Court File and Parties

Ontario Court of Justice

Date: June 30, 2020

Court File No.: Woodstock D20/16

Between:

K.C. Applicant

— And —

D.S. Respondent

Reasons for Judgment on Motions

Per: COVID-19 Protocol

June 30, 2020

Counsel:

• Carey Speirs, for the applicant(s)
• James Battin, for the respondent(s)

PAULL J.:

Background and Positions

[1] Both parties have brought motions seeking sole custody of the children. These motions have been brought on the basis of urgency during the suspension of regular Court operations as a result of COVID-19.

[2] The parties are the parents of two children, E.S. born […], 2010 (female) and H.S. born […], 2013 (female). D.S., the children's father, alleges that the parties began living together in 2005 and separated in or about October 2018. K.C., the children's mother, alleges that the parties began living together in 2008 and separated in May 2019.

[3] The proceeding was commenced by K.C. by way of an application and motion issued December 12, 2019 seeking custody, regular access for D.S., and child support. D.S. filed an answer seeking custody or alternatively liberal access.

[4] On December 23, 2019 the parties consented to an interim without prejudice order that provided for primary residence to remain with K.C., with regular alternate weekend access to D.S. Neither party sought to set a date for argument of the motion and the matter proceeded to a case conference which was held on March 2, 2020. The matter was then adjourned to a settlement conference on June 3, 2020. That settlement conference did not occur as the result of the suspension of all non-urgent Family Court proceedings as a result of COVID-19.

[5] The current motions were instigated by K.C. when D.S. failed to return the children following his access time on May 4, 2020. D.S. continues to withhold the children and K.C. has not seen them since. She takes the position that D.S. has exercised self-help by acting contrary to the Order, and that he has and continues to make false allegations against her to the CAS.

[6] K.C. seeks an interim order for sole custody and police assistance. In her motion she sought a suspension of D.S.'s access but at the hearing of the motion her counsel outlined that her position was to simply return to the status quo of access under the December 23, 2019 order.

[7] D.S. responded by bringing a motion seeking interim sole custody with access to K.C. on alternate weekends. Alternatively he seeks a broader and more structured access order.

[8] He takes the position that he has acted protectively of the children as directed by the CAS on the basis of various concerns he has with K.C. Most particularly he is concerned that she permits contact with her sister's partner, J.F. who he alleges presents a risk of sexual harm to the children.

[9] In addition to the submissions of counsel I have reviewed the affidavits of K.C. dated May 20 and June 18, 2020 (save and except for paragraphs 20-26 which are not proper reply evidence), and the affidavit of D.S. dated June 3, 2020. I have also reviewed the parties sworn 35.1 affidavits.

The Law

[10] These are both urgent motions brought pursuant to the OCJ COVID-19 Protocol and to Rule 14. Rule 14(14) states that there are no motions before case conference save and except as outlined in rule 14(4.2), and that is unless the court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required. Prior to the pandemic, urgency has been held to include abduction or threat of an abduction, harm or threat of harm, dire financial consequences, extreme situations justifying the court in acting immediately, and issues which are determined or deemed to be crucial, serious, vital or essential.

[11] In Thomas v. Wohleber, 2020 ONSC 1965, the court found that the following factors are necessary in order to meet the requirement of urgency during the suspension of regular court operations as a result of COVID-19:

1. The concern must be immediate; that is one that cannot await resolution at a later date;

2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;

3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child's health, welfare, or dire financial circumstances) rather than theoretical;

4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[12] If urgency is established, the court must decide what custodial and residential order is in the child's best interests. The test for determining access is also what order is in the best interests of the children. Section 24 of the Children's Law Reform Act requires that any determination with respect to custody and access be made on the basis of the best interests of the child and section 24(2) outlines a number of specific best interests factors.

[13] Children should have maximum contact with both parents if it is consistent with the children's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27.

[14] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).

[15] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[16] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.

Evidence and Analysis

[17] Both parties have filed affidavits outlining many current and historic allegations against the other. Without the benefit of viva voce evidence and cross-examination the Court is not in a position to assess the veracity of all these allegations. The evidence has not been tested and the Court recognizes that on urgent motions decisions need to be made on the evidence available at the time.

