COURT FILE NO.: FC-15-1833 DATE: 2020/05/21
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Maxime Gaetan Levesque, Applicant AND Lindsay Windsor, Respondent
BEFORE: Mackinnon J.
COUNSEL: Alyssa Bach for the Applicant Manraj Grewal/ Deanna Paolucci, for the Respondent
HEARD: May 14, 2020
ENDORSEMENT
Introduction
[1] The applicant moves to stay the Final Order of Shelston J. dated January 17, 2020 pending his appeal from it. If the stay is granted the applicant asks for restoration of the order in effect prior to trial, until the appeal is determined.
[2] The Final Order awarded the parties joint legal custody of their seven-year-old daughter whereas the prior order provided sole custody to the applicant. It continued the child’s primary residence with the applicant and increased the respondent’s parenting time in increments over the coming five months. With the completion of the incremental increases the respondent’s parenting time would double from three to six overnights each fourteen days. Additional provisions included holiday time for the respondent, something she had not had before.
[3] The first increase in the respondent’s regular parenting time happened on January 27, 2020. The second took place on April 20. The third increment is scheduled for June 22. The respondent also had five consecutive days over the March break, which included part of her regular weekend time. The Final Order provides her with a one-week vacation with the child in each of July and August.
[4] The primary ground of appeal is that the trial judge erred in law by failing to apportion the appropriate weight to the evidence before him. The Notice of Appeal particularizes this in relation to a number of factors related to the child’s best interests, including the lengthy status quo and the recommendations of the child’s psychologist with respect to the child’s significant anxiety and struggle with change. On the issue of joint decision making the Notice of Appeal asserts an error in law and that the trial judge misdirected himself with respect to evidence in favour of sole custody and against joint custody.
[5] The trial extended over eight days in October and November 2019. Nine witnesses were called. Numerous exhibits were filed.
[6] In support of the motion to stay, the applicant relies on the child’s reaction to the changes which have been instituted to date. He describes these as serious, adverse and regressive. The respondent maintains the child is doing very well in her care. She points out that other intervening changes have also taken place which may be contributing to the child’s behaviour with her father. The respondent submits the motion to stay should be dismissed.
[7] The three-part test on a motion to stay a Final order in a parenting case is stated in the Ontario Court of Appeal’s decision in Lefebvre v. Lefebvre, [2002] O.J. No. 4885 (Ont. C.A.). The motion judge must consider whether:
a) the appeal raises a serious issue that the trial judgment is wrong;
b) the child will suffer irreparable harm if a stay is not granted; and
c) the balance of convenience favours a stay.
[8] All three parts of the test are interrelated. The strength of one part can overcome weakness in another: Watt v. Howe, 2016 ONSC 7405 para 8. In a parenting case the overriding consideration reflected in the three-part test is the child's best interests. The court must be satisfied that it is in the child's best interests to order a stay: see Lefebvre supra at para 6 and Lapier v. Roebuck, 2017 ONSC 1640 (Div. Ct.) at para 21.
Background Facts including Findings of Trial Judge
[9] Pyper is currently seven years old. She has lived primarily with her father since the parties separated in July 2015. He has had interim sole custody by a consent order made in September 2015.
[10] The mother began using cocaine in February 2014. In January 2015, she admitted her addiction to the applicant and entered a detox program, followed by an inpatient rehabilitation program. On completion she attended regular meetings and individual counselling. Nonetheless on July 19, 2015 she used cocaine. The applicant decided to separate a few days later.
[11] Supervised visits were allowed. The trial judge reviewed their history from October 2015 to the end of January 2016 and found it was positive. The mother started exercising unsupervised access in October 2017. The access in place when the trial started, namely alternate weekend access from Friday to Sunday evening, and a Wednesday overnight visit in the other week, commenced in March 2018.
[12] The trial judge found that since unsupervised access began there was no evidence the mother had acted improperly with the child, rather the child had done well in her care. He found the mother’s relationship with her child is close and loving.
