Court File and Parties

COURT FILE NO.: FC-14-1671 DATE: 2016/04/11 ONTARIO SUPERIOR COURT OF JUSTICE

RE: GLEN EWART BARNETT Applicant

AND

KELLY KAREN STRATTON Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Alison Campbell, for the applicant Self-represented respondent

HEARD: January 26, 2016

Endorsement

[1] This matter comes before the Court on a motion by the applicant father (“Mr. Barnett”) for an interim order increasing his access visits with his now 10 year-old daughter pending the outcome of his motion to change (“MTC”). The MTC is with respect to the March 2012 order of Sisson J. of the Alberta Court of Queen’s Bench (“the Order”). The relief requested by Mr. Barnett on the MTC includes a change to (increasing) the frequency of his access visits with his daughter.

[2] On the motion for an interim order, Mr. Barnett seeks to increase the frequency of the access visits with his daughter from once a month to every second weekend. In the materials filed on behalf of Mr. Barnett, the term “parenting time” is used. Throughout this endorsement I use the phrase “access visits” or the term “access”. That phrase and that term mean one and the same herein as “parenting time” in the materials filed on behalf of Mr. Barnett.

[3] The respondent mother (“Ms. Stratton”) opposes the motion and proposes that the one weekend per month be extended by a single day rather than increasing the frequency of access visits.

[4] Mr. Barnett’s goals in bringing the motion for interim relief are: a) to set out a regular and consistent parenting schedule for the access visits with Katherine pending the outcome of the MTC; b) to address Katherine’s attendance at some special occasions; and c) to avoid conflict as between Mr. Barnett and Ms. Stratton.

Background

[5] The history of the relationship between the parties is one of high conflict. The conflict appears to have existed from the outset. For example, the couple’s first attempt to marry, in 2003, is said to have been voided due to conflicts that occurred during the marriage ceremony. The parties married in 2004. Their daughter Katherine Rose Fitret Barnett (“Katherine”) was born in June 2005.

[6] The high degree of conflict continued between the parties after Katherine was born and, most unfortunately, continues to this day. The parties lived in the Toronto area prior to and during their marriage, and for two years following their separation in 2007. In 2009, Ms. Stratton moved with Katherine to Calgary. It appears that Mr. Barnett initially opposed and then eventually consented to the move.

[7] From May 2010 until March 2014 (when Ms. Stratton moved with Katherine to Ottawa), the parties obtained at least 22 court orders. At least four of the orders are from this Court; the balance of the orders is from an Alberta court (either the Court of Queen’s Bench or the Provincial Court). The March 2012 order which is the subject of the MTC is that of Justice Sisson of the Alberta Court of Queen’s Bench.

[8] The Order was made following a multi-day trial with respect to custody, access, and child support. The Order is comprehensive in its scope and includes detailed provisions with respect to access, Christmas and vacation schedules, transportation to facilitate access, the cost of transportation, telephone and electronic contact between Katherine and her parents, travel with Katherine, and a dispute resolution process. Both parties were represented at trial and Katherine was represented by counsel. Katherine was almost seven years old when the order was made.

[9] The Order of Justice Sisson includes a term with respect to “Disagreements or Changes to this Order [/] Material Change in Circumstance”. That term provides as follows:

Neither party shall have the right to apply to a Court or change this Order unless there has been a material change in the needs or means of Katherine or the parent’s situation that was not able to be contemplated when this Order was made (a material change in circumstances). In the event there is a material change in circumstances the parties shall make a good faith effort to work out the issues through the dispute resolution process, before applying to court.

[10] The dispute resolution process is set out at paragraphs 38 through 45 of the Order. It requires the parties to first attempt to resolve any dispute through mediation before bringing the matter before a court. In addition, that section of the Order provides that if a party “intentionally refused to participate in the dispute resolution process or failed to appear at the scheduled dispute resolution meeting without good reason, the court may grant costs on a solicitor and his or her own client basis to the other party.”

[11] The Order concludes with the following provision, “This Order shall remain in effect until Katherine respectively [sic] reach[es] the age of eighteen (18) unless varied by an Order of a Court of competent jurisdiction.” The MTC is the first motion since the Order was made, in which either of the parties seeks to change a term of the Order.

