Court File and Parties

Court File No.: D30931/19 Date: September 14, 2020 Ontario Court of Justice

Between: Velia Auriol Turner Applicant

— AND —

Roger David Feder-Welch Respondent

Before: Justice Roselyn Zisman

Heard on: September 10, 2020

Reasons for Judgment released on: September 14, 2020

Counsel:

• Margaret Buchan, counsel for the applicant
• Roger David Feder-Welch, on his own behalf

Endorsement

Zisman, J.:

Introduction

[1] The Applicant (mother) has commenced a motion to vary the shared parenting arrangements set out in a temporary without prejudice order made on November 6, 2019 and to be permitted to make decisions regarding whether the child C. who is 9 years old attends school in-person or online.

Background

[2] The parties lived together from 2010 to June 15, 2019 when the mother left the home. Throughout this time, they resided with the Respondent's (father) mother and sister. The parties and the child shared one bedroom in the two-bedroom condominium.

[3] The mother is employed part-time in a grocery store and was also attending Seneca College part-time.

[4] The father has not had any permanent or consistent employment since prior to the birth of the child. His financial statement indicates he has no income although he does have bank accounts with about $140,000. While they resided together, the parties and the child were supported by the pension benefits of the paternal grandmother who is a retired nurse.

[5] After the separation, the mother moved into accommodations with the maternal grandfather and maternal aunt. The mother and child share a bedroom.

[6] Both parties agree that the relationship was conflictual although the father denies the allegations of physical and psychological abuse made by the mother.

[7] When the parties separated the mother left the child with the father so as not to disrupt her routine until the end of the school year.

[8] The mother commenced this court Application as she alleged the father was uncooperative and refused to arrange a parenting schedule with her. The mother sought an order of sole custody along with other relief.

[9] The parties attended a first appearance on September 18, 2019 and the father sought an extension to file his materials. No consent was reached.

[10] In the father's answer he also seeks an order of sole custody or in the alternative, a shared parenting schedule.

[11] On November 6, 2019 the parties attended a case conference. With the assistance of counsel [1] the parties agreed to a temporary without prejudice order shared parenting arrangement on a 2-2-3 schedule. There were detailed terms including a term that neither parent attend at the pick up or drop times of the other parent or pick up or drop off the child's personal belongings or homework when it was the other parent's responsibility. There were also terms that both parents refrain from discussing the court proceedings, making negative comments about the other parent and refrain from contacting each other.

[12] The parties attended a further case conference on February 25, 2020. On the court's own motion, the father was ordered not to remove the child from school at lunchtime on any day and not to pick up the child early from school. The father was also ordered to provide the mother with a copy of the child's health card and both parties were ordered to ensure that the child was dressed in proper winter clothing. The mother was to provide the father with a copy of the child's report card when available. Both parties signed a direction for the release of the notes of the children's aid society who had become involved with the family.

[13] The endorsement also stated that the court would appreciate the children's aid society notes being disclosed as soon as possible due to the possible physical and emotional distress to the child. A motion was scheduled for April 3, 2020 due to issues raised at the case conference.

[14] As a result of the pandemic the motion never proceeded and the proceedings were suspended.

[15] On June 16th the mother was granted leave to bring an urgent motion for the return of the child who had been kept by the father since June 1st as he alleged the child was being hit by the mother, maternal grandfather and maternal aunt.

[16] Due to scheduling issues the motion did not proceed until July 14th. The father alleged he had been advised that the child should not be returned to the mother as the child had disclosed that the mother and her family were physically abusing the child and there was an ongoing investigation.

[17] Both parties filed affidavits. The mother's supporting affidavit and reply affidavit had copies of the police reports and children's aid society's case notes attached that supported her version of events namely, that neither she or her family had hit the child.

[18] For oral reasons, I found that the father was emotionally abusing the child by forcing her to make up stories that she was being hit by her mother, the maternal grandfather and maternal aunt. I further found that the father had no insight into how harmful his behaviour was and that he was unable or unwilling to stop and continued to assert that he is right about the mother and her family hitting the child. His goal appeared to be to limit the time the mother spent with the child.

