ONTARIO COURT OF JUSTICE DATE: 2021·09·13 COURT FILE No.: Woodstock D75/21

BETWEEN:

T.M.M. D.G.M. Applicants

— AND —

L.E.D.M. E.L.H. R.P. Respondents

Before Justice S. E. J. Paull

Motion Heard on August 30, 2021 Reasons for Judgment released on September 13, 2021

Counsel: James G. Battin.............................................................................. counsel for the applicant(s) E.L.H. ................................................................................................................ on her own behalf R.P...................................................................................................................... on his own behalf

PAULL J.:

[1] Before the court is a motion brought on an urgent basis seeking an interim order that the applicants have sole decision-making authority for M.M. born […], 2014 and shared decision-making authority for J.H. born […], 2011, or alternately an order for contact with the children.

[2] The applicants are the paternal grandparents of M.M. The respondent L.E.D.M. is their son and M.M.’s father. He has not participated in this proceeding.

[3] The applicants are the step-grandparents of J.H. His father is R.P. who has recently become involved in J.H.’s life. The respondent E.L.H. is the children’s mother. R.P. and E.L.H. oppose the request that the applicants have decision-making authority with respect to the children.

[4] I have reviewed and considered the affidavit of the applicants dated June 11, 2021, the affidavit of the applicant’s daughter, M.E.L.M. dated June 11, 2021, the responding affidavit of R.P. sworn August 23, 2021 and the reply affidavit of T.M.M. dated August 26, 2021.

[5] E.L.H. did not file responding materials, however, was present and made submissions when the motion was argued.

Background and Evidence

[6] The motion was served on E.L.H. on June 17, 2021 and she was not present on the first return date of June 28, 2021. On that date the court found that prima facie urgency was established on the materials filed and a date was set for argument of the motion. The court also ordered that the applicant’s serve their pleadings on Oxford CAS, and made further orders including that they have interim without prejudice contact with M.M. on alternate weekends pending return of the motion. The motion was adjourned to August 11, 2021 for argument. The matter was further adjourned to July 19, 2021 at 10 AM to provide a further opportunity for the respondents to be present and for filing deadlines to be imposed.

[7] On July 19, 2021 E.L.H. and L.E.D.M. were not present, and the motion was adjourned to August 9, 2021 for argument, with the date of August 11, 2021 being vacated. There is a note in the file from the court clerk that on July 19, 2021 E.L.H. attended personally at the courthouse. She was provided with the ZOOM information and called in at approximately 12 PM by which point the matter had been adjourned. The clerk spoke to her and provided her the information in the endorsement.

[8] R.P. was served on August 5, 2021 and was present along with E.L.H. on August 9, 2021. E.L.H. sought an adjournment to seek counsel and file responding materials which was opposed by the applicants. The court adjourned the motion for argument to August 30, 2021, pre-emptory on E.L.H. to file materials whether she had retained counsel are not. A further interim without prejudice order was made that the applicants have contact with the child J.H. on alternate weekends when they have M.M. In addition to filing deadlines the court made an order that the parties request a letter from Oxford CAS outlining its involvement with the family and any position it may have on the issues before the court.

[9] By the return date of August 30, 2021 E.L.H. had not filed responding materials as ordered despite having 2 ½ months from the date of service and sought another adjournment which was denied. R.P. had filed a responding affidavit which was replied to by the applicants.

[10] The applicants acknowledge that their son L.E.D.M. has long-standing drug addiction issues. They also allege significant concerns with E.L.H. related to her ability to appropriately care for the children. There is a custody/access order between L.E.D.M. and E.L.H. dated February 21, 2018 which placed both children in their mother’s sole custody with supervised access to L.E.D.M. He has not had recent involvement with the children.

[11] The applicants allege that they have always maintained regular contact with both children. They have been involved in J.H.’s life regularly since 2013 and with M.M. on a weekly basis since she was born.