The Interim Motion

[12] With Ms. Stratton and Katherine having moved to Ottawa in 2014, they now live approximately 400 kilometres from Mr. Barnett and his spouse (who were married in 2010).

[13] Mr. Barnett commenced his MTC in July 2014. He brought the interim motion, now before me, in July 2015. The interim motion was adjourned from its original September 2015 return date. As I understand from the record, Ms. Stratton requested the adjournment to permit her to retain counsel. The adjournment was granted, peremptory to Ms. Stratton. On the return of the matter before me Ms. Stratton was self-represented.

[14] In January 2016, Mr. Barnett filed an amended notice of motion in which the relief requested is amended to: a) reflect the passage of time from when the original notice of motion was served and filed; and b) include relief related to Katherine’s transportation to/from the access visits with her father.

[15] In his initial affidavit filed in support of the interim motion, Mr. Barnett expresses concern regarding the detrimental effect which the current frequency of access is having on his ability to develop his relationship with Katherine. He also says that given the apparent reasonable lack of a prospect of settlement of the issues in dispute, “[he is] concerned that if a motion is not brought, there will be no opportunity to increase [his] time with Katherine prior to trial”: see para. 36 of the July 13, 2015 Barnett affidavit.

[16] The record on this interim motion includes numerous affidavits from each of the parties. In their respective affidavits the parties re-visit the extensive history of litigation. The parties remain at odds about what has transpired between them to date – even in the face of court orders and findings made in support of those orders.

[17] Given the significant contradictions in the affidavit evidence of the parties and the lack of cross-examination on the affidavits, it is not possible to make findings of credibility regarding either of Mr. Barnett or Ms. Stratton.

Reports of OCL and Dr. Rovers

[18] Each of the parties requests that in determining the interim motion I consider the evidence of a non-party:

• Mr. Barnett requests that I consider the contents of the interim and final reports of Jan Christensen, a clinical investigator with the Office of the Children’s Lawyer (“the OCL”); and
• Ms. Stratton requests that I consider the recommendations of Dr. Martin Rovers, a psychologist who has been providing weekly counselling to Katherine since late 2015.

a) OCL Reports – Ms. Christensen

[19] The involvement of the OCL is pursuant to the case conference endorsement of Justice Blishen dated November 28, 2014. The endorsement provides as follows: “This matter is referred to O.C.L. with recommendation for [social work] investigation report”. There are no conditions attached or other terms related to the referral of the matter to the OCL.

[20] Attached as an exhibit to the July 2015 Barnett affidavit are the interim (April 2015) and final (June 2015) reports of Ms. Christensen. Each report is in turn attached to an affidavit sworn by Ms. Christensen. In the cover letter which accompanies each report is reference to fulfilment of the OCL’s obligation pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

[21] Ms. Christensen’s recommendations are, in summary as follows:

1. Katherine’s access visits with her father is to be increased to every other weekend.
2. Katherine is to spend four weeks of her summer vacation with her father.
3. Telephone/Skype access between Katherine and the parent in whose house she is not residing is to be facilitated on specific terms with respect to frequency.
4. The changes in access, once implemented, shall be reviewed within six months.
5. Mr. Barnett is encouraged to access counselling services to facilitate strengthening his relationship with Katherine.
6. Mr. Barnett shall be entitled to gather all professional information about Katherine from the source.
7. Sole custody of Katherine remains with Ms. Stratton.

b) Treating Psychologist – Dr. Rovers

[22] The January 2016 report of Dr. Rovers is included as an exhibit to Ms. Stratton’s January 2016 affidavit. In his report, Dr. Rovers describes his experience and areas of practise as follows:

I am a Chartered Psychologist in the province of Ontario and have been practising for 18 years, I am on staff at St. Paul’s University as Professor and Marriage and Family Trainer/Supervisor and have held that position for 20 years. I am a registered couple and family therapist and have extensive experience with counselling children, specializing in behavioural issues.