[19] The father was ordered to return the child to the mother. Police assistance was ordered in the event the father did not return the child voluntarily. To the father's credit, he returned the child voluntarily. The father's parenting time with the child was suspended until further court order to permit the child to re-adjust to the care of her mother.

[20] In coming to the decision that the father return the child to the mother and that his parenting time be suspended I relied on the following incidents:

a) In January 2020, the father alleged he noticed bruises on the child and that the child reported to the school that her mother, maternal grandfather and maternal aunt regularly hit her. The child was interviewed by the police and a children's aid worker. There was a small bruise on her forearm. The child reported that she had no idea where she got the bruise and admitted that she made up the allegation to "make her father feel less sad." She said that she was never hit, felt safe with her mother and wanted to go home. The father alleged that the children's aid worker had influenced the child to withdraw her allegations;

b) In an interview in February 2020, the child stated to the children's aid worker that her father had been pushing her to say her mother hit her. She further disclosed that her father was punishing her not saying that her mother was hitting her. She had to lie to her father after being sent to her room for telling the truth that her mother doesn't hit her. She then stated that she did not want to live with her dad anymore;

c) In March 2020, there was a dispute between the parties as to when the child was to be returned, the police were again involved but would not enforce the parenting schedule as there was no police enforcement clause;

d) On May 20, 2020 the child was interviewed by a children's aid worker and disclosed that at her father's home she was stuck in her room and that there was yelling and arguing between her father and the paternal grandmother. As a result of this information the worker made an appointment to meet with the father on May 28th. The father subsequently cancelled this appointment;

e) On May 28th the father alleged that when he picked up the child, she told him that she had been hit by the maternal grandfather and maternal aunt on her bum, arms, legs and head and that her mother was home and did nothing to stop it. The father reported this to the police. The child was again interviewed by the police. The interview took place in the presence of her father and the child stated that her mother hit her on the face, butt and arms. The police report said they found no marks on the child and the child could not provide any details. While the police were questioning the child, she slipped them a note that said, "I want to live with my mom and I love my mom." No charges were laid;

f) Even after the police showed the father the child's note, he would not change his mind about returning the child to the mother in accordance with the outstanding court order;

g) The family service worker and counsel from the children's aid society attempted to intervene to encourage the father to return the child to the care of the mother and abide by the terms of the court order. The father refused to return the child. He also cancelled a scheduled meeting with the police and the society worker on June 10, 2020. The mother's counsel also corresponded with the father's counsel in an attempt to have the father abide by the court order. But he continued to refuse to abide by the terms of the court order; and

h) The father continued to maintain that the mother and her family were hitting the child, there were no safety mechanisms in place and he could not permit his child to be physically abused.

[21] When the matter returned to court on August 28th for a further case conference, the issue of the father's parenting time and whether the child would attend in-person or online schooling arose. As there was no consensus, a motion was scheduled for September 10th.

[22] The mother relied on her supporting affidavit and the father relied on his affidavit that had been prepared with the assistance of counsel.

[23] The issues to be determined on this motion are:

1. What parenting schedule should be ordered?
2. Should the child attend in-person or online schooling as of September 2020?

Discussion

1) What parenting schedule should be ordered?

[24] It is the position of the mother that the temporary without prejudice order of the 2-2-3 schedule is not working and not in the child's best interests. Although she wishes the child to have a relationship with her father, she is concerned about his relentless attempts to undermine her parenting by forcing the child to make up stories about her and her family hitting the child. She is also concerned that the father is controlling and oppressive in other ways.

[25] The mother proposed that the child spend alternate week-ends with the father from Friday to Monday and have scheduled telephone call access three times a week to be initiated by herself and the child could call whenever she wished.

[26] The father proposed that the parties return to the 2-2-3 schedule and he agreed that he would adhere to this schedule. He further submitted that the child be returned to his care immediately and that she remains in his exclusive care until October 6th to make up for the time that she has been with the mother as this is "only fair".

[27] Any decisions regarding a child are made with respect to that particular child's best interests. The factors for a court to consider are well-known and set out in section 24 of the Children's Law Reform Act as follows:

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). 2006, c. 1, s. 3 (1).

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.

