Court File and Parties

Court File No.: FC-20-231-00 Date: 20200728

Ontario Superior Court of Justice (Family Court)

Between: Kevin Daniel Laye, Applicant – and – Jennifer Lynn Brisebois, Respondent

Counsel: Evgeniy Osipov, for Mr. Laye Faizal Roy, for Ms. Brisebois

Heard by Zoom Conference: July 15, 2020

Ruling on Custody/Access Motions

C. Boswell J.

[1] This ruling addresses the parenting of two little children. The children are Haylee Christine Brisebois and Jace Christopher Laye. Haylee is three years old and the child of Ms. Brisebois. Jace is two and the child of both parties.

[2] There are two principal issues for determination. First, whether the court should defer to Ms. Brisebois’ parental autonomy and respect her decision to deny Mr. Laye, a step-parent, any access with Haylee. Second, and more broadly, what parenting arrangement is in the best interests of the children.

[3] I intend to proceed as follows. First, I will set out the background to this litigation. Next, I will describe the general legal principles that govern the determination of the live issues. Then I will briefly outline the positions of the parties. Finally, I will set out my analysis with respect to the live issues.

Background

The Litigation

[4] This litigation commenced in March 2020, when Mr. Laye issued an application seeking, amongst other things, an order for custody of Jace. Very little appears to have happened with the litigation between March and June 2020. This fact is no doubt a reflection, at least in part, of the suspension of normal court operations on March 17, 2020 due to the COVID-19 pandemic.

[5] The motions now before the court took flight in late June, 2020.

[6] On June 22, 2020, Mr. Laye filed a motion, without notice to Ms. Brisebois, seeking leave for an urgent motion, or case conference, to address the parenting arrangements for the children. I granted an urgent motion date for July 7, 2020. I set a timetable for the filing of materials.

[7] Mr. Laye then filed a motion returnable on July 7, 2020. He did not, however, identify in his motion what specific relief he was seeking. He filed a supporting affidavit sworn July 3, 2020 that made it apparent the relief he wants is a temporary custody order for both Haylee and Jace.

[8] On July 7, 2020 Mr. Laye appeared in court with counsel. Ms. Brisebois was unable to attend due to a scheduled MRI. Her lawyer appeared on her behalf. He served and filed her responding materials at that time. Those materials consisted of a Notice of Motion, supported by Ms. Brisebois’ affidavit sworn July 6, 2020 and a brief affidavit sworn by her mother on July 6, 2020 as well.

[9] In her motion, Ms. Brisebois seeks custody of Haylee and Jace and an order that Mr. Laye’s access be supervised. She also asked for leave to adduce oral evidence at the hearing of the motion and leave to question Mr. Laye under oath prior to the motion.

[10] The late delivery of Ms. Brisebois’ materials necessitated an adjournment to July 15, 2020 so that Mr. Laye could reply to them. As a term of the adjournment I ordered two access visits between the children and Mr. Laye. They were to occur on July 10 and 12, 2020. Ms. Brisebois was evidently not pleased that I had included Haylee in the access order. Her counsel brought a motion before a different judge seeking to amend the access I ordered, to delete Haylee from it. Ms. Brisebois filed an affidavit in support of her motion which was sworn July 9, 2020. Her motion was rejected. Haylee then became too ill to participate in the visits on July 10 and 12. I understand that Jace did attend.

[11] Mr. Laye subsequently filed a reply affidavit sworn July 10, 2020. The motion proceeded to argument on July 15, 2020. On that date Ms. Brisebois’ counsel filed a further undated and unsworn affidavit in response to Mr. Laye’s reply affidavit.

[12] As I said, Ms. Brisebois’ counsel sought leave to call oral evidence from both Ms. Brisebois and her mother and leave to question Mr. Laye, prior to the motion being heard. I denied both of those requests. Ms. Brisebois had been given adequate time to prepare and file all of the evidence she wished to present. Indeed, she filed a 100 paragraph affidavit sworn July 6, 2020, a short affidavit sworn that same date by her mother, a further affidavit sworn June 9, 2020 and yet another affidavit, unsworn, filed on the date of the hearing. In my view, nothing could be gained by permitting oral evidence at the hearing of this urgent motion.

