Court File and Parties

COURT FILE NO.: FC-17-1793 DATE: 2020/05/25 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Lasha St. Louis, Applicant AND Delen St. Louis, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Applicant, Bryan Delaney, limited retainer appearance Altynah Teshebaeva, for the Respondent

HEARD: May 21, 2020

Endorsement

[1] This motion is brought by the respondent father to resume access to the parties three children. He also asks for make up access for all the visits he missed between March 8 and May 8.

[2] Two matters have been agreed to. Both parents agree that the Office of the Children’s Lawyer should be asked to prepare an update to its December 2018 report. An order will issue to that effect. The mother advises that she has now reinstated the access sought in the terms of a mediated agreement dated September 24, 2019. An order will also be made in those terms, subject to amendments set out below.

[3] The father’s access was interrupted due to an investigation by the Children’s Aid Society and the Ottawa Police into statements made by the two older children following a visit with their father. The CAS and the OPS advised the mother to suspend access so that it would not interfere with the investigation. On April 27 the CAS wrote to both parents advising that the allegations were not verified. The CAS concluded the children were not at risk and closed its file. The police did not charge or warn the father.

[4] The mother reinstated access to the two older children but not fully in accordance with the mediated agreement. She said the CAS had advised her to gradually reintroduce the regular access. She also imposed other changes and did not include the youngest child, now two years four months of age in the access until May 15.

[5] The father obtained an email from the CAS which denies giving that advice and adds that a few phone calls leading up to the resumption of regular access would have been sufficient.

[6] The mother wants to change the exchange location for some visits to the Leitrim Police Station. I agree with the father that exchanging the children at a police station is not suitable or necessary. The mother’s alternate proposal was that all Saturday and Sunday exchanges would take place at the Findlay Creek McDonald’s. The father agrees to this location.

[7] The mother is concerned the father may approach her vehicle or be verbally abusive to her when they exchange the children. These concerns can be addressed in a more child friendly way than exchanging the children at a police station. Without determining the related factual dispute between the parents, I will require that the father remains within touching distance of his vehicle during exchanges of the children. The older children are able to escort their young sibling between the parents’ vehicles. And, other than a brief, civil greeting to the other parent, the parents need not speak to one other during their exchanges of the children.

[8] In her affidavit the mother also asked for the father to have some one on one time with the older children which would reduce his time with the youngest. This was not pursued at the oral hearing. I would not have made that order in any event. The mother did not present sufficient evidence to show that the terms of access agreed to in September should be changed in this way.

[9] The remining issue is make up access. The father seeks to make up every missed visit over seven weeks starting May 24. This would essentially double his access during those weeks. I am not persuaded this is in the best interests of the children. I do not have the full history of the case, but I do know the father did not have access to the children from the separation in June 2017 until December 2017 when supervised access commenced. The requirement for supervision was lifted in March 2019. Since then the father’s access has been mediated twice, resulting in a temporary agreement in July 2019 and a second, expanded agreement in September.

[10] Further the father’s request seems to assume that the mother was at fault and denied access on her own volition. It is true she reported what the children said to her to the CAS, but she was advised by the CAS and OPS to suspend access while the investigation was in process. Other than knowing that the allegations were not verified, the evidentiary record does not enable to me to find that the mother acted in bad faith. The purpose of make up access is not to penalize a parent. It is to facilitate the relationship between the children and the non-residential parent in a way consistent with their best interests. Nor is every missed visit always made up.

[11] The mother’s suggestion was that the missed visits could be made up over a period of six to eight months on an ad hoc basis to be agreed upon between the parents. My view is that the court should make an order rather than potentially create another area of disagreement between the parents.

[12] For these reasons I order that the father shall have access with the children on every Saturday in week three of the residential schedule from 9 a.m. to 6 p.m. This shall commence on Saturday May 30 and shall continue in every week three for a total of eight additional Saturday visits. This will provide the father with alternate Saturdays and Sundays with the children, building on the pattern of the mediated agreement. It also preserves weekend time for the children with their mother.

[13] The father submitted that make up access was necessary to reinforce to the mother that she should not encroach on his access again. This can be and is accomplished by the court putting the mother on notice by these reasons that she may not make unilateral changes to the temporary order which will now issue. Both parties shall comply with the order unless they agree in writing to a change to it and or the court changes the order.

[14] The father is employed as an orderly in a local hospital. The mother has made a very reasonable request of him to be advised in writing of the precautions he is taking to protect himself and the children against infection by the coronavirus. The father shall comply with this request forthwith.

[15] The request for judicial case management may be renewed to the Local Administrative Judge when the OCL has completed its update or declined the request to do so.

[16] Counsel for the father has prepared a draft order in the terms of the mediated agreement. That order should issue with these changes:

1. The order is temporary not temporary and final.
2. The father shall remain within arm’s length of his vehicle during exchanges of the children. The older children shall escort their young sibling between the parents’ vehicles.
3. Other than a brief, civil greeting to the other parent, the parents shall not speak to one other during their exchanges of the children.
4. Commencing on Saturday May 30 the father shall have access to the children from 9 a.m. to 6 p.m., continuing on each Saturday of week three for a total of eight additional visits on account of make-up time.
5. Exchanges shall be at the Findlay Creek McDonald’s on Saturdays and Sundays.
6. The father shall forthwith advise the mother in writing of the precautions he is taking to protect himself and the children against infection by the coronavirus.
7. A provision requesting the OCL to update its report rendered in December 2018.

[17] The parties and their counsel are strongly urged to reach an agreement on the issue of costs. Each party has had some success. Neither party made an offer to settle the issues raised in this motion. If they are unable to agree I will determine the issue by written submissions. These shall not exceed two pages plus an attached Bill of Costs. The father shall deliver his submissions by June 12, and the mother hers by June 30, 2020.

Date: May 25, 2020 J. Mackinnon J.