[23] Dr. Rovers describes his involvement with Katherine as having provided for individual counselling on a weekly basis since November 2015. His recommendations include the following:

1. The frequency of Katherine’s access visits with her father in Toronto is to be reduced from two weekends per month to once a month or once every six weeks.
2. “Most of” the access visits are to take place in Ottawa between Katherine and her father only (i.e. excluding Mr. Barnett’s wife and any other family members).
3. Katherine and Mr. Barnett are to seek counselling together.
4. There is to be a review in three to six months.
5. A lawyer with the OCL is to be appointed for Katherine to ensure that “her voice be heard in these proceedings.”

c) Analysis

[24] On behalf of Mr. Barnett it is argued that: a) the report of Dr. Rovers should not be admitted as evidence on this interim motion; and b) the reports of Ms. Christensen should be admitted as evidence and considered for the purpose of determining the interim motion.

i) Report of Dr. Rovers

[25] Mr. Barnett argues that the report of Dr. Rovers should not, for the following reasons, be admitted:

• It is clearly biased.
• Dr. Rovers made no attempt to communicate or meet with Mr. Barnett before preparing the report.
• There is no evidence that Dr. Rovers made any effort to speak with collateral sources such as teachers or the principal at Katherine’s school.
• There is no evidence that Dr. Rovers is aware of and/or has considered the documents from Alberta including reports to the police, court orders, and endorsements of the courts in that province and in Ontario.
• Dr. Rovers has not included with his report a copy of his curriculum vitae.
• The parameters of Dr. Rovers’ retainer in the matter are not identified. At whose referral and for what specific purpose did Katherine begin to see him in November 2015?

[26] Taking into account those concerns, counsel for Mr. Barnett questioned whether the report meets the requirements of Dr. Rovers’ governing professional body. There is no evidence before the Court as to what those requirements are.

[27] Counsel for Mr. Barnett informed the Court that prior to service of Ms. Stratton’s January 2016 affidavit Mr. Barnett had no knowledge that Katherine was attending counselling, including that she was attending counselling with Dr. Rovers.

[28] Counsel for Mr. Barnett raised the possibility of her client advancing a claim of parental alienation and submitted that the contents of the report of Dr. Rovers support that argument.

[29] I agree with the submissions made on behalf of Mr. Barnett as they relate to the report of Dr. Rovers. I find that the report is lacking in objectivity, incomplete, and ineffective. The report is of a quality below the standard expected from a professional for the purpose of a proceeding before the Court. The report of Dr. Rovers is not admitted as evidence for the purpose of the motion for interim relief.

ii) OCL Reports

[30] Mr. Barnett relies on a series of cases in support of his position that the April and June 2015 reports of Ms. Christensen may be considered by the Court for the purpose of the interim motion. I agree with Mr. Barnett’s position that it is in general open to the Court to consider for the purpose of an interim motion the contents of such an assessment even though the assessment was carried out for the purpose of determination of the MTC. However, a more detailed consideration of the issue is required to determine what portions, if any, of the reports of Ms. Christensen the Court may rely on when addressing the relief requested on this interim motion.

[31] The decision in Bos v. Bos, 2012 ONSC 3425 [ Bos ], upon which Mr. Barnett relies, is distinguishable from the matter before me. In Bos an interim order with respect to access was made at a time when the parties were in the process of participating in an assessment. The interim order specifically provided as follows:

This order is without prejudice to the right of either party to bring a further motion dealing with the interim care and custody of the children in the event of a material change in circumstances or after the release of Dr. Sudermann’s assessment but, in relation to the latter, the onus shall be on the moving party to demonstrate that this is an appropriate circumstance for the court to make an interim order on motion pursuant to recommendations in an assessment rather than at trial.

[32] The endorsement of Justice Blishen pursuant to which the OCL became involved in this matter does not include a provision like the one above. As a result, the completion of the OCL assessment and reports does not in and of itself entitle Mr. Barnett to rely on the reports for the purpose of the interim motion.

