Court File and Parties

NEWMARKET COURT FILE NO.: FC-17-55113-00

DATE: 20200820

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ilona Kazanzhy, Applicant

AND:

Efraim Yozef, Respondent

BEFORE: A. Himel, J.

COUNSEL: A. Abramian/B. Tseitlin, Counsel for the Applicant

Respondent – Self-represented

HEARD: August 20, 2020

ENDORSEMENT

Relief Sought

[1] The Applicant Mother (the “Mother”) brings an urgent motion dated July 28, 2020 requesting that the Respondent Father (the “Father”) submit to a drug test and hair follicle test and suspending his access pending the provision of a negative test. The Mother submits that since the onset of Covid-19 (“Covid”) the Father’s behaviour has become erratic and unpredictable. Various third parties (including N.K. 1 (the “Oldest Child”) report that the Father is using drugs and, in particular, cocaine.

[2] The Father had previously filed a 14B urgent motion request on July 24, 2020 to support the reinstatement of the parenting arrangement set out in the temporary Order of MacPherson J. dated June 6, 2018 (the “Parenting Order”). He alleges that the Mother has taken the children. Kaufman J. found deficiencies in the materials and the absence of an affidavit of service. He ordered the Father to remedy the deficiencies.

Decision

[3] A summary of my Orders is as follows: (1) The Father shall attend at the DriverCheck Inc. Medical Testing and Assessments (“DriverCheck”), or to a location as directed by them, to submit to the requested tests; (2) Pending further Order of the Court or agreement of the parties, the Father’s access as set out in detail below shall continue on a fully supervised basis as per the schedule outlined at the end of this decision; (3) The access shall be supervised by Tatiana Yozef or Viktoria Kogan; (4) The children shall be transported to and from access visits by Tatiana Yozef or the driver; and, (5) The Father shall not drive with the children; (6) For the period of 12 hours before all access, and during all access, the Father shall refrain from consuming any drugs (legal or illegal except for any prescription medication); (7) The Father shall seek counselling, parenting program(s) and/or anger management support, as may be appropriate; (8) The parties shall cooperate to engage the Oldest Child in counselling. They shall each participate as requested by the counsellor. Any counselling for the Middle Child shall be as agreed, in writing; and (9) A settlement conference, before me, shall be scheduled by the Trial Coordinator.

Background Facts

[4] The parties married on August 11, 2011 and separated in August 2017.

[5] The Mother commenced an Application in 2017. Nothing has been resolved on a final basis. Moreover, the parties have been before the Court repeatedly, including ex parte and urgent motions. The high conflict approach to litigation is highly problematic and comes at significant emotional and financial costs to the parents and the children.

[6] There are three children of the marriage, the Oldest Child born March 7, 2012 (age eight), N.K. 2 (the “Middle Child” born December 22, 2015 (age four and a half)) and N.K. 3 (the “Youngest Child”) born May 20, 2017 (age three). The temporary access Order provides alternate weekend (Friday to Sunday) to the two older children, and specific day access to the Youngest Child.

[7] As a result of an incident between the parties, there is an Order that prohibits the Father from having any contact with the Mother. Details respecting same were not provided to the Court, however, the Mother advises that she was recently reminded by police that there can be no contact.

Recent Events

[8] Prior to the onset of Covid, the Father was exercising regular access to the children and he unilaterally increased his court-ordered support payments from $7,772 to $9,500, which had enabled the Mother to secure better accommodations for the children as of January 1, 2020.

[9] However, the impact of Covid included the closure of the Father’s retail outlets and he reduced (in April and May) and then stopped paying child and spousal support (from July onwards). The Mother’s states that her year to date gross income as of July 30, 2020 is approximately $33,000 plus CERB, however, by the end of July she will be left with only the amount of $6,000 due to outstanding legal fees. She initially borrowed funds from the Maternal Grandparents but she could not afford the rent and related expenses. In August 2020, she and the children vacated the rental home and moved in with the Maternal Grandparents in Bradford, Ontario.

[10] The Mother believes that the Father has been under a great deal of stress because of Covid. Since the onset of the pandemic, the Mother observed various concerning changes in the Father’s behaviour:

(a) Wild mood swings wherein he started calm and then, for no reason, would engage in unpredictable screaming, throwing things and temper tantrums;

(b) The Father’s eyes appeared red, puffy and glazed at access exchanges;

(c) The Father stopped dropping off or picking up the children, relying instead on his driver; and

(d) During two video calls on July 24, in the presence of the Mother, the children and the Paternal Grandmother (“Tatiana Yozef”), the Father screamed to the children that they should not believe anyone that their father is a drug addict. The Father refused to listen to his mother when she spoke to him twice about the inappropriateness of his behaviour.