[12] The applicants have had long-standing concerns for the children’s welfare in E.L.H.’s care and have made numerous referrals to Oxford CAS. They indicate that during attendances at E.L.H.’s home they have observed concerns with the level of hygiene. They also allege inadequate supervision and attention to dental and medical follow-up for the children, inadequate food and clothing, and that E.L.H. has maintained a party atmosphere in her home at times. The applicants deposed to repeatedly observing pet feces and urine in E.L.H.’s home.

[13] The applicants also allege a concern with the children’s attendance at school, particularly since it has been virtual, and that as a result both children struggle academically.

[14] The applicants allege that as a result of E.L.H.’s ongoing parenting issues M.M. went to reside with a family friend (Ms. Mc.) on May 10, 2021 pursuant to arrangements made as a result of Oxford CAS intervention.

[15] They depose that J.H. has also been living outside of E.L.H.’s care with his maternal grandmother, D.E. They acknowledge that he appears to be doing well in that placement but they would like to be granted shared decision-making authority to ensure that he is being properly cared for, and they would also like specified periods of contact with J.H. to continue.

[16] R.P., J.H.’s father, has recently had parentage confirmed by way of a DNA test and he is just beginning to develop a relationship with J.H. R.P. hopes that this will progress so that he can be a meaningful and engaged parent for J.H. He deposes to his belief that he is able to work with E.L.H. regarding issues related to J.H.

[17] R.P. opposes the applicant’s claim for shared decision-making authority with respect to J.H. His position is that it is not necessary or appropriate in the circumstances. He is not opposed to the applicants having contact with J.H. but he is particularly concerned about the applicants exposing J.H. to derogatory comments and exposing him to adult conflict.

[18] R.P. and the applicants appear to have met on only one occasion during a contact time exchange in August 2021. R.P. deposes that T.M.M. was aggressive and rude in front of J.H. In her reply affidavit, T.M.M. disputes this characterization of her behaviour and deposes that she may have defended herself and “spoke loudly”, but she did not use profanity and that it was in fact Ms. Mc. that was belligerent and rude. The police were apparently contacted but did not have any contact with the applicants.

[19] The daughter of the applicant, M.E.L.M. (the aunt of M.M.) filed an affidavit in support of her parents. She is a certified teacher and resides with the applicants and corroborates their view of E.L.H.’s home and parenting.

[20] Since May 2021 the applicants allege they have had difficulty being able to see their grandchildren with the same frequency that they did previously.

[21] The applicants have had no involvement with the CAS, and T.M.M. has filed a clear police records check.

[22] As previously noted, E.L.H. did not file responding material, but did make submissions at the hearing of the motion in opposition to the request of the applicants for decision-making authority.

[23] Pursuant to this court’s order on August 9, 2021 the Oxford CAS provided a detailed Report of its involvement with E.L.H. dated August 30, 2021. Its involvement may be summarized as follows:

a. The applicants have no history of involvement with Oxford CAS. b. E.L.H. has a lengthy history of involvement as a caregiver with many file openings starting in January 2008 up to the present. Historic concerns related to the unsafe state of the home and suspected drug use by E.L.H. c. Between January 2014 and November 2019, the CAS received many referrals and conducted numerous child protection investigations of E.L.H. primarily related to concerns about the neglect of the children. None of these investigations resulted in verified protection concerns. d. Between January 2020 and November 2020 following a further referral, the CAS verified chronic headlice, dental work needing to be done, and that the children were not being cleaned/bathed which resulted in them having an odor. E.L.H. worked with the CAS and achieved all the goals and the file was closed. e. The CAS received several referrals from the children’s school between January-March 2021 expressing concerns regarding the children’s school attendance and well-being. Concerns were verified but not deemed child protection concerns and it was noted that the extended family was supporting E.L.H. and the children at the time. f. The CAS has maintained involvement from April 6, 2021 to present after receiving further referrals regarding allegations of neglect of the children. Upon investigation E.L.H. confirmed to the worker that M.M. was eating cat food, and “minimized this behaviour as something that all children do”. The worker observed the home to be dirty and in disarray with the basement filled with garbage bags. There had also been a sewer backup into the basement. g. As a result of these concerns the CAS opened an ongoing file for E.L.H. and the children on May 14, 2021. A Voluntary Service Agreement (VSA) was signed with E.L.H. to address the conditions of the home and the medical needs of the children. h. A plan was agreed to that the children would stay with extended family and a close family friend. The CAS supports this plan while E.L.H. addresses ongoing concerns regarding the state of her home and her mental health. i. The CAS Report concludes with the following: “E.L.H. has reached out to several community support systems to assist with the state of the home, which includes addressing a flooded basement and removal of clutter and damaged belongings due to the basement flood. Oxford Housing has fixed the flooding in the basement. Public Health assisted in removing the damaged belongings. E.L.H. has cleaned and organized the home and is maintaining it as needed.

