Court File and Parties

COURT FILE NO.: FC-20-621 DATE: 2020/06/02 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jesse James Daniel Hewitt, Applicant AND Kristina Doyle, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Carolynn Marleau, Counsel for the Applicant Mary Cybulski, Counsel for the Respondent

HEARD: May 29, 2020 by teleconference

Endorsement

[1] The heart of the matter is where will the children be residing on an interim basis pending the hearing of the application.

[2] Will they remain with the mother who is currently in the Niagara region with her family or should the mother be ordered to return the children to the matrimonial home in the Ottawa area?

[3] Also, the parties agree that the father should have visits to the children three times per week for several hours but do not agree as to whether it should be supervised.

[4] The parties’ respective motions were rendered urgent by Master Fortier on May 5, 2020.

[5] As a result of COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020, this urgent matter was heard by teleconference. The Notice is available at https://www.ontarioCourts.ca/scj/covid-19-suspension-fam/.

Brief Background

[6] The parties were married on July 12, 2013, separated on February 24, 2020 and have two children, Keaton, born May 24, 2018 (2 years old) and Eleanor (“Ellie”) born December 15, 2019 (6 months old).

[7] After separation, the parties continued to live separate and apart in the matrimonial home.

[8] Both parties work for the Ottawa Police Services (“OPS”). The mother is on maternity leave until December 2020 and the father was recently suspended from his work for allegations of posting videos of inappropriate content.

[9] The parties have resided in Ottawa since 2011. They purchased their home in Kanata in 2013 and both children have resided there all their lives. In fact, the parties had purchased another home in the Ottawa area with a closing date of November 2020.

[10] The children’s home has always been in Ottawa and the paternal grandmother resides a short drive away and has been involved with the children.

[11] The mother was on a one-year maternity leave with Keaton and then again commencing December 2019 with Ellie.

[12] The father has been working a lot of overtime in the past two years to save money for the parties’ new home.

[13] The mother has no family in the Ottawa area, and she has spent extensive time in Niagara with her family. Her visits would last days or weeks.

[14] On March 11, 2020, the father agreed that the mother could visit the maternal grandmother who lives in Niagara region. The maternal grandmother had been recently diagnosed with terminal cancer. Her mother has not responded to chemotherapy.

[15] The mother’s siblings and their families also live in that area. The mother’s brother works full time in his home office and her sister is at St. Catherine’s General Hospital pharmacy.

[16] The father agreed to the mother travelling to Niagara as he believed that this would give the children time to spend with the extended family and the mother could spend time with her mother. He envisioned that it would be a 3 or 4 week visit. The father denies that he said that the mother could become the maternal grandmother’s full-time caregiver.

[17] The mother states that he told her to go to Niagara with the children upon their separation.

[18] The father continued to communicate with the mother up until March 26, 2020 at which time he alleges she stopped communicating, refused to discuss a parenting schedule and refused to confirm the date of her return to Ottawa or her address in Niagara. On the other hand, the mother states that she had no intention to permanently move to Niagara without a Court order or the father’s consent and was always willing to allow the father access to the children. She has provided Facetime calls and offered visits to the father in Niagara in her presence.

[19] Counsel were retained and discussions ensued. The mother proposed that the father move out of the matrimonial home and the father stated that he was willing to move out and live in his mother’s trailer in the area.

[20] The mother did not return to Ottawa with the children on the deadline of April 24, 2020 imposed by the father and hence, he commenced a Court action.

[21] The father originally agreed to visit the children in Niagara but then changed his mind when the mother was not responding to his communications nor willing to confirm a date for her return to Ottawa.

[22] The father has been diagnosed with Post Traumatic Stress Disorder (“PTSD”) following his military service overseas in war zones. He retired from the military in 2017 and is now with the OPS and is followed by a psychologist.

[23] Dr. Lindsey MacLeod’s letter dated April 17, 2020 confirms that the father has been under her care for psychological treatment and is being followed by the Operational Stress Injury Clinic at Royal Ottawa Hospital and confirms that he attends his appointments, participates well in treatment and demonstrates “compliance with interventions and self-management strategies”.

[24] Dr. Lindsey MacLeod’s report dated March 20, 2020 is a psychological assessment prepared as part of a disability benefits assessment for PTSD and bulimia. It consisted of structured clinical interview and psychometric testing. It contains test results, clinical impressions and summaries of the interviews with the father. She considered written correspondence from the mother and information from the couple’s psychotherapist.