[33] In Bos, Mitrow J. addressed when an assessment report may be considered by the Court on an interim motion. He highlighted the line of cases in which the principle is established that an assessment report prepared for trial should not be relied upon for an interim purpose other than in “exceptional circumstances”: see Genovesi v. Genovesi (1992), 93 D.L.R. (4th) 262 (Ont. Gen. Div.).

[34] Mitrow J. acknowledged that there is also jurisprudence which suggests that a finding of “exceptional circumstances” is not required to permit the Court to consider an assessment report on a motion for interim relief. For example, where there are no existing orders with respect to an issue addressed in an assessment, consideration may be given to the assessor’s report in determining the issue on an interim motion. Proceeding in that manner would allow for issues not previously adjudicated upon to be addressed while leaving “genuine triable issues” alone and to be determined through evidence at trial: see Kerr v. Hauer, 2010 ONSC 1995, 88 R.F.L. (6th) 411, at paras. 16 and 19.

[35] In his decision, Mitrow J. set out general principles and specific criteria to be applied when determining whether to consider an assessment report on an interim motion. The general principles are as follows:

[The jurisprudence] is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi.

[36] At paragraphs 26 and 27, Mitrow J. identified specific criteria to be addressed when a court is being asked on an interim motion to consider an assessment report in the absence of a finding that there are exceptional circumstances:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo? b) What other evidence is before the court to support the change requested? c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge? d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

[37] Mitrow J. cautioned that the existence of an assessment report should not result in one or both of the parties considering it “open season” to bring motions in an attempt to implement some aspects of the report or change existing interim orders or an existing status quo: see para. 27 of Bos.

[38] Ultimately, Mitrow J. concluded that he could consider the contents of the particular assessment report for a number of reasons – including because on the interim motion the change sought from the status quo was a minor one. In addition he identified that the author of the assessment report was treating the report as interim and was reluctant to make final recommendations pending consideration of the parties’ ability to communicate with one another over time.

[39] In the matter before me, Mr. Barnett is not taking the position that the assessment reports are to be considered on the basis of “exceptional circumstances.” As a result, it is necessary to consider the four criteria established in Bos with respect to the interim changes to access visits that Mr. Barnett is seeking.

Specific Relief Requested

a) Access – Changes to Frequency and Transportation

[40] On the MTC, Mr. Barnett was initially seeking sole custody of Katherine. He is no longer seeking sole custody. The primary relief he is requesting on both the MTC and the interim motion is an increase in the frequency of his access visits with Katherine – from one weekend per month to every second weekend. Secondarily, he seeks to be permitted to have Katherine fly, unaccompanied between Ottawa and Toronto, for the scheduled access visits.

i) OCL Reports

[41] Each of the four factors identified by Morrow in Bos is considered below in relation to the reports of Ms. Christensen and the changes requested by Mr. Barnett with respect to frequency of and method of transportation for access.

1. Significance of the Change

[42] The de jure status quo is that Mr. Barnett is to have access visits with Katherine on the first weekend of every month. Based on the affidavit evidence I find that the de facto status quo has, since Katherine and Ms. Stratton moved to Ottawa, been that Katherine has access visits with Mr. Barnett one weekend per month. The parties have from time-to-time adjusted the access schedule – changing the access weekend from the first weekend of the month to another weekend during the month. However, for the most part, access has remained at a frequency of one weekend per month.

[43] The relief requested by Mr. Barnett also requires consideration of the de jure and de facto approaches to transportation. At paragraph 5 of the Order, it is provided that “With the exception of Christmas [and] spring and summer vacation, the Applicant shall exercise his access in Alberta unless both parties agree otherwise in writing.” Katherine was almost seven years old when the Order was made.

[44] The de jure provision with respect to access requires that the regular monthly access occur in the city in which Katherine lives. When Katherine and her mother lived in Calgary, Mr. Barnett was required to fly across several provinces to exercise access.

[45] Katherine is now almost eleven years old. For Mr. Barnett to exercise access in the city in which Katherine now lives would require Mr. Barnett to travel to and remain in Ottawa for the weekend – making a single round trip to Ottawa. The de facto arrangement has, for some time, been that Mr. Barnett and Ms. Stratton meet at a location between Ottawa and Mr. Barnett’s home for exchanges to occur. As a result, it is Katherine who makes the round trip to facilitate access. Each of the parties effectively does the same – driving approximately half of the full distance and doing so twice during each access weekend.