[28] I have considered and applied these considerations to the issue of the parenting schedule. I find the following to be relevant:

1. Both parents love the child and the child has a close and loving relationship with both parents and with the extended family members. I reject the father's assertion that the mother, maternal grandfather or maternal aunt physically hit or in any way harm the child;

2. The child has expressed to both the police and children's aid workers that she wishes to reside with her mother. Despite her young age, I put weight on her views especially in view of the context of this case;

3. The mother has provided a stable home environment for the child and continues to be able to meet all of her needs. The mother has exhibited insight into the difficult position the child has been placed in trying to please her father and with having been drawn into the current conflict;

4. The father continues to show no insight into the effect his actions have had on the child. In his 4-page affidavit filed on this motion he spends 3.5 pages reiterating and explaining his concerns about the safety of the child while in the care of the mother. He in effect attempted to relitigate the motion that required him to return the child to the mother;

5. The mother can provide appropriate structure for the child whereas the father is unable to do so. For example, while in the mother's care in addition to telephone calls the father was using virtual Roblox chat to communicate with the child while playing video games. By the end of July, the mother became alarmed that the child was spending so many hours playing games and limited her to 3 hours daily playing games whether with her father or anyone else. The father apparently did not recognize any problem with the child spending too much time on video games. The mother tried to put a structure in place for telephone call calls to be limited to 3 times a week. The father did not respond to her suggestion. At times he would call multiple times a day;

6. The father had not shared important information with the mother. For example, she was not told that he took the child to see her doctor in January. When the mother attended with the child for a scheduled appointment with the doctor on July 28th, she was told the father cancelled the appointment. When asked why he did this, he replied that it was his appointment. The mother then rescheduled the appointment for August 17th and invited the father to attend either in-person or by telephone. The father did not attend. The mother is the parent who is prepared to advise the father and involve him in appointments and decisions with respect to the child whereas the father is not prepared to do so;

7. The mother is the parent that is best able to meet the emotional needs of the child. The mother alleges that the child has expressed anxiety about returning to spend time with her father. If the child is again forced to make false accusations by the father about her mother and the maternal family, the mother will be able to assist the child and if necessary, arrange for counselling for her. I find that there is a serious concern given the father's lack of insight and any remorse for what he has put this child through that he will repeat his unfounded allegations;

8. The mother's plan is to have the child in her primary care but still permit the father to spend time on week-ends with the child. The mother's plan also would allow the child to socialize with her peers by returning to in-person schooling. The father proposes that after the child spends about a month in his full-time care that they return to the 2-2-3 schedule and he will provide her with online learning. He provides no plan with respect to the child socializing with any friends. I find that the mother's plan meets the needs of the child to maintain contact with her father and the paternal family but provides her with a primary residence that not only meets all her needs but is less stressful than the father's residence.

[29] While I am prepared to order the father to have alternate week-end access with a return to school on Mondays as this eliminates the need for the parties to meet, there is evidence that the father in the past has not been willing to abide by the terms of court orders. For example, he insisted on picking up the child's school bag on the mother's access days and picking up the child from school for lunch on the mother's days. This resulted in the court needing to make specific orders prohibiting the father from doing this. He also withheld the child from the mother and forced her to make up allegations of being hit despite the clear evidence that the mother and her family were not hitting the child.

[30] However, if the father does not abide by the terms of parenting schedule, it may be necessary to restrict his time with the child even further. I am extremely concerned about the pressure the father has put on this child to make false allegations and concerned about his total inability to understand the harmful effect that has had. Accordingly, the order that I will make will impose a suspension of his parenting time in the event there is any breach of the order.

[31] I am also concerned that when the child begins to have in-person parenting time with her father that he will again begin to pressure her about the mother or her family hitting her or about school attendance. Therefore, I find that the mother needs to have clear authority in the event she wishes to arrange for counselling for the child. Given the past history, I anticipate this may not be forthcoming.

[32] I appreciate that this relief was not requested by the mother, but based on the evidence before me and to avoid the need for another urgent motion, I find that it is in the child's best interests to also permit the mother to make medical and or counselling decisions without the need for the father's consent.

2) Should the child attend in-person or online schooling as of September 16, 2020?

[33] It is the mother's position that she should have the authority to make decisions about the child attending either in-person or online schooling. At the present time, she wishes the child to attend in-person but in the event due to illness or a change in circumstances she wishes the authority to change to online learning.

