CITATION: T.N.G. v. J.L.B., 2017 ONSC 691

COURT FILE NO.: F1401/13-01

DATE: February 3, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

T.N.G.

Applicant

• and -

J.L.B.

Respondent

HEARD: January 12, 16, 17, 18, 19, 2017

T.N.G. in person

J.L.B. in person

MITROW J.

[1] This trial was in relation to the parties’ 4-year-old son. The respondent father sought a variation of a final order by way of a motion to change issued in November 2014. The applicant mother, in her response to the motion to change, also sought a variation of the final order.

[2] This case is demonstrative of two parents who, although well-intentioned and wanting the best for their child, became caught up in a litany of motions, that prevented either of them from settling a case that, quite frankly, was not complicated and could have, and should have, been settled.

[3] The central, and real issue, was the respondent’s complaint about numerous access denials (and I use the word “access” acknowledging that the parties currently have joint custody, with primary residence to the applicant mother), and the respondent’s desire to have his weekend overnight access restored.

[4] For reasons that follow, each party’s request to vary the final order is dismissed, save and except for some focused and specific changes as set out below.

BACKGROUND

[5] The parties were never married to each other, nor did they co-habit; however, the respondent would spend time at the applicant’s residence after the child was born. The parties have always maintained separate residences.

[6] The parties are the biological parents of Z.J.L.B., born in 2012 (“Z.”).

[7] During 2013, the parties’ relationship began to deteriorate. An application was commenced in the fall of 2013, but sometime thereafter, the parties, displaying at that time common sense, maturity and an ability to focus on Z.’s best interests, were able to sign final minutes of settlement that resulted, on consent, in my final order dated January 29, 2014 (“the final order”).

[8] A brief word about the final order: it contained, in addition to child support provisions, a very sensible, and very detailed, parenting plan, that occupied 18 of the 33 paragraphs comprising the final order. Both parties, fortunately, had the assistance of counsel to enable them to focus on Z.’s best interests.

[9] As mentioned earlier, the final order provided that the parties shall share joint custody of Z., with the applicant to have primary residence. The respondent was given care and control of Z. on alternate weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m., plus each Wednesday from 5:30 – 7:30 p.m. This was the regular access schedule. The final order also dealt with the father’s parenting time on special occasions, including Christmas and during summer holidays.

[10] Somewhat inexplicably, submissions were made during the trial about details as to the order that I should make including summer vacation, Christmas, obtaining of a passport and conditions pertaining to travelling with the child for vacation and providing a detailed itinerary.

[11] I mention this because the parties appear to have forgotten that all these topics have been addressed in the final order, and on consent! Neither party referred to the final order when making submissions about those matters – it was as if the court was being asked to address all those matters in the first instance.

[12] Accordingly, for many of the details in relation to custody and access, there is no necessity, in this trial, “to re-invent the wheel.” The order below preserves much of the existing final order.

[13] Each party has a child from another relationship. The applicant has an older child, K., age 6. J.W. (“Mr. W.”) is K.’s father. The evidence at trial from the applicant, and Mr. W., which I accept, demonstrates that the applicant and Mr. W. currently enjoy a good relationship in their interactions regarding K. There is a final order giving the applicant custody of K.; Mr. W. has regular access as set out in the order. He regularly exercises that access, and at times has additional access.

[14] In the early part of 2014, the respondent commenced a relationship with L.H. (“Ms. H.”). They soon began to cohabit. They have a child together, a daughter, born in […] 2015.

[15] The respondent no longer cohabits with Ms. H. More about Ms. H. later.

[16] The respondent now lives on his own in Lambton County, in a home that he owns. He is gainfully employed and he estimated his annual income to be in the range of $26,000.

[17] The applicant lives on her own in London with her two children, Z. and K. She is not employed outside the home and she is in receipt of social assistance.

[18] Z. has always lived with the applicant; there is no dispute between the parties about this important fact.

[19] I accept the applicant’s evidence as to the close relationship that Z. and K. have with each other, and the activities that they do together. The two children are close in age, born less than two years apart. The applicant also has always been K.’s primary caregiver.

