Court File and Parties

COURT FILE NO.: FS-20-51-00 DATE: 2020 04 21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALI AMIRI v. SANA NAZER

BEFORE: Kumaranayake J.

HEARD: April 16, 2020 (by teleconference)

COUNSEL: Applicant – self-represented Mario Paiva, for the Respondent

Endorsement

[1] The Applicant and the Respondent were married on April 3, 2019. It appears that they lived together since approximately 2017. There is one child of the marriage: Mikael Aziz Amiri (“Mikael” or the “child”), born August 23, 2018. Mikael is approximately 20 months old.

[2] On February 28, 2020, the Applicant was arrested and charged with two counts of utter threat to cause death/bodily harm. The Respondent is the complainant. The terms of the Applicant’s release on these charges include terms which prohibit him from attending at the matrimonial home, or attending where the Respondent lives, works, goes to school, frequents or any place that he knows her to be except for court appearances. The terms of release also permit the Applicant to have contact with the child as arranged through a mutually agreed upon third party or a Family Court Order dated after the date of his release.

[3] The Applicant is currently residing with his mother who is also his surety. The Applicant’s father, brother and sister also reside in that home.

Nature of the Motions

[4] The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. Pursuant to the Superior Court of Justice’s Notice to the Profession dated March 15, 2020, the Applicant made a request for his motion for access to the child to be heard on an urgent basis. The Applicant seeks access to the child of the marriage. The Applicant requests the following access: Week One – Tuesday at 2:00 p.m. to Friday at 2:00 p.m.; and Week Two – Tuesday at 2:00 p.m. to Thursday at 2:00 p.m.

[5] By my Endorsement dated April 9, 2020, I made a preliminary determination that the motion was urgent and gave directions for the filing of further materials and that the matter would be heard by teleconference on April 16, 2020 at 2:30 p.m. My Order was without prejudice to the Respondent’s ability to give submissions on the Applicant’s claim of urgency for his motion.

[6] In response to the Applicant’s motion, the Respondent brought a cross-motion and requested leave to bring her motion prior to a case conference being held. The Respondent requests that the Applicant’s access be held on Tuesdays and Thursdays from 2:30 p.m. to 4:30 p.m. and that his access be supervised. The Respondent proposed that the paternal grandmother supervise the access provided certain conditions were met. I shall outline those conditions below. The Respondent also requests an Order that the Applicant obtain a car seat to transport the child. The Respondent also seeks an order for temporary custody, primary residence and an order that neither party remove the child from Ontario. The Respondent also seeks an extension of time to serve an Amended Answer.

[7] In his Reply, the Applicant raised property and disclosure issues.

[8] The motions were addressed during a teleconference hearing on April 16, 2020. At the conclusion of that hearing, I required additional information from each of the parties and reserved my decision.

Preliminary Issues

(1) Change of Representation

[9] At the time I made my previous endorsement, dated April 9, 2020, the Respondent was self-represented, and she served and filed her own materials. At the hearing of this motion, she was represented by Mr. Paiva, who confirmed that he is now retained. He advised that he had prepared a Notice of Change in Representation, but the Respondent had been unable to print and sign it. Therefore, it had not been served on the Applicant.

[10] I inquired if either the Respondent or the Applicant had any objection to Mr. Paiva signing the Notice of Change in Representation on behalf of the Respondent. Neither party objected and the Respondent authorized Mr. Paiva to do so on the record.

[11] The Notice of Change in Representation was deemed to be signed and dated on April 16, 2020. It must be served on the Applicant and it must be filed, with proof of service, in the Court File within three weeks of the resumption of the Superior Court of Justice’s regular operations.