[34] The father did not respond to the mother's messages about registering the child for school and indicated that he did not want the child to return to school until "Covid was over" which resulted in the necessity of this motion.

[35] The father's position on the motion was initially unclear. In his affidavit he states, he was nervous about the child returning to in-person school as he was concerned that the school would not allow sufficient social distancing in accordance with government restrictions. He deposed that his main concern was her exposure to other children while not social distancing. But then he deposed that, "I would agree to send her to in-person school as the social aspect of school would be in C.'s best interest". He goes on to say that it would also be in her best interests if he had the ability to visit her at school and take her out for lunch as is common practice at her school on school days.

[36] Given this ambivalence, the father was asked at the outset of the motion to clarify his position regarding schooling. The father then stated that he wanted the child to only attend online schooling. He was home all day and could assist her.

[37] There have now been several cases in Ontario that have grappled with the issue of the court's ability to determine the merits of whether a particular child should attend in-person or on-line schooling. These motions by necessity are heard on an urgent basis with no cross examinations, no expert evidence and with parties relying on various "expert reports", newspaper articles or summarizing of evidence in other cases.

[38] Ultimately, a decision about what school a child attends is nothing new to our courts. Prior to this pandemic, courts were frequently required to determine school issues such as, if a child should attend school or be home schooled, if a child should attend French immersion, if a child should attend a secular or a religious school. Ultimately, these decisions are all determined based on what decision is in the best interests of the particular child before the court and which parent is best able to make that decision.

[39] However, in this pandemic the amount of information available, much of which is contradictory and changing daily, is overwhelming and causes well-meaning parents to differ as to what type of learning is best for their child. The courts are being asked to scrutinize or second guess the decision of the Ontario government in consultation with the public health officials, the school boards and teachers' unions that is now safe enough to reopen schools with the health and safety precautions that have been put in place.

[40] I adopt the jurisprudence that has held that it is not for the courts to question the decision of the government to re-open schools unless it is contrary to the best interests of the particular child before the court.

[41] In the case of Zinati and Spence, [2] Justice J.T. Akbarali has summarized the available jurisprudence and the factors a court should consider with respect to whether children should attend in-person or online learning as follows:

a. It is not the role of a court tasked with making determinations of education plans for individual families or children to determine whether, writ large, the government return to school plans are safe or effective. The government has access to public health and educational expertise that is not available to the court. The court is not in a position, especially without expert evidence, to second-guess the government's decision-making. The situation and the science around the pandemic are constantly evolving. Government and public health authorities are responding as new information is discovered. The court should proceed on the basis that the government's plan is reasonable in the circumstances for most people, and that it will be modified as circumstances require, or as new information becomes known.

b. When determining what educational plan is in a child's best interest, it is not realistic to expect or require a guarantee of safety for children who return to school during a pandemic. There is no guarantee of safety for children who learn from home during a pandemic either. No one alive today is immune from at least some risk as a result of the pandemic. The pandemic is only over for those who did not survive it.

c. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

i. The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

ii. Whether the child, or a member of the child's family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

iii. The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv. Any proposed or planned measures to alleviate any of the risks noted above;

v. The child's wishes, if they can be reasonably ascertained; and

vi. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents' work, or caregiving responsibilities, or other demands.

[42] In my view, and applying the factors outlined above, I find that it is this child's best interests at this time to attend in-person school and to provide the mother with the right to make ongoing decisions about whether the child continue to attend in-person or online schooling.

[43] The child is at risk whether she attends in-person or online learning as she lives with her maternal grandfather and maternal aunt who both work outside the home and her grandfather would be at increased risk due to his age. The mother also works outside the home at a grocery store and as a result is also at increased risk. The father lives with the paternal grandmother who is also at risk due to her age.

[44] The child is healthy and is not at any increased risk. Although both her maternal grandfather and the paternal grandmother are in general at increased risk due to their age, neither of them has any specific health concerns that make them more vulnerable.

[45] The mother due to her employment has a great deal of experience with COVID protocols and safeguards. There have been no outbreaks of COVID-19 at the store she works in. She takes extra precautions when she returns from work, by taking off her clothes, showering and laundering her clothes. The mother would expect the child to follow the same routine when she returns from school.