[20] The respondent’s daughter resides in the primary care of Ms. H. Ms. H. also has an older child. There was no evidence to contradict the respondent’s testimony that he has regular access to his daughter, and that he maintains a positive relationship with Ms. H. It was the respondent’s evidence that he has an agreement with Ms. H. for joint custody of the daughter, with primary residence to Ms. H. The respondent’s access includes alternate weekends. The respondent was not cross-examined on this evidence; he produced no documentation to verify the custody/access arrangements. For the purpose of these reasons, I am prepared to accept that defacto primary residence is with Ms. H., and that the respondent has regular access.

RELEVANT EVENTS SUBSEQUENT TO FINAL ORDER DATED JANUARY 29, 2014

[21] At the time that the final order was made, and soon thereafter, the evidence establishes that the relationship between the parties was stable and, generally, the court-ordered access was occurring.

[22] The single-most disruptive material event that profoundly affected the lives of the applicant and respondent was the criminal conduct of Ms. H.

[23] Ms. H. engaged in a course of contact that resulted in fake social media messages, and other false electronic communication. These messages and communications caused substantial anguish to both the applicant and respondent. Many of the fake Facebook messages were designed to cast the applicant in a negative light, and create sympathy for the respondent.

[24] For example, the applicant was distressed at seeing a photo of Z. on social media that included the words “parental alienation” typed over his photo.

[25] In another instance, a text message, apparently received by the respondent, suggested that Z. was dead. This message resulted in the applicant being contacted by the Children's Aid Society of London and Middlesex. The applicant testified that she was informed as to what the text message said, and that the applicant told the caller that Z. was in his bed sleeping. The Children’s Lawyer’s report, at page 16, summarizes this occurrence as follows from information received from the Society:

On September 7, 2014, a referral was received indicating that Z. was dead. Upon follow-up, there was insufficient information to support this concern.

[26] There was no dispute between the parties that the social media postings were concerning and alarming. The respondent then testified that “strange” things started happening. His car was splattered with eggs and ketchup. The words “dead beat” were written on his car. He testified that tuna fish was dumped on Ms. H.’s car. He received a message saying he was not going to see his son. He testified that his house was “egged.” Photographs of the respondent’s vandalized car were posted on social media to create the impression that the respondent was being victimized by the applicant. The Facebook page also contained comments from “readers” professing their disgust as to the applicant’s alleged conduct.

[27] It was the respondent’s testimony that the content of the messages, and the nature of the vandalism, suggested to him that the applicant was the perpetrator.

[28] The respondent in his evidence spoke of the turmoil in his life; he said he called the police 20 times; he also called the Society on a number of occasions; he described the police investigation as “non-stop”. He installed video surveillance. The respondent shared with the police his belief that the applicant was responsible for these disturbing occurrences.

[29] For her part, the applicant denied any wrongdoing. She, too, testified as to her home being “invaded” with police and Society workers. She suspected that the respondent was part of a campaign to cast suspicion – on her – to make her look like a bad parent. Further, the applicant also harboured concerns about Ms. H.; for example, there was a photo posted on Ms. H.’s Facebook page that included comments such as “sick bitch” (Ex. #18). The effect of this posting was to show to the Facebook-reading audience the type of conduct, allegedly, that the applicant is capable of. To further compound the applicant’s angst, Ms. H.’s Facebook posting had comments from others, including that the respondent’s “ex” [the applicant] should be “shot.” It is not clear from the trial evidence as to whether any of these Facebook comments were from fake people created by Ms. H.

[30] Then, the “house of cards” came crashing down. The perpetrator was identified to be Ms. H., who was residing with the respondent. The respondent’s evidence was that the disturbing conduct began in 2014. He testified that he began to suspect Ms. H. when he inspected her cellphone and saw 40 Facebook accounts on her phone that included fictitious people who had been harassing him.

[31] He testified that he began to gather information and that he eventually went to the police. He recalled going to the police in late January 2015.

[32] According to the respondent, Ms. H. was charged with multiple counts of public mischief. He claimed that the charges did not include the physical damage to his motor vehicle. The respondent, at trial, produced a copy of the sentencing transcript but he did not produce a transcript of the guilty plea and the facts. Hence, it is not possible to verify what facts were admitted to by Ms. H. in the criminal proceedings.

[33] However, I do accept the applicant’s evidence that she was not responsible for any of the above social media postings, text messages or vandalism.

