Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-55421-00 DATE: 20200521 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephanie Gagnon, Applicant AND: Hans Kristian Skaade, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Jennifer Long, Counsel for the Applicant Symon Zucker and Laney Paddock, Counsel for the Respondent

HEARD: By Teleconference on May 19, 2020

Ruling on Urgent Motion for Case Conference and Order

[1] On May 6, 2020 I made an Order giving directions with respect to an urgent motion brought by the applicant (“the mother”). [1] Further directions were given on May 8, 2020 dealing with the involvement of the York Region Children’s Aid Society (“the Society”) and on May 14, 2020 I directed that the mother’s motion proceed before me. [2]

[2] In her motion the mother has asked for the following relief:

(a) An Order appointing the Office of the Children’s Lawyer (“OCL”); (b) An urgent case conference; (c) An Order restraining the respondent (“the father”) from communicating with the mother except through her lawyer and then only for child exchange purposes and for bona fide urgent issues involving the children; and (d) An Order that the father not film or video-record the mother or the children at exchanges.

[3] In my endorsement made on May 6, 2020 I deferred the mother’s request to appoint the OCL (relief to which the parties had agreed) and for the case conference but ordered the relief sought in (c) and (d) above. In that endorsement and in my May 14 endorsement, I expressed the Court’s concern that the children were being harmed by an escalation of conflict between their parents and indicated to the parties that I would deal with all the issues raised by the mother’s motion and whether the parenting arrangements should be modified or even suspended. The parties were alerted that they should be prepared to address that issue.

[4] The motion proceeded by teleconference on May 19, 2020. Ms. Long was the mother’s lawyer: Mr. Zucker and his associate, M. Paddock, argued for the father. Ms. Gagnon audited and briefly addressed the Court in response to a question from the Court. Mr. Skaade did not participate.

Background

[5] There are two children involved, HPS born on January 17, 2009 and MVS born on May 31, 2012, and two final Orders made in prior proceedings between the parties. The first Order was made (on consent) by Douglas J. on September 17, 2018 (“the Order”). It mostly dealt with parenting and child support issues. The terms of that Order relevant to these proceedings are the following:

1. The Applicant, (the “Mother”), and the Respondent, (the “Father”), shall have joint custody of the children of the marriage, [HPS], born January 17, 2009 and [MVS], born May 31st, 2012 (the “Children”).
2. Major decisions regarding the Children’s medical care and treatment (e.g. surgery, long term medication, immunizations, major diagnostics, counselling or therapy) shall be made in consultation with the Children’s current physician(s), dentist(s) and other health-care providers. If the parties are unable to agree on major decisions relating to the Children’s medical care and treatment, the health care provider’s decision shall prevail.
3. Major decisions affecting the Children’s educational programming (e.g. psycho-educational assessment or testing, school choice or tutors) shall be done by the parties in consultation with each child’s home room teacher. If the parties are unable to agree on major decisions relating to the Children’s education, the school teacher’s decision shall prevail.
4. The parties shall provide each other with the names of and contact information for any professionals involved with the Children within five days of the professionals becoming involved.
5. Neither party shall have the child attend a psychiatrist, psychologist, family therapist or any other person for psychological treatment unless both parties specifically consent, in writing, or the Court orders.
6. The parties shall parent the children in a shared parenting regime.
7. Each party shall be entitled to make one telephone or video call (i.e. Whatsapp, Skype, FaceTime, Google Hangouts, etc.) to the Children on any day that the Children are out of their care for a 24 hour period. The call shall be made at 7:00 p.m. and may last up to 30 minutes with each child. The other party shall actively support and use reasonable efforts to facilitate the call, including maintaining telephone, computer and internet capacity at their residence. The other party shall not be in the same room as the child during the call, except to facilitate the call. The call may be used to wish the child goodnight and provide general comfort, but shall not be used to question the child about parenting methods or the activities of the other party.
8. All of the Children’s transitions between the parties’ care shall take place at the start of school (or at 9:00 a.m. if the Children are not in school). When the Children are not in school, pick up and drop off shall take place at the Ultramar Gas station located at 12731 Hwy 48 in Stouffville. Other individuals who are known to the Children may pick them up if necessary, at the discretion of the party who would otherwise be responsible for picking up the Children.
9. Neither party shall make negative or disparaging remarks to the other regarding the other party or his or her families. Neither party shall discuss with the Children, or with another party in the presence of the Children, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the Children, or regarding conflicts between the parties relating to parenting issues. Each party may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by one of the Children.

