citation: "Smyrnios v. Aliferis, 2020 ONSC 3563" parties: "William Smyrnios v. Pagona Irene Aliferis" party_moving: "William Smyrnios" party_responding: "Pagona Irene Aliferis" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2020-06-08" date_heard: ["2020-05-20""2020-06-01""2020-06-05"] applicant:

• "William Smyrnios" applicant_counsel:
• "Gary Gottlieb"
• "Ryan Aalto" respondent:
• "Pagona Irene Aliferis" respondent_counsel:
• "Andrew Kania" judge:
• "Lemay" summary: > This family law motion addressed access to two children during the COVID-19 pandemic. The Applicant sought to resume pre-pandemic in-person access and additional access, while the Respondent sought to cancel in-person access. The court found the matter urgent and ordered reunification counselling to proceed. For the older child, Leo, who previously had supervised access, only virtual access was maintained due to the unavailability of independent supervision services and the fragile parent-child relationship. For the younger child, Alex, who previously had unsupervised access, in-person Saturday access was reinstated at the Applicant's mother's house, with exchanges at the Orangeville police station. The Applicant's request for additional Wednesday access for Alex was denied due to travel time and the temporary nature of the order. The court also commented on the parties' litigation conduct, noting the Applicant's lack of candor regarding COVID-19 protocols and the Respondent's improper splitting of her case and late introduction of medical evidence. interesting_citations_summary: > The decision affirms that the unilateral suspension of an existing access order during a pandemic generally constitutes an urgent matter, citing Tariq v. Kiran, Jeyarajah v. Jeyamathan, and Kostyrko v. Kostyrko. It distinguishes Douglas v. Douglas based on the existence of a temporary order. The court emphasizes a clinical-based approach for managing fragile parent-child relationships, particularly when reunification therapy is underway, and rejects family members as ad hoc supervisors. It also highlights the importance of candor with the court regarding COVID-19 protocols and cautions against litigation tactics such as improperly splitting a case or introducing late medical evidence without proper justification. final_judgement: > The motions were deemed urgent. Reunification counselling with Ms. MacKenzie was ordered to proceed promptly. Access with Leo was limited to virtual contact and any contact through Ms. MacKenzie until further order. Access with Alex was reinstated for Saturdays, unsupervised, at the Applicant's mother's house, with exchanges at the Orangeville police station. Both access orders are temporary and subject to review at a subsequent hearing on June 16, 2020. Costs were reserved. winning_degree_applicant: 3 winning_degree_respondent: 3 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 3563 file_number: "FS-16-223" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc3563/2020onsc3563.html" cited_cases: legislation: [] case_law:
  • title: "Tariq v. Kiran, 2020 ONSC 2897" url: "https://www.minicounsel.ca/scj/2020/2897"
  • title: "Jeyarajah v. Jeyamathan, 2020 ONSC 2636" url: "https://www.minicounsel.ca/scj/2020/2636"
  • title: "Kostyrko v. Kostyrko, 2020 ONSC 2190" url: "https://www.minicounsel.ca/scj/2020/2190"
  • title: "C.Y. v. F.R., 2020 ONSC 1875" url: "https://www.minicounsel.ca/scj/2020/1875" keywords:
• Family law
• Access
• COVID-19
• Pandemic
• Reunification counselling
• Supervised access
• Unsupervised access
• Urgency
• Litigation conduct
• Best interests of the child areas_of_law:
• Family Law
• Civil Procedure

Court File and Parties

COURT FILE NO.: FS-16-223 DATE: 2020 06 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Smyrnios, Applicant Gary Gottlieb and Ryan Aalto, for the Applicant

• and -

Pagona Irene Aliferis, Respondent Andrew Kania, for the Respondent

HEARD: May 20th, June 1st and 5th, 2020

REASONS FOR DECISION

LEMAY J

1This is a contentious family law case that has been being managed by Tzimas J. for a considerable period of time. The primary issues relate to access to the two children of the marriage, Leo who is six (6) and Alex, who is four (4).

2Since mid-March, when the pandemic began, the Applicant has not had in-person access with the children. Each party has now brought a motion relating to access. The Applicant seeks a return to the pre-pandemic access as well as additional access. The Respondent seeks to have the in-person access cancelled during the course of the pandemic.