[13] Both parties, I note, considered this case to be urgent. To allow oral evidence, or questioning, would have, in fairness to Mr. Laye, necessitated a further adjournment. I was not prepared to delay any further.

The Background Facts

[14] It is hard to get a solid handle on the facts and circumstances of this case. The parties have filed a number of affidavits, as I have described. They agree on very little. For reasons I will express momentarily, I find that neither one of them is a credible or reliable witness. Where they disagree on the facts, which is just about on everything, I am comfortable making only the fewest findings of fact.

[15] I believe the parties began to reside together in about December 2017. Mr. Laye identified that month as the date cohabitation began. In her affidavit sworn July 6, 2020, Ms. Brisebois says they began to cohabit in late 2017, though in her Answer she alleges that they began to cohabit in March 2018. I find that it was December 2017.

[16] Ms. Brisebois brought a daughter, Haylee, into the relationship. Haylee was about one year old when the parties began to cohabit. Jace was born about five months after they began to cohabit, in May 2018.

[17] The date of separation is a matter of contention. Mr. Laye deposes that the parties separated just before Jace turned one, which would be May 2019. Ms. Brisebois deposes in her affidavit of July 6, 2020 that they separated at some point in 2018. In her Answer, she alleges that they separated on October 19, 2019. And in her unsworn Affidavit filed on the date of the hearing, she says they separated in March 2019. I am unsure of what to make of her evidence on this point. Three documents filed with the court within the space of about a week. Three significantly different dates of separation. I am going to proceed on the basis that the separation occurred in the spring of 2019. I calculate their cohabitation, in the result, at about 15 or 16 months.

[18] Both Haylee and Jace have resided primarily in the care of Ms. Brisebois since the date of separation. That is agreed.

[19] Neither of the parties has gainful employment. Both receive ODSP benefits. Mr. Laye somehow survives on benefits of about $1,200 per month. Ms. Brisebois has both ODSP and Child Tax Benefits that together amount to $3,000 per month.

[20] Mr. Laye says that he was the primary caregiver to both children following the birth of Jace. He says that Ms. Brisebois suffered from debilitating post-partum depression and she was unable to provide any significant level of care to the children. In addition, she required two surgeries following Jace’s birth that required time to recover from.

[21] According to Mr. Laye, he attended to all of the medical appointments for both children during the time of the parties’ cohabitation.

[22] I note that both parties agree that Haylee’s biological father is out of the picture. He is apparently serving a lengthy prison sentence.

[23] Following the separation, Ms. Brisebois moved to a basement apartment in a home in Barrie. Mr. Laye moved to a bachelor apartment, also in Barrie.

[24] Mr. Laye deposes that he continued to parent the children on a daily basis for some considerable time after the date of separation. He said he would attend at Ms. Brisebois’ home at about 9:00 a.m. and pick up the children. He would return them at about 6:00 p.m. What he would do with them all day was not made clear.

[25] Mr. Laye says that in December, 2019 the childcare arrangements changed. Ms. Brisebois would not longer allow him to remove the children from her home. He says he began to attend at her home three or four days per week during the period between lunch and dinner. That arrangement continued until June 3, 2020.

[26] On June 3, 2020 Mr. Laye attended at Ms. Brisebois’ residence. He was spending time with Jace in the backyard. Ms. Brisebois left to walk to a nearby store. While she was gone, Mr. Laye let himself into her locked residence, without her permission, by managing to unlock her door through a broken window. Since that time, Ms. Brisebois has not permitted him to have access with the children.

[27] Ms. Brisebois says that Mr. Laye was abusive towards her throughout the latter part of their relationship. She says he has punched her mother in the face. And she says he has been abusive towards the children. She claims he is moody and a regular marijuana user.

[28] Mr. Laye denies that he has been abusive in any way to anyone. He admits using marijuana, but medicinally, and never to impairment.

[29] Mr. Laye says that Ms. Brisebois is abusing drugs, specifically crack cocaine. He took a picture of what he says is a piece of crack and a crack pipe in a little tin that he says he saw in Ms. Brisebois’ apartment when he broke in. Ms. Brisebois denies this allegation. She says that she is clean. She concedes that she became addicted to opioids prescribed after an operation. But she says she is recovering and now participates in a methadone program.