(2) Affirmation of Affidavits, Service and Materials Filed

[12] Both parties electronically filed lengthy materials. On April 16, 2020, the following materials were before me:

1. Applicant’s Notice of Motion, dated April 7, 2020;
2. Applicant’s Affidavit, dated April 7, 2020 and affirmed on April 16, 2020;
3. Applicant’s Amended Form 35.1 – Affidavit in Support of Claim for Custody or Access, sworn/affirmed March 17, 2020;
4. Amended Application, amended March 17, 2020;
5. Applicant’s Factum, dated April 7, 2020;
6. Respondent’s Notice of Motion, deemed to be dated April 14, 2020;
7. Respondent’s Affidavit, dated April 14, 2020 and affirmed on April 16, 2020;
8. Respondent’s Form 35.1 – Affidavit in Support of Claim for Custody or Access, affirmed on April 16, 2020;
9. Respondent’s Factum, dated April 14, 2020;
10. Respondent’s unsworn Affidavit of Service;
11. Applicant’s Reply Affidavit, dated April 15, 2020 and affirmed on April 16, 2020;
12. Applicant’s Reply Factum; and
13. Unsworn Affidavit of Service of Ahesan Amiri (Applicant’s brother).

The affidavits which were affirmed before me on April 16, 2020 are items 2, 7, 8, and 11.

[13] The Applicant confirmed that he had received the Respondent’s Notice of Motion, two Affidavits and Factum. Service of these documents on the Applicant was validated.

[14] Counsel for the Respondent confirmed that the Respondent received the Applicant’s Reply Affidavit and Factum. Service of these documents on the Respondent was validated.

(3) Amended Answer

[15] The Respondent requested further time to serve an Amended Answer. Counsel for the Respondent advised that on April 9, 2020, he served the Applicant with the Respondent’s Answer. However, he advised that the Applicant had served more than one version of the Amended Application and further time was needed to ensure that the Amended Answer addressed all issues.

[16] The Applicant did not oppose the request.

[17] While this is not an urgent issue, in my view, it was practical to address this issue now as opposed to compelling the Respondent to raise this issue at a case conference or subsequent motion.

[18] Therefore, I granted an extension of time to the Respondent to serve her Amended Answer by May 15, 2020.

[19] Although not requested by the Applicant, it is only fair to grant him an extension to serve a Reply. If he wishes to serve a Reply, the Applicant must do so within 21 days of being served with the Amended Answer.

[20] The Amended Answer and Reply, if any, may be served by email and must be filed in the Court File within three weeks of the resumption of the Superior Court of Justice’s regular operations.

(4) Urgency

[21] Shortly after this litigation was initiated, the Superior Court of Justice’s regular operations were suspended due to the COVID-19 pandemic. Accordingly, there has been no case conference held in this matter.

[22] Counsel for the Respondent conceded that the only urgent issue before me was the issue of the Applicant’s access to the child. However, the Applicant also made a request to address a property issue and sought an undertaking from the Respondent not to transfer or encumber the matrimonial property. Counsel for the Respondent advised that at this time, the Respondent has no intention of moving from the matrimonial property and this seemed to satisfy the Applicant. However, even if it had not, I would not have granted leave to hear argument on that issue. There is absolutely no basis on the materials before me to proceed with any issue relating to property on an urgent basis.

[23] The Family Law Rules, O. Reg. 114/99 (“FLR”), require that a case conference be held prior to motions being brought, except where there is urgency or hardship: see FLR, r. 14(4) and (4.2). The test for urgency is set out in Rosen v. Rosen. The Applicant’s claim of urgency is based on his inability to see Mikael since the Applicant’s arrest on February 28, 2020; his concern that a lack of contact in his young’s child’s life will negatively impact the child’s well-being; his unsuccessful attempts to arrange access through a third party; and his inability to secure a date for a case conference.

[24] However, that test must also be interpreted in the context of the suspension of the regular operations of the Superior Court of Justice. I am guided by the Notice to the Profession, dated March 15, 2020:

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child; c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order; d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

[25] In Kostyrko v. Kostyrko, 2020 ONSC 2190, LeMay J. noted that this list is not exhaustive and that each judge retains discretion to determine urgency. I agree.