[6] A 2-2-3 shared parenting schedule was attached to the Order (paragraphs 15 and 16).

[7] On October 2, 2018, the parties consented to a final Order dealing primarily with the balance of their financial issues. This was made at a settlement conference before me. Paragraph 3 and 3a of that Order dealt with a communications protocol between the parties:

3. The parties shall communicate by way of Our Family Wizard, except in cases of emergency. They shall not text nor email one another or the family members of the other.
4. (a) the parties shall register and enroll with Our Family Wizard within 7 days of today, with the Applicant providing the Respondent an email confirmation and link once she has completed her intake process. Costs of program shall be shared and shall be renewed yearly.

[8] In paragraph 6 of my May 6 endorsement I outlined the procedural history to the current proceedings:

[6] The court file discloses that the mother started a Motion to Change in September 2019 requesting a change in the Order of Douglas J. to award her sole custody of the children and child support. This material was served on the father on November 12, 2019. The first Appearance clerk noted on January 28, 2020 that the father’s lawyer appeared “to file responding documents”. There is no record that was ever done. A second appearance was scheduled for March 31, 2020. On February 6, 2020 the mother requested a Form 25D final Order as her Motion to Change was apparently uncontested. This came before MacPherson J. on February 19, 2020 on a Chambers’ motion: he noted that the father had filed nothing. MacPherson J. was not prepared to grant the mother a restraining Order that she had requested (in addition to the other relief in the Motion) because it was not pleaded in her Motion to Change. He directed the mother to file an affidavit advising whether she was seeking such an Order and, upon its receipt, her request for a final Order would be considered.

[9] The following material was before the Court and was considered for the mother’s motion:

(a) The mother’s affidavit sworn on April 27, 2020 with exhibits; (b) The father’s affidavit sworn on May 5, 2020 with exhibits; (c) The mother’s affidavit sworn on May 6, 2020 with exhibit’ [3] (d) The mother’s affidavit sworn on May 11, 2020 with exhibit; [4] (e) An affidavit from the Society (Nahid Hassan, a child protection worker) sworn on May 11, 2020; (f) An affidavit from the father sworn on May 12, 2020 with exhibits; and (g) A reply affidavit from the mother sworn on May 15, 2020 with exhibits.

[10] The Court also had access to the mother’s Motion to Change pleadings. The father forwarded a May 11, 2020 Response to the mother’s Motion to Change: Ms. Long advised the court offices that her client objected to late filing of that pleading.

Preliminary Objection

[11] Before the mother’s motion was argued Mr. Zucker raised two principal objections/concerns. [5] These were:

(a) That I had held a settlement conference in the earlier proceedings between the parties that dealt with the parties’ communicating through Our Family Wizard (“OFW”) and that consequently I could not hear the motion. The case of Taylor v. Monette [6] had been forwarded by Mr. Zucker’s office to the court shortly before the motion was argued; (b) That if the mother was seeking any kind of Order that modified the current parenting arrangement, her motion was defective in not spelling out that request more clearly and that the “basket” reference in paragraph 6 of the Notice of Motion for “[s]uch further or other orders as the Honourable court deems just” was insufficient notice to the father for such relief. The father had no objection to an Order being made to appoint the OCL and would consent to an Order that he not film the children and the mother at exchanges.

[12] I ruled that I would proceed with the mother’s motion and that it could involve a variation of the current parenting schedule. These are my reasons.

Jurisdiction

[13] Family Law Rule (“FLR”) 17 deals with conference events. Subsection (24), and by reference only, (25) are relevant:

SETTLEMENT CONFERENCE JUDGE CANNOT HEAR ISSUE (24) A judge who conducts a settlement conference about an issue shall not hear the issue, except as subrule (25) provides. O. Reg. 91/03, s. 6 (4).