2. Other Evidence

[46] The only other evidence before the Court is in the form of affidavits from each of the parties. Those affidavits when considered in isolation of Ms. Christensen’s reports do not provide evidence sufficient to support a change in the frequency of access.

3. Contents of the OCL Reports

[47] The change requested with respect to frequency of access is such that the Court is being asked to consider much more than “some aspects” of Ms. Christensen’s reports.

4. Nature of the Recommendations

[48] Given that Dr. Rovers’ report is not admitted for the purpose of the interim motion and cross-motion there is no ‘competing’ evidence to that of Ms. Christensen. Ms. Stratton has requested that Ms. Christensen attend at the hearing of the MTC for the purpose of cross-examination. I therefore draw an inference that the recommendations of Ms. Christensen are contentious.

Conclusion – OCL Reports

[49] I do not consider that Mr. Barnett is attempting to rely on Ms. Christensen’s reports so as to make it “open season” in bringing his interim motion. It is clear that Mr. Barnett is genuine in his desire to spend more time and develop a closer relationship with his daughter. However, based on the record, I find that the matter does not fall within “exceptional circumstances” or satisfy the four criteria set out in Bos so as to permit me to consider the contents of the OCL reports as they relate to frequency of and the method of transportation for access.

ii) Other Factors

[50] Leaving aside the OCL reports, Mr. Barnett relies on the ‘maximum contact’ principle. The Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) and the jurisprudence make it clear that a child’s contact with each parent should be maximized to the extent that it is in the child’s best interests.

[51] With respect to the ‘maximum contact’ principle, Mr. Barnett relies on the decisions of Price J. in Durkin v. Cunningham, 2014 ONSC 4659 [ Durkin ]. In that case, the father succeeded on a motion to change a final order, with his access to his children increased from once a month to every second weekend. Durkin is distinguishable on its facts, in particular given that the parties in that matter lived 40 kilometers apart from one another – a 35-minute drive. Mr. Barnett and Katherine live in excess of 400 kilometres apart. In addition, the decision of Price J. was on a motion to change and not on a motion for interim relief pending a determination of a motion to change.

[52] Mr. Barnett also relies on the decision of Greer J. in Ingles v. Watt (2000), 13 R.F.L. (5th) 399 (Ont. S.C.). The father’s motion with respect to frequency of access with his two daughters, aged 5 and 7 at the time, was heard approximately two months prior to the date on which the issue of access was scheduled to proceed to trial. The parties resided in the same city. The Court had ordered that the children be seen by a particular psychologist. The children saw the psychologist and his report was made available to the parties.

[53] It appears that access had changed over time and the psychologist was recommending that it return to what it had been. In reaching her decision, Greer J. considered the requirement for both parties to have “quality access” with the children prior to trial. At paragraph 15 of her decision Greer J. said:

Both children in this family are of tender years. To think that their views are permanently fixed is wrong. Children are very much influenced by the immediate situation they find themselves in. The Reports and letter of Dr. Jaffe make it clear that the father should have a role in the lives of his children. They further recommend that the father have access on alternate weekends from Thursday after school until Monday morning at which time he would drop them off at school. Such access had been taking place, and summer access by the father with his children appears to have worked very well. In my view, this access which had been in place should not have been varied before trial, so as to leave both parties in the same position that they had been … I have therefore concluded that it is important that both parties go to trial with each having quality access to the children.

[54] As I understand the decision of Greer J., it required that the father’s frequency of access return to what it had been. The decision did not result in an increase from the original frequency of access. As a result, I find that the decision in Ingles does not support Mr. Barnett’s request for frequency of access to be increased.

[55] Mr. Barnett relies on the decision of Abrego v. Moniz, 2006 ONCJ 500, 35 R.F.L. (6th) 460 (Ont. C.J.). In that case Maresca J. emphasized the cautious approach to be taken, on a motion for temporary access, with respect to the contents of an investigator’s report – in particular because the report has not been tested on cross-examination: see para. 10. However, Maresca J. was prepared to consider the direct observations of the assessor as opposed to her conclusions and opinions: see para 11.