[18] Findings the court is able to make on the basis of the evidentiary record are based on the uncontested or acknowledged areas of evidence, or based on the evidence filed by a party which on its own merit is insufficient to establish a finding.

[19] For the reasons that follow urgency has been established, and the best interests of the children support a return to the status quo under the order of December 23, 2019 with some modifications. In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.

[20] While the parties disagree on the date of separation, D.S. acknowledges that he had little contact with the children from October 2018 (the date of separation he alleges) until the order of December 23, 2019.

[21] The parties also disagree on why he had limited contact. K.C. states that it was because D.S. showed little interest, with D.S. stating that it was because K.C. would not allow it.

[22] What is clear from the Court Record is that D.S. did not commence proceedings following separation and waited a lengthy period of time following separation before advancing claims in early 2020, and then only in response to K.C.'s application. He also consented to the order of December 23, 2019 which maintained the primary residence of the children with their mother and fixed an alternate weekend access schedule. The issue of that order being "without prejudice" will be addressed below.

[23] K.C. deposes that the parties had an on-and-off again relationship, and that prior to their final separation she was the primary caregiver. The children have remained in her primary care from separation until May 4, 2020. D.S. states that he shared in the parenting responsibilities equally prior to separation.

[24] Following the order of December 23, 2019 K.C. states that D.S. repeatedly withheld the children and made numerous unfounded complaints to the CAS about her. She was of the view that the CAS has investigated and has no concerns although they remain involved because of the ongoing allegations made by D.S. She states that the CAS worker also assisted her in finding housing.

[25] D.S. acknowledges not returning the children as scheduled on May 4, 2020, and that he has not permitted any physical contact between the children and their mother since that time. He deposes that he raised his concerns to the CAS worker and was advised to "act protectively", which he felt he did by refusing to return the children.

[26] D.S. deposes to numerous concerns to support his position. He alleges that K.C. uses and sells drugs. He offered text messages between K.C. and his mother from December 17 and December 20, 2019 where a reference is made to the cost of a "half ball" and "ball" of "soft" which he took to mean cocaine. He states that his mother made him aware of the first text on December 17, 2019 and that he asked his mother to send the text on December 20, 2020. He also states that his daughter E.S. told him on December 8, 2019 that she had observed her mother and her former boyfriend "smoke tokes". No other particulars or contexts was provided.

[27] K.C. responds to these allegations by pointing out that it was D.S.'s mother who contacted her about buying drugs, and that the full context of the exchange was not provided. However, she did not provide it either and she does not deny that the content of the texts relates to drugs.

[28] She also alleges that she observed D.S. selling drugs during the relationship. D.S.'s 35.1 affidavit outlines a criminal record from 2010 where he received a 30 day custodial sentence and probation for the "production of cannabis oil", and fines for possession of marijuana and breach of probation in 2011.

[29] The difficulty with much of these allegations by both parties is that they predate the consent order of December 23, 2019 when the parties agreed that the children would remain with their mother with regular weekend access to their father. That order was made without prejudice, however, neither party sought to argue K.C.'s original motion and the matter proceeded to a case conference and settlement conference. What I take from this is that both parties were content with the arrangement in the order of December 23, 2019 at the time in spite of whatever concerns they may have had. It reflects a choice by both parties to not pursue argument of K.C.'s motion on the merits. Further, without prejudice orders have a limited "shelf-life" in that the longer they are left in place, the less relevance the without prejudice designation has.

[30] D.S. also provided a text message purportedly from D.B. on January 28, 2020 who he states is or was K.C.'s boyfriend, which he states establishes that K.C. is involved in illicit drugs. In the text D.B. makes allegations that someone named "Shay" was dealing drugs and that "K[…]" was forced to call the police when Shay was trying to get into the house. Although it was not clearly explained, I took "K[…]" to mean K.C.

[31] This text was of little assistance. Not only was the content not fully explained it was left unclear who Shay was. It appears as if K.C. was forced to call the police, which seems appropriate based on Shay's apparent behaviour. There was no further clarification offered and no other or direct evidence provided by D.B.