[26] In Thomas v. Wohleber, 2020 ONSC 1965, at para. 38, Kurz J. outlines the factors that are necessary to meet the urgency requirement as set out in the Notice to the Profession, dated March 15, 2020:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[27] In my view, the child’s ability to have contact with his father does impact the child’s well-being and it cannot be addressed at a later date.

[28] Based on the voluminous materials filed by the parties, it is evident that, at this time, there is tension between the parties. Their separation is still relatively recent. I have no confidence that they would be able to come to an agreement for the Applicant’s access and without such an agreement, Mikael’s well-being is impacted. Attempts to serve the Respondent with the Application resulted in calls to the police. If these parties cannot navigate that, how can the Court have any confidence that they can set aside their differences and agree on what is best for Mikael?

[29] While I appreciate that they both have their own version of events, whose version is closer to the truth will have to be determined at a later date. My immediate concern must be for the well-being of Mikael.

[30] In Ribeiro v. Wright, 2020 ONSC 1829, at para. 20, Pazaratz J. held that parents “should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.” By extension, parents should not assume that access will not be initiated because of the current pandemic.

[31] It is not known at this time when this pandemic will end or when the Superior Court of Justice will be able to resume its regular operations. Mikael’s well-being includes contact with his father. He is young and vulnerable. He has not seen his father for almost six weeks, which is a significant period of time in the life of a 20-month-old.

[32] Therefore, I exercise my discretion and grant leave for the Applicant’s motion to be heard on an urgent basis. It should be noted that granting leave does not necessarily mean that the relief sought by the Applicant will be granted.

Issues to be Determined

[33] There is no dispute that the Applicant should have access. However, I must determine the following issues:

(a) Should the Applicant’s access be supervised and if so, by whom? (b) When, where and for how long should the Applicant have access with the child? (c) Where will the access exchanges take place?

The Position of the Parties

[34] The Applicant essentially seeks shared parenting. The Respondent does not oppose the Applicant seeing the child, but she advances the position that the Applicant’s access should be supervised. The Respondent proposes that the paternal grandmother supervise the access if the Applicant provides written confirmation of the following conditions:

(a) How will [the Applicant] be accommodating Mikael’s visitation? (b) Is his mother’s house child proof? (c) Who else resides there and what protections are in place to ensure Mikael is not exposed to the virus going around? (d) Where will Mikael be sleeping? (e) Is there a car seat for transportation? And who will be the driver? [The Applicant] does not have a valid driver’s license and cannot drive. (f) How will safe social distancing be practiced? (g) The Applicant shall advise/inform the Respondent who is driving the vehicle that is picking up/dropping off the child and who the child interacts with.

[35] If these conditions are met, then the Respondent maintains that the Applicant should have supervised access twice per week, with each visit being two hours in duration, for a total of four hours of access per week. It should be noted that during argument, the Respondent’s counsel indicated that the Respondent would be willing to agree to two three-hour visits.

[36] The Applicant submits that:

(a) He is entitled to joint custody. (b) He has always been involved in caring for the child. He was involved in bathing and feeding the child; he attended doctor’s appointments for the child’s vaccinations and circumcision; he purchased food and other supplies that were needed for Mikael. The Applicant has filed numerous photographs and text messages to support his position that he was very involved in parenting Mikael. (c) He has been the child’s primary caregiver since the beginning of February 2020 when the Respondent’s maternity leave ended, and she returned to work. Further, he provides several specific dates between October and December 2019 when he cared for Mikael for the entire day. (d) He has not seen his child since February 28, 2020. He tried to make arrangements for access through the Respondent’s sister without success. He proposed that the maternal grandmother facilitate his access but was told that this was not an option as the maternal grandmother would not be able to communicate with him due to her limited ability to communicate in English. (e) He submits that the Respondent has contradicted herself with respect to what he has been charged with. In her Answer, the Respondent refers to the Applicant being charged with assault bodily harm, but in her affidavit, she refers to him being charged with domestic assault and uttering threats. The Applicant argues that the Respondent is not credible because of this and because she did not include any details of what occurred or when it occurred. (f) He alleges that the Respondent does not care about what is in the child’s best interests. (g) He has everything that Mikael will need, except for a crib, but he can purchase one quickly.