3The matter was referred to me by Tzimas J., in both her role as case management judge and her role as the Local Administrative Judge for Brampton in assessing urgent cases. On review of the case, I made a prima facie finding that the matter was urgent and should be heard.

4I first considered the motions at a hearing on May 20th, 2020. At that time, I noted that the reunification counsellor was involved and was meeting with the Respondent the following day. I determined that having further information from the reunification counsellor would be of assistance to the Court. I also determined that the Respondent’s filing of video surveillance evidence in her reply submissions justified permitting the Applicant to file additional responding materials. Both parties were given the opportunity to review the surveillance evidence in detail, including reviewing copies of the videotape surveillance. The hearing was adjourned to June 1, 2020.

5At the conclusion of the hearing on June 1, 2020, I provided the parties with directions respecting the reunification counselling as well as for access to the younger child, Alex. A further hearing was scheduled for June 5th, 2020 to address some issues flowing from my rulings, and I provided the parties with further directions, including confirming orders made on June 1st that were challenged by both parties again on June 5th. These are the written reasons for the directions that I have provided.

Background

a) The Parties and Case Management

6I understand that the parties were in a relationship prior to getting married. They were married on October 9th, 2011 and separated on July 19th, 2016. There are two children of the marriage, Leo who is six, and will be seven in October of this year and Alex, who turned four at the beginning of the pandemic.

7The parties have been embroiled in litigation for some considerable time. Tzimas J. was appointed the case management judge in this matter some considerable time ago. On December 5th, 2019, Tzimas J. issued a temporary Order that addressed access to both children. The relevant provisions of that Order are as follows:

a) The Applicant would have supervised access with Leo after school on Mondays and Thursdays for three hour blocks. This access was supervised by Brayden Supervision Services. b) The Applicant would have unsupervised access with Alex each Saturday from 10:00 a.m. to 5:00 p.m., and each Wednesday from 4:00 p.m. to 7:00 p.m. c) The parties were to engage in reunification therapy. Directions were provided so that, if the parties could not agree on the therapist, Tzimas J. would appoint one. Tzimas J. also directed that there was to be no delay in the reunification therapy.

8The evidence that I have been provided with suggests that there have been problems with Leo’s access, in that he has regularly refused to go with this father for the supervised access or been reluctant to go with him. The most recent visit for which I have been given notes from Brayden is February 3rd, 2020, and those notes show that “Leo repeatedly indicated that he didn’t want to go with his father”, although he did eventually go with the Applicant.

9There is a long history between these parties but I do not need to resolve the details in this history to decide this motion. For my purposes, the fact that there have been problems with Leo wanting to attend his supervised access is sufficient to resolve the issues I must address.

b) Events Since March 2020

10The cancellation of the first two weeks of school after March break came on the Thursday before March break. The declaration of a state of emergency came during March break, when the children were with the Respondent.

11On March 26th, 2020, the Respondent’s counsel wrote to the Applicant’s counsel to advise that the Respondent had potentially been exposed to a staff member at Leo’s school who had developed a fever and symptoms of COVID-19. There was some contact between the parties’ counsel during this time period.

12In early April, telephone access took place. Counsel for the Respondent suggested that the parties should continue with telephone access only “until further notice”. Part of the reason for the Respondent’s position was that she and the children were sick, and that Public Health had required them to stay home.

13A call had been scheduled by Tzimas J. for April 7th, 2020 to address any urgent matters. At that time, both counsel agreed that the call did not need to proceed as there were no urgent matters to be addressed.

14Shortly after this agreement, on April 9th, 2020 (the Thursday before the Easter long weekend) counsel for the Respondent wrote to the Applicant asking for details about who the Applicant was residing with and the COVID-19 protocols being followed. Without responding to the Respondent’s letter, counsel for the Applicant wrote to Tzimas J. on April 14th, 2020 (the Tuesday after the Easter long weekend) asking for a further conference to address access issues.

15On April 17th, 2020, Tzimas J. released an endorsement directing that the parties were to attempt to reach an agreement on the outstanding issues. On April 21st, 2020, the Applicant provided an Affidavit outlining, in general terms, his COVID-19 protocols. Access still did not resume, and this motion was brought.