E.L.H. is being monitored by her family doctor in regards to her mental health. Oxford Housing has also brought in an outreach worker from Oxford County Community Health Center, who E.L.H. is working with in regards to accessing further supports for mental health. E.L.H. has reached out to Canadian Mental Health Association and receives mental health support from there as needed.

Access between E.L.H. and the children began with E.L.H. seeing them at her mother's home. This progressed to having visits in E.L.H.'s front yard and at parks. On August 21, 2021, after the home was cleaned, visits progressed to in-home visits. E.L.H. is currently working towards overnight visits. In addition to in-person visits, E.L.H. has had regular contact with the children via phone calls and virtual/facebook live. The CAS and E.L.H. are working towards a goal of the children returning to E.L.H.’s care.

E.L.H. is working cooperatively with the CAS and is achieving the goals as set out. E.L.H. and the CAS worker meet every 3 to 4 weeks and also maintain regular contact via text and phone calls. The CAS will continue to support E.L.H. in addressing her mental health and in reunification with her children.

E.L.H.'s family and close friends, have rallied around her and the children and continue to provide them with emotional support. The children are content in the environments that they are currently living but are also eager to be back home with their mother.”

[24] This is an interim motion and the affidavits filed have not been tested by cross examination, however, the court recognizes that orders need to be made on urgent motions on the evidence available, and that a cautious approach to making findings of fact in the circumstances is warranted.

[25] There are findings of fact that can appropriately be made on the evidence before the court. For the purposes of this motion I accept the factual content of the CAS Report. The professional and independent status of the CAS in this matter lends credence to the information provided, and it represents the only independent evidence available at this time.

[26] I also accept that the applicants have been involved regularly in the lives of M.M. since her birth and with J.H. since approximately 2013. Their evidence presents them as genuinely concerned for their grandchildren’s welfare, however, where their allegations conflict with the information in the CAS Report, for the purposes of this motion, I accept the independent evidence of the CAS.

[27] There is also conflicting evidence before the court on the nature of the conflict between the applicants and E.L.H., R.P., and M.M.’s current caregiver. The applicant’s and R.P. painted decidedly different pictures in their affidavits of the interactions between the parties at a contact exchange in August 2021, with each blaming the other.

[28] The parties disagreed whether J.H. was present during this conflict. However, regardless of whether J.H. was also outside the home at the time, I find that he was exposed to the conflict which occurred. He had just been dropped off and the parties “spoke loudly” during their disagreement. I find it difficult to imagine that J.H. would not have been keenly aware of the adult conflict.

[29] I also find on a balance of probabilities that this was likely not an isolated incident and that the children have been repeatedly exposed to adult conflict and negative comments between the applicants and E.L.H. It is clear that many of the adults in the children’s lives have conflictual relationships. The conflict between the parties is not only contrary to the children’s best interests but may well rise to a level that presents a risk of harm to the children.

The Law

[30] The first issue to be determined is whether urgency has been established on any or all the claims before the court as the motion has been brought prior to a case conference. The rule of no motions on substantial issues before a case conference is tempered by rule 14(4.2) which states that the rule “does not apply if the court is of the opinion that there is a situation of urgency or hardship or that the case conference is not required for some other reason in the interest of justice.”