EXCEPTION, CHILD PROTECTION CASE (25) In a child protection case, if a finding that the child is in need of protection is made without a trial and a trial is needed to determine which order should be made under section 101 of the Child, Youth and Family Services Act, 2017, any judge who has not conducted a settlement conference on that issue may conduct the trial. O. Reg. 91/03, s. 6 (4); O. Reg. 298/18, s. 12 (6).

[14] In Taylor the mother had appealed a temporary access Order made after a motions judge had held a settlement conference several months earlier that, among other things, dealt with the matter of access. Referring to FLR 17(24), Nadeau J. held that procedural fairness was lacking and that there was no jurisdiction to make the impugned Order:

[13] Rule 17 (24) appears mandatory on its face. In fact, a literal reading of the rule suggests that a judge who conducts a Settlement Conference on an issue cannot hear it, even with the consent of the family litigants. However, the leading authority on this question in this province is Brueske v. Brueske, [2016] O.J. No. 4903, where the Divisional Court indicated the following:

“15 Dealing with the first point, as a matter of principle, the judge that hears the settlement conference should not decide the issues between the parties without a clear consent from both parties, particularly when the settlement conference judge considers offers to settle, as happened in this case (see: B.(A) v. (N.L.) 2013 ONSC 2990; Afful v. Laing 2014 ONSC 74).”

[14] In the aforementioned Afful v. Laing, Justice Czutrin explains the rationale for Rule 17 (24) in the overall context as follows:

“105 Rule 17(10) requires that a case shall not be scheduled for trial unless, (a) a judge has conducted a settlement conference; or (b) a judge has ordered that the case be scheduled for trial.

106 Under Rule 17(24), a judge who conducts a settlement conference about an issue shall not hear the issue, except as rule 17(25) provides (re child protection). This however, by logical extension, must also apply to a judge who expresses views at any conference. If a judge expresses a view and then considers the conference briefs as evidence (unless there are unequivocal concessions) and thereafter disposes of substantive issues on a final basis in the absence of consent, this runs contrary to the objectives of the Rules. It undermines the ability of parties to come to conferences with resolution and compromise in mind and express settlement positions, for fear of their positions being considered evidence so as to dispose of the matter on a final basis.

107 The requirement of a settlement conference before a trial and that the settlement conference judge should not hear the trial speak to procedural fairness and the need for clarity as to process.”

[15] It is inferentially clear that the prohibition in FLR 17(24) disqualifying a judge from hearing an issue that was the subject matter of an earlier settlement conference conducted by that judge is restricted to pre-trial events and not, as is the case before me, a situation where a final Order was made disposing of that issue. Taylor is of no assistance to the father. In any event the mother seeks to change the Order of Douglas J.

Procedural Fairness

[16] The father’s second objection relates to the absence of a request by the mother in her motion to vary the current parenting arrangement, that the “basket” relief request was insufficient notice, notwithstanding references in two endorsements that a modification or even suspension of that arrangement was under consideration and that the parties should prepare accordingly.

[17] In Taylor Nadeau J. commented, in obiter, about guidance from the Divisional Court in cases where the lower court had granted relief not sought by the parties and no express finding of a material change had been made.

[15] Given my determination on the second ground of appeal [which was the issue involving the settlement conference jurisdiction], and although I need not therefore necessarily address the remaining four grounds of appeal, nor for that matter the preliminary substantive issue raised by the mother’s counsel that there was not an explicit finding by the motions judge that there had been a material change in circumstances since the date of the last Order, I note the following guidance from the Divisional Court in Mudry v. Danisch, [2014] O.J. No. 3419:

“135 In Goslin v. Goslin, 1986 CarswellOnt 320 (C.A.), the Ontario Court of Appeal reversed an order of a trial judge, [1985] O.J. No. 669, where neither party had asked for the relief given.