[37] The Respondent submits that:

(a) She has been the child’s primary caregiver for his lifetime and Mikael has always resided with her. (b) The Applicant has issues with his anger and self-control. He has threatened her on multiple occasions. She submits that on numerous occasions he has threatened to end their marriage. He has broken household items, including a television remote and Mikael’s toys. He has screamed at her repeatedly while Mikael was in the home. (c) The Applicant lacks parenting skills. (d) She does not support overnight access due to the current warnings about COVID-19. She submits that the Applicant should be permitted to start with a few hours of access per week, supervised by the paternal grandmother. (e) The Respondent is concerned that because the Applicant lives with his family, Mikael may be exposed to risk of the COVID-19 virus as these individuals go in and out of the home. (f) The Respondent argues that the Applicant has mental health diagnoses and it is not safe for the child to have unsupervised access with the Applicant. (g) The Applicant was only left with the child for short periods of time when the child was younger. When this occurred, the Respondent would prepare meals for the child and have everything ready that would be needed for the child. (h) On February 28, 2020, the Applicant sent her a text while she was at work and she alleges that the Applicant threatened to let Mikael starve.

Additional Information

[38] Both parties filed voluminous materials. However, neither party provided specific evidence about how members of their respective families can assist with facilitating access exchanges and, if necessary, the supervision of access. The Applicant had also not filed a copy of conditions of his release for his criminal charges.

[39] Therefore, I required that each party provide the following information: the names of individuals who could assist with access exchanges and/or supervision, with particulars of how each could assist, and if there were any limitations on how they could assist. I also required that the Applicant provide a copy of the terms of his release for his criminal matter.

[40] By email, the Applicant provided a copy of the conditions of his release and how each member of his family was able to assist with access exchanges and supervision of his access, if necessary. All four members of the Applicant’s family were identified as being able to assist with access exchanges on the following basis:

(a) Ahesan Amiri (the Applicant’s brother/paternal uncle) – he can pick up and drop off the child either from the Respondent or a third party but requires that the Applicant sit with the child in the back seat of the car in case the child cried or needed anything. He can also assist with any access exchanges that take place at 48 Acme Crescent, Etobicoke, Ontario. (b) Khalda Amiri (the Applicant’s sister/paternal aunt) – she can only assist with access exchanges that take place at 48 Acme Crescent, Etobicoke, Ontario, as she will be returning to school. (c) Husnia Amiri (the Applicant’s mother/paternal grandmother) – she is currently not going to work because of the pandemic. Until she returns to work, she can assist with access exchanges that occur at her home. She also pledges to be responsible for all overnight expenses associated with the child having overnight access at the home (bed, diapers, food). (d) Miya Amiri (the Applicant’s father/paternal grandfather) – he can assist with access exchanges that take place at their family home.

[41] The Respondent’s counsel provided the following information by email on April 17, 2020:

Further to yesterday's motion in this matter, below are the three names Ms. Nazer (respondent) proposes as access supervisors. Ms. Nazer has spoken with each person as to their availability and willingness to supervise access and exchanges and confirms the particulars below:

1. Ms. Rukhsana Nazer (maternal grandmother) is available during the week Mondays, Wednesdays and Saturdays from 3pm to 6pm and access to take place at her home.
2. Hina Nazer (maternal aunt age 35 years old,) is able to facilitate access exchange and transportation on weekends only. Hina is able to supervise on weekends at the maternal grandmother's home from 3pm to 6pm.
3. Hamad Nazer (maternal uncle age 30 years old) is able to supervise twice from 3pm to 6pm on Tuesdays and Thursdays access to take place at the maternal grandmother's home

[42] In a subsequent email to the Court, the Applicant indicated “the pickup and drop off from 48 acme crescent driveway to facilitate access also includes supervision (if her Honour seems [sic] it to be necessary)” which I understood to mean that all four members of his family were willing to assist with the supervision of access as well, if necessary.