16As part of the materials, I was provided with information about Alex’s health. Specifically, the Respondent claims that Alex suffers from asthma. In support of this claim, the Respondent provides some medical documentation, as follows:

a) A note from Dr. Jackie Ramchatesingh, the children’s pediatrician, dated April 23rd, 2020 stating that Alex had been diagnosed by Dr. Bikangaga with asthma. b) A note from Dr. Bikangaga stating that “it is my recommendation that everyone follow guidelines from the Public Health officials regarding avoidance of acquiring/spreading SARS Coronavirus-19 infection. c) A note from Dr. Khoromi dated April 24th, 2020 stating that Alex “is also followed by Dr. Bikangaga for asthma/reactive airways.”

17However, the Applicant was not persuaded by this medical documentation, and made his own inquiries of the doctors. Those inquiries revealed that Dr. Bikangaga was of the view that, in Alex’s follow-up visit, he had “not experienced any symptoms suggestive of asthma.” Dr. Ramchatesingh confirmed that her understanding of the asthma diagnosis came from the Respondent’s reporting to her, rather than from direct observations.

18Dr. Bikangaga also states that he did a virtual assessment with Alex on April 23, 2020. During that assessment Dr. Bikangaga felt that the symptoms described were suspicious for asthma and ordered a treatment trial for Alex.

19As I have noted, this matter was referred to me on May 11th, 2020. On May 12th, 2020, I released an endorsement requiring the parties to file materials. Each party was required to file an originating Affidavit by May 14th, 2020. Any reply Affidavits were to be filed by May 19th, 2020.

20The parties duly filed their Affidavits. The Applicant’s Affidavit set out his protocols for COVID-19, including the fact that he was self-isolating at home with his mother. In her reply Affidavit, the Respondent filed reports from private investigators indicating that the Applicant had been visiting an unknown woman at a condominium that was not his home.

21On the morning of May 20th, 2020, the day of the hearing, the Applicant filed sur-reply material advising that the woman at the condominium was his girlfriend and that they had been sheltering as one unit during COVID-19. The Applicant stated that he had not previously provided this information to the Court because he had not wanted to share information about his girlfriend. I was advised that this reluctance was because he was concerned about possible stalking on the part of the Respondent or her brothers.

22The parties then both sought to review the videotapes and rely on them in the proceeding before me. Indeed, at the June 1st, 2020 hearing, the Applicant’s counsel requested an adjournment so that I could obtain portions of the videotapes and review them. I had received letters from counsel outlining their views on what the videotapes showed. From those letters, I was able to glean the following:

a) The videotapes show the Applicant not at his residence, and visiting his girlfriend’s condominium. b) The Applicant and his girlfriend have both provided Affidavits in which they have stated that they are living as one household, even though they have two residences. c) There was one incident on the videotape where the Applicant was close to another person (not his girlfriend) while he was getting into an elevator. However, the elevator had a sign on it from the City of Toronto saying that it was acceptable for three people to be in the elevator at once.

23I put these facts to both counsel during the course of the hearing on June 1st, 2020, and neither of them disputed them. Given the fact that the parties were able to stipulate to these facts about the videotapes, I was of the view that an adjournment was neither necessary nor desirable.

24However, there are two additional points that I would make about the videotapes. First, in terms of the Applicant I would note that he was less than candid with the Court about his COVID-19 protocols. I would have expected that he would have stated that he had a girlfriend and was sheltering with her as one family rather than filing an original Affidavit that, on the most generous interpretation, can be described as incomplete. It could also be viewed as misleading.

25My second point on the videotapes is about the Respondent’s approach to them. The information from the private investigators was, to a very large extent, gathered before the originating affidavits were filed. In my view, the Respondent should have included that information in her original Affidavit, rather than improperly splitting her case. The timing of when the Respondent disclosed this material could cause one to conclude that she was attempting to catch the Applicant in a lie in an attempt to gain a litigation advantage, rather than merely advancing the material to support her case.

26Counsel for the Respondent argues that the fact that the Applicant was prepared to lie in his statements about his COVID-19 protocols means that he should only be permitted supervised access to both children, and only when the pandemic subsides. I reject this assertion. While incomplete and, perhaps, misleading, the gaps in the Applicant’s Affidavit are, to a certain extent, understandable because of the conflict in this case, and the fact that the Applicant did not wish the Respondent to know about his girlfriend. However, I hasten to note that the Court required that information in the first instance and the Applicant’s omissions are of significant concern to me.