[34] The endorsement record in the current case (the entirety of which was included in the trial record) included my May 20, 2015 endorsement dismissing the respondent’s motion for contempt, and referred to Ms. H.’s probation order that was filed as an exhibit. The probation order was for a period of 12 months and was in relation to a public mischief charge under s. 140(1)(b) of the Criminal Code, with an offence date of May 17, 2014. Further, Ms. H. was sentenced to six months, but the adult conditional sentence order permitted Ms. H. to serve her jail sentence in the community subject to obeying all the conditions of the order.

[35] The conditional sentence was in respect of ten offences, all of the offences being public mischief pursuant to either s. 140(1)(b) or (c) of the Criminal Code. The dates of the offences ranged from May 17, 2014 (being approximately four months after the date of the final order) to January 18, 2015.

[36] Conditions in both the probation order and the conditional sentence order included that Ms. H. was not to associate or communicate in any way with the applicant.

[37] The sentencing occurred on May 6, 2015 in the Ontario Court of Justice at Sarnia. The transcript of the sentencing reveals that the following was said to Ms. H. by George J. in imposing a sentence that represented a resolution by way of joint submission:

This was a fairly devious scheme, designed to implicate others criminally. It is hard to imagine, beyond the relationship issues that I heard about, what was going on in Ms. H.’s life that would lead her to conduct herself in this way. Not just harm to someone directly, but to harm their reputation, and to put their liberty at risk.

Some thought and effort went into this resolution. As I alluded to, this was obviously a personal and emotionally fueled behaviour, and was not a spur of the moment action. And beyond the risk it created for the individuals I heard about, as Mr. Cake [counsel for the Crown] points out, it expended significant valuable police resources.

There were focusing their attention onto things that were not real, and you diverted them away from their very important work, so I hope you understand that part of this piece as well.

[38] Largely because of the turmoil, that only later was known to be caused by Ms. H., the applicant began to have concerns as to the potential safety of Z. The applicant admitted at trial that she withheld Z. from access on at least eight occasions. She felt that she was protecting Z. and was prepared to face the consequences.

[39] For his part, the respondent brought numerous contempt motions. Some were dismissed. There was no evidence of the applicant having been found in contempt of court as a result of access denial.

[40] Having said that, however, there was also evidence that the applicant denied access on occasions unrelated to Ms. H.’s conduct. Amanda Bruyns, coordinator of the supervised access program at Merrymount Children’s Centre (“Merrymount”) testified at trial. She was called by the respondent, and not cross-examined by the applicant; some Merrymount records as to access exchanges were filed as an exhibit. The applicant did not challenge the accuracy of those records.

[41] For example, on August 29, 2014, the respondent attended Merrymount, only to be advised that the applicant had cancelled the visit. The applicant had called Merrymount to cancel the supervised access exchange because she was going away for the weekend. The applicant asked that the reason not be conveyed to the respondent.

[42] It is noteworthy that the respondent has approximately a one-hour drive from his home to Merrymount. He was informed of the cancellation on arrival at Merrymount. Although there is evidence that the applicant offered a make-up visit, I find that the cancellation displayed a cavalier attitude and was in breach of the order. It is also noteworthy that the make-up access, tentatively scheduled for the following weekend, did not occur.

[43] On October 5, 2014, on attending at Merrymount for the access exchange, the respondent was told that access is not occurring. This time, the applicant was alleging a transportation problem. Further, the Merrymount records confirm that staff called the applicant to speak to her about alternate transportation, but the applicant did not agree. This cancellation by the applicant also was unjustified and in breach of the order.

[44] On October 24, 2014, the applicant again cancelled access because she was going out of town with her family; again a breach of the order.

[45] On August 17, 2014, on the return exchange, the applicant was verbally abusive to Merrymount staff and used vulgar language as specifically described in the Merrymount report.

[46] From the respondent’s viewpoint, the constant cancellations were extremely frustrating. The applicant, on her part, brought no motion to vary the existing final order. She simply cancelled visits, prompting the respondent to unleash a barrage of contempt motions.

[47] Starting April 16, 2014 to October 19, 2016, there were at least nine court appearances dealing with contempt motions and/or the respondent’s access on an interim basis pending the disposition of contempt motions.

[48] Early on, interim orders were made to use Merrymount for access exchanges.