[56] Maresca J., cognizant that the status quo should generally be maintained pending trial, proceeded cautiously when taking the assessor’s observations into account. She did so with respect to a 2.5 year-old who had not had contact with his father for 18 months outside the observational visits with the clinical investigator. In the particular circumstances it was appropriate to order supervised access pending trial. Once again, the case is distinguishable on its facts.

[57] It is understandable that Mr. Barnett wants the Court to follow Abrego, at least with respect to considering the observations of Ms. Christensen as to the interaction between Katherine and her father. Ms. Christensen’s observations in that regard speak well of the relationship that Katherine has developed with her father and step-mother. However, I conclude that in the circumstances of this matter, an increase in the frequency of Mr. Barnett’s access visits with Katherine, pending the outcome of the MTC, is not supported by the evidence.

[58] As an alternative to increasing the frequency of Mr. Barnett’s access visits with Katherine, Ms. Stratton proposed increasing the duration of access visits by one day when it is possible to do so without significant disruption to Katherine. It is her position that such an increase in duration is reasonable, is not disruptive to Katherine, and serves the purpose of enhancing the quality of access that Mr. Barnett has with Katherine. Specifically, Ms. Stratton proposed the following:

• Thursday, April 14 after school to Sunday, April 17 at 5:00 p.m.: Katherine has Friday, April 15 off from school because of a Professional Development Day for her teachers.
• Friday, May 6 after school to Sunday, May 8 at 5:00 p.m. (i.e. the regular duration of access)
• For the month of June, and at Mr. Barnett’s choosing, either:
  • Thursday, June 16 after school to Sunday, June 19 at 5:00 p.m. (June 17 is Katherine’s birthday); or
  • Friday, June 17 after school to Monday, June 20 at 5:00 p.m. (June 19 is Father’s Day).

[59] I agree with Ms. Stratton’s proposal with respect to access for the months of April, May and June 2016.

iii) Summer 2016

[60] Mr. Barnett also seeks specific relief with respect to the summer months. Paragraph 11 of the Order provides that Katherine is to spend time with Mr. Barnett from the third Saturday in July until the third Saturday thereafter. Pick up and drop off are to be at the residence of Ms. Stratton. Once again, consideration is to be given to the fact that the Order was made when Ms. Stratton and Katherine were living in Calgary. If the schedule set by the Order were to be followed in 2016, Mr. Barnett’s access visit with Katherine would begin on Saturday, July 16 and end on Saturday, August 5, 2016.

[61] Mr. Barnett asks the Court and Ms. Stratton to consider adjustments to that schedule to accommodate. The relief requested set out in the amended notice of motion is for a four-week, continuous period commencing in late July. On the return of the motion, Mr. Barnett’s counsel referred to Mr. Barnett’s:

a) Desire to have Katherine join him at the wedding of his wife’s sister, which is scheduled for July 16; and b) The fact that he has booked a cottage for the period of July 30 to August 6.

[62] Ms. Stratton proposes as an alternative that Mr. Barnett have Katherine for two weeks in each of July and August (as opposed to the three-week period pursuant to the Order). She proposes that Mr. Barnett’s access visits with Katherine be for a total of four weeks and include two-week periods as follows: a) July 9 to 22 (i.e. including the date of the wedding at which Mr. Barnett wants Katherine to attend); and b) August 5 to 19.

[63] There is no affidavit evidence as to any preference which may have been expressed by Katherine with respect to how wishes to spend her summer vacation, including any opportunities that she may have to spend time with her friends in the Ottawa area. There is no evidence as to whether or not Katherine wishes to spend time with Mr. Barnett on the basis of the terms of the Order or on the basis of an alternative schedule.