[25] It is addressed to an intake case manager at Veterans Affairs Canada and is very informative with respect to the father’s current health status. The father was examined on January 31, 2020 and February 25, 2020. It indicates that he has been diagnosed with major depressive disorder, PTSD, bulimia and moderate alcohol use disorder. He is described a “conscientious, honest and resilient individual throughout his life”. “His mind is described as ‘cloudy’ and he struggles to organize thoughts, execute plans or make decisions and often feels confused by his thought processes. He describes cognitive inflexibility.

[26] The diagnosis is “severe level of depressive symptoms at this time. In particular, he reported experiencing frequent sadness, pessimism, loss of pleasure, guilty feelings, self-dislike, self-criticalness, passive suicidal ideation, feels like crying but is unable to, loss of interest, loss of energy, changes in sleep, irritability, changes in appetite, concentration difficulty, tiredness/fatigue and loss of interest in sex.” He also suffers from moderate-severe level of anxiety at this time.

[27] Based on the tests provided and his overall score, “the overall severity of his posttraumatic stress symptoms is within the severe range and his level of impairment is clinically significant”.

[28] He has daily suicidal thoughts and there was an attempt 2 years ago, which he denies.

[29] He describes himself as “persistently irritable, restless and keyed up”. His wife and friends frequently comment, “Jesse, why are you so angry”. He lacks insight into his anger and often does not recognize the internal or external cues that he is upset. A small upset will set him off for days and once he is upset, he is unable to calm himself down.”

[30] He describes suffering from panic attacks and nocturnal attacks. There are triggers that impact his anxiety including open water, seeing children being carried by their mothers, loud noises, horns beeping and rapid movements.

[31] He has difficulty with memory, concentration and attention that occurs “4 times or more per week”. He has developed compensatory strategies including keeping journals and post-its.

[32] Regarding the coping with events, the report states that “daily, or almost daily has anxiety from stress and needs coping with most complex or new situations”.

[33] She recommends:

• Individual evidence-based trauma focused treatment which will take place over a prolonged period of time given the severity of the symptoms but the prediction is that there will be gradual improvement;
• A psychiatric assessment;
• That his VAC application be expedited to ensure that he obtains the appropriate support and services;
• Accessing services to assist him with substance abuse;
• Continued support for interventions from medical personnel including physiotherapy, massage therapy;
• Couples therapy; and
• Participation in therapeutic and/or support groups.

[34] In Dr. Michelle Presniak’s letter dated May 7, 2020, she states that she has known the father for 6 years. She is a clinical psychologist with a speciality dealing with Canadian solders for the last 10 years.

[35] The mother objected to the filing of this letter as it contained expert opinion regarding the mental health of the military personnel. She discussed the effect that service in war zones has on Canadian soldiers, especially on their mental health. She opines that the father has taken positive steps to recovery as he has sought treatment for his mental health. I agree that part of her letter is the form of an opinion letter.

[36] However, the Court will consider the portion of her letter which deals with the father’s character. She describes him as a caring mature individual and that she has not witnessed any violence or aggression. The Court is prepared to consider the first paragraph of the last page of her letter starting with “I want to take this opportunity to serve as a character witness...” The balance of the letter is redacted.

[37] The father indicates that he has stopped consuming alcohol as of March 31, 2020.

[38] The affidavit of Anatasia Stefanik indicates that the mother is staying with her, her husband (who is the mother’s brother) and their 8-year-old twins and 6-year-old child in Niagara. She indicates that they can accommodate the mother and the two children in their home.

[39] On May 5, 2020, the parties agreed on, an interim and without prejudice basis, to comply with the government and health unit physical distancing protocols and that the father would visit with the children in Niagara on May 23, 24 and 25, 2020 from 1:30 p.m. to 4:30 p.m.

Father’s Position

[40] The Applicant father’s motion requests:

• The return of the parties’ two children who are currently in Ridgeway Ontario in the Niagara Region (“Niagara”) with the Respondent mother;
• Access to the children 3 times per week for 2-4 hours; and
• An order that the children not be removed from the Ottawa area without his written consent or Court Order.

[41] He is prepared to move out of the matrimonial home and has secured a residence in a trailer not far from the matrimonial home.

[42] He indicates that the children were brought to Niagara under false pretenses and the mother is attempting to establish a new status quo. He had consented to her going to Niagara for only 3 to 4 weeks.