[32] D.S. also alleges housing instability as a concern, stating that K.C. is homeless and was evicted in February 2020 because her basement apartment was deemed unsafe for habitation. He provided a copy of the letter posted on the door of the premises which confirmed that the basement apartment she had occupied needed to be vacated because it was constructed by the owner without a permit.

[33] K.C. responds that she was in emergency housing when she was forced to vacate this apartment, but had to leave emergency housing after D.S. withheld the children because it was conditional on her having them in her care. She now resides in a friend's home in Innerkip while she searches for more permanent accommodations. She deposes that the CAS worker involved assisted her with finding housing.

[34] A parent's ability to maintain stable housing and is an important component in any best interests assessment. Frequent moves by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of the child: Madill v. Madill, 2014 ONSC 7227 (Interim Order); Lambert v. Limoges, 2015 ONSC 6487.

[35] K.C. acknowledges recent housing instability following her need to vacate her apartment and she is making efforts to find permanent housing. There is no evidence of a history of housing instability or to suggest that the current situation is not a temporary one. Further, a finding that K.C. is unable to provide stable housing is not established simply on the basis of K.C. having to leave her apartment because the owner of the property failed to obtain a permit. Neither is it established because she was no longer eligible for emergency housing as a result of the children not being in her care when D.S. withheld them on May 4, 2020.

[36] D.S. also notes school absences for the children as a concern in that between September 2019 and March 31, 2020 E.S. was absent 20 days and late 3 days, with H.S. being absent 28 days and late 3 days. He provided the children's attendance records, and K.C. did not dispute their content.

[37] D.S. also alleges that there are health concerns with the children as a result of them residing with K.C. He deposed that on the weekends he had the children they had a "bad cough", and he felt that they did not eat enough at their mother's. This is the extent of the evidence he offers on this issue. This alone is insufficient to establish that there is a concern for the children's health or eating habits, particularly since there is no evidence he raised this issue with K.C., or felt it necessary to seek medical attention for the children himself at the time or at any time since they have been in his care. It would have been reasonable for him to do so if he had that concern.

[38] D.S. deposes that his primary concern which led to him withholding the children relates to the applicant's sister, J.S. because her partner is a man named J.F. The parties agree the children spend time in J.S.'s home but disagree on the extent of that time.

[39] D.S. alleges that J.F. poses a risk of sexual harm to the children because he has sexually assaulted K.C. He indicates he is aware of this because K.C. told him, although he does not indicate when he was allegedly made aware of this by her. This is the extent of the evidence he offered on this issue. K.C. denies ever stating this or that she was sexually assaulted by J.F. and that it resulted in criminal charges.

[40] D.S. communicated these concerns to the CAS worker who he states advised him to "act protectively". He acted on this direction by withholding the children starting May 4, 2020.

[41] No evidence was provided directly from the CAS worker who both parties have apparently communicated with. What is clear is that as of the date of argument of the motions D.S. had made the breadth of his concerns known to the CAS, and it had not instigated protection proceedings.

[42] While the Rules permit evidence on a motion that is not within the personal knowledge of the affiant in certain circumstances, if a party seeks to support their claims on the basis of a position or direction provided by a CAS worker, direct evidence from the CAS in writing should be provided to avoid the all too common circumstance on an urgent motion of both parents claiming to be acting at the direction or with the support of the CAS, and offering hearsay evidence of conversations they had with the worker.

[43] There is no independent evidence regarding any position the CAS may have on these issues. The CAS was made aware of the allegations by D.S., and has the statutory duty to investigate child protection concerns. We only know that the CAS chose not to commence protection proceedings and has not provided a written caution to either parent about any issue, including J.F.

[44] Independent evidence directly from the CAS would be required to establish that it has verified protection concerns or has provided specific direction to a parent to take action, particularly when that action is in contravention of a court order.

[45] I also note that in D.S.'s 35.1 affidavit he makes no reference to a concern of the children's exposure to J.F. and instead notes under S.10(f) therein that his plan for the children's access to their mother if he is granted custody is that it be supervised by J.S. (J.F.'s partner and K.C.'s sister). I am unable to reconcile D.S.'s position that J.S.'s partner is his primary concern, while in another sworn document proposing her as an appropriate supervisor.