[64] If the schedule set out in the Order is followed, and the start date of Katherine’s summer vacation time with her father is adjusted from Saturday, July 16 to Friday, July 15, then Katherine will be able to attend the wedding and to be with Mr. Barnett and his wife at the cottage which has been rented. I find it reasonable to stay with the schedule set out in paragraph 11 of the Order, subject to adjusting the start-date of the summer access visit by one day – moving it to Friday, July 15 at 5:30 p.m., with the exchange to take place in Kingston. The summer vacation access will end on Sunday, August 6 at 5:30 p.m. with the exchange on that date also to take place in Kingston.

iv) Location of Access Visits

[65] Mr. Barnett also requests that he be permitted to have his access visits with Katherine take place either at his home in the Toronto area or at such other locations as he may choose. There is no evidence before me as to the location of the cottage which Mr. Barnett has rented for the summer. If the cottage is located in Canada, there is no issue with respect to travel restrictions for Katherine (i.e. outside the country). There is no evidence that Mr. Barnett wishes to take Katherine outside the country during any of his regularly scheduled access visits.

[66] I find Mr. Barnett’s request for flexibility with respect to the location of his access visits to be reasonable so long as they are within the country and the appropriate information as to Katherine’s location, while with Mr. Barnett, is provided to Ms. Stratton.

v) Method of Transportation

[67] Mr. Barnett proposes that on an interim basis transportation be changed from car to air travel. He proposes that Katherine fly to the Toronto area as part of the Unaccompanied Minor Program (“the UMP”) available for children between the ages of 8 and 12.

[68] In paragraph 15 of the Order, Justice Sisson addressed when it would be appropriate for Katherine to travel by air on her own. Paragraph 15 provides as follows, “When Katherine attains the age of 14 years, the Respondent shall be responsible for pick up and drop off of Katherine at the transport company at her end and the Applicant shall be responsible for pickup and drop off at the transport company at his end.” That term is part of the end-result of a multi-day trial.

[69] Mr. Barnett’s proposal requires a change, by two years, of the substance of paragraph 15 of the Order. The fact that Katherine would be flying between Ottawa and Toronto as opposed to between Calgary and Toronto does not, in my view, lessen the significance of the proposed change.

[70] The evidence before me does not support a change to paragraph 15 of the Order on an interim basis and pending a determination of the MTC. If Mr. Barnett wishes to have Katherine transition to air travel for the purpose of access visits, he must address that issue on the MTC.

b) Other Relief

i) Disclosure of Residential Address

[71] Mr. Barnett also seeks an order requiring Ms. Stratton to disclose her residential address to him. In support of that request, Mr. Barnett relies on paragraph 21(e) of the Order which requires both parties to provide, “[w]ritten notice in advance of any change in contact information including residential and work addresses, home and work telephone numbers, and e-mail addresses.”

[72] Ms. Stratton is prepared to make the disclosure requested subject to certain limitations on the dissemination of the information by Mr. Barnett. Ms. Stratton does not want Mr. Barnett to provide the information to her sister (“Vicky”). Mr. Barnett agrees to that restriction. However, he wishes to be able to provide Ms. Stratton’s residential address to his family members and those of his wife so that the family members may send birthday, Christmas, and other cards and notes to Katherine.

[73] There is no evidence of any historical difficulties as between Katherine and Mr. Barnett’s family or his new extended family. There is no evidence to support a conclusion that Katherine would not benefit from birthday, Christmas and other well wishes from her extended family. Paragraph 21(e) of the Order remains reasonable and Ms. Stratton is to comply with that provision of the Order. The only restriction I place on the use which Mr. Barnett may make of the information is that he is prohibited from sharing it with Ms. Stratton’s sister.

[74] Mr. Barnett also requests relief with respect to the amount of telephone contact by the parent with whom Katherine is not residing at the time. On the return of the interim motion the parties agreed that telephone contact is to be restricted to two telephone calls per week and one telephone call per weekend visit from the parent with whom Katherine is not residing at the time. For the sake of clarity that restriction is on each of Mr. Barnett and Ms. Stratton. Katherine is in no way prohibited by my order from calling her father or calling her mother when she wishes to do so.