[43] The father submits that it is in the children’s best interests, especially given their very young age, to establish and maintain a close bond with their father. The maximum contact principle is applicable here. The mother’s move has disrupted the development of a relationship between the father and the children. The father has missed many of Ellie’s milestones. If the children remain in Niagara, there is a danger that they will never develop a psychological relationship with their father. They are 6 hours away.

[44] The father was significantly involved in the upbringing of the children. For example, when the mother was working and Keaton was in daycare, he would help when he was not on shift work. When they were residing separate and apart in the matrimonial home they were co-parenting the two children.

[45] When mother was breastfeeding Ellie, the father would care for Keaton.

[46] The mother is not the primary parent and therefore the Court should not give more weight to her plan. It was a recent separation and there are several contentious issues. The mother is not the de facto parent. The father has a genuine interest in being an involved parent.

[47] The father was diagnosed with PTSD after separation but as per his doctor’s letter, he is following recommendations, seeking therapy once every three weeks (decreased from once per week) and is no longer required to take medication. He acknowledges that he has issues but is determined to work on them. The psychologist’s report is not a parenting assessment and does not address his ability to parent the children.

[48] There is no evidence that he would harm the child and the Court must consider the impact of a move on the father’s time with these two young children.

[49] The father objects to the visits being supervised as that would be restrictive and there are no exceptional circumstances that require that his visits to be supervised.

[50] Even though the father is suspended with pay, he is required to regularly report for work, and it would be unreasonable to expect him to drive 6 hours to visit his children three times per week.

Mother’s Position

[51] The mother has been in Niagara since March 11, 2020. She is staying with her brother and sister-in-law and their children near her parents. Her mother has a rare and aggressive cancer and she is providing care and support to her mother. Her mother needs family support as her cancer is debilitating.

[52] The mother is requesting that the children reside with her on an interim basis in Niagara and ultimately, the mother wishes to move to Niagara on a permanent basis.

[53] The mother indicates that the father has serious mental health issues and should not be left alone with the children. She states he has difficulty with impulse control and is unable to cope with the children when they are crying and has daily suicidal ideals and thoughts to arm others. He has not cared for the children and she is breastfeeding the youngest child. Her proposed access is that it takes place in Niagara or in Ottawa supervised by a person of her choice. He has missed video chats set up by mother and she is concerned that he has not complied with the government issued COVID-19 directives.

[54] She indicates that these are exceptional circumstances. Given that the parents do not disagree on frequency of visits, the issue is where should the children be the rest of the time.

[55] She is prepared to come up to Ottawa as well. Given that her mother is ill, and schools and daycares are closed, she indicates that there she has no support network in Ottawa and her presence in Ottawa is not necessary.

[56] The father lacks credibility, has failed to refute certain allegations in his reply affidavit that he has memory problems and initially demanded that she return to the home with the children and him being there.

[57] The father shows poor judgment, shows lack of details in his plan of care and was inconsistent with respect to whether he would move out of the matrimonial home.

[58] He was not being forthright when he attached texts as exhibits to his affidavit suggesting that the mother was not responding to his texts. The mother has filed the full texts indicating that indeed she responded and offered to continue contact between the father and the children virtually. He has not availed himself of all offered opportunities to visit with the children in Niagara.

[59] The mother submits that the parents could not be equal parents as the mother took on the primary caregiving role. She provided exact details of visits to Niagara, parenting duties and the schedule when the parties were a couple and details of the visits from the paternal grandmother who resides 2 hours away from the matrimonial home.

[60] The father worked extensive overtime and admits that it was “crazy how much he was working”. He was not even the back-up contact at the daycare.

[61] She alleges that the father’s materials are full of generalities and he minimizes his PTSD symptoms and diagnosis. The psychologist’s report indicates serious symptoms including suicidal ideations, being angry and minor triggers prompt inappropriate outbursts of anger. He also shows lack of empathy, has a high probability of harming himself, feels overwhelmed and that treatment will take a long time. The father’s own notes corroborate some of the concerns outlined in the report.

[62] On the balance of probabilities, the father is a risk to the children and hence his visits with the children should be supervised.

[63] She submits that the Court must consider the mother’s emotional well-being.

[64] The maximum contact principle is not the governing factor.

[65] The mother denies that she was acting highhandedly and in fact, the father was keen on her leaving and even tried to book a ticket for her to go to Niagara.

Where should the children reside on an interim basis?