[49] On one court appearance, on September 24, 2014, in the context of outstanding motions for contempt (at this point the motion to change had not been issued), Templeton J. made mutual restraining orders (one order against each party) that prohibited each party from attending within 500 metres of the other party’s residence and, further, there was to be no communication between the parties except in relation to court-ordered access. These two interim restraining orders were made on a without prejudice basis and both orders were still in effect at the time of trial.

[50] On May 20, 2015, pursuant to my interim order, all access contained in the final order was suspended and, instead, pending further order of the court, the respondent was awarded interim access on alternate weekends on Saturday and Sunday from 11:00 .m. to 5:00 p.m., with access exchanges to be at Merrymount, and the respondent was to ensure that the child was not left alone with Ms. H. The order also required the respondent to obtain and file transcripts in relation to Ms. H.’s guilty plea, including the facts, and also in relation to the sentencing (the transcript in relation to the latter having been filed, at trial, as stated earlier).

[51] The interim access order made on May 20, 2015 continued until trial; however, on August 29, 2016, McSorley J. made an order for two full overnight access weekends to occur in September 2016 and those visits did take place. However, thereafter, there was a dispute between the parties as to the interpretation of McSorley J.’s order: specifically, the respondent understood that alternate full overnight weekends were to continue, whereas the applicant understood that the May 20, 2015 interim order would continue with alternating weekends being Saturday and Sunday from 11:00 a.m. to 5:00 p.m. The applicant brought yet another contempt motion and, on October 19, 2016, Howard J. dismissed the contempt motion, agreeing with the applicant’s interpretation of McSorley J.’s order.

DISCUSSION

[52] As noted earlier, this proceeding is a variation of a final order. Section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 requires a material change in circumstances before an existing order can be varied:

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[53] It is important to examine the pleadings. The respondent sought an order changing the primary residence of Z. to himself, and that all access exchanges be through Merrymount; alternatively, the respondent sought a police assistance order to enforce his access and the respondent made a specific request for Christmas access in 2014.

[54] In her response to the motion to change, the applicant sought sole custody of Z., and an order that the respondent have supervised access at Merrymount, to be revisited in six months. The basis of the applicant’s request, as alleged in her pleadings, was because of the threats made to her by Ms. H. and “threats on Facebook and other media messages by people” that the applicant does not know.

[55] The claims made in each party’s pleadings require context – the commencement of the motion to change was in the midst of the turmoil in the parties’ lives, visited upon them by Ms. H.’s criminal behaviour which, in turn, lead to the applicant’s fears for the safety of Z. and some of the access denials.

[56] However, by the time of trial, Ms. H. had been exposed, charged and convicted. She was no longer living with the respondent. Also, for a reasonable period of time immediately preceding the trial, court-ordered access was, in fact, occurring.

[57] The respondent testified that he wanted to see his son and that he could accept the access set out in the final order – but he was clear also, in his evidence, that the access must actually take place.

[58] While some aspects of the respondent’s testimony can properly be described as relating to his claim for primary care, the totality of that evidence, I find, was unimpressive, and fell well short of the requisite “material change in circumstances” regarding the issue of primary care.

[59] Although the respondent testified that the applicant was charged in May 2014 with mischief, criminal harassment of the respondent, and also assaulting the respondent, it was the respondent’s evidence that the assault charge related to an occurrence prior to the final order. Further, the respondent testified that he was present at the applicant’s criminal trial, that he testified for the Crown and that the applicant was acquitted of all charges. No documentation was filed to confirm the above. However, the applicant did not challenge the above evidence from the respondent.

[60] There was evidence that in July 2015, both Z. and K., while in the applicant’s care, apparently were able to open the door and ended up wandering outside, without the applicant’s knowledge, until authorities were called. The applicant admitted that this occurred, and she testified that immediate action was taken to install more secure door locks. This incident, while understandably alarming to the respondent when he learned about it, was isolated, and immediate steps were taken to prevent a recurrence.

[61] The respondent, at trial, expended much effort complaining about the applicant’s alleged failure to properly manage the problems that Z. was having with constipation. However, I accept the applicant’s evidence that she properly attended to this matter, in consultation with Z.’s pediatrician. There is nothing in the pediatrician’s clinical notes and records, filed at trial, to suggest that the applicant mismanaged, or was inattentive to, Z.’s health care.

[62] The respondent’s obsession with this issue was quite misguided, and amateurish, including his decision to file, as an exhibit, a colour photograph of Z.’s stool sample with a tape measure placed beside the stool sample.