[30] Mr. Laye contends that Ms. Brisebois is bipolar. He says that illness, in combination with her drug use, makes her mentally unstable and unfit to care for the children.

[31] With this basic background in place, I will turn to a brief examination of the legal principles that govern the analysis of the live issues in this case.

The Governing Principles

The Principle of Parental Autonomy

[32] Both parties are seeking custody of the children. Both wish to limit the other’s access to supervised visits only. In Ms. Brisebois’ case, she wishes to prevent access between Mr. Laye and Haylee altogether. Both parties rely on the provisions of the Children’s Law Reform Act, R.S.O. 1990 c. C.12 (the “CLRA”) in support of their claims.

[33] Mr. Laye is a biological parent of Jace. He is, at best, a step-parent to Haylee.

[34] Biological parents are, pursuant to s. 20(1) of the CLRA, presumptively and equally entitled to custody. That said, where, following a separation, the child(ren) live with one parent with the consent or acquiescence of the other parent, the non-residential parent’s entitlement to custody, but not access, is suspended until a separation agreement or court order provides otherwise. See CLRA, s. 20(4).

[35] The upshot of s. 20(4) is that Mr. Laye is presumptively entitled to access with Jace and of course has standing to pursue a custody order with respect to him.

[36] Mr. Laye’s position with respect to Haylee is a little different. He is not a parent to Haylee within the meaning of the CLRA. He has no presumptive entitlement to custody or access with respect to her. He does, however, have standing to pursue a custody or access order in relation to Haylee by virtue of s. 21(1) of the CLRA, which provides:

A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

[37] Mr. Laye qualifies as “any other person”.

[38] Ms. Brisebois’ position is that she, as the biological mother of Haylee, should be the sole decision-maker in terms of whether Haylee spends time with Mr. Laye.

[39] There is appellate authority in support of Ms. Brisebois’ position. Chapman v. Chapman, 2001 ONCA 24015, [2001] O.J. No. 705, is a case involving a grandparent’s claim to access. The relationship between the grandmother and the parents was not a good one. Moreover, the children, ages 8 and 10, had negative feelings towards their grandmother. The parents, who were loving and devoted to their children, did not want the children to spend time with their grandmother. They took the position that they were best situated to decide themselves whether such access should occur. The Court of Appeal agreed. Abella J.A. held, at para. 21:

In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.

[40] While the Court of Appeal has made it clear that parental autonomy should be favoured, it is important to recognize that such autonomy is not unassailable. Courts will step in and make access orders where it is apparent that the parent(s) are not acting in the best interests of their children. For instance, when positive relationships with extended family members are imperiled arbitrarily, the court may intervene to protect the continuation of the benefit of the relationship. See Chapman, para. 19. See also Khan v. Ahmad, 2019 ONCA 614 at para. 9.

[41] There is some recent authority which suggests that parental autonomy should not be favoured where the party seeking access has demonstrated a settled intention to treat the child as a child of his or her family. See Agmon v. James, 2018 ONCJ 4 at para. 68.

[42] What constitutes a “settled intention” falls to be determined in accordance with the directions provided by the Supreme Court in Chartier v. Chartier, [1999] 1 S.C.R. 242, 1999 SCC 707. In particular:

Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship…The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family…The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. (Para. 39).

The Best Interests of the Children

[43] Whenever the parenting arrangements of a child are in issue, the controlling legal principle is simple to state. The best interests of the child govern. See CLRA s. 24(1).

[44] Section 24(2) of the CLRA directs the court to consider a constellation of factors when assessing a child’s best interests. Those factors include:

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[45] The court is also directed to consider whether any party seeking custody has committed any domestic abuse or violence against the other party, a spouse, a child, or any other member of the household.

The Parties’ Positions

[46] Mr. Laye submits that he should have custody of both Haylee and Jace and that Ms. Brisebois should have supervised access. His position is grounded in allegations that Ms. Brisebois is abusing illicit drugs, has bipolar disorder which is causing wild mood swings, and she is refusing him access to the children, which is clearly not in their best interests.

[47] Mr. Laye made no submissions regarding his standing to bring the application with respect to Haylee, whether he had a settled intention to treat Haylee as his own child and how, if at all, the court should apply the principle of parental autonomy.