27This brings me to the Respondent’s COVID-19 protocols. The Respondent’s father passed away early this year. She has been living at a farm that her mother owns in Southgate Township, which is at the southern edge of Grey County. She lives with her mother, one of her brothers and the two children on the farm. They have food delivered by family members, and appear to be self-isolating quite thoroughly.

28The Applicant alleges (at paragraph 31 of his original Affidavit) that the Respondent “surreptitiously took the children to the farm to further avoid the access order of this Court, especially after her previous attempts to deny me access had been discredited.” This is not a submission that is supportable on the evidence before the Court. The Respondent has two reasons for moving to the farm that appear obvious on the record. First, to assist her aging mother after the death of her father. Second, given that the children are not in school, it is a not unreasonable place to self-isolate with them.

c) Reunification Counselling and Supervised Access

29Pursuant to Tzimas J.’s December 5th, 2019 Order, the parties were required to choose a reunification counsellor. Originally, they had agreed on Stephen Cross as the counsellor. However, Mr. Cross was unable to fulfill this role as he had to travel to South Africa.

30In January of 2020, the Respondent’s counsel wrote to the Applicant’s counsel suggesting either Ms. Karlene Grant or Ms. Wendy MacKenzie. The Applicant would not agree, and Tzimas J. ultimately chose Ms. MacKenzie.

31There were delays in providing the retainer agreement to Ms. MacKenzie. The Applicant provided his copy of the signed retainer agreement to Ms. MacKenzie on March 12th, 2020, as well as his portion of the required payments. The Applicant attended for his interview with Ms. MacKenzie on March 13th, 2020.

32The Respondent signed her retainer on March 13th, 2020. After the retainer was signed, Ms. MacKenzie did not hear from the Respondent until April 30th, 2020. In her submissions, the Respondent has observed that Ms. Mackenzie was ill and couldn’t respond until April 30th, 2020. Based on a complete review of the record, however, the Applicant took no steps to contact Ms. Mackenzie between March 27th, 2020 and April 30th, 2020. The delays in this time period were, on the record I have, the responsibility of the Respondent.

33The Respondent’s portion of the retainer was paid on May 4th, 2020, and Ms. MacKenzie sought to set up an appointment for the intake interview on May 7th, 2020. On May 10th, 2020, the Respondent asked what sort of information the interview would require. Ms. MacKenzie responded to this request by providing a letter outlining the requested information.

34On May 12th, 2020, the Respondent advised Ms. MacKenzie that she was unable to attend the interview until May 21st, 2020, which was after the date I had set for the original hearing. The Respondent advised that she was not able to speak to Ms. MacKenzie until after May 20th, 2020 because the Respondent had to prepare for a Court matter. I adjourned the hearing so that further information could be obtained from Ms. MacKenize, and so the Respondent could have her interview with Ms. MacKenzie.

35I understand that the Respondent has now met with Ms. MacKenzie. I also understand that Ms. MacKenzie is willing and able to provide services during the pandemic, as the service that she provides is one that the Government of Ontario has now permitted to continue to be offered.

36As I have noted, Leo was attending at supervised access with the Applicant. These visits were taking place after school. Part of the reason that the visits were taking place after school is so that there was no direct transfer of Leo between the Respondent and the Applicant.

37These supervised access visits were being provided by Brayden Supervision (“Brayden”). In my May 20th, 2020 Order, I directed the parties to contact Brayden and determine whether they were continuing to offer services. Brayden has advised that they are not providing supervision services, and do not know when they intend to resume providing those services.

d) The June 1, 2020 Hearing and Subsequent Events

38At the hearing on June 1, 2020, I provided the parties with a bottom line decision on access, as well as some brief oral reasons. The bottom line decision was that the access for Leo was to remain virtual access only, while some access was to resume for Alex.

39In terms of the reunification therapy, I directed that the parties were to take Ms. MacKenzie’s first available appointment, subject only to previously scheduled medical appointments or emergencies. I also directed that the parties were to attend at a further appearance by telephone conference before me on June 16th, 2020. The purpose of that conference is to discuss ongoing issues relating to the reunification therapy and the temporary access during COVID-19.