[46] Overall, the allegation that J.F. sexually assaulted K.C. and therefore represented the sexual risk to the children lacked any particulars and there was no other evidence provided to support it. The allegation must also be viewed in the context that CAS was made aware of it and can be presumed to have undertaken its statutory duty to investigate and there is no independent evidence it has verified concerns or taken further steps. On this basis D.S.'s allegation is not sufficient to establish that the children's health and safety are at risk from K.C.'s sister's partner.

[47] I also have a difficult time reconciling his position of supporting alternate weekend access for K.C. (if he is granted custody), given the nature and breadth of all his other stated concerns about her.

[48] He takes the position that the parties separated in October 2018, and he acknowledged he had little contact with the children since then up until December 2019. It was unclear why he would not have pursued an order for custody or access sooner given his concerns including that K.C. was withholding the children from him.

[49] Instead, D.S. appears to have acquiesced to a situation for over a year of the children being in K.C.'s sole care with minimal contact with him. It would be reasonable to expect that he would commence proceedings sooner if he was dissatisfied with this arrangement or if he was concerned for the children's safety in their mother's care. He further consented to the order on December 23, 2019 which provided that the children's primary residence would remain with mother in spite of his evidence that indicates he had concerns which predate that order. That order was without prejudice however neither party chose to pursue argument of that motion on the merits. As previously indicated I take from this that both parties were content at the time with the terms of the order they consented to.

[50] In addition to the texts between K.C. and D.S.'s mother occurring in December 2019 and prior to the consent order, on their own they do not establish that the children are at immediate risk. There was no other independent evidence of police attendances or involvement, or that the CAS has verified any concerns related to drug use by either parent.

[51] Having said that, K.C. did not dispute the texts, and they appear to make clear reference to drugs. This is a significant concern to this Court, and if there is further evidence to support that the children are being exposed to illicit drug use in their mother's home it may support a review of the time they spend there.

[52] It is also a concern that D.S.'s mother, who he named as his primary support in his 35.1 affidavit, was engaged in the communication and seeking drugs.

[53] While D.S. has indicated that he has made the CAS worker aware of all his concerns, it would still be appropriate that the CAS be provided with these Reasons for Judgment and the affidavits and exhibits filed by the parties.

[54] The issue of the children's school attendance is also of concern to this Court. Unfortunately the children's report cards were not provided so it was unclear what impact these absences may have had on their academic progress. This issue, while a concern, does not represented an immediate risk, particularly when there is no evidence of any impact on their academic performance. It is however an issue that will need to be monitored and K.C. will be required to ensure that the children attend school consistently, or otherwise complete their school work. It is also appropriate that D.S. have court ordered access to all third party records related to the children's health, education and welfare.

[55] Overall, while the parties filed conflicting evidence on many issues, there were material facts that are not in dispute, and there were areas of evidence offered by D.S., particularly related to J.F., that on their own are insufficient to support a finding.

[56] On the basis of all the circumstances outlined herein, D.S. has not demonstrated urgent circumstances of risk to the children's physical or emotional well-being to justify his withholding of the children and the cessation of any contact with their mother since then.

[57] However, urgency is established on the basis of D.S. withholding the children starting on May 4, 2020 in spite of the order. Urgency is also established in my view in that without a more structured interim order the likelihood of the children being exposed to further upheaval is likely.

[58] On the basis of the finding of urgency the Court is required to determine what custody, access and residential arrangement will best serve the children's interests at this time. In making these determinations, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.

[59] For the following additional reasons the best interests of the children support a return to their primary residency with K.C. with structured and expanded access to D.S.

[60] While there is no presumption in favor of custody to either parent in any initial application following separation, the status quo – and avoiding the reckless creation of a new status quo- are important considerations at the interim custody stage. Cosentino v. Cosentino, 2016 ONSC 5621 at paras 16 and 17.

[61] It is a long standing legal principle that absent compelling evidence that an immediate change is required, the status quo is ordinarily to be maintained until trial. In other words, in making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child's best interests. The reference to status quo, in a fresh separation entails a look at the status quo when the family was together.