[13] The trial judge reviewed the respondent’s drug use. He found that since September 2015 she had used cocaine on five occasions the last being June 2017, that she continues to submit voluntarily to extensive drug screening and is a much different person than she was in 2015. He found she has been clean since June 2017, is employed, has been in a loving relationship since October 2016, and was continuing to address her addiction.
[14] During the four- and one-half years prior to trial the child resided with her father who was her primary caregiver and sole decision maker. He has taken good care of Pyper in respect to her education, medical care and extracurricular activities. The mother agreed at trial that he had made appropriate decisions for the child.
[15] In 2016 the father contacted child psychologist Dr. Harrison about Pyper. From May 30, 2016 to the date of trial Dr. Harrison saw Pyper every two weeks. The trial judge reviewed the three reports prepared during her involvement up to the trial, and her trial testimony, as follows. In her first report dated November 2, 2016 she described the child as a four-year-old with a high level of anxiety. Pyper had less of an ability to cope, was not communicating and had significant difficulty separating from her father to attend her junior kindergarten program.
[16] In her second report dated May 31, 2018 Dr. Harrison concluded that Pyper continued to exhibit clinically significant levels of anxiety in school. She found that the child exhibited difficulty separating, dealing with change, feeling nervous, fearfulness and worrying. She recommended extra assistance in the school to help cope with anxiety.
[17] The third report is dated September 9, 2019. Dr. Harrison found Pyper’s adjustment at school had improved. She still had significant concerns for the child, with respect to separation anxiety, anxious behaviour as well as aggressive and rule breaking behaviours at school, and her academic performance continued to be hampered by anxiety. In this report Dr. Harrison wrote that it was important to gently assist the child to go beyond her comfort zone to help her build new positive experiences, but that if she was pushed too far outside of that zone she would likely be overwhelmed and retreat to an even smaller comfort zone. She recommended that small steps would have a higher likelihood of success, accompanied by support and encouragement and would help Pyper build a sense of herself as more competent and able.
[18] The trial judge summarized Dr. Harrison’s trial testimony at paras 74 and 75 of his reasons:
[74] When Dr. Francis Harrison testified in the trial on October 7, 2019, she testified that presently the child talks, looks a person in the eye, the separation anxiety is much less than it was in May 2018, that the child opens up to the doctor about her life and that the doctor has dropped any concern about the child being on the autism spectrum. According to her collateral contacts from the school, the child shows significant anxiety but it is better than in the past.
[75] In cross-examination, Dr. Francis Harrison agreed that the child can be pushed beyond her comfort zone because if she is not pushed, it reinforces her anxiety. She indicated it was better to push the child to deal with her anxiety. However, any change must be very gradual otherwise it will affect the child’s psychological well-being. Further, she opined that when developing a parenting schedule, the parties must keep the child’s special needs in mind and that she needs time to adjust to changes and that all transitions are difficult for her. She recommended small changes over time because the anxiety suffered by the child is constricting her life.
[19] The trial judge found that both parents acknowledge the child suffers from mental health issues and both have agreed to her continuing therapy with Dr. Harrison. He found that both parents had embraced the supports from the school. He found that the mother had employed techniques to address her daughter’s anxiety and he accepted her testimony and that of her partner that Pyper had never had a “complete meltdown” in their care.
[20] The trial judge also made findings based on the father’s testimony about Pyper’s current status at paragraphs 171 and 173:
[171] I accept the evidence of the father that when she does shut down, Pyper is in a different world where she throws objects, hits, hides under the bed, or takes off her clothes. Until she calms down, the child is unreachable.
[173] I find that today there is no longer any stuttering, the child is more at ease, she talks about what she wants but there are times when she shuts down.