40Once I made my orders, the parties raised a number of further issues that required consideration. Those issues were the location of the access drop-off and pick-up as well as other logistical issues including the location of the access. I directed the parties to discuss those issues and attempt to agree upon them. Based on the various issues that had been raised by the parties, I was of the view that my order limited access to Alex to Saturdays only.

41I received an additional Affidavit from each party in advance of the hearing on June 5th, 2020. The Applicant sought to have access on Wednesdays as well as Saturdays. The Respondent filed additional medical evidence that she obtained after the hearing on June 1st, 2020, and sought to have access to Alex limited to virtual access only. I will return to both of these issues below.

42At the hearing on June 5th, 2020, we were able to resolve the outstanding issues on the following bases:

a) Drop-offs and pick-ups would be done at the Orangeville police station. b) The access visits with Alex will, at this point, take place at the Applicant’s mother’s house in Etobickoe. c) The issue of the location of the access visits will be revisited at the June 16th, 2020 attendance. Any other proposed locations for access must be disclosed by the Applicant to the Respondent by noon on Friday, June 12th, 2020.

43There were other technical orders made about the materials for the June 16th, 2020 attendance, which I will set out in one global orders section at the end of this endorsement.

Issues

44From the facts above, the following issues need to be resolved:

a) Are the issues in this case urgent? b) If so, what directions should be provided respecting reunification counselling? c) What Orders should be made with respect to access?

45I will deal with each issue in turn.

Issue #1 - Urgency

46Originally, this matter came before me by way of an endorsement issued May 11th, 2020 by Tzimas J. In that endorsement, Tzimas J. granted leave to bring the motion on the basis that both parties were consenting to having a motion on access heard.

47At the hearing before me on June 1st, 2020, counsel for the Respondent took the position that the matter was not urgent within the meaning of the practice direction. In support of this position, he relied on the unreported decision of Douglas v. Douglas. He also argued that the video access that is taking place is reasonable, and that the Respondent has not attempted to preclude any access and is still permitting video access.

48I did not call on counsel for the Applicant to respond to this argument. I am of the view that it should be dismissed for two reasons.

49First, the current pandemic should not result in a widespread suspension by one parent of access with another parent. In cases where an access order is in place, the unilateral suspension of that order and resorting to a self-help remedy will regularly rise to the level of an urgent matter within the meaning of the practice direction. See Tariq v. Kiran (2020 ONSC 2897 at para. 19), Jeyarajah v. Jeyamathan (2020 ONSC 2636 at para. 18) and Kostyrko v. Kostyrko (2020 ONSC 2190).

50Second, in my view, for the reasons set out in Kostyrko, the Douglas decision is distinguishable from the facts in this case because there is an order (albeit a temporary one) in place. Even if Douglas is not distinguishable, Kostyrko explains why I prefer the reasoning in C.Y. v. F.R. (2020 ONSC 1875) and I again adopt my reasoning in Kostyrko.

51As a result, I view the motion as being urgent and I will address it on its merits.

Issue #2 - Directions Respecting Reunification Counselling

52Ms. MacKenzie is ready willing and able to proceed with the reunification counselling. Given the contentious and protracted history of this case, that counselling should proceed as promptly as possible. The parties both agreed that they should have the children attend Ms. MacKenzie’s first available appointment, subject only to any existing or emergency medical appointments that might be required. I so order.

53In addition, I intend to continue to address the access issues in the short term. As a result, I am requesting that Ms. MacKenzie provide the parties with a proposed schedule for counselling, as well as a report on their progress. I will then reconvene a further hearing to consider any further issues with the reunification therapy.

54At the June 5th, 2020 hearing, counsel for the Respondent advised that he had not yet heard from Ms. MacKenzie about a date for reunification therapy. The parties were directed to jointly write to Ms. MacKenzie to advise her of the June 16th, 2020 date and to advise her that the Court is anxious to receive an update in this matter.

Issue #3 - Access Schedule

55At this point, the two children have somewhat different access schedules with the Applicant. Alex has unsupervised access, while Leo has supervised access. As a result, the two children should be considered separately.

a) Access With Leo

56As described above, Leo only has supervised access with the Applicant. There have been issues between Leo and the Applicant. I do not know what the source of those issues is. I can only observe, from reading some of the notes filed from Brayden Supervision Services, that the relationship between Leo and the Applicant requires some work. Finally, I note that the Applicant was picking Leo up after school to prevent problems when there was a direct transfer between the Respondent and the Applicant.