136 In Bellefontaine v. Slawter, 2012 CarswellNS 327 (C.A.), the Nova Scotia Court of Appeal overturned a decision of a trial judge, [2011] N.S.J. No. 621, on the grounds of denial of procedural fairness where neither party had requested the relief granted.

141 The June 12 Order had the effect of varying a previous final Order, yet the June 12 endorsement contained no express finding of a material change, the effect of which would vary a previous final order. With no finding of material change, Justice Paisley had no jurisdiction to vary the final Order of June 12, 2012.

142 In Persaud v. Persaud-Garcia, 2009 CarswellOnt 8851 (C.A.), the reasons of the court contain the following at para 3:

The motion judge was without jurisdiction to make the Order in question. As this court has made clear, jurisdiction to vary a custody access order is dependent on an explicit finding of material change in circumstances since the previous order was made.

143 A material change must be substantial, unforeseen and long lasting. There has been no significant and continuing change such as to permit a variation. The Court did not specify any material change in circumstances to permit a variation. Marinangeli v. Marinangeli, 2003 CarswellOnt 2691 (S.C.J.) at para. 49; Smith v. Helppii, 2011 CarswellNS 465 (N.S.C.A.) at para. 21; D. (K.) v. D. (N.), 2011 CarswellBC 3325 (B.C.C.A.) at para 22.

144 In a motion seeking leave to appeal an interim custody and access decision, the Divisional Court in Wiedrick v. Lemesurier, 2006 CarswellOnt 281 (Div. Ct) stated at para 15:

A decision granting custody or determining access will frequently establish a status who, which is almost impossible to alter at trial …… The responsibility of making such decisions is a heavy one. It is therefore extremely important that parties be provided with an explanation for a decision, which may well determine the course of their family life on a permanent basis.

[18] It is unclear under what legislation that the parenting arrangement contained in the final Order of Douglas J was made. Assuming, but without fully relying on the Divorce Act as being the foundational source of jurisdiction, there is, as Kurz J. observed in Ivens v. Ivens [7]

… no express jurisdiction in the Divorce Act to allow an interim variation of a final custody or access order. Nonetheless, judges have previously made such orders in clear and urgent cases. In Crawford v. Dixon, [2001] O.J. No. 466 (S.C.J.), Granger J. cites with approval James G. McLeod’s commentary on Dancsecs v. Dancsecs (1994), 5 R.F.L. (4th) 64 (Ont. Gen. Div.). That commentary states:

On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.

74 Put more simply, as set out in Stuyt v Stuyt, [2006] OJ No 4890 (S.C.J.):

. . . generally, the custodial status quo will not be changed on an interim custody motion in the absence of compelling reasons indicating the necessity of a change to meet the children’s best interests;

75 In Berta v. Berta, 2019 ONSC 545, I reviewed a number of authorities with regard to the test for an interim variation of a final support order. I found that the test has four components, requiring the moving party to prove:

1. A strong prima facie case;
2. A clear case of hardship;
3. Urgency; and
4. That the moving party has come to court with “clean hands”.

76 The first three factors should apply to an interim variation of a parenting order…

[19] Ivens involved an urgent motion by a mother to suspend a 2-2-3 shared parenting arrangement ordered after a trial. In ruling against the mother, Kurz J. was unimpressed by the mother’s continuing pattern of behaviour “at best unsupportive and at worst detrimental to [the children’s] relationship with the father”. [8] There was no strong prima facie case of material change. There was no demonstrable hardship. The motion was not urgent. Unlike Ivens, the evidence in the case before me supports the first three of the Berta factors about which more will be said later in this ruling.

[20] Both parties were made aware before the motion proceeded that some consideration could be given to modifying or even suspending the current parenting arrangement. The mother did not ask for a suspension of the parenting arrangement in her Notice of Motion nor did she seek to amend the relief requested before the motion was argued. Nowhere in any of her affidavits can such a request be found: she raised it in argument but provided few particulars, leaving to the Court’s discretion the choice of a third-party access exchange facilitator. She had no suggestion as to who that might involve. The father’s position was that there should be no change.