[31] Urgency has been held to include abduction or the threat of abduction, harm or the 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. The court in Rosen v. Rosen, 2005 O.J. No. 62 (Ont. SCJ) described an urgent motion as follows:

“an urgent motion contemplates issues such as abduction, threat of harm, dire financial circumstances. Counsel must first make an inquiry to see if an early case conference date can be obtained. If there is a long delay, that could make the issue critical. Counsel should also first try to obtain a short-term agreement.

[32] In the case of Kobow v. Kobow, (2007) CarswellOnt 7238 (SCJ) the court held that when considering urgency the court must balance the urgency claimed against the irreversible impact of the exchange of inflammatory and provocative affidavits and how it would affect the ability to resolve the case. Attempts should also first be made to make short-term arrangement or obtain early case conference date.

[33] If the applicants are able to establish urgency on any or all of the claims regarding decision-making authority and contact with M.M. or J.H., the court must decide what order is in the children’s best interests. Any order with respect to decision-making or contact must be made solely on the basis of what is in the child’s best interests considering the factors set out in section 24 of the Children's Law Reform Act (CLRA). The analysis is done from the perspective of the child rather than that the parents or grandparents.

[34] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It cannot be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[35] Joint decision-making should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

[36] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

[37] The applicants in this matter are grandparents and as such additional considerations apply. Grandparents do not have a legal right of contact to grandkids. Chapman v. Chapman, 15 RFL (5th) 46 (Ont. C.A.). The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. The onus is on the grandparents to show it is in the children’s best interests.

[38] It is not in the best interests of the children to be caught up in a real conflict, however the court must be vigilant to prevent custodial parents from alleging hypothetical conflicts as a basis for denying contact. Where there is real conflict, a child’s best interests will rarely be served by a custody order. The wishes of the parent must not be interfered with absent some evidence of willful disregard for those interest. Branconnier v. Branconnier, 2006 BCSC 2020. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft (1991), 122 NBR (2d) 271 (NBQB).

[39] Justice Nelson set out a 3-part test in Giansante v. DiChiara, [2005] O.J. No. 3184 (SCJ). Firstly, does a positive GP-grandchild relationship already exist? Secondly, does the parent’s decision imperil this relationship? Finally, has the parent acted arbitrarily? Deference to a parent’s wishes may not be as strong when one of the parents has died and that parent’s family seeks contact.

Analysis

[40] The first issue to be determined is whether the applicants have established urgency on any or all their claims.

[41] With respect to the claim for temporary sole decision-making for M.M. and shared decision-making for J.H., the applicants have not established urgency for the following reasons.

[42] The evidence does not establish an immediate concern that cannot await resolution at a later date. It is clear E.L.H. has a significant history of verified concerns with the CAS on the issues of her parenting ability including hygiene, state of the home, and level of care including following up on the children’s medical and dental care. The Society has verified concerns relating to these issues at various times, including most recently in April 2021.

[43] However, despite the continuous referrals, likely from the applicants, and numerous child protection investigations, the CAS did not verify any child protection concerns between January 2014 and November 2019.

[44] The CAS has been involved on a voluntary basis continually since April 6, 2021 after verifying concerns related to the condition of the home and the medical needs of the children, and have been working with E.L.H. to address these issues and her mental health.

[45] Since May 2021 J.H. has been residing with his maternal grandmother and M.M. has been with a close family friend pursuant to a safety plan agreed to between E.L.H. and the CAS. The CAS supports this plan and confirms that E.L.H. is working cooperatively and remains engaged with the appropriate community supports, and that progress is being made.

[46] The CAS operates pursuant to the Children, Youth and Family Services Act (CYFSA) and is tasked with investigating child protection concerns and taking the least intrusive action necessary to address any verified protection concerns. The Society has a duty to help parents who need assistance in caring for children, always keeping in mind the paramount objective of the CYFSA which is to promote the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the CYFSA).