57As I have noted above, Brayden Supervision is not providing services at this point in the pandemic, and has not been providing services since mid-March. As a result, there is no independent supervisor available to supervise Leo’s access with the Respondent.

58During the course of the motion, I asked counsel for the Applicant what access services would be available at this point in the pandemic. Counsel forcefully argued that the Applicant’s mother could act as the supervisor for access. I reject that argument.

59Based on the record before me, I am persuaded that Leo and his father still have a fragile relationship. For the purposes of this motion, it is not necessary to understand why that is. It is sufficient to know that the relationship is still fragile. As a result, introducing a “supervisor” who is an immediate member of the Applicant’s family runs a serious risk of interfering with the redevelopment of Leo’s relationship with the Applicant. Further, I am concerned that there may be issues if the Applicant and the Respondent are required to transfer Leo directly between them.

60There is currently no independent supervisor that has been identified that can provide supervision services for Leo’s visits with his father. Given that reunification therapy is underway, I am of the view that there is a real risk that any access visits supervised by the Applicant’s family would be counterproductive at this point. Leo is six years old, and there has been some difficulty in having him go on access visits with his father. In the short term, these difficulties should be managed by the rehabilitation therapist, rather than by the Court or a “family member” supervisor on an ad hoc basis. A clinical based approach to managing the issues that Leo has with access is both in his best interests, and appears to have the best chance of ensuring a long term positive relationship between Leo and the Applicant.

61This brings me to the Applicant’s assertion that he should be provided with unsupervised access to Leo. I reject this argument for two reasons. First, the purpose of this motion is not to expand access or to change the parties’ circumstances. It is to consider whether the pre-pandemic orders should be continued in force.

62Second, and more importantly, as I have noted above Leo’s relationship with the Applicant is still somewhat fragile. It needs to be managed carefully in the short term. Given that reunification therapy is about to begin, I am of the view that the therapy should proceed for a time without changing the access supervisor, without direct transfers and without providing unsupervised access. This provides the best chance that therapy will be successful and is, therefore, in Leo’s best interests.

63The Applicant’s request to resume either supervised or unsupervised access with Leo is denied at this point. This issue should be revisited if Brayden Supervision begins to provide access supervision services again. The parties are expected to update me on Brayden’s status at the June 16th, 2020 appearance.

b) Access With Alex

64The situation with Alex is different. As of the order of Tzimas J., Alex was to have unsupervised access with his father beginning in December of 2019. I understand that this access was taking place between December of 2019 and March break, 2020.

65I start with the issue of Alex’s asthma. I have some doubts about the diagnosis that I have been provided with both because of its timing and because of the fact that most of the doctor’s reports are based on the reporting of the Respondent. On this point, the Respondent’s statements in her reply Affidavit that the medical documentation speaks for itself overstates her case. There appears to be no formal diagnosis of asthma; merely a treatment trial based on suspicions of asthma. However, it is not necessary for me to finally resolve those issues.

66Instead, I note that the Applicant’s COVID-19 protocols appear to be sufficient. In that respect, I note that the parties have stipulated to what is seen on the videotapes (see paragraph 22 of these reasons). There is nothing in these videotapes, including the elevator ride, that persuades me that the Applicant is not following proper COVID-19 protocols.

67In addition, I note that his girlfriend has deposed that she lives alone, is working from home and has had no contact with anyone other than Mr. Smyrnios since the pandemic started. In light of that evidence, it is difficult to see how there is any significant additional risk to Alex by participating in access. Based on my conversations with the parties, I was of the view that I had ordered access for Alex on Saturdays only.

68This brings me to the new motions raised by both sides. First, the Applicant’s new motion. In materials filed late in the day on June 4th, 2020, the Applicant sought access on Wednesdays and Saturdays as well as an end date to these orders of the sooner of July 1, 2020 or when the Government of Ontario moved to phase 2 of its reopening plan.

69I was of the view that the question of Wednesday access had been previously adjudicated. I expressed my concern with respect to this part of the motion to Applicant’s counsel, who indicated that his understanding was that Wednesdays were still a live issue. Respondent’s counsel stated that his understanding was the same as mine.