[21] The trial judge found the parents were able to be polite and civil to each other in the child’s presence and in the main their communications had been respectful and child focused. He outlined concerns about the father’s actions that related to the award of joint decision making. These included his failure to encourage maximum contact between child and mother, his failure to advise the mother when Pyper started to see Dr. Harrison, the finding that he had been in contempt of an access order earlier in the case, his request of the child’s doctor not to share Pyper’s medical information with her mother, followed by his decision to change doctors when the existing doctor responded by asking for a court order to that effect, and that he listed the mother as fifth emergency contact on the school contact list.
[22] The trial judge also noted that there had not been the need for emergency decisions for the child and that major decisions for her were already in place with no known upcoming changes anticipated.
[23] In considering residential arrangements the trial judge noted there was no evidence that Pyper exhibited any dysfunctional behaviour at school on the Thursday mornings following her overnight with her mother. He found Pyper’s mental health had improved but that she still faces serious challenges including her degree of anxiety, and her resistance and difficulty in adapting to challenges at school. He found that transitions between parents were still difficult for her and the source of part of her anxiety.
[24] In view of these findings and his determination that more contact with her mother was in the child’s best interests the trial judge decided to increase the mother’s regular access on a gradual basis. He ordered an increase on January 27 by adding a three hour visit on alternate Mondays. On April 20, the alternate weekend access was extended from Sunday evening to Monday morning. Starting on June 22 two additional changes were ordered. Alternate Mondays would become overnights. In the other week the existing Wednesday overnight would be extended until Friday morning. The trial judge chose this way of increasing the contact with the mother because it required only four more monthly transitions between homes.
[25] Additionally, the trial judge ordered some holiday access for the mother and child. The first addition came with the March break in 2020 during which the mother had Pyper from school closure on Friday until noon on Wednesday. For the summer the trial judge ordered one week in July and one week in August, non-consecutive.
[26] The trial judge ordered that Pyper’s primary residence would remain with her father.
Use of Fresh Evidence
[27] The applicant relies heavily on events subsequent to the trial in support of his motion to stay. Post-trial facts may be considered in the determination of whether grounds for granting a stay have been established. In Lapier v. Roebuck, 2017 ONSC 1640 the court held at paragraph 37 that, “the proper analysis in this case requires a consideration of the three-part test considering all the evidence including the fresh evidence.”
[28] The father submits the post-trial evidence shows that Pyper has regressed since her mother’s access has increased, with a corresponding decrease in her time with him. He was especially concerned about her reaction to the additional time at the March break which resulted in Pyper being away from him for five consecutive overnights, the most she has ever spent away from him. He described difficulties she had leading up to this visit with sleeping, bed wetting and decreased appetite. He said Pyper had told him she was concerned about being away from him. When she returned, he said she was emotionally distant, built a fort in the living room which she stayed in and after dinner she crawled under the table and would not come out.
[29] The father was worried that Pyper’s grades had dropped in her January 24, 2020 report card, which he seemed to link to the three extra but nonconsecutive overnights the mother had with her over the Christmas period.
[30] Dr. Harrison wrote to the parents on February 18, 2020. She told them that since December 2019, she had seen increased anxiety and regressive behaviour in Pyper. Her observation in the first two sessions of the year, on January 6 and 20 was that Pyper was much clingier with her father and insisted that he come into the therapy room with her. Dr. Harrison described the child as regressive in that she was demanding and talking in a baby voice. Further, she needed to interrupt each session to use the washroom, which is a typical sign of stress in children of this age. Dr. Harrison suggested the parents let Pyper know one step at a time, about two weeks prior to each change in the schedule so that she can feel prepared.
[31] In early March Dr. Harrison noticed a new symptom. Pyper started removing small toys from her office. She had not yet determined the source of this behaviour when the public health emergency intervened forcing the suspension of their sessions. She also noted at about the same time Pyper seemed less willing to speak about her life. She mentioned she wanted some time to herself at her mother’s and some 1:1 time with mother, but after that, she no longer wanted to talk.
[32] The father deposes that Pyper continues to fight him at each access transition.