[63] The respondent’s most serious allegation was access denial subsequent to the date of the final order. While I accept the respondent’s justified concerns on this issue, and accepting also that some access denials were unrelated to Ms. H.’s conduct, I find that the issue of access denial, when examined in the context of Ms. H.’s criminal behaviour (occurring at least in part while Ms. H. was residing with the respondent) does not constitute a material change in circumstances, either individually or in combination with other evidence, in relation to the issue of primary care.

[64] The applicant’s evidence to vary the order from joint custody to sole custody in her favour falls well below the threshold establishing a material change in circumstances on that issue.

[65] When pressed for reasons why the court should change the existing order to sole custody, the applicant’s evidence was unpersuasive. The applicant gave an example that the respondent wanted to get information from the pediatrician regarding Z. for “malicious reasons.” There is no merit to that claim. The respondent is entitled to obtain that information.

[66] The applicant testified, in a general way, that co-parenting was not working. However, it was the applicant who was engaged in access denial; it was the applicant who caused a note to be placed in Z.’s school records that the respondent was to have “no contact at school” with Z.; it was the applicant who allowed Z. to be known at school as having the surname of “G.,” and the fact that the formal school records list Z.’s correct birth surname as “B.” does not excuse the confusion created by the applicant as to Z.’s name.

[67] While it is true that the Society’s records demonstrate that protection concerns were verified because of parental conflict, I take into account that a not insignificant contributing factor to the parental conflict is traceable to Ms. H.’s actions.

[68] I also consider that during his evidence, the respondent offered to pay for counselling to assist the parties to improve their communication. In her evidence, the applicant heartily accepted this invitation.

[69] Also relevant is the Children’s Lawyer’s report prepared by Michelle Gibson, pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46], and filed with the court by way of Ms. Gibson’s affidavit sworn October 21, 2015. This report forms part of the evidence at trial: s. 112(3) of the Act. Neither party called Ms. Gibson as a witness, and there was no evidence at trial that either party had filed a statement pursuant to r. 21(3) of the Family Law Rules, O. Reg. 114/99, disputing anything contained in the report.

[70] The report concludes that joint custody is the “ideal” option for this family, and that both parents were observed to have a strong relationship with Z. “that should be supported and fostered.”

[71] Although the report was somewhat dated by the time of trial, I find the report to be helpful. It was prepared after Ms. H. was sentenced. There is nothing in the report, whether considered alone, or together with other evidence at trial, that would suggest a “material change in circumstances” in relation to the issue of joint custody or primary residence. Rather, the report supports the continuation of joint custody.

[72] The totality of the evidence is that there is no material change in circumstances that necessitates any change to joint custody or primary residence to meet Z.’s best interests – put another way, the existing final order as to joint custody, and primary residence, continues to meet Z.’s best interests.

MATERIAL CHANGE IN CIRCUMSTANCES IN RELATION TO SOME INCIDENTS OF CUSTODY AND ACCESS

[73] The entire and unfortunate drama with Ms. H. necessitates the inclusion of terms in the order that address Ms. H.’s further contact with Z. Ms. H.’s behaviour precipitated events that amounted to a material change in circumstances; Z.’s best interests require conditions to be imposed to shield him from any potential risk posed by contact with Ms. H.

[74] While the applicant remains suspicious as to the respondent’s protestations that he was not aware of what Ms. H. was doing, and that he, too, was a victim, there was no credible evidence to suggest that the respondent shared any culpability in Ms. H.’s behaviour.

[75] Having said that, however, the respondent did exhibit clearly a measurable amount of sympathy for Ms. H., treating her as a person who should be forgiven. To some extent, that is understandable as they have a child together.

[76] The respondent went further, and testified that Ms. H. was not a risk to Z., that she continues to parent her own children and that she has benefitted from appropriate counselling. However, in a particularly effective cross-examination, where he was “grilled” by the applicant to explain why he was not calling Ms. H. as a witness, given that she was on his witness list, I found the respondent’s explanation bereft of any credibility. The respondent could not bring himself to admit what was painfully obvious – that he wanted to shield Ms. H. from testifying and that he knew her evidence likely would be damaging to him.