Analysis

(a) Does the Applicant’s access need to be supervised and if so, by whom?

[43] The Respondent advances that the Applicant’s access must be supervised and therefore, she has the onus to establish the necessity of supervision. For the reasons outlined below, I am not satisfied that the Respondent has demonstrated that the Applicant’s access must be supervised.

[44] The Respondent has not provided any specific evidence that there would be a risk to the child if he were to have unsupervised access with the Applicant in the paternal family’s home. The Respondent submits that the members of the paternal family go in and out of the house, but she provides no specific evidence of where they go and how, as a result of where they go, the child would be at risk. While it is understandable that the Respondent is concerned, she has not provided any evidence that any member of the paternal family has been exposed to the COVID-19 virus, or that they are not following the strong directions from public health officials to take the appropriate precautions during this pandemic. To require supervised access based on general concerns is speculative and insufficient.

[45] The Respondent also submits that the Applicant’s access should be supervised because he has mental health issues. In support of her argument, the Respondent refers to the Applicant’s disciplinary hearings before the Law Society of Upper Canada, now known as the Law Society of Ontario (“Law Society”). The Applicant was a paralegal and these proceedings were held in 2017. The Respondent relies on two documents. First, she relies on the reasons given by the Law Society Tribunal in its decision to suspend the Applicant’s licence for 75 days. Second, she relies on an affidavit she says the Applicant submitted to the Law Society to support his request for an extension of time to appeal the disciplinary decision. However, neither of these documents helps the Respondent establish that the Applicant’s mental health currently impacts his ability to have unsupervised access with the child.

[46] The Law Society Tribunal decision refers to a report prepared by a Dr. Tubb, psychiatrist, whom the Applicant saw in January 2016 for an assessment following a 2011 motor vehicle accident. A diagnosis of major depressive disorder was made at that time. However, the report itself was not provided to this Court and even if it had been, it would be dated.

[47] The second document is an affidavit which the Respondent states the Applicant submitted in support of a request to extend time to file a Notice of Appeal. The Respondent submits that in this affidavit, the Applicant confirms he has issues with his mental health (“anxiety, depression, loss of life enjoyments, insomnia and suicide ideation”). Although the document is dated January 21, 2019, it is not sworn or affirmed, and therefore, I cannot accept this as previously sworn evidence of the Applicant.

[48] The evidentiary record before me does not establish that the Applicant is currently suffering from anxiety, depression, loss of life enjoyments, insomnia and/or suicide ideation.

[49] The Respondent submits that the Applicant lacks parenting skills and has only cared for the child for short periods of time. She also submits that she prepared everything that would be needed for the child when she was away from the home. The Applicant argued that after the Respondent returned to work in February 2020, he cared for the child while the Respondent was at work. This was acknowledged by counsel for the Respondent. However, I was advised that the Respondent worked four out of seven days per week, for approximately eight hours per day. I do accept that even though she was at work, the Respondent remained involved in preparing meals and meeting the child’s day-to-day needs.

[50] The Respondent alleged that the Applicant sent her a text message threatening to starve the child. The Applicant disputes that he threatened to starve the child. Respondent’s counsel conceded that the Applicant did not use those precise words in the text. Neither party included a copy of this text message in their materials, and therefore I am unable to determine what threat, if any, was made by the Applicant in the text message of February 28, 2020.

[51] The Respondent refers to an incident where the Applicant smashed a remote control in front of the child. The Applicant acknowledges this. His evidence is that the Respondent was to be caring for the child and the Applicant found the child with a screwdriver in his mouth. The child was not injured. The Applicant states that the Respondent was preoccupied by being on her phone and he became frustrated. He acknowledges that he should not have behaved in this way. I was advised that this incident occurred in January 2020, before the Respondent’s maternity leave ended and before the Applicant started to care for the child while the Respondent was at work.