[11] In mid-July 2020, the Mother became increasingly concerned about the children’s well-being for the following reasons:

(a) On July 14, 2020, the Oldest Child (age eight) reported concerns that the Father was using drugs and had observed him smoking “weed” in the garage while the children played in the driveway. The Father advised his son that the “weed” calmed him down. The Oldest Child also described that the Father’s behaviour had changed, that he gets upset easily, constantly yells and screams. Moreover, he reported that the Father threw a full coffee cup that smashed against a wall causing a stain. The Oldest Child disclosed that he had found a video online about a person who puts a white powder up his nose, and the consequential effect on behaviour. He believes the Father is using that type of drug;

(b) The Oldest Child also stated that he is sometimes afraid of the Father and would not want to see him if the Viktoria Kogan (the Father’s partner) was not present;

(c) On July 13, 2020, Anna Grin, the wife of the Father’s former business partner sent a copy of a text exchange between various women about a New Year’s Eve celebration (2020). One of the women observed that the Father brought cocaine to the party and left it in close proximity to the children;

(d) Mark Breslin, the Father’s step-brother’s father, reported that he believes his son and the Father are using cocaine; and

(e) The Oldest Child’s anxiety has returned as well as his nervous tick. The Middle Child is obsessively scratching one spot on her body. The Youngest Child has regressed from being toilet trained (as of December 2019) to and having accidents two to five times per day.

[12] The Father declined to address the above concerns and ignored a request made by the Mother’s legal counsel that he undergo a drug test. In response to a request for consent that the Oldest Child return to therapy, the Father stated that he looks forward to the therapist’s report, which was not responsive to the issue.

[13] The Mother unilaterally suspended the Father’s in-person access, however, she facilitated the unsuccessful video call described in paragraph 9(d) above.

[14] On July 29, 2020, I ordered that the Mother’s motion be heard on August 7, 2020, and that the relief sought by the Father would be addressed within the context of that motion, and timelines were provided. I also ordered that the Father may file a responding affidavit that addresses the deficiencies set out in the Kaufman J. Endorsement, and any other relevant evidence, and that the affidavits address Jarvis J.’s Order respecting the support owed for April to July 2020.

[15] Pending the motion being heard I made no Order with respect to the access.

[16] That same day (Wednesday July 29, 2020) the Father picked up the Oldest Child from camp and refused to return him.

[17] On August 4, 2020, the Mother filed a further 14B motion and updating affidavit seeking the Oldest Child’s return and police enforcement for a period of six months.

[18] The Father filed responding materials late and they were not served on the Mother. He acknowledged travelling with the Oldest Child and Viktoria Kogan on a successful camping trip, and explained that the child did not wish to return to the Mother when they returned to Vaughan. During this period the Father had no access to the two younger children.

[19] In his affidavit dated August 4, 2020, the Father denies using any drugs and states that he does not smoke any longer and he is not drinking. He believes that the Mother’s interference with his access and allegations arise from his inability to pay the court-ordered support due to the impact of the Covid pandemic on his business.

[20] The Father provided an affidavit from Iulia Lutsker, the woman who sent the What’s App texts respecting cocaine at the family-oriented New Year’s Eve cottage party. Ms. Lutsker, a family friend, now swears that she made up these allegations because of a conflict that existed between her husband and the Father. She now states she never saw the Father using cocaine. A second family friend, Elinor Sosonov, who received the texts on February 1, 2020, denies seeing any cocaine at the party. Ms. Sosonov attests that she has never seen the Father using cocaine. Both women describe the Father’s parenting positively.

[21] As a consequence of the Father’s failure to serve the affidavits, I made the following Orders pending the return of the motion:

1. The immediate return of the Oldest Child;

2. Day access to Father with his current partner, Viktoria Kogan, supervising;

3. The children to be transported to and from access visits by the Father’s driver;

4. A police enforcement Order;

5. For the period of 12 hours before all access, and during all access, the Father shall refrain from consuming any drugs (legal or illegal except for any prescription medication); and,

6. Timelines for serving and filing the responding materials.

[22] At the return of the motion on August 13, 2020, the Father advised that he had attended for a drug screen and would like to file the report which confirmed there was no cocaine in his system. He further advised that the test results were valid for the 30 days prior to the testing. The Mother stated that the Oldest Child was returned as per my Order, although the Father had breached the provisions respecting the individual(s) who had driven and supervised the visits.

[23] The matter was adjourned to August 18, 2020, to provide the Mother the opportunity to review the drug screen results and take a position with respect to whether further drug testing was necessary. I requested that additional evidence be provided about the efficacy of any requested tests in terms of:

(a) The process used by the lab to ensure chain of command;

(b) The methodology; and

(c) The reliability of the screen.

[24] Co-counsel for the Mother, Brigitta Tseitlin, swore an affidavit on August 14, 2020, following communications between herself and Rapid Self Test (respecting the drug screen provided by the Father). The Mother was not satisfied with that urine screen for the following reasons:

(a) It is an instant test (akin to a pregnancy test) rather than one sent to a laboratory;

(b) The test confirms only whether a person is positive or negative (qualitative rather than quantitative);

(c) There are no precautions to ensure that the sample belongs to the Respondent; and

(d) The detection levels for cocaine can be as brief as two to three days.

[25] A preliminary issue arose at the motion on August 18, 2020, being that Ms. Tseitlin, whose affidavit the Mother was relying upon, intended to argue the motion. She queried whether this was in fact a problem, given that the affidavit contained only third party information that she believed to be true. I advised that her inability to argue the motion was not negotiable. In Romanelli v. Romanelli, 2017 ONSC 2477 at para. 11), McDermot, J. held that attempting to argue the motion using counsel’s own affidavit is unreasonable and is something clearly in breach of the Law Society of Ontario’s Rules of Professional Conduct. Fortunately