[77] It is difficult to place any weight on the respondent’s evidence that Ms. H. has benefitted from treatment absent any corroboration. I draw an adverse inference against the respondent in failing to call Ms. H. as a witness.

[78] Accordingly, the order below imposes some restrictions regarding Ms. H.’s contact with Z. The restrictions do take into account that there may be contact between Z. and his half-sister and Ms. H.

[79] Flowing from Ms. H.’s conduct, it is necessary to deal with supervised access exchanges at Merrymount. The respondent preferred access exchanges at the applicant’s residence. The applicant wanted to maintain the exchanges at Merrymount, even though she does not have a vehicle and has a fairly lengthy bus ride to get to Merrymount. There is also the likelihood of the applicant failing to attend at Merrymount due to transportation issues, as has happened.

[80] The applicant, I find, was somewhat irrational in her demands to continue with Merrymount, and also to continue with the restraining orders. Regarding the latter, neither party claimed a restraining order in his or her pleadings. Further, the handwritten endorsement of Templeton J. reflects that both restraining orders were to issue on an interim “without prejudice” basis; unfortunately, the actual restraining orders issued by the clerk omitted reference to the orders being made on a “without prejudice” basis.

[81] Also noteworthy is that the restraining order endorsement sheets confirm that both restraining orders were made at the instance of the court, rather than a request by either party. Again, context is important. The interim restraining orders were made at the height of the turmoil caused by Ms. H., and at a time when Ms. H.’s involvement had yet to be exposed. The tension and conflict between the parties was high, contempt motions were pending and the restraining orders were an effective tool, for that time, to “ratchet down” the tension.

[82] However, over time, the restraining orders had the unintended effect of interfering with access and communication. The respondent routinely avoided going to activities involving the child for fear that the applicant would be there, and that he would be in breach of his restraining order. The applicant, at times, was not willing to engage in communication (usually via email) regarding Z. because the restraining orders only allowed communication “to permit access.”

[83] The conditions for a restraining order are set out in s. 35(1) of the Children's Law Reform Act[^1]:

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

[84] In relation to the applicant’s request for a restraining order (and ignoring the fact that this was not pleaded), I am far from satisfied on the evidence that the applicant has met the criteria in s. 35(1). There will be no restraining order. The respondent did not seek a restraining order against the applicant. However, as part of the “fallout” from Ms. H.’s conduct, the order below does include some restrictions as to contact, but only as an incident of custody or access pursuant to s. 28 of the Children's Law Reform Act.

[85] As to supervised exchanges at Merrymount, and again having regard to the events that unfolded after the final order, the order below preserves exchanges at Merrymount, but on a time-limited basis, unless both parties agree otherwise. I find that to be in Z.’s best interests. The parties need to move on, and normalize access exchanges at Z.’s residence. This is far more convenient for Z., and avoids “no-shows” due to transportation issues.

[86] The issue of extracurricular activities arose subsequent to the date of the final order. The applicant cannot unilaterally enroll Z. in activities that conflict with access which is what she did. The order below, in Z.’s best interests, addresses this issue.

[87] Also, the evidence that the applicant is having Z. identified at school using the surname “G.” is not appropriate, and not in his best interest. The order below addresses this matter.

[88] The respondent for some time has not been exercising Wednesday access. The order below includes alternate Wednesdays.

[89] Having regard to the child’s age, reasonable telephone and other electronic communication with the child is in his best interests and is included in the order.

[90] Given the consent of the parties, the order below deals with counselling.

[91] As to the respondent’s request for a police assistance order, I decline to make that order at this time. The chaos caused by Ms. H. is over. Access recently has been occurring. However, the applicant needs to know that further access denials will not be tolerated. For that reason, the order below requires this case to be placed before me if, for example, there is a further contempt motion.

ORDER

[92] I make the following order:

1. The final order of Mitrow J. dated January 29, 2014 (“final order”) shall remain in full force and effect, except as otherwise provided in this order.

2. The respondent’s alternate weekends with the child, Z.J.L.B. (“the child”), born in 2012, from Friday at 5:00 p.m. to Sunday at 5:00 p.m., as set out in paragraph 3a. of the final order, shall commence Friday, February 17, 2017.