[47] E.L.H. signed a VSA with the CAS that was appropriately protective of the children to address the immediate concerns as of May 2021 and she is cooperating with the plan to address the concerns before the children can be returned to her care. It is a plan implemented and supervised by the CAS in the exercise of its statutory authority, and the CAS takes the position that E.L.H. continues to be appropriately engaged, and is making progress in achieving the goals of the safety plan and the return of the children to her care.

[48] The independent evidence from the CAS confirms the existence of concerns with E.L.H.’s parenting, however, as a result of its current and ongoing involvement, and E.L.H.’s positive engagement in safety planning and with other community supports, there are no immediate and serious concerns that affect the health and safety of the children.

[49] In the circumstances the applicants have not satisfied the onus of establishing urgency on the issues of decision-making with respect to either child.

[50] If I am incorrect in this finding, I would not grant the decision-making orders sought by the applicants on a temporary basis. I would not find that the orders would be in the best interests of the children based on the present circumstances for the following reasons.

[51] With respect to M.M., she is now residing with a close family friend pursuant to a safety plan. As noted, the CAS supports and supervises this plan, and has verified E.L.H.’s active engagement to address the concerns, and her parenting time with the children is increasing with the goal of the children returning to her care.

[52] To grant the applicants sole decision-making authority and primary care at this time would no doubt undermine the current safety planning and work E.L.H. has done to address the issues. The level of conflict and mistrust apparent between the applicants and E.L.H. precludes in my view any ability of the parties to cooperate in a meaningful way.

[53] The law is clear that the wishes of a parent must be respected in relation to deciding what is in his or her children’s best interest and it must not be interfered with absent some evidence of willful disregard for those interests. In other words, the court must give significant weight to parental autonomy to determine what is best for their children. The present circumstances do not support a finding that E.L.H. is willfully disregarding the children’s best interests. Her positive engagement with the CAS and community supports establishes the opposite in my view. The safety plan formulated is sufficiently protective of the immediate concerns and is designed to address the issues in a meaningful way before the children are reintegrated back into her care.

[54] Further, the only indication of the independent views and preferences of the children before the court comes from the CAS Report which concludes by noting that “the children are content in the environments that they are currently living but are also eager to be back with their mother”. I accept for the purpose of this motion that the children’s views and preferences are to return to the primary care of their mother.

[55] With respect to J.H., I cannot find on the evidence that an interim shared decision-making order would be in his best interests. J.H. has never lived with the applicants. He resides temporarily with the maternal grandmother pursuant to E.L.H.’s VSA with the CAS, and both E.L.H. and R.P. oppose the applicant’s request for shared decision-making. Further, the applicants acknowledge that J.H. appears to be doing well in the care of his maternal grandmother.

[56] To impose shared decision-making would undermine E.L.H.’s work with the CAS and would not be in J.H.’s best interest. Shared decision-making requires a level of cooperation and communication between the parties to be effective and appropriate. In the circumstances of this case an order for shared decision-making would very likely only increase the level of conflict and dysfunction between the parties. They have no history of positive communication and to impose a requirement of shared decision-making, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. It would also risk delaying important decisions for J.H. and increase the risk that he would be exposed to further adult conflict.

[57] The issue of the level of conflict between the parties and the exposure of both children to it is a particular concern for this court. A copy of these Reasons shall be provided to the Oxford CAS, who will hopefully consider working with all the parties to ameliorate it.

[58] With respect to the issue of the applicant’s request for an interim contact order, I am of the view that urgency has been established.

[59] I have accepted that the applicants have had regular and frequent involvement with the children for many years, and that this regular contact was curtailed starting in May 2021 when E.L.H. entered into the VSA with the CAS and her children began temporarily residing elsewhere. Further, the applicants did not delay in bringing this matter to court when their regular contact was impacted in May 2021.

[60] I am also of the view, given the level of mistrust between the parties, that without a court order the children’s contact with the applicants will likely not occur. I have no confidence the parties will be able to agree on contact with the applicants or engage with each other in a way that will not place the children at risk of being exposed to conflict.

[61] I accept that the continuity of the children's relationship with the applicants which was interrupted starting in May 2021 is sufficiently serious and crucial to their best interests to support a finding of urgency.