[33] The mother agrees their child is going through a tough time now given all the COVID-19 changes which include school closures, homeschooling, not seeing friends and relatives, no organized extracurricular activities, and suspension of her sessions with Dr. Harrison. She describes no behavioural issues with Pyper at her home and attributes Pyper’s increased anxiety at her father’s to these other events not to her extra time with her mother.
[34] Weekly email reports from the father to the mother do not describe all the problems he describes in his affidavits. His report for February 2 noted in general, a good week at school. He told the mother the February 9 session with Dr. Harrison went well, Pyper went in on her own but came out a few times. The report for February 16 did not express any concerns. He said Pyper’s session with Dr. Harrison on February 23 went well. The March 1 email reported some difficulty in the mornings getting ready for school and noted it was difficult for Pyper to keep up her regular routine with snow days and strike days. In this email the father did say that her anxiety appeared higher but did not provide other detail. He reported on March 8 that Pyper went on her own to Dr. Harrison this week. He described some difficult mornings and evenings in this email but that they were able to work through them. For the report dated March 15 he described more difficulties going to school, and that Pyper had wanted to stay home.
[35] The first week of the school closure the father told the mother Pyper was all over the place, didn’t know what she wanted and was having difficulties communicating. The next week he noted she was isolating herself more and having a difficult time leaving house. He also mentioned she was having a hard time not seeing her cousins.
[36] In an affidavit the father deposed that on April 1, 2020, Pyper went into crisis mode, stating she did not want to go for access with the respondent. He describes her throwing items around her room and hiding behind her bed. He said it took him hours to calm her down and get her to get ready for her access visit. This information was not communicated to the mother until delivery of his affidavit.
[37] In his April 19 email to the mother the father said Pyper was getting adjusted to the new routine. She had not fully participated in her on line reading sessions with her teacher, had built a fort and was spending a lot of time in it.
[38] The mother does not dispute what the father says happened in his home. She queries why he did not fully communicate with her at the time.
Does the Appeal raise a serious issue that the trial judgment is wrong?
Standard of Review on the Appeal
[39] The leading case on the standard of review on an appeal from a judge’s order is Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235:
- On questions of law, the standard of review is correctness (Housen, at para. 8);
- On questions of fact, the standard of review is palpable and overriding error (Housen, at para. 10); and
- Questions of mixed fact and law lie along a spectrum. If there is a clear extricable legal question, the standard of review is correctness. If the question involves an application of a legal standard to a set of facts, the standard of review is palpable and overriding error (Housen, at para. 36).
[40] Having regard to the Notice of Appeal the standard of review likely to be applicable to this appeal will be that of palpable and overriding error, which test is met if the findings are clearly wrong or can properly be characterized as unreasonable, unsupported by the evidence or constitute a significant misapprehension of the evidence.
[41] With regard to family law cases in Hickey v. Hickey, [1999] 2 S.C.R. 518 and Van de Perre v. Edwards, 2001 SCC 60 the Supreme Court held that because of the fact-based and discretionary nature of family matters, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. An appeal court must only intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, and it is not entitled to overturn an order simply because it would have made a different decision or balanced the factors differently.
[42] My view is that the standard of review on the appeal is properly considered in relation to the threshold test of whether there is a serious issue that the trial judgment is wrong.
Threshold to Meet the Serious Issue Part of the Test
[43] The threshold to meet the serious issue for appeal part of the test is low. It is not the function of a stay motion to predict the outcome of the appeal, or to delve deeply into the merits of the appeal.