[62] Through the lens of the child's best interest the court must determine what temporary living arrangements are the least disruptive, most supportive and most protective for the child. If appropriate, the status quo of the child, that is the living arrangements with which the child is most familiar, should be maintained as closely as possible.

[63] However, the importance of pre-separation status quo on a fresh application is tempered by section 20(4) of the Children's Law Reform Act which provides as follows:

Where Parents Separate

Where the parents of a child live separate and apart from the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. [Emphasis added]

[64] As previously noted, D.S. appears to have acquiesced to the children residing solely with K.C. with minimal contact with him for over a year from the date he claims they separated. He took no steps during that time to seek a court order. In other words, in spite of his stated concerns he was content to permit a status quo to establish for a lengthy period post-separation without taking any steps that would be reasonably expected if he were concerned or dissatisfied with the arrangements.

[65] Regardless of the arrangements during the relationship which may well have involved D.S. parenting jointly with K.C., following separation he allowed a lengthy status quo to develop that K.C. was the primary caregiver of the children.

[66] With respect to the parties' plans, K.C. indicates that she will continue to reside in the home of friends in Innerkip while she seeks permanent housing, and she had been working on the children's school work with them after consultation with their teachers.

[67] Since May 4, 2020 D.S. has also made arrangements to work with the children on their school work, and has obtained a computer from the school. According to his 35.1 affidavit he resides with his partner and her three children.

[68] This was the extent of evidence the parties provided about their proposed plans. Neither party provided information about the particulars of any employment, or anyone else they may be living with or may be in a caregiving role to the children. Given the scant particulars provided by both parties the Court has little to go on.

[69] I do not have the benefit of independent views and preferences of the children, however, I accept that both parties share love, affection, and an emotional attachment with them. Neither parent has alleged that the children do not have a good relationship with both their parents or would not benefit from time with each of them.

[70] This Court's primary concern relates to D.S.'s ability to promote a relationship between the children and their mother. The Court is concerned that D.S. acted unilaterally in withholding the children in contravention of a court order and without returning the matter to court in advance. It is a further concern that he has kept the children from their mother since then in spite of supporting alternate weekend access for her. He has not acted in the children's best interests in this regard, or in the manner in which he has dealt with his concerns.

[71] Access is the right of the child. A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.

[72] Further, there is no evidence that K.C. has not consistently facilitated D.S.'s access as outlined in the December 23, 2019 order.

[73] On the basis of the evidence filed the least disruptive plan that will support the children's best interests is that the status quo of primary residence from the date of separation, and continued in the order of December 23, 2019, remain in place. As such, the children shall be immediately returned to the care of the applicant and they will remain in her primary care until further order of the Court.

[74] With respect to the interim custodial designation, this is not a case where I have confidence at this time that the parties will be able to communicate effectively going forward. There is little evidence of effective communication and problem-solving. I also note that neither party is seeking joint custody as an alternative to their claim for sole custody in the motions.

[75] However, in spite of this issue I have insufficient information to order that either party have custody at this time. While D.S. has not provided sufficient evidence to support a change in primary residence on an interim basis, the evidence he provided regarding the children's poor school attendance and their potential exposure to illicit drugs are concerns that if borne out with further evidence at trial will be factors in determining the appropriate final order. Also, if K.C. is not able to find and maintain stable housing this will be a further consideration with respect to any final order for custody and access.

[76] Likewise, if D.S. cannot establish that he is able to promote and facilitate the children's relationship with their mother, follow court orders, and be able to communicate in a child focused manner with K.C., these will also be considerations in the making of any final order with respect to custody and access.

[77] In the meantime the order shall remain a designation of primary residence only with them remaining with K.C., with periods of care and control with D.S. The children shall be enrolled in the school where K.C. resides. D.S. shall have access to all third party records concerning the health, education and welfare of the children, and K.C. shall be required to consult with him on major issues affecting the children. On an interim basis if after consultation the parties disagree on a major issue regarding the children, K.C. as the parent with primary residency will have final decision-making authority.