[52] There is no evidence before me that the Applicant lost his temper, behaved inappropriately towards the child, put the child at risk, or failed to meet the child’s needs while the Applicant was providing care for the child when the Respondent returned to work at the end of her maternity leave (the beginning of February 2020).

[53] Therefore, based on the evidentiary record before me, I do not find that the Respondent has established that the Applicant’s time with the child must be supervised.

(b) Frequency, Duration and Location of Access

[54] The Applicant seeks equal parenting time and has the onus to demonstrate that this what is in Mikael’s best interests, at this time.

[55] The Applicant alleges that both parties have been aggressive with each other throughout the marriage. The Respondent alleges that the Applicant has been verbally abusive towards her. The Applicant alleges that the Respondent does not care about what is in the child’s best interests.

[56] In the affidavits filed, both parties referred to the Applicant “signing over custody” of Mikael to the Respondent, but neither has provided in their evidence a copy of whatever document was signed. The Applicant states he was manipulated to sign this document and after he signed it, the Applicant contacted the police and he was charged. The Respondent states that on February 28, 2020, the parties had another argument which led to the end of their relationship. She alleges that the Applicant screamed at her to leave their home and she indicated that she would only leave if he filed for legal separation. Her evidence is that it was the Applicant who prepared the document which stated that he gave her full custody of the child.

[57] What is clear from the material is that the Respondent’s work and her hours of work have been a source of tension between the parties. The Applicant alleges that the Respondent neglected the child as she was preoccupied with being on social media or being away from the home for her freelance work as a beauty advisor (she also works at a drug store as a beauty advisor). However, I note that in his Amended Form 35.1 (Affidavit in Support of Claim for Custody and Access), sworn March 17, 2020, after he was charged and after he commenced this litigation, the Applicant provides the following evidence:

The father further notes that she is a good mother to child and would not harm him in any way nevertheless she can do a better job by giving Mikael the attention he deserves.

[58] At this point, it is premature to determine whether the Applicant “is entitled” to joint custody or to determine the validity of this purported document. I am only determining how to initiate the Applicant and the child spending time together.

[59] The parties seem to agree on Mikael’s daily routine: he wakes and has breakfast by 7:00 or 8:00 a.m.; he naps from 12:00 p.m. to 2:30 p.m.; he has dinner at approximately 4:30 or 5:00 p.m.; and his bedtime is 7:00 p.m.

[60] Through the additional information provided to the Court on April 17, 2020, the Respondent proposed that the supervised access be held at the home of the maternal grandmother. However, the evidence before me is that the Applicant and the maternal grandmother do not communicate well as the maternal grandmother has a limited ability to communicate in English. The Respondent did not oppose the access being held at the home of the paternal grandmother. Therefore, I find that access shall take place at the home of the paternal grandmother, where the Applicant currently resides.

[61] My order below takes into consideration Mikael’s routine. Mikael will have time with his father both before and after his nap as well as one of his meals while he is in the Applicant’s care.

[62] I remind the parties that my order for the Applicant’s access is without prejudice to both parties. At this juncture, it is important for Mikael to resume spending time with his father. My Order is intended to initiate access, as opposed to initiating the status quo.

[63] It is my view that, at this time, it is in Mikael’s best interests that access be held three times per week from 10:00 a.m. to 3:30 p.m. Access will be held at the paternal grandmother’s home at 48 Acme Crescent, Etobicoke, Ontario, on Tuesdays, Thursdays, and Saturdays. The specific conditions for access to start are detailed in my Order below.

(c) How Access Exchanges Will Be Facilitated

[64] The Applicant submits that the Respondent has the family vehicle and Mikael’s car seat. Therefore, he argues, the Respondent should provide the transportation to and from the paternal grandmother’s home.