[48] By Ms. Brisebois’ account, she is the “best mom in the whole world.” She admits she has had mental health problems – specifically depression and anxiety and is possibly bipolar – but asserts that it is unfair that anyone would use her honesty about these conditions against her. She admits that she has been addicted to opioids but says she is now clean and participates in a methadone program. She says she is 100% devoted to her children and has only their best interests in mind.

[49] Ms. Brisebois submits that Mr. Laye should have no access to Haylee because he is not her biological father and he has not stood in the place of a parent to her. His access to Jace should be supervised because he is a heavy marijuana smoker, has mental health problems which cause wild mood swings, is abusive and is incapable of caring for Jace over any stretch of time because he cannot afford to do so.

Discussion

[50] In this section of the ruling, I will provide my analysis of the live issues. I will begin by offering my observations about the credibility and reliability of the parties’ evidence. I will then explain why I find that Mr. Laye’s claims in relation to Haylee must fail at this stage. And then I will explain why, in my view, Jace’s best interests are best served by an interim custody award in Ms. Brisebois’ favour together with regularly scheduled, unsupervised, access with Mr. Laye.

Credibility and Reliability

[51] Credibility and reliability are not the same thing. Credibility has to do with the truthfulness of a witness; reliability with the accuracy of the witness’s evidence. A credible witness may give unreliable evidence. A witness who is not credible on a particular point cannot give reliable evidence on that point.

[52] I have serious credibility – and hence reliability – concerns with both parties. Each deserves an explanation as to why. I will start with Mr. Laye. There are three factors that, in my view, undermine his credibility.

[53] First, Mr. Laye did not pursue custody of or access to Haylee in his application. He did not specifically seek custody of or access to Haylee in his Notice of Motion. Both could be oversights, but if they are, they are pretty big oversights. I cannot help but wonder whether the increase in Mr. Laye’s enthusiasm for a relationship with Haylee is rooted in his observation of the strong negative reaction his claim has gotten from Ms. Brisebois. I am frankly concerned that both parties are using aspects of this case – and the children themselves – as tools to inflict pain on each other.

[54] Second, Mr. Laye deposed that for many months he was coming to Ms. Brisebois’ residence to collect the children on a daily basis. He said he cared for them, away from her home, between 9:00 a.m. and 6:00 p.m. I find this suggestion incredible. He provided no explanation as to how he managed to travel to and from Ms. Brisebois’ home each day. He lives across town. He provided no details of what he did all day with two toddlers, where they went or how he cared for them. I find it difficult to believe that he would even have been able to afford to feed them on his ODSP allowance.

[55] Mr. Laye’s historical account of his access visits between the separation in the spring of 2019 and December 2019 makes no sense to me at all. Curiously, Ms. Brisebois did not directly deny that Mr. Laye was having frequent access to the children after they separated, nor did she directly challenge his account of it.

[56] Third, Mr. Laye deposed that he went into Ms. Brisebois’ apartment one day when she had gone to the store. He said, matter of factly,

While the Respondent was gone I went into the Respondent’s basement apartment to use the washroom and grab a pair of shorts for Jace. The door was locked but I opened it through the door’s window frame which had been broken by the Respondent a week prior.

[57] Mr. Laye seems oblivious to the fact that what he did was wrong and he appears to lack an understanding of why his actions angered Ms. Brisebois.

[58] I will similarly identify three factors that undermine Ms. Brisebois’ credibility and reliability.

[59] First, she appears to believe that it is okay that she unilaterally and summarily terminated Mr. Laye’s access because of Mr. Laye’s poor judgment in entering her home without permission. She fails to understand, or simply does not care, that she is punishing Jace by attempting to extinguish his relationship with his father.

[60] Second, there are a number of inconsistencies across Ms. Brisebois’ several affidavits. I pointed out one – the date the parties separated – earlier in this ruling. I will not dwell on the others because they are small beer compared to the central reason why Ms. Brisebois lacks credibility.

[61] Third, and most significantly, Ms. Brisebois refused to comply with the access order I made and lied to the court about why Haylee did not attend the access visits.