[21] In my view, the absence of a more thoughtful, interim parenting arrangement that can be fully explored by the parties, possibly with the Court’s assistance, warrants an urgent, focussed conference but some immediate steps must be taken before that can happen which will alleviate some of the harm to the children and help reduce the current conflict.

Strong Prima Facie Case and Material Change

[22] The mother has a strong prima facie case for a change in the parenting arrangement and the evidence from both parties is consistent that there has been, and continues to be, a material change that is impacting the children’s well-being sufficient to lead to a variation of the Order of Douglas J. being made.

[23] This is just some of the relevant evidence:

(a) On May 5, 2019 the father was charged with Uttering a Death Threat against the mother. On July 23, 2019 he was charged with Breach of an Undertaking not to contact the mother and on August 22, 2019 Breach of Recognizance. In early April 2020 he was charged with a further Breach of Recognizance. With respect to the first three charges, the father says they are baseless and are evidence of the mother’s inappropriate use of the criminal justice laws: he has no information with respect to the fourth charge, the first appearance for which is scheduled for July 2020. According to the father, he understands from a February 2020 judicial pre-trial that the Crown will withdraw the first three charges upon his entering into a peace bond and successfully completing a PARS [9] program; (b) Well before the mother started her Motion to Change, her former lawyer wrote repeatedly to the father’s former lawyer about the mother’s concerns dealing, for example, with the father’s use of physical discipline and urging parenting co-operation. The Society became involved in mid-2019 [10] after the school principal alerted it to a physical conflict between HPS and his father and conflict in the father’s home. The child was bruised. A joint police investigation followed and the father was cautioned to use other disciplinary strategies. No charges were laid; (c) According to the Society, the school principal reported that HPS’s presentation had “changed greatly over the years, as he appears more emotional”; [11] (d) In the May 7, 2020 note from Dr. Fazaa, he reported that HPS had been seen for eight sessions between November 7, 2019 and March 27, 2020. Relevant extracts from that note are these observations:

Henrik decides on what he would like to discuss during our sessions. The content of our sessions seem to focus on his experiences of the divorce and his experience of his time spent at his father’s house. Henrik has stated on a number of occasions that he did not want to visit with his father, so I have worked with Henrik on ways of managing his anxiety and negative emotions about visiting with his father so that he can maintain visits with his father while the courts decide on final arrangements. More specifically, he often described the environment at his father’s house as one in which there is a lot of yelling between his father and paternal grandparents in the home, that his father works a lot and does not spend time with him, that he is often bored, and he feels that no one loves him there. He has spoken about feeling afraid of his father because he reportedly appears angry and says negative things about his mother. Being exposed to negative and inappropriate information about his mother when he is at his father’s house causes Henrik to feel as though he has to assert himself with his father and protect his mother’s reputation, which causes conflict between him and his father. We have therefore worked on ways of coping when his father reportedly tries to engage him by saying negative and inflammatory things about his mother to him. Henrik has become quite emotional during sessions when discussing these concerns.

…I remain connected with Henrik on an as needed basis. It is my sense that Henrik is in the middle of a chaotic situation, which is undoubtedly having a negative impact on his well-being. A timely resolution would therefore be helpful in reducing his anxiety, improve his mood, and have positive implications for his functioning. (e) The Society noted that the children reported that their father spoke negatively of their mother and threatened “to reveal the truth through showing them court documents”. In her May 15, 2020 affidavit (paragraph 5) the mother said that HPS told her that his father had shown him and his brother court documents on May 8, 2020 and that on May 14, 2020 had filmed the boys asking how they enjoyed living at his home. The father also added the children to the parties’ OFW account; (f) Unanswered by the father, although clearly raised by the mother before he responded to her affidavits, was evidence that the father had written to a 10-year old friend of HPS about adult issues involving the parties. This information was reported to the police. In a police report accompanying the father’s May 11, 2020 affidavit (Exhibit E) which, for other reasons, led to the father being charged with Breach of Recognizance on August 22, 2019, the father was alleged to have sent multiple emails to the children’s camp which, among other things, accused the mother of adultery; (g) Although the exact date is unclear, the father attended an access exchange wearing a shirt on which appeared the writing “I survived divorce with a sociopath, what’s your superpower”. The father did not respond to this allegation; (h) The mother was ordered to file with the court a record of the OFW exchanges between her and the father from and after September 1, 2020. Those (319) were reviewed. The father continually referred to the children as “my boys”, “my children”, “have the skaade boys call me”, never using “our”. As recently as April 25, 2020 the father told the mother that “in fact everyone dislikes hearing your voice” (#6 of 319).