[44] In Mudry v. Danisch, 2014 ONSC 4335 (Div. Ct.) the low threshold was said to be met as long as the question raised by the appeal is not frivolous or vexatious. In the context of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 61.06(1) (security for costs of an appeal) Carthy et. al., Ontario Annual Practice 2019-2020, (Toronto: Carswell, 2019) note Pickard v. London Police Services Board (2010), 268 O.A.C. 153, 2010 ONCA 643 as defining the words frivolous or vexatious this way: “A frivolous appeal is one readily recognizable as devoid of merit, as one having little prospect of success. …”
[45] Other decisions have held that a "serious issue" in this context is a ground of appeal that has a reasonable, or some reasonable, prospect of success. See Fiala Estate v. Hamilton, 2008 ONCA 784 (Ont. C.A.); Buccilli v. Pillitteri, 2013 CarswellOnt 16731 (Ont. C.A.); Closner v. Closner, 2019 ONSC 703.
[46] Mitrow J. points out in McNeil v. Barrett, 2018 ONSC 212 that even at the level of the Ontario Court of Appeal decisions differ in the use of one or other of these phrases. This may suggest that there is little difference between them. Although not necessary to my decision my view is that the deference owed to the trial judge and applicable standard of review favour the use of “some reasonable prospect of success”.
[47] The applicant submits his appeal meets the threshold of serious issue because the trial judge changed a long-standing status quo. He relies on Mudry where the court stated at para 169:
[169] Here, the father's appeal is neither frivolous nor vexatious. The facts reveal serious concerns about a process that has resulted in a temporary custody and access Order that has drastically changed the status quo to which the mother had earlier consented. (emphasis added)
[48] In that case the status quo for three years was shared legal and residential custody. The Order under appeal limited the father to supervised access for one hour per week, an order which the mother did not ask the court to make. The father had not been permitted to make submissions. The stay judge was concerned that a new status quo could develop in this context. Mudry is not authority for the proposition that any change to a long-standing status quo will meet the serious issue threshold. The changes the trial judge made to the residential schedule and decision-making authority are significant but not drastic. The status quo of primary residence to the father was left in place. The appeal does not raise any process issues.
[49] The applicant also referred to McNeil v. Barrett, supra where the court stated at paragraph 38, “Given that the trial judge reversed a long-standing status quo, I am prepared to find that the appeal raises a serious issue.”
[50] McNeil is distinguishable in two ways. The parents separated when their child was three months old. She was now nine years old and had lived with the appellant since separation. The trial judge reversed the status quo of decision making and primary residence. And in so doing the trial judge focused primarily on one issue only, namely which parent would be best able to ensure the child's academic success.
[51] In our case the trial judge did not reverse primary residence or decision making but did increase the mother’s contact and change the father’s sole custody to joint decision making. Whether the appeal raises a serious issue with respect to these changes should be considered individually. The fact that the changes were significant does not in and of itself satisfy the serious issue test.
[52] I conclude that the appeal does not raise a serious issue with respect to the award of joint decision making. Lefebvre v. Lefebvre, recognizes that joint custody may be awarded to ensure that both parents have the authority to parent the child and that a parent who has acted without notifying or discussing important issues with the other parent will understand that he or she is not the only parent in the child’s life. The trial judge made numerous findings of fact that engage this basis for an award of joint custody. In my view the appeal has little prospect of success in respect to this issue.
[53] The appeal does not meet the serious threshold issue with respect to the trial judge’s conclusion that it was in the child’s best interest to increase her contact with her mother. It does meet the threshold with respect to the specific residential arrangements ordered by the trial judge based on the inclusion of the fresh evidence. The child’s reactions over the period in which the changes have been implemented connects to trial evidence provided by Dr. Harrison. Are the changes ordered and the time frame in which they shall occur small enough, or gradual enough to be appropriate for the special needs of this child? The post-trial input from Dr. Harrison is evidence Pyper’s anxiety increased after December 2019 and that she was showing regressive behaviour in her office sessions on January 6 and 20. Dr. Harrison also described a new symptom emerging in early March and she observed Pyper was less willing to talk about her life. The father was especially concerned with Pyper’s behaviours leading up to and following the extra days that she spent with her mother during the school March break.