70I will briefly explain why, at this point, I am limiting the access visits to Saturdays. First, there is a great deal of driving involved in these access visits for Alex. As a result, it is not in his best interests to spend several hours in a car on two days, especially when the access visit on Wednesdays is only for three hours. Further, the access on Wednesday ends at 7:00 p.m., which will mean that it will be well after 8:00 p.m. before Alex is home and ready for bed. Second, this Order is being revisited at the June 16th, 2020 hearing when more will be known about reunification therapy, supervised access for Leo and other issues.

71Then, there was the Respondent’s new motion. At 9:30 on June 5th, 2020, approximately a half hour before our hearing, I received a new Affidavit from the Respondent. In that Affidavit, she attached an additional medical report from Dr. Khoromi advising that there were “concerns” that Alex may have asthma. The Respondent’s Affidavit suggests that this report came as a result of Dr. Khoromi’s concerns about my June 1st, 2020 Order.

72I ultimately determined that I would receive this Order, but that it did not change my decision on whether access would continue with Alex. My reasons for my conclusions are set out at paragraphs 66 and 67. As I noted during the conference call on June 5th, 2020, these reasons do not require me to determine whether Alex has asthma. Instead, I have determined that any risks associated with any medical condition that Alex may have are addressed by the Applicant’s COVID-19 protocols. I also expressed my concern to Respondent’s counsel about the timing of this new medical report and the timing of the asthma diagnosis.

73In spite of my finding that the evidence was admissible, and that it did not change my submission, Applicant’s counsel made submissions on this issue. He forcefully expressed his concerns about the admission of this Affidavit. During the hearing, I pointed out to Applicant’s counsel that he had already won this issue and that his submissions were counterproductive. I repeat that admonition here.

c) Concluding Comments

74I note that the parties both argued that certain provisions were, or were not, in the best interests of the children. Having now spent considerable time with this case, I am persuaded of one fact in respect of the “best interests of the children.” The conflict in this case, which is caused by both parents, is not in the best interests of either child.

75I would also observe that there is a tendency to re-litigate issues over and over again in this case. I have addressed the tendencies of both parties in this regard elsewhere in this reasons. I would offer the global observation that re-litigating every issue is counterproductive and should cease. The parties need to move forward.

Conclusion and Orders

76For the foregoing reasons, I order as follows:

a) These motions were urgent, and leave was granted to address them during the suspension of the Court’s operations caused by COVID-19. b) The parties are directed to attend Ms. Mackenzie’s first available appointment for reunification therapy, subject only to existing or emergency medical appointments. c) The parties are to jointly write to Ms. MacKenzie and request an update on the progress of reunification therapy. The parties are to advise Ms. MacKenzie that the Court is anxious to receive an update prior to June 16th, 2020. d) Access with Leo is limited to virtual access and any contact through Ms. MacKenzie until further Order of this Court. This Order may be revisited at the June 16th, 2020 appearance. e) Access with Alex is limited to the times as set out for Saturday access in the Orders of Tzimas J. of December 5th, 2019 and is to take place only at the Applicant’s mother’s house until further Order of this Court. This Order may be revisited at the June 16th, 2020 appearance. f) The pick-ups and drop offs for Alex are to take place at the Orangeville police station. g) The parties are to attend at a further hearing before me on June 16th, 2020 to address the issues in this motion. The parties are given leave to each file an Affidavit by no later than June 15th, 2020 at noon for that appearance. h) The Affidavits described in paragraph (g) are to outline the update from Ms. MacKenzie. They are also to address any issues with respect to the two weeks of access that will have taken place with Alex, provide any updates on whether Brayden Supervision has begun providing in-person services again and when that might happen. i) The Applicant is to disclose to the Respondent, by noon on June 12th, 2020, any locations that he wishes to have access with Alex other than his mother’s house. This matter may also be dealt with by way of the Affidavits described in paragraph (g). j) The filing requirements remain as set out in my previous Orders. For clarity, by filing anything electronically with the Court, the parties undertake to file it in hard copy once the Court reopens for filing.

77At this point, there are the costs of all of the appearances, being May 20th, June 1st and June 5th, 2020. The costs of all of those appearances, and the costs of the June 16th, 2020 appearance will be addressed by way of written submissions after the June 16th, 2020 appearance.