[62] Ms. Brisebois first attempted to undercut my order by bringing a 14B motion before another judge, seeking to delete Haylee from the access order. When that failed, she simply refused to abide by the order. I find that she lied to my face during the hearing of the motions by telling me that Haylee could not attend the access visits because she was sick. I appreciate that I was not present and that it is possible that Haylee was too sick to attend the court-ordered access visits. But I do not believe that. Here are the reasons why:

(a) Ms. Brisebois was clearly irate that I included Haylee in the two access visits I ordered. Her affidavits filed subsequent to that order make it clear how strongly she feels about it; (b) Ms. Brisebois filed an affidavit with the court sworn July 9, 2020 in an effort to amend my order. No where in that affidavit does it mention that Haylee is sick. Her sickness evidently struck the next day, which was the first of two scheduled access dates; (c) In the current reality of social distancing, the likelihood of Haylee contracting a virus of any type is low; (d) Jace did not become sick with whatever ailment Haylee purportedly came down with, making it even less likely that Haylee contracted a communicable illness; and, (e) Haylee’s illness conveniently corresponded precisely with the dates I scheduled access visits.

[63] I find that Ms. Brisebois was openly dishonest with me. She said Haylee was sick because she did not want her attending for access with Mr. Laye. She made a decision to deliberately breach the court order.

[64] A person with no respect for the orders of the court and no hesitation to unabashedly lie to the court cannot expect to be found credible and reliable.

[65] Temporary orders in family cases are often based on incomplete or imperfect evidentiary records. The evidentiary record in this case is singularly imperfect. But despite the unreliable histories provided by the parties, I must still do my best to fashion an order in the best interests of Haylee and Jace.

[66] I will begin my analysis with Mr. Laye’s claim to custody of or access to Haylee. That claim must, at least at this stage, fail.

Haylee

[67] Ms. Brisbois’ parental autonomy is generally entitled to respect. There are limited circumstances in which the court will intervene and override that autonomy. One circumstance where parental autonomy may not be favoured is where the non-parent has demonstrated a settled intention to treat the child in issue as his or her own.

[68] In this case, Mr. Laye has not provided sufficient evidence to establish that he has or has had a settled intention to treat Haylee as his child.

[69] A second circumstance where the court may intervene despite the principle of parental autonomy is where the non-parent has an established and positive relationship with the child in issue and where the parent has imperiled that relationship in an arbitrary way.

[70] This is not a case where I can say with great confidence that Ms. Brisebois has not cut Mr. Laye out of Haylee’s life arbitrarily. Frankly, I think she is entirely capable of such arbitrary action. Having said that, I am satisfied that there are objectively reasonable justifications for Ms. Brisebois’ position.

[71] Ms. Brisebois deposes that Mr. Laye and Haylee do not have a father-daughter relationship. She said Mr. Laye treats Haylee different than he treats Jace. He is, according to her, harsher with Haylee. She says Mr. Laye has had little, if any, unsupervised contact with Haylee since the separation over a year ago. Haylee has never been to Mr. Laye’s residence. Ms. Brisebois says she fears for Haylee’s safety because Mr. Laye has anxiety and depression and his moods can flip in an instant. And, she says, he smokes marijuana regularly, including in front of the children.

[72] I indicated above that Ms. Brisebois has some serious credibility problems. For that reason, I take everything she has said in her affidavits with a grain of salt. Nevertheless, there are some uncontroverted facts that support at least some of what she says.

[73] Mr. Laye, for instance, did not initially pursue custody of, or access to, Haylee. I understand his position to be that the failure to name Haylee in his application was inadvertent. I have a very hard time accepting that a person would inadvertently fail to name one of the children he is seeking custody of. In my view, Mr. Laye brought an application for custody of Jace. On further reflection he decided to add Haylee to the application. I think he views Haylee and Jace differently. I think Ms. Brisebois is right about that.

[74] The period of cohabitation was not a particularly long one. Mr. Laye was only with Ms. Brisebois for a short time. They lived together for a little over a year. It is debatable how close a relationship Mr. Laye and Haylee have formed.

[75] Mr. Laye is also an admitted marijuana user. He filed a drug screen that was positive for cannabis. He uses marijuana medicinally. Whether and to what extent he also uses it recreationally is something I am unable to say. It is not arbitrary or unreasonable for a mother to have concerns about a caregiver who may be high.