Legal Principles

[66] In accordance with s. 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (“Divorce Act”) the determination of custody and access is determined based on the children’s best interests and “as determined by reference to the conditions, means, needs and other circumstances of the child”.

[67] The Court is also mindful of the maximum contact principle set out in s. 16(10).

[68] In determining whether there should be a move with the children, the Court is guided by the relevant factors set out by the Supreme Court of Canada’s leading case in Gordon v. Goertz, [1996] 2 S.C.R. 27: a. no legal presumption in favour of de facto custodial parent; b. focus is on the best interests of the child and not the wishes of the parent; c. the Court should consider the existing parenting arrangement; d. the desirability of maximizing contact with both parents; e. the views of the child; f. custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children; and g. disruption to the child by change in school, community and family they have come to know.

[69] The reason for the move is not relevant and should only be considered in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. (See Hellberg v. Netherclift, 2018 BCCA 404, 17 R.F.L. (8th) 101). A Court may consider a parent’s reason for a move such as financial reasons where it is relevant to meeting the needs of the children. In that case, the British Columbia Court of Appeal stated at para. 17: “A parent must only demonstrate that relocation is in a child’s best interests. Those best interests can be shown even where a child is currently healthy and happy.”

[70] Counsel asked the Court to consider the future amendments to the Divorce Act that enumerate other factors to be considered when determining whether to authorize a proposed relocation. Counsel refers to L.B.M. v. M.M., 2020 ONSC 1958, at para. 10, where Justice Kiteley encouraged the parties to agree that the parenting issues be heard in the context of the amendments to the Divorce Act.

[71] At the time of the L.B.M. decision in March 2020, the Court was dealing with a case conference and dates were to be scheduled for the motion. Presumably, it was anticipated that the proposed date for the enactment of the amendments was July 1, 2020. It has recently been announced that there will be a postponement of the amendments to an indeterminate date due to some provinces not having been able to draft their own amendments to their provincial legislation. Given this postponement, the Court will apply the current law as it exists at this time.

[72] Certain principles can be gleaned from the case law regarding relocation on a temporary basis.

[73] In Plumley v. Plumley, [1999] O.J. No. 3234 (S.C.J.), the Court considered the following: whether the Court should upset the status quo, whether there is a genuine issue for trial, whether there are compelling circumstances to allow a move or if there is a strong possibility that the custodial parent’s position will prevail at trial.

[74] Other principles emerged from Boudreault v. Charles, 2014 ONCJ 273, where the Court found that the burden is on the parent seeking the change to prove compelling circumstances exist to justify the move. In his trial decision, Justice Sherr states at para. 26(j):

Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. (citations omitted)

[75] In the same case, at para. 26(k), Justice Sherr states: “There is case law that says that if a primary caregiver is happier, this will benefit the child. See: Del Net v. Benger, 2003 CarswellOnt 3898 (Ont. SCJ).”

[76] The Ontario Court of Appeal in Bjornson v. Creighton (2002), 62 O.R. (3d) 236, emphasized at paras. 21-22 the importance of “the relationship between the quality of the custodial parent’s emotional, psychological and economic well-being and the quality of the child’s primary care-giving environment’.

[77] See also Mackenzie v. Newby, [2013] O.J. No. 4613 (C.J.), where the Court discussed that the importance of the father’s contact with the child did not outweigh the benefit of the move on the child.

[78] Courts have been reluctant to permit relocation on a temporary basis as this will certainly affect the final outcome of the case if the Court permits the interim move as such an order could create disruptions in children’s lives especially if the move could be reversed at trial. See Goodship v. McMaster, [2003] O.J. No. 4255.

[79] Another consideration is that where there are material facts in dispute that could impact the final outcome, the Court may wish to wait for a trial with a full testing of the evidence. See Fair v. Rutherford-Fair, 2004 CarswellOnt 1705; Kennedy v. Hull, 2005 ONCJ 275.

[80] In the case of Knapp v. Munro, 2015 ONSC 5444, Charney J. summarized the applicable principles at para. 25, as follows: (a) The Courts should be reluctant to upset the status quo where there is a genuine issue for trial as to custody and access. (b) There may be compelling reasons to allow the move, but those reasons must reflect the best interest of the child(ren), not the parent. (c) The move can be allowed on an interim basis if the Court is satisfied that the move would likely be ordered after the trial. (d) The onus is on the parent seeking to move the children to establish that it is in the child's best interest. (e) The move should not be granted unless it is clearly in the best interests of the children.