[46] I accept the mother's evidence that the child has been more withdrawn than usual. She has been isolated from her friends and normal life. She is already under stress and heightened anxiety due to the turmoil caused by the father in withholding her from her mother for an extended time over the summer and the extreme pressure he has put on her. Being at school with her teachers and friends will give her a sense of normalcy and an escape from the family conflict and make her feel more independent.

[47] Although the child was able to learn online during the last school year, the mother had relayed her concerns to the school that the child was not grasping some of the concepts but she did not receive any extra help. The mother is concerned that starting Grade 4 with a new teacher online without an opportunity to get to know the teacher and the class will be difficult for the child. She has already fallen behind academically and if she only receives online instruction there is a realistic concern that she will fall even further behind. [3]

[48] Although the child is registered for in-person schooling, parents will also be able to move from in-person to online throughout the year. The current deadlines for switching are in November 2020 and February 2021.

[49] The mother has provided evidence from the Toronto District School Board (TDSB) as to the precautions and safeguards that will be in place. Grades 1-3 will be capped at 20 children and the other grades capped at 27.

[50] With respect to this child, she will be in a Grade 3-4 split that will be a smaller class than the full Grade 4 class. The father deposes that he was told that the classes would be capped at 27 children and in his view, this will not allow sufficient social distancing.

[51] The mother provided evidence from the TDSB outlining the precautions in place at the school namely:

a) Children will be screened each morning when they arrive at school

b) all staff will wear medical masks and face shields

c) all children will be required to be masked

d) physical distancing will be maintained as much as possible

e) floors with be marked to designate traffic flow and distancing

f) students will stay in their classroom cohort and large gatherings will be avoided

g) handwashing will be built into the daily routines

h) sanitizers will be available throughout the school

i) cleaning will be done throughout the day and shared items will be used minimally and cleaned between users

j) where possible windows will be left open, and

k) the mechanical/HVAC systems will be checked and filters changed regularly and settings adjusted to reduce recirculation.

[52] The father does not dispute that these safety measures and precautions will be in place.

[53] The school the child attends is not a school or in an area that had been identified as higher risk for contracting COVID-19 according to the information provided by the TDSB.

[54] All of these safety measures and precautions appear to be reasonable and I assume are in accordance with the recommendations of the government, public health directives, the TDSB and teachers.

[55] Based on the evidence before me, I find that this child will not be at any greater risk than anyone else from contracting COVID-19 based on her attending in-person schooling.

[56] The mother, maternal grandfather and maternal aunt all work so providing online learning will be difficult. If mandated, the mother will reduce her shifts at work but this will also result in her earning less income. Currently, the father is not providing any child support or financial assistance.

[57] The father is home full time so he will be able to assist the child with online learning. However, the mother raises concerns about him teaching the child due to his intense and overbearing nature. The mother alleges that the father is certain he is right and everyone else is wrong and there is no room for anyone else's opinion.

[58] It is the mother's belief that the father cannot let the child breathe, relax and be herself. She deposes that she has seen the father drill the child for hours on spelling words until she is exhausted and she has seen the child hide spelling lists for him. She has seen the father turn swimming into a stress and anxiety provoking chore, after repeatedly insisting on the child swimming excessive laps in the pool.

[59] Despite these serious accusations in the mother's affidavit, the father did not respond but merely asserted that the online schooling program is advanced and more than adequate to meet the child's needs. Despite his stated concern that the child not be exposed to other children at school, he proposes that if she go to school he be permitted to take her out for lunch. It is not clear how she would not be exposed to other people if he took her out to lunch rather than remain in the controlled environment of the school.

[60] Overall, the mother is best suited to make the decision about if the child attends in-person or online school. The mother wishes the ability to decide how the child attends school rather than an order that the child attend in-person as she recognizes that it is possible that conditions may worsen or that due to other circumstances she may no longer be in favour of in-person schooling.

[61] I find that the mother can be trusted to make decisions based on the available health information, government and school guidelines balanced with the child's particular health, educational and psychological needs.

[62] Given the father's opposition to the child returning to school in-person, I have concerns that he will put pressure on the child to say she does not wish to attend school in-person or increase her anxiety about attending school. For this reason, I find that the child should attend school for a few weeks before resuming in-person contact with her father.