[75] Ms. Stratton is requesting an order permitting her to change Katherine’s last name from Barnett to Stratton-Barnett. The focus of the interim motion before me was the matters of access and disclosure of Ms. Stratton’s residential address. It was agreed by the parties that other issues, such as those related to medical and dental care for Katherine, are adjourned to be dealt with on the return of the MTC or on an interim basis at a later date. I am therefore adjourning the matter of the proposed change to Katherine’s last name to be dealt with on the return of the MTC or on an interim basis at a later date.

[76] Although not included in the relief requested in the amended notice of motion or in the factum filed on his behalf, Mr. Barnett requests an order that a case management judge be appointed for this matter. Ms. Stratton did not consent to the request. In the absence of the parties’ consent and any evidence to support a finding that case management is required in this matter, it would be in appropriate to make an order for case management.

Order

[77] For the reasons set out above, and pending further order of the Court:

1. The applicant father shall have access visits with Katherine Barnett (born June 17, 2005 and, hereinafter, “Katherine”) during the months of April, May, and June as follows: a) Thursday, April 14 after school to Sunday, April 17 at 5:00 p.m.; b) Friday, May 6 after school to Sunday, May 8 at 5:00 p.m.; c) For the month of June, at Mr. Barnett’s choice between: i) Thursday, June 16 after school to Sunday, June 19 at 5:00 p.m.; or ii) Friday, June 17 after school to Monday, June 20 at 5:00 p.m.
2. With respect to the choice to be made by Mr. Barnett in paragraph 1(c) above, Mr. Barnett shall advise Ms. Stratton by e-mail no later than Monday, May 30, 2016 as to the dates in June on which the access visit shall occur.
3. The applicant father shall have access visits with Katherine during the months of July and August 2016 as follows - from Friday, July 15 at 5:30 p.m. to Sunday, August 6 at 5:30 p.m.
4. Pending the outcome of the applicant father’s Motion to Change and effective September 1, 2016, the access visits of the applicant father with Katherine shall commence on the first Friday of each month at 5:30 p.m. and end on the first Sunday of each month at 5:30 p.m.
5. The applicant father shall be entitled to have access visits with Katherine in Toronto and in any other location in Canada he may choose.
6. In the event the applicant father has parenting time with Katherine in any location other than his Toronto area home, he shall provide the respondent mother with the address of and contact information for (mobile number or land line) the location in which he and Katherine will spend the access visits.
7. The exchanges at the beginning and end of the applicant father’s access visits shall take place in Kingston at a location to be agreed upon by the parties and shall take into consideration whether the transportation for the access visits is by car or by rail.
8. Regardless of the method of transportation used to facilitate the applicant father’s access visits with Katherine, one of the applicant father or the respondent mother shall travel with Katherine to the exchange location.
9. The applicant father and respondent mother shall each be responsible for the cost of their respective travel to/from the exchange location.
10. The respondent mother shall, in the event she has not already done so, forthwith comply with paragraph 21(e) of the March 2012 order of Justice Sisson of the Alberta Court of Queen’s Bench (“the Order”).
11. The applicant father shall not disseminate to the respondent mother’s sister, “Vicky” the information disclosed by the respondent mother pursuant to paragraph 21(e) of the Order.
12. During the time that Katherine is residing/staying with either of the parties, the other party shall be restricted to communicating with Katherine by telephone: a) twice per week; and b) once per weekend.
13. The balance of the interim motion on behalf of the applicant father and the interim motion on behalf of the respondent mother are adjourned to either the return of the Motion to Change or another interim date, the latter upon service of the requisite notice of motion and other materials in accordance with the Family Law Rules.

Costs

[78] In the event the parties are unable to agree upon costs of the matter to date, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of three pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions; The written submissions and authorities shall be single-sided pages; and d) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released.

Madam Justice Sylvia Corthorn

Date: April 11, 2016

COURT FILE NO.: FC-14-1671 DATE: 2016/04/11 ONTARIO SUPERIOR COURT OF JUSTICE RE: GLEN EWART BARNETT Applicant AND KELLY KAREN STRATTON Respondent BEFORE: Madam Justice Sylvia Corthorn COUNSEL: Alison Campbell, for the applicant Self-represented respondent ENDORSEMENT Madam Justice Sylvia Corthorn Released: April 11, 2016