure to animals and equipment, proper medication storage, use of child safety seats and not taking John on work calls. As such, the proposed "safety protocols" will not be imposed.

2. Ms. Butler will not be ordered to attend counselling.

[81] There is no evidence to support the allegation that Ms. Butler is attempting to alienate Mr. Allen. I find that Ms. Butler has been attempting to have Mr. Allen comply with the terms of the access order and to ensure that access is safe. As such, there will be no order for Ms. Butler to attend counselling.[11]

3. Mr. Allen shall pay 70% of the counselling expense claimed by Ms. Butler.

[82] Mr. Allen only objects to contributing to childcare expenses incurred to enable Ms. Butler to meet with her counsel and the activities that he did not provide consent for.

[83] The Child Support Guidelines are clear about when contribution to childcare expense can be claimed. Ms. Islon testified that she took care of John when Ms. Butler went to appointments. Ms. Butler's own evidence was that the childcare expense was not incurred for work or school. Accordingly, there shall be no contribution to childcare expenses for the period sought.

[84] I find that Ms. Butler has not met her onus to establish the cost of the extracurricular activities fall within the ambit of "special or extraordinary" as defined in the Guidelines. She filed the record of the expense but no evidence that they are special or extraordinary in nature or relative cost. The amounts are relatively modest, and she received assistance with the cost from Ontario Works.

[85] Given Mr. Allen's failure to provide evidence of his income, including an updated financial statement as ordered, I find it is reasonable to use the proportion used for prospective section 7 expenses.

ORDERS

[86] For the foregoing reasons, the Court orders:

a. Mr. Allen shall have telephone or video access to John beginning immediately and shall take place before bedtime, at least three times per week;

b. Taking into consideration John's routine and activities, Ms. Butler shall advise Mr. Allen of the days and times that telephone or video access will occur;

c. Mr. Allen's in person access to John shall resume gradually beginning the week of July 6, 2020, as follows:

i. Phase One: daytime access outdoors in the community for four hours in Mississauga;

ii. Phase Two: Overnight access with pick up on Saturday at 12:00 p.m. to drop off on Sunday at 6:00 p.m.;

iii. Phase Three: full weekend access in accordance with the regular access schedule.

d. Phases 1 and 2 shall not last more than four visits (or eight weeks) each. Ms. Butler will determine when John is ready to move to the next phase.

e. Mr. Allen will text Ms. Butler when he is fifteen minutes away from the access exchange location;

f. Should Mr. Allen arrive at access exchanges late consistently, without notice and explanation, or miss more than three consecutive access visits, Ms. Butler may bring the matter back before the court to seek a variation of the access order;

g. Mr. Allen shall pay $96.60 to Ms. Butler, representing 70% of the counselling expense claimed; and

h. If the Applicant seeks costs, she may file submissions (three pages maximum double spaced 12-point font) by 14B motion in accordance with the Covid-19 protocol within two weeks and the Respondent may file a response (three pages maximum double spaced 12-point font) within four weeks.

Released: June 15, 2020

Signed: Madam Justice Maria N. Sirivar

Footnotes

[1] Except for one telephone call at Christmas time.

[2] Ms. Butler's concerns are reflected in the orders she seeks.

[3] Lahey v. Gauthier, 2016 ONCJ 417

[4] Gordon v. Goertz, [1996] 2 S.C.R. 27; see also Lahey v. Gauthier, 2016 ONCJ 417 at para 52

[5] Chukwunomso v. Ransome, 2017 ONCJ 121

[6] Lahey v. Gauthier, supra at para 49

[7] Testani v. Haughton, 2016 ONSC 5827

[8] Illness and disability were not issues in this case.

[9] Titova v. Titov, 2012 ONCA 864

[10] Park v. Thompson, 77 O.R. (3d) 601

[11] Having so found, the issue of the Court's jurisdiction to order a parent to attend counselling need not be addressed.