[81] In Panduro v. Davis, 2019 ONSC 1117, the Court refused to grant the mother’s request to move the parties’ 21-month-old from Toronto to Victoria, B.C. as it would drastically affect the time that the father would have with the child.

[82] In Peters v. Chelchowski, 2018 ONSC 1012, the Court refused to allow the mother to move from Brockville to Cambridge Ontario, with the parties’ 18-month-old child. The mother wished to be with her family and at the interim stage the Court found the father wished to be an actively engaged parent and the proposed move which would involve a 10 hour round trip to exercise access would have a negative effect on his access.

[83] In M. Singh v. T. Singh, 2017 ONSC 4307, the mother denied a move by the mother with the parties’ 4-month-old child from Thunder Bay to Mantiouwadge which was a 5.5-hour commute. Even though the mother was the primary caregiver and wished to be with family, the Court found that it would not be in the child’s best interests to be relocated at such a young age.

Analysis

[84] After carefully considering the evidence, the case law and the factors set out in Gordon v. Goertz, I find that, on an interim basis, it is in the children’s best interests that they be returned to Ottawa and that they reside with the mother in the matrimonial home.

[85] At para. 50 of Gordon v. Goertz, the Supreme Court stated:

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[86] For the reasons that follow, I find that an interim order can be structured to promote the best interests of the children by maintaining frequent contact with their father, permitting them to be in the home they have always lived in and, at the same time, allow the mother to benefit from her family support network in Niagara.

[87] Firstly, it is in the children’s best interest that, given their very young age, they have frequent and regular access with their father.

[88] Keaton is 2 years old and Ellie is 6 months old. It is in their best interests that the father develops a relationship with their children. Bonding at a young age is vital to young children. Here, the father has not been physically present for almost ½ of Ellie’s life.

[89] Ellie is an infant. It is in her best interests that she has regular physical contact with her father and what is important is that access be frequent but not lengthy. This is especially critical for Ellie who is a new born who needs to develop a relationship with her father.

[90] In addition, the parties’ two-year-old son, Keaton, would benefit from frequent time with his father who will be a role model to his son.

[91] The father should have frequent access to these young children.

[92] That requires the children to be present in Ottawa so that the access can continue a regular basis.

[93] Secondly, I find that there are genuine issues for trial with respect to the extent and parameters of the father’s role in parenting. The father was participating in caring for the children in the matrimonial home until the mother left for Niagara on March 11, 2020.

[94] There are material facts in dispute as to what his role was in caregiving. This will be explored at trial and will certainly be a factor to consider in the final determination of the parenting arrangements.

[95] I accept that, based on the record before me, that the mother, due to her being more physically present during her first maternity leave with Keaton and now with the second maternity leave with Ellie, would be more available to play a caregiving role for the children. In addition, the father has been working a great deal of overtime to allow the family to move into a bigger home in November 2020.

[96] That is not to say that the father is not an involved father. There are contentious allegations regarding this point. There is a dispute of his role between the parents. The mother states he did virtually very little whereas the father said that he would care for the children when the mother returned to work and he was home on off days from work and when she was nursing Ellie, he would care for Keaton.

[97] Hence, the degree of the father’s caregiving role is contentious and will certainly be explored further at trial. I note that the mother provided much more detail in her affidavits whereas the father made more generalizations, and was not totally forthright in not presenting the complete text exchange dated March 26, 2020 between the parties, where the mother confirmed that he could see or Facetime the children anytime he wanted.

[98] This is an interim motion in which the Court relies on affidavits not tested by cross-examination and a full airing of the evidence.

[99] There is a serious dispute of the role that the father played with the children, how his mental health actually affected his parenting of the children, what his future role will be with the children and his contact with the children, based on the record before me. Therefore, there is a genuine issue to be tried and I am not satisfied that the move would likely be ordered after the trial.

[100] Thirdly, it is important for the mother’s emotional stability that she spend time with her extended family and be present for her mother. Therefore, the Court has structured the father’s access so that she can spend one week per month in Niagara with the children if she so chooses. The father has a right to exercise his access in Niagara during that week. Her first full week will be the first week in July commencing July 6.

[101] I also note that the father consented to the mother’s visit to her family in Niagara and expected that it would be, as in the past, for 3 to 4 weeks. She has travelled to Niagara on a regular basis with the children with the consent of the father and it is in the best interests of the children to spend time with their mother’s extended family there.