[62] On the evidence before the court I further find that it is in that best interests of the children to have contact with the applicants on a temporary basis. The applicants have had regular contact for many years, and I accept that they have a substantial pre-existing relationship with both children. The applicants have no criminal records and the Oxford CAS confirms no involvement with them.

[63] E.L.H. has not filed any evidence to support that contact is not in the children’s best interests. R.P. does not oppose the applicants’ contact with J.H. but is concerned with J.H.’s exposure to disparaging comments and adult conflict. These issues will be addressed by specific orders directed at limiting and regulating the parties’ interactions to reduce the likelihood that the children will be adversely affected by the adults’ conflictual relationships.

[64] I am mindful that the presence of conflict can be a circumstance that militates against grandparent contact, however, I am of the view that this concern can be appropriately addressed by specific court ordered terms.

[65] Pending further order of the court, it is in the best interests of the children to maintain contact with the applicants. With respect to M.M. the applicants shall have alternate weekends from Friday at 6 PM to Sunday at 6 PM. In determining that alternate weekend access is appropriate, I note that M.M.’s father (the applicants’ son) is not involved with M.M. and that this contact will represent the only apparent connection she has with her family on her paternal side.

[66] With respect to contact for J.H. the circumstances are different. Both of J.H.’s parents are involved, and grandparents are not on an equal footing as parents. Grandparent contact should not interrupt the parental maximum contact principle.

[67] The priority for J.H. at this time is to maintain regular and expanding parenting time with E.L.H. pursuant to her VSA, and in supporting him to develop a bond and expand his parenting time with his father who is now involved. In these circumstances to impose more than one weekend per month to the applicants would undermine these priorities.

[68] Overall, J.H.’s best interests support a temporary contact order with the applicants of one weekend per month from Friday at 6 PM to Sunday at 6 PM. The weekend shall be the first full weekend of the month that the applicants have M.M. in their care.

[69] Any order this court makes in the circumstances will be an imperfect solution to a complex problem, based on an incomplete and untested evidentiary record. It is not possible to complete an extensive child focused inquiry on the evidence before the court. It is important to emphasize that the only consideration is what is in the best interests of the children on a temporary basis and not what might be considered fair or unfair to either of the parents or grandparents.

[70] The parties are strongly encouraged, with the assistance of Oxford CAS if possible, to improve their ability to communicate and cooperate on issues related to the children.

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

1. Urgency has been established on the issue of the applicants’ contact with the children.
2. Urgency has not been established on the issue of the applicants’ claims for decision-making authority with respect to the children, and those claims in the motion are dismissed.
3. The applicants shall have contact with M.M. on alternate weekends from Friday at 6 PM to Sunday at 6 PM.
4. The applicants shall have contact with J.H. one weekend per month from Friday at 6 PM to Sunday at 6 PM. This weekend shall take place on the first full weekend of the month that M.M. is also in the applicants’ care.
5. The following terms shall apply to the applicants’ contact with both children: i. The contact exchanges shall occur in Oxford County. ii. The parties shall not expose the children to derogatory comments or parental conflict of any kind or permit them to be exposed to derogatory comments or parental conflict. iii. The parties shall not communicate during contact exchanges or otherwise in the presence of the children. iv. The applicants shall remain in their vehicle during contact exchanges, and the respondents shall not approach the applicants’ vehicle. v. The parties shall not discuss this litigation with the children or the children’s time in the care of any party, or permit them to be exposed to any discussion about this litigation.
6. The clerk of the court shall serve these Reasons for Judgement on the Oxford CAS and file proof of service.
7. E.L.H. shall serve and file an Answer and 35.1 Affidavit in advance of the previously scheduled return date of September 29, 2021 at 9:30 AM via Zoom.
8. Approval of the order is waived.

In the circumstances of the divided success I will likely not be inclined to make an order for costs on the motion. However, if the parties are unable to agree the issue may be spoken to on the return date.

Released: September 13, 2021 Signed: “Justice S. E. J. Paull”