Court File and Parties

Court File No.: FS47/19 Date: 2020-06-04 Superior Court of Justice – Ontario

Re: Katie Miller, Applicant And: Evan Miller, Respondent

Before: Mr Justice Ramsay

Counsel: Marlene VanderSpek for the Applicant Richard Corbett for the Respondent

Heard: June 4, 2020 by teleconference from Welland

Endorsement

[1] The parties separated in 2018 having produced two children, a daughter age 5 and a son age 3. On November 29, 2019 Maddalena J. made a temporary order on consent that gave the Respondent parenting time two nights a week and alternate weekends. On April 24, 2020 the Applicant cut off access pending negotiation of a new arrangement. She expressed concern about the Respondent taking the children to his workplace during the pandemic and sought a new schedule. The Applicant has since allowed video chats.

[2] The Respondent now moves for an order restoring his access. He asks for a 2/2/3 split or in the alternative a return to the regime established by the existing order. The Applicant has brought her own motion in response. She suggests alternate 3-day-weekend access to the Respondent, with Thursday nights in the off week. She also suggests a number of terms that are related to the coronavirus pandemic, terms specifying exactly how exchanges should proceed in a public place, first refusal when the residential party needs babysitting for more than two hours, a restraining order, participation by the Office of the Children’s Lawyer and an order that the Respondent see that the children do their schoolwork while in his care.

[3] The parties have filed affidavit, response and reply on the Respondent’s motion. The Applicant, however, has not had a chance to reply to the Respondent’s response to her motion, which contains serious allegations against her. The motions have to be adjourned, except for the motion for a restraining order, on which the Applicant’s reply is not necessary.

[4] I decided to grant the restraining order because the Applicant’s allegations of a pattern of abuse and bullying are corroborated by the affidavit of a neighbour. I believe her allegations and reject the evidence of the Respondent on this point. I think she has good reason to fear for her safety. For this reason, I made a final order granting a restraining order for a period of one year, during which time the Respondent will be required to stay 500 metres from the Applicant’s residence and to abstain from communicating with her except through Our Family Wizard or a lawyer.

[5] As to the terms of the adjournment, I think that the Applicant is asking too much with respect to the Respondent’s response to the coronavirus. He has shown an understanding of the risks. I am not inclined to enshrine detailed practices in an order when the government’s recommendations change as the situation evolves. I am not worried about the children being in the care of the Respondent’s girlfriend when he is at work, and I find it hard to be concerned about a 5-year-old doing her online “homework.”

[6] The result of the closure of day care centres is that exchanges always occur in person. This could not have been foreseen. An advantage of the Applicant’s proposal is that it reduces the number of exchanges.

[7] The motions are adjourned to a date to be fixed by the trial coordinator. Costs of today are reserved to the motion judge.

[8] A final order will issue under s.46 of the Family Law Act for one year.

[9] On consent, the Office of the Children’s Lawyer is invited to participate.

[10] As a term of the adjournment I make the following temporary orders, which shall be in force until further order of this court:

a. Paragraph 1 of the temporary order of Maddalena J. dated November 29, 2019 is vacated. The remaining paragraphs continue in force.

b. The Respondent shall have parenting time with the children, Willem Miller born May 30, 2014 and Alice Miller born August 18, 2016, in Week I from Thursday at 5:00 p.m. to Monday at 9:00 a.m. commencing Thursday, June 11, 2020; and in Week 2 from Thursday at 5:00 p.m. to Friday at 9:00 a.m. commencing Thursday, June 18.

c. Access exchanges will occur in the parking lot of McDonald's at 325 Garrison Road, Fort Erie.

d. During each access exchange, the parties will park their vehicles. At the end of an access visit, the Respondent will take the children halfway between the parties’ respective vehicles and the Applicant will return the children to her vehicle. At the commencement of the access visit, the Applicant will take the children half-way between the parties' respective vehicles and the Respondent will bring the children to his vehicle. The parties will not engage in any conflict during such exchanges and will remain cordial at all times.

J.A. Ramsay J. Date: 2020-06-04