[102] At this point, I find that the father permitted the mother to visit Niagara to be with family and in light of her mother’s grave illness. These extended visits were part of the family routine and should continue pending trial.

[103] Fourthly, I do not find that there are compelling reasons to allow the move. The children’s home in Kanata has been their home all their short lives. Although they are familiar with Niagara due to the frequent visits there, it is not their home and until a full trial takes place, it is in the children’s best interests that they continue to live in their own home.

[104] The Court notes that the mother two other siblings as well as her own father who have participated in caring for the maternal grandmother.

[105] The father here has offered financial support to obtain nursing care for the maternal grandmother. The mother’s presence in Niagara is not absolutely necessary as there are other options.

[106] Therefore, the mother has not met her burden that the move is in the children’s best interests.

[107] On an interim basis, I am not prepared to grant a relocation of the children to Niagara.

Should the father’s access to the children be supervised?

[108] Access must be determined based on the children’s best interests.

[109] I agree with both parents’ suggestion that the father should have access three times per week for several hours. This provides for regular and frequent time for these young children to be with their father.

[110] The issue is whether the father’s time should be supervised.

[111] Dr. McLeod outlines the numerous diagnoses. There are serious issues with respect to the father’s mental health.

[112] One relevant portion in report is:

“He becomes easily overwhelmed and struggles to complete household activities such as meal preparation, groceries, managing appointments etc. without significant assistance from his wife. Struggles with meal preparation and preparedness. He often runs out of food, makes poor food choices and food consumption is erratic. Panic and difficulty regulating emotions in public when triggered. Has resulted in aggressive altercations with individuals…. Unable to take children on outings or activities (e.g. swimming lessons, museums) secondary to panic, intrusive symptoms and mood instability.

[113] Dr. McLeod’s report expresses some optimism when she states:

“Mr. Hewitt possesses a number of important personal strengths that will continue to serve him well in the process of addressing his mental health needs, including strong motivation for change, intelligence, determination and commitment in the face of challenges, and a growing openness and willingness to engage in treatment. Mr. Hewitt is an active part of a small, yet available network of supportive fellow veterans and non-military supports (i.e. Freemasons).

[114] The father is following the recommendations and in fact his therapy has been reduced and is not taking prescription medication.

[115] For the reasons that follow, I find that the father’s time with the children need not be supervised because:

• There is no evidence that the father has ever harmed the children;
• He had some involvement in the caring of the children and hence is aware of their needs;
• He has previously been left alone with them;
• He is on the road to recovery from his PTSD and his psychologist confirms he is progressing well;
• There is no evidence before me of involvement of the Children’s Aid Society or any child protection issues;
• Supervised access is an exceptional order as it results in a restrictive form of access that is not warranted here based on the record before me;
• There is no evidence that the children are at risk with the father;
• His visits are short and not likely to overwhelm him;
• Short visits will require brief caregiving opportunities; and
• He will not have to put them to bed for the evening or prepare a number of meals and juggle other household tasks at the same time.

Conclusion

[116] Until further Order of this Court, the Court orders the following:

• The mother is hereby ordered to return the children to the matrimonial home in Kanata, ON by no later than June 6, 2020 at 5:00 p.m.; and
• Commencing Sunday June 7, 2020, the father will have access to the children for three hours at times agreed to by the parties. The access will take place in the Ottawa area on Sundays, Tuesdays and Thursdays. If the parties are unable to agree on the time that takes into account the father’s work schedule and the mother’s commitments, then the access will take place from 1:30 p.m. to 4:30 p.m.

[117] The mother will be permitted to travel with the children one week per month, which will always be the first full week of each month unless the parties agree otherwise. Her first week will take place on July 6, 2020. While she is away in Niagara, the father may have his access visits with the children but they must take place in Niagara.

[118] On consent, the mother will have exclusive possession of the matrimonial home and the father may remove his personal effects from the matrimonial home and neither party will dispose of household contents without the other party’s consent.

[119] The parties will continue to comply with the COVID-19 or other health-related directives necessary to protect the well-being of the parties and the children.

[120] At this time, the Court will not order that this matter be case-managed. This request can be renewed at another time.

[121] If the parties cannot agree on the issue of costs, the father may provide his two page costs submissions with any Offers to Settle and Bill of Costs by June 12, 2020 and the mother will provide her two page costs submissions with any Offers to Settle and Bill of Costs by June 19, 2020. The father will have a right to reply with a one-page cost submission by June 26, 2020.

Justice A. Doyle Date: June 2, 2020