[54] There is some fresh evidence to suggest that concerns raised by Dr. Harrison at trial, namely if the child was pushed to change too quickly, she would likely become overwhelmed and retreat to a smaller comfort zone. I refer here to the evidence of less willingness to discuss her life with Dr. Harrison and the father’s evidence with respect to Pyper staying in her fort, crawling under the table and hiding behind her bed.
[55] The mother correctly points out that a causal connection has not been established between the increased anxiety and the changes to her parenting time, and that many other changes were occurring during much of this time. Concluding that a serious issue has been raised by the post-trial evidence is not an attribution of blame or responsibility and does not negate the contribution of COVID-19 related changes. It reflects the overriding focus of the court on the child’s best interests.
Irreparable harm / Balance of Convenience
[56] In custody and access cases, irreparable harm and balance of convenience may be considered together because both relate closely to the child's best interests. Irreparable harm was defined as harm that cannot be cured in Mudry. The harm to the children there if the stay was not granted was that having been accustomed for three years to a shared parenting arrangement, they would only see their father in a supervised environment. The court described this as the risk of “elimination of the father's role in the children's daily lives”.
[57] Mudry addressed the balance of convenience stage of the analysis by balancing the harm to each parent and the harm to the child. At this point it was the prospect of the new status quo persisting which tipped the balance in favour of granting the stay.
[58] The applicant referred to two cases where trial judges reversed custody and stays were granted pending appeal. Moffatt v. Miller, 2014 ONSC 6649 reversed custody in favour of the mother who lived about two hours’ drive away from where the children lived with their father. The motion judge balanced the disruption in moving the children to the new location and potentially moving them back if the appeal succeeded. The stay was granted in that there was no evidence the children would be better off with the mother than they were with the father. The reasoning was that:
25 In these circumstances, it is my view that there is a greater risk of harm to the stability of the children's lives by not granting a stay than there is by granting it.
[59] In Watt v. Howe, 2016 ONSC 7405 the mother’s request to move with the child from Kingston to Ottawa was denied. The child was placed with the father who lived about a one-hour drive from Kingston. On the stay motion the importance of stability and security in the child’s life were relied on to find it was in her best interests to continue to reside in Kingston with her mother where she had lived for the past four years, on the premise that the mother would continue to reside in Kingston pending the appeal. At para 12 the court noted:
12 … the only reason why there is a court order changing her weekday residence is the assumption that Emelia's mother had moved to Ottawa. In my view, this would cause Emelia unnecessary upset that, once experienced, cannot be undone.
[60] Both decisions reversed residential custody. Both were relocation cases. Denying the stay would mean that the children would be moved from one parent to the other, and from one town to another, with all of the ancillary changes in friends, schools and activities. In both cases there was considerable merit to the pending appeals. The facts in these cases are not comparable to Pyper’s case, although the importance of stability to a child is applicable.
[61] The onus is upon the party seeking the stay to demonstrate a risk of irreparable harm if the stay is not granted. In Closner v. Closner, 2019 ONSC 703 the stay judge found the onus had not been met. In relation to the issue of potential irreparable harm to the child the stay judge noted that the in the decision under appeal no real concern for the parenting of the child was noted rather both parties were good parents. He said at para 37:
[37] In short, there was no evidence before the motion judge to suggest a real concern of a risk to Quinn associated with an increase in the respondent’s parenting time.
[62] The stay judges also related his consideration of the irreparable harm issue back to his conclusion on the prospect of success of the appeal stating at para 38:
[38] Second, the applicant raises the possible dislocation that would arise if the residential schedule under the Croll Order were reinstated on a successful appeal. Given the analysis above regarding the reasonable prospect of success of the appeal, however, it is more likely that the current schedule would be maintained. Accordingly, it would be more disruptive to grant the stay than to deny it and await a determination of the appeal.
[63] Closner is also regarded an additional overnight in furtherance of maximum contact and the reduction of opportunities for one parent to marginalize the role of the other in the child’s life as relevant to the irreparable harm/balance of convenience issues.