[63] I also expect the father to strictly follow this court order and not undermine or attempt to negatively influence the child about attending school in-person. If he does not deliver the child to school in accordance with the court order, his access will need to be suspended again.

[64] It is important that both parents make the child's transition back to in-person schooling as pleasant and stress free as possible and not heighten any anxiety that she may already be experiencing.

[65] I agree that a police enforcement clause is needed in view of the father's prior breaches of court orders and as a mechanism if necessary to require the father to comply with the court order and avoid another urgent motion.

Order

[66] There will be a temporary order as follows:

1. The Applicant, Velia Auriol Turner shall make any and all decisions regarding whether the child, C., born […], 2011, attends school in-person or online throughout the academic year 2020/2021, subject to the availability of both options at her school, […] Public School.

2. The Applicant shall make any and all decisions with respect to any medical care or counselling that she shall determine would be beneficial for the child. The Applicant shall advise the Respondent, Roger David Feder-Welch of her decision and provide him with information about any medical treatment or counselling regarding the child.

3. The Respondent shall fully co-operate with the school attendance of the child in accordance with the decisions of the Applicant regarding in-person and online attendance and not attempt in any manner to undermine the Applicant's decisions with respect to the schooling of the child.

4. The child shall primarily reside with the Applicant.

5. The child shall have parenting time with the Respondent as follows:

i) Commencing on alternate week-ends from Friday October 2 to Monday October 5, 2020 and each alternate week-end thereafter.

ii) When the child is attending in-person school, the Respondent will pick her up at the end of the school day (usually 3:30 p.m. and no earlier) and return her to school on Mondays no later than 8:45 a.m. (or any other time the school requests, in writing, that all students arrive).

iii) If the child is too ill to attend school on the Mondays, the Respondent shall return her to the Applicant's home no later than 8:45 a.m.

iv) If there is no school or the child is no longer attending in-person school, the Applicant will drop off the child in the lobby of the Respondent's home at 6:00 p.m. on Fridays and the Respondent shall drop the child off on Mondays to the Applicant's home no later than 8:45 a.m.

v) The Respondent shall not remove the child from school during school hours or remove her during lunchtime.

vi) The Respondent shall return the child's back pack complete with all contents when he returns the child to school or the mother's home on Monday mornings.

vii) The Applicant shall facilitate telephone access between the Respondent and the child on Mondays, Wednesdays and alternate Fridays between 6:00 p.m. to 7:00 p.m. to be initiated by the Respondent and not to exceed a half hour for each call. The child is able to initiate calls to the Respondent in accordance with her wishes. The Respondent shall not otherwise call the child unless he is returning her call.

viii) Any breach of this order will result in the ability of the Applicant to automatically suspend the Respondent's week-end access. The Respondent shall be permitted to bring an urgent motion on short notice in the event his parenting time is suspended by the Applicant.

6. The Toronto District Police and /or any police force having jurisdiction where the child may be located are authorized to enforce this order pursuant to the terms of paragraph 36 of the Children's Law Reform Act.

[67] Most cases dealing with school attendance during this pandemic have held that costs are not appropriate given the novelty of the issue and the reasonableness of the parties' positions. However, this motion also dealt with the issue of a parenting plan and given the history of the proceedings, I find that the Applicant should be given the opportunity to make a claim for costs, if desired on the basis that she was the successful party.

[68] If costs are not resolved, the Applicant shall serve and file costs submission limited to 3 pages with only a Bill of Costs and any offer to settle attached within 30 days and the Respondent shall be permitted to serve and file his responding submissions also limited to 3 pages with his Bill of Costs, if desired, and any offer to settle attached. Both submissions to be filed with the court by email to the trial co-ordinator's email address.

Released: September 14, 2020

Signed: Justice Roselyn Zisman

Footnotes

[1] The father has had counsel on a limited scope retainer prepare his court documents and attend the proceedings at various times.

[2] 2020 ONSC 5231; See also Chase and Chase, 2020 ONSC 503 and cites cited therein

[3] I put no weight on a newspaper article that was attached to the mother's affidavit outlining that 70% of students in the Toronto District School Board are returning to in-person learning.