[76] On balance, and on this evidentiary record, I am not persuaded that there are sufficiently cogent reasons to interfere with Ms. Brisebois’ parental autonomy. It is quite clear that Ms. Brisebois does not wish Mr. Laye to be involved in Haylee’s life. At this early stage in the proceedings, I choose to respect her decision.

[77] Though it did not factor into my decision regarding Haylee, I note that Mr. Laye has not provided the court with a copy of his criminal record or a copy of his request to the local CAS for any records they have about him. These documents are required under ss. 21.1 and 21.2 of the CLRS in the case of non-parent applicants seeking custody or access.

Jace

[78] Mr. Laye is, as I noted, presumptively entitled to access to Jace, given that he is Jace’s biological father.

[79] I find that his equal right to custody has been suspended because he acquiesced in Jace living on a full-time basis with Ms. Brisebois after the separation. That suspension does not mean he could never be awarded custody. The suspension lasts only until there is a separation agreement or a court order that grants him custodial rights.

[80] At this time, I will not be making an order of custody in his favour.

[81] Instead, I consider it to be in Jace’s best interests that I award temporary custody of him to Ms. Brisebois, subject to an ongoing, regular schedule of access visits with Mr. Laye. I reach this conclusion for the following reasons:

(a) I would require compelling evidence that it would be in Jace’s best interests to be separated from his sister, Haylee. That compelling evidence is not presently before the court; (b) Jace has also lived primarily with Ms. Brisebois since the date of separation. He will have a stable routine in her home that should not be interrupted without good cause; (c) By no fault of his own, I find that Mr. Laye would have a difficult time economically caring for Jace on a full-time basis. Moreover, he has only a bachelor apartment without proper provisions for Jace, such as a bed; (d) I find that Ms. Brisebois has a close and loving relationship with Jace. Apart from her poor decision to cut off Jace’s contact with his father after the break-in incident, I believe she has Jace’s best interests in the front of her mind; (e) I am not satisfied that Ms. Brisebois is presently using illicit drugs, such as crack cocaine. She is participating in a methadone program and, as such, is regularly screened for drug use. Although I have not been provided with the results of any of her screens, I infer that they are clean based on the fact that she is still receiving methadone; (f) I am not satisfied, on the present evidentiary record, that either party has mental health issues that interfere significantly with his or her ability to parent; (g) I find that, like Ms. Brisebois, Mr. Laye has a close and loving relationship with Jace. I find that they have a strong emotional bond; one that is important to Jace and worth encouraging; (h) I find that Mr. Laye has been a constant parental figure in Jace’s life; and, (i) I have some concerns about Mr. Laye’s marijuana use, but I am not satisfied that he presents a risk to Jace such that supervised access is required.

[82] Mr. Laye’s accommodations are not ideally suited to caring for a small boy. Moreover, Jace has not had a history of access visits being exercised at Mr. Laye’s apartment. I am, accordingly, going to create an access schedule that will increase gradually, to permit Jace a chance to get used to it.

[83] Specifically, I order the following:

(a) Ms. Brisebois shall have temporary custody of Haylee and Jace; (b) Jace shall have access visits with Mr. Laye as follows: (i) Commencing August 1, 2020, every other weekend, on Saturdays from 10:00 a.m. to 6:00 p.m.; (ii) Commencing October 10, 2020, access will continue to be every second weekend, but on alternate access weekends, it will include an overnight visit. Access on the weekend of October 10-11, 2020 and every second access weekend thereafter, will be from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. Two weekends later, and every second access weekend thereafter, access will be on Saturday from 10:00 a.m. to 6:00 p.m. In other words, commencing October 10, 2020 access visits will alternate between an overnight visit one access weekend and a daytime visit the next, and so on; (iii) Commencing December 5, 2020, access will be every second weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.

[84] Mr. Laye’s counsel asked that I request that the Office of the Children’s Lawyer provide assistance. I am not prepared to do so at this early stage. In my view, the parties should participate in a case conference before any request is made to the OCL. The parties are directed to schedule a case conference through the trial co-ordinators’ office.

Costs

[85] Neither party requested costs. In my view, this is not, in any event, an appropriate case for costs.

Released: July 28, 2020 Boswell J.