[64] My consideration of the factors applicable to irreparable harm and balance of convenience in relation to the order for joint decision making favour not granting the stay. All major decisions are in place for Pyper. Changes are not anticipated in the foreseeable future. There is little if any harm in denying the stay pending appeal. Conversely staying the order has the potential of harm to the mother’s role in the child’s life. Given the prospect of successful appeal on this issue it is more likely that the award of joint decision making will be upheld than that it will be set aside.
[65] The conclusion that no serious issue is raised by the appeal in relation to the finding that increasing contact with her mother is in the child’s best interests is an important one. The father seeks to restore the access in place before trial pending his appeal. So doing would mean that the changes already implemented would be retracted. Pyper would have transitioned through them for naught. She would need to adjust the reduction in access, and she would face the potential of repeating those steps should the appeal be unsuccessful. Weighing these considerations relating to the issues of irreparable harm and balance of convenience together with the serious issue part of test speaks against granting the full stay the father wants.
[66] Different factors come into play in considering the issues of irreparable harm and balance of convenience in relation to the specific schedule ordered. There is a serious issue for appeal based on the fresh evidence of the child’s reactions to the changes to date. The father’s email reports to the mother show that Pyper has experienced some difficulties and she has made some adjustments. Many of the concerns noted in Pyper’s increased anxiety and regressive behaviours were observed before and after the March break. The Final order implemented one change to the regular schedule on January 27 and one change three months later on April 20. Two months later, on June 22, two changes are scheduled to occur. The Final order then provides the mother with one week in July and in August. These weeks would include her regularly scheduled time with Pyper.
[67] Considering all three parts of the test favours granting a partial and time limited stay. By postponing the changes scheduled for June 22 to mid-July and mid-August and staying the summer holiday access the mother will lose some vacation days with Pyper. These cannot be made up to her, but the advantages to the child outweigh her loss. Pyper will be provided additional time in which to adjust to the incremental changes. She will have the opportunity to do so while school remains out and she is under less pressure on that account. The Final Order provides the mother additional vacation days at Thanksgiving and Christmas which she can look forward to, depending of course on the timing and outcome of the appeal.
[68] The added advantage to Pyper is that now, with lifting of some restrictions imposed in response to COVID-19 she may be able to resume her regular sessions with Dr. Harrison which will no doubt benefit her as she moves through these various transitions.
Decision
[69] The motion to stay the Final Order on the issue of joint decision making is dismissed. A stay of the holiday access awarded to the mother in July and August 2020 is granted. The commencement of her Monday overnight access is stayed until Monday July 13, 2020 as of which date the stay is lifted. The extension of her Wednesday overnight access to include Thursday and Thursday overnight until Friday is stayed until Wednesday August 12, 2020 as of which date the stay is lifted.
[70] If necessary, after the Final Order has been issued counsel may speak to me to particularize my decision in reference to paragraphs of that order.
Closing Comments
[71] Implementation of the Final Order has undoubtedly been impacted by the all of the changes Pyper has experienced related to the COVID-19 public health emergency. These events and their consequences for her could not have been contemplated during the trial in 2019 nor in the Reasons for Judgment. I invite the parties to consider the merits of asking the trial judge to undertake post-trial management of the implementation of his Final Order so that he could monitor Pyper’s progress in adjusting to the new residential schedule in the context of the myriad other changes she has and will continue to experience in the coming months as our community continues to grapple with the “new normal” of COVID-19.
Costs
[72] Failing agreement on the issue costs of the urgency request, the jurisdiction motion and this motion shall be determined by written submissions. Submissions shall not exceed three pages plus attached Bills of Costs and any Offers to Settle. The applicant shall deliver his submissions by June 5. The respondent shall deliver hers by June 19. The applicant may deliver a brief reply if necessary, by June 24, 2020.
Date: May 21, 2020 J. Mackinnon J.