[78] With respect to D.S.'s parenting time the order of December 23, 2019 only references alternate weekend access for D.S. and any other access as agreed. In the circumstances I am not confident the parties will be able to agree on additional access time. It is in the best interest of the children to have significant time with both parents on a structured schedule to avoid the likelihood of more disruption in their relationship with either parent. A structured and liberal access schedule would be appropriate in the circumstances.

[79] At this time it is in the children's best interest to maintain the consistency of their primary caregiver since separation, while developing and maintaining a liberal and regular schedule of time with their father. The parties will be required to discuss matters related to the children in an effort to improve their ability to communicate so that hopefully going forward child focused decisions may be made without conflict or delay.

[80] I repeat and adopt the following comments of Justice Pazaratz in Ribeiro v. Wright, 2020 ONSC 1829, which is another matter that proceeded during the pandemic:

22. Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources in a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

23. Judges won't need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there's a problem. What we're looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

24. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

[81] With these points in mind the parties in this case are encouraged to do whatever is necessary to improve their communication and cooperation to ensure that the children are kept safe and that all their needs are met in these unprecedented and uncertain times, while being mindful of the importance that the love, guidance, and emotional support the children need and receive from both their parents.

[82] On the basis of all these considerations an interim order shall issue as follows:

Interim Order

1. The children shall forthwith be returned to the care of the applicant.

2. The children shall reside in the primary care of the applicant, and shall attend school in that neighbourhood.

3. The applicant will ensure that the children attend school consistently when regular school resumes, and otherwise ensure that they are completing the required school work.

4. The respondent shall have independent access to all information regarding the children's health, education and welfare.

5. The applicant shall consult with the respondent concerning major decisions affecting the children's health, welfare and education. In the event of a disagreement the applicant as the parent with primary residence shall have final decision-making authority.

6. The respondent to have periods of care and control of the children as follows unless otherwise agreed in writing by the parties:

   a. during the school year alternate weekends from Friday at 4 PM to Sunday at 7 PM or commencing on Thursday at 4 PM if Friday is a non-school day and extended to Monday at 7 PM if Monday is a non-school day;

   b. each Father's Day from 9 AM to 7 PM regardless of the schedule. The applicant to have each Mother's Day from 9 AM to 7 PM regardless of the access schedule;

   c. one half of the spring school break;

   d. during the months of July and August there shall be a week about parenting arrangement with exchange times and on a schedule as agreed between the parties. For the summer of 2020 this schedule shall not commence until the week of July 20;

   e. every other December 24 at 6 PM to December 25 at 12 noon commencing December 24, 2020. Every other December 25 at noon until December 26 at 7 PM commencing December 25, 2021. The remainder of the school Christmas break to be shared equally;

   f. both parties to have reasonable and unrestricted email and telephone access;

   g. Such other times as agreed.

7. The respondent shall be responsible for transportation to and from access. Unless otherwise agreed by the parties, they shall only attend at each other's residence for scheduled pickups and drop offs, and shall remain in their vehicles in front of the home;

8. The parties shall not communicate with each other during access exchanges or otherwise in the presence of the children.

9. The parties shall maintain strict COVID-19 safety precautions in each of their homes and shall immediately notify the other if the children, or either of them, or any third party having contact with the children exhibit any signs of infection.

10. Once regular Court operations resume, counsel shall attend the Court Office and ensure that their client's materials are appropriately filed in the Continuing Record.

11. Within 10 days of the date of this order the parties shall serve their affidavits and attachments and these Reasons for Judgment on the CAS and file an affidavit of service.

12. The parties shall request from the CAS a written outline of its involvement with the family and what if any position it takes on the issues before this Court.

Operative Order and Costs

In the circumstances of the COVID-19 emergency, these Reasons for Judgment are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed order. The parties may submit formal orders for signing and entry before normal Court operations resume, however, these Reasons are an effective and binding Order from the time of release.

The parties are strongly encouraged to agree on the issue of costs in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments by July 10, 2020, with the responding party filing written submissions, not to exceed three pages, excluding attachments by July 24, 2020. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: June 30, 2020

Signed: "Justice S.E.J. Paull"