[24] On May 19, 2020 Mr. Zucker provided to the Court, as requested, a letter confirming that the father had attended counselling with York Region Family Services until the Fall of 2019 (this was also referenced in the Society’s affidavit) and that the father had signed up for the PARS program but was unable to attend this first session on April 9, 2020 due to the suspension of in-person appointments by the John Howard Society of York Region as a result the current COVID-19 pandemic;

[25] The father’s anger directed at the mother as demonstrated by the OFW exchanges and the mother’s distress at being harassed by him (her description) are palpable. Most often the father’s complaints involve his inability to speak to the children when they are not with him, as was the case in August 2019 when the children were on vacation with their mother, he made a report to the police about their safety when he could not contact them. Based on the current evidentiary record, it is not possible to verify the extent to which the mother, as the father alleges, impedes the children’s contact with him or whether his complaints are part of a broader, ill-conceived effort to exert primacy of control over the children.

[26] The foregoing is an incomplete description of the level of conflict between the parties. Clearly HPS has been more affected than his younger brother. This is not effective shared parenting/joint custody. It has become harmful to the children.

Hardship

[27] The mother has demonstrated a clear case of hardship. The evidence of her efforts to co-parent are not met by the father’s accusation that the criminal justice system has been abused by her. The mother confirmed to the Court that she could document the third-party contacts by the father to, for example, HPS’s young friend and the children’s camp, and the father confirmed that he filmed the children at access exchanges, but for “his’ protection. There was evidence that the father had even reached out to the mother’s biological family, with whom the mother has no relationship, to inquire about their having contact with the children. Based on the evidentiary record before the Court, the mother’s efforts to avoid conflict, to avoid court and to focus on the children’ best interests stand in sharp contrast to those of the father.

Urgency

[28] This is an urgent matter. The conflict involving the children must de-escalate. There is clear evidence that HPS is suffering.

Costs

[29] In my May 14, 2020 endorsement the mother was invited to address the issue of the costs incurred with respect to her February 2020 Form 23C motion for an uncontested trial Order. Although served in mid-November 2020 with the mother’s Motion to Change, nothing had been filed by the father by the time that the mother prepared her material and filed it with the court despite the father’s lawyer indicating to a First Appearance clerk on January 28, 2020 that the father was filing a response. The father only delivered his Response to the Motion to Change on May 12, 2020: it was dated May 11, 2020. Mr. Zucker had no explanation for the delay.

[30] Ms. Long presented a full indemnity Bill of Costs in the amount of $2,609.88 comprising fees ($2,287.50), disbursements ($20) and HST ($302.38). The hourly rate charged is reasonable but some of the time recorded appears to relate to issues not directly connected to preparing what was presented to the Court (such as discussions about how to move forward to help the children). Taking into consideration the factors set out in FLR 24 dealing with costs it is my view that a fair and reasonable award for the father to pay to the mother for costs thrown away and as a condition of his being able to file his responding pleading is $2,250 inclusive of disbursements and HST.