3. Paragraph 3b. of the final order (Wednesday access) is vacated and replaced by paragraph 4 of this order.

4. The respondent shall have care and control of the child alternate Wednesdays as follows:

(a) from 5:30 to 7:30 p.m. starting Wednesday, February 22, 2017; and

(b) if the respondent is unable to exercise Wednesday access, then he shall advise the applicant via text or email, at least 4 days in advance, and there shall be no re-scheduling of a missed Wednesday visit unless both parties agree.

5. Paragraph 6 of the final order (dealing with pick-up and return of the child) is vacated and replaced by paragraph 6 of this order.

6. The following are the provisions for access exchanges:

(a) all pick-up and drop-off shall occur at the applicant’s residence, unless the access exchanges are required to occur at Merrymount as provided in subparagraph (b);

(b) when the access exchanges are required to occur at a time when Merrymount is open, and available, then the exchanges shall occur at Merrymount, but only until July 31, 2017, unless both parties agree to continue to use Merrymount;

(c) any electronic and audio recording of access exchanges is prohibited; and

(d) when access exchanges do not occur at Merrymount, either party, if he or she wishes, may have an adult present at access exchanges, other than L.H.

7. Paragraph 10 of the final order (parties to advise each other if other persons are living in their residence) is vacated and replaced by paragraph 8 of this order.

8. The applicant and respondent shall advise each other, in writing immediately, if there is any other person living in his or her residence, other than a party’s child.

9. Paragraph 16 of the final order (passport for the child) is vacated and replaced by paragraph 10 of this order (to make the provisions mutual).

10. The applicant or the respondent may obtain a passport for the child, Z.J.L.B., born in 2012. Each party shall give, promptly, any consent required for the other party to obtain the passport. The passport shall be kept with the applicant, but shall be given temporarily to the respondent 20 days prior to the departure when reasonably required by the respondent for travel with the child, including travel outside Canada.

11. The respondent shall have reasonable and regular telephone, Skype or other electronic access to the child.

12. The child’s name shall not be changed pursuant to the Change of Name Act, Vital Statistics Act or by common usage. Neither party, for any purpose, shall permit or cause the child, even informally, to be identified by a name other than his legal name and this includes for school purposes and registration for extracurricular activities.

13. Both parties are prohibited directly or indirectly, for the next two years, from posting any images of the child on social media or anywhere on the internet.

14. The respondent, when he has the child:

(a) shall not permit L.H. to be present, in the same residence, on an overnight basis; and

(b) other than on an overnight basis, the respondent may allow L.H. to be in the presence of the child, but only if the respondent also is present.

15. The respondent shall not permit L.H. to take any pictures or electronic images of the child, at any time.

16. At the respondent’s expense, the parties shall continue to communicate using an email service, designed for parents, to engage in electronic communication regarding children.

17. The parties shall continue to use the communication book that will travel with Z.

18. All communication between the parties shall be polite, respectful, and focused only on Z.

19. At the respondent’s expense, the parties forthwith shall attend at counselling to assist them in their interaction and communication.

20. If within one year after the date of this order, either party commences a motion to change, or brings a motion for contempt, then that matter shall be placed by the trial coordinator before Mitrow J., except in the case of an emergency where Mitrow J. is not available.

21. Pursuant to s. 28 of the Children's Law Reform Act, and as an incident of custody and access, neither party shall attend within 250 metres of the other’s residence, except for the purpose of access exchanges. This order is not a restraining order.

22. This final order is made pursuant to the Children's Law Reform Act.

23. The two interim restraining orders made by Templeton J., dated September 29, 2014, are vacated.

24. Except for the final order of Mitrow J. dated January 29, 2014, all previous orders in relation to these parties dealing with custody and access are vacated.

25. Each party may enroll the child in extracurricular activities after consultation with the other party. The parties shall cooperate in choosing the extracurricular activities that are best for the child. Where one party enrolls the child in an extracurricular activity, the other party may, but is not required to, take the child to that activity during his or her scheduled time with the child.

26. If the parties cannot agree on the issue of costs, then written submissions as to costs, not to exceed three typed pages, plus copies of any offers or lawyer’s bills, shall be forwarded to the trial coordinator within 30 days, failing which there shall be no order as to costs.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: February 3, 2017

[^1]: A very similar requirement is set out in the Family Law Act, R.S.O. 1990, c. F.3, s. 46(1), but that Act would not apply because the parties are not spouses or former spouses, and because they never co-habited: s. 46(2).