[65] The Respondent argues that the Applicant should be responsible for making the transportation arrangements. She proposes that the access exchanges take place outside the Holt Renfrew Store at the Square One Mall in Mississauga, Ontario. Counsel for the Respondent argues that the Court ought to be concerned if the paternal grandmother is not willing to assist with transportation. However, there was no evidence before me that the paternal grandmother is willing to or even able to drive.

[66] The Applicant states that he is confident that, if necessary, his brother would be able to do the drives. However, the Applicant maintains that the Respondent should have to provide the car seat.

[67] As stated above, neither party provided any evidence to address whether the paternal grandmother was willing to supervise access, if necessary, or how else she could assist with access. Similarly, until I received the additional information that I had requested, neither party provided any specific information as to how members of their respective families could assist with access.

[68] In my view, both parties should share in the responsibility for the transportation arrangements. It is not practical for the car seat to be removed from the Respondent’s vehicle and then installed in the Applicant’s brother’s vehicle at the beginning of each visit and this process be reversed at the end of each visit. Therefore, the Applicant shall obtain a suitable car seat to be used in his brother’s vehicle only.

[69] As detailed in my Order below, for the access exchange at the beginning of each visit, the paternal uncle shall pick up the child from the Respondent. They will meet, as proposed by the Respondent, outside the Holt Renfrew Store at the Square One Mall. It will be up to the paternal uncle to decide if he wishes the Applicant to be present in the vehicle for some, or all, of the pick ups. But if he is, the Applicant shall remain in the back seat of the paternal uncle’s vehicle and shall not communicate, or attempt to communicate, with the Respondent.

[70] At the end of each visit, the Respondent shall pick up the child from the paternal grandmother’s home. The Respondent shall wait at the end of the driveway and one of the members of the paternal family shall bring the child to her. The Applicant shall remain inside the home while the child is being picked up.

[71] The Respondent may, if she wishes, have a third-party present for some, or all, of the access exchanges. Further, if the Respondent wishes, the third party can hand the child to the paternal uncle and/or receive the child from one of the members of the paternal family.

[72] Although I should not have to, I am reminding the parties that they must comply with every aspect of my Order below. Unless specifically stated in the terms of my Order below, the parties do not have discretion to alter any aspect of my Order without a further Order.

[73] I emphasize this as it was apparent that the parties, and the Applicant in particular, did not comply with the terms of my endorsement of April 9, 2020. It was clearly indicated that all materials filed were not to exceed 9.9 MB. However, both parties sent multiple emails with multiple attachments that exceeded this limit. The Applicant’s reply material alone exceeded 100 MB. The Respondent’s material was close to 19 MB.

[74] But for the efforts of dedicated staff in the trial office, I would not have been able to access all the material filed and extend my sincere thanks to the staff for their invaluable assistance.

Order

[75] For the reasons outlined above, I make the following Temporary Order:

1. The Respondent’s Notice of Change in Representation, deemed signed and dated April 16, 2020, shall be served on the Applicant by email. Within three weeks of the resumption of the Superior Court of Justice’s regular operations, counsel for the Respondent shall file the Notice of Change in Representation in the Court File.
2. Service of the following documents on the Applicant is validated and service was effective on April 14, 2020 at 3:00 p.m.: (a) Respondent’s Notice of Motion, deemed dated April 14, 2020; (b) Respondent’s Affidavit, dated April 14, 2020 and affirmed on April 16, 2020; (c) Respondent’s Form 35.1 – Affidavit in Support of Claim for Custody or Access, affirmed on April 16, 2020; (d) Respondent’s Factum, dated April 14, 2020;
3. Service of the following documents on the Respondent is validated and service was effective on April 15, 2020 at 3:55 p.m.: (a) Applicant’s Reply Affidavit, dated April 15, 2020 and affirmed on April 16, 2020; and (b) Applicant’s Reply Factum.
4. Leave is granted for the Applicant’s request for access to be heard on an urgent basis.
5. Subject to paragraphs 6 and 7 below, the Applicant shall have access to the child, Mikael Aziz Amiri, born August 23, 2018 (“the child”) on Tuesdays, Thursdays, and Saturdays from 10:00 a.m. to 3:30 p.m.
6. The first access visit will be on Thursday April 23, 2020 provided that: (a) the Applicant has obtained a suitable car seat; and (b) the Applicant provides confirmation of same to the Respondent’s counsel no later than 5:00 p.m. on Wednesday April 22, 2020.
7. If the Applicant does not provide confirmation as set out above, in paragraph 6(b), then the first access visit will be held on Saturday, April 25, 2020, provided that the Applicant provides confirmation to the Respondent’s counsel, no later than 5:00 p.m. on Friday April 24, 2020, that the Applicant has obtained a suitable a car seat.
8. Access shall take place at 48 Acme Crescent, Etobicoke, Ontario.
9. The access exchange shall take place as follows: (a) The pick up will be outside the Holt Renfrew store at the Square One Mall (Mississauga, Ontario) at 10:00 a.m. (b) The Applicant’s brother, Ahesan Amiri, shall pick the child up from the Respondent. At the discretion of Ahesan Amiri, the Applicant may be in the vehicle for some or all of the pick ups, but if he is present, the Applicant shall remain in the back seat of the vehicle at all times. The Applicant shall not communicate or attempt to communicate with the Respondent. The Applicant’s brother, Ahesan Amiri, shall not park his vehicle immediately next to the Respondent’s vehicle, but shall park a reasonable distance away from the Respondent’s vehicle. (c) The Respondent shall pick up the child at 3:30 p.m. from 48 Acme Crescent, Etobicoke, Ontario. The Respondent shall wait at the end of the driveway and at 3:30 p.m., one of the following individuals shall bring the child to the Respondent: Husnia Amiri (paternal grandmother), Ahesan Amiri (paternal uncle), Khalda Amiri (paternal aunt), or Miya Amiri (paternal grandfather). The Applicant shall remain inside the house at 48 Acme Crescent, Etobicoke, Ontario, while the child is being picked up. (d) The Respondent may, if she wishes, be accompanied by a third party for some or all the access exchanges. The Respondent may, if she wishes, request this third party to hand the child to Ahesan Amiri at the beginning of the visit and/or receive the child from one of the individuals identified in paragraph 9(c) above at the end of the visit. (e) The Applicant shall notify the Respondent immediately, through her counsel, if there is any change in the ability of Husnia Amiri (paternal grandmother), Ahesan Amiri (paternal uncle), Khalda Amiri (paternal aunt), and/or Miya Amiri (paternal grandfather) to assist with the access exchanges and/or if there is any change in the ability of Ahesan Amiri to provide transportation for the child.
10. Paragraphs 5 to 9 of this Order, which relate to the Applicant’s access, are made without prejudice to both parties.
11. The Respondent shall serve an Amended Answer on or before May 15, 2020. The Amended Answer shall be filed within three weeks of the Superior Court of Justice’s regular operations resuming. The Applicant may be served by email.
12. The Applicant may serve a Reply (Form 10A) within 21 days of being served with the Amended Answer. The Applicant may serve his Reply, if any, by email.
13. The parties shall obtain, through the Trial Co-Ordinator’s office, a date for a case conference.
14. The Applicant’s motion (Notice of Motion, dated April 7, 2020) and the Respondent’s motion (Notice of Motion, deemed to be dated April 14, 2020) are adjourned to the case conference to only address the scheduling of those motions.
15. Within three weeks of the resumption of the Superior Court of Justice’s regular operations, the parties are to file in the Court File all documents that were electronically filed for the Applicant’s and the Respondent’s motions and shall pay the applicable filing fees.
16. This Order takes effect from the date of this endorsement, and without the necessity of the Order being issued and entered.

Kumaranayake J.

DATE: April 21, 2020