Disposition

[31] The following is ordered:

(a) By separately endorsed Order, the OCL is appointed; (b) The Court shall expedite the scheduling of a case conference to be conducted by the first available conference judge the only issue for which shall be whether the parenting arrangement set out in the Order of Douglas J. dated September 17, 2018 shall be varied; (c) The mother shall file her case conference brief by Monday, May 25, 2020 (4:00 p.m.); (d) The father shall file his case conference brief by Thursday May 28, 2020 (4:00 p.m.); (e) The conference shall proceed no earlier than Monday, May 31, 2020; (f) The parties shall comply with the Notice to the Profession and Public dated May 19, 2020 dealing with case conferences (para. 32). The time for the conference will be extended to one hour. The parties are to attach to their conference briefs their parenting proposal pending final Order of the court. These proposals shall not form part of the prescribed page limitation as set out in the above Notice; (g) Delivery of Form 17F confirmations is waived; (h) The 2-2-3 parenting arrangement set out in the Order is suspended. Effective immediately but subject to (i) below, the children shall primarily reside with their mother until further Order of the court. In addition, she shall have final-decision-making authority until further Order; (i) Subject to the direction of the case conference judge, the children’s access with their father is varied to provide that they shall reside with him for the weekend of May 22 to 24 from Friday (4:00 p.m.) until Sunday (6:00 p.m.); (j) The York Regional Police are directed to enforce the terms of this Order dealing with the children’s residency pending further Order; (k) The provisions contained in subparagraphs (h) and (i) are made on a temporary, without prejudice basis; (l) The provisions of paragraphs 18 and 21 of the Order of Douglas J. shall be strictly followed; (m) There shall be no filming or audio-recording of the children when they are exchanged or when they are in either parent’s care. This term supersedes my Order made on May 6, 2020 dealing with this issue. A parent shall be held accountable for any breach of this term by a third party when the children are in the care of that parent; (n) Without derogating from paragraph 21 of the Order of Douglas J. but for greater certainty, there shall be no discussion of the evidence in this case with the children and neither party shall show the children any of the documents filed with the Court, nor permit any other person to do so; (o) All communications between the parties shall be through OFW and shall be strictly limited to matters involving the children. The mother shall include as an attachment to her conference brief a record of the OFW exchanges between the parties from and after May 5, 2020; (p) No person other than the parties shall be a participant in the use the OFW account. The mother shall forthwith remove her partner and the father shall remove his parents and the children from the account; (q) A copy of this Ruling shall be sent to the Society; (r) The father shall pay to the mother her costs of her Form 23C motion in the amount of $2,250 by May 29, 2020. If paid by that date the father shall electronically file his pleadings no later than June 5, 2020: if not paid, the father shall be deemed to be in default and the mother may proceed without further notice for an uncontested trial Order; (s) Subject to the discretion of the conference judge, I shall remain seized of any contested motions in this matter.

[32] If the parties are unable to resolve the issue of costs, the following provisions shall apply:

(a) The mother shall deliver her submissions by June 5, 2020; (b) The father shall deliver his submissions by June 12, 2020; (c) Reply (if any) by the mother to be delivered by June 10, 2020; (d) All submissions shall be double-spaced and, in the case of (a) and (b) limited to four pages: reply shall be limited to two pages. Submissions shall form part of the Continuing Record; (e) Bills of Costs, Offers to Settle and any authority upon which a party may wish to rely shall be filed by the above deadlines but not form part of the Continuing Record; (f) All documents shall be filed electronically. When a party has filed with the Court, they are directed to so advise the judicial secretary (Meghan.Billings@ontario.ca) when that has been done.

[33] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable immediately without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis Date: May 21, 2020

Footnotes

[1] 2020 ONSC 2854. [2] 2020 ONSC 3034. [3] The exhibit comprised Our Family Wizard exchanges between the parties from and after September 1, 2019 as ordered on May 6. [4] The exhibit was a May 7, 2020 interview report from a School and Clinical Psychologist who had seen HPS on eight occasions beginning in November 2019. [5] Three were actually raised but the third dealt with the mother’s aborted Form 23C motion addressed by MacPherson J. Ms. Paddock spoke to that as it was she who had appeared before the First Appearance clerk: this has no bearing on the merits of the mother’s motion. [6] 2020 ONSC 2207. [7] 2020 ONSC 2194. [8] Ibid, para. 102. [9] Partner Assault Response. [10] The Society had first become involved in January 2018 due to conflict between the parents. In June 2018 the police reported that the paternal grandmother had assaulted the mother in the children’s presence. [11] Affidavit of Nahid Hassan sworn on May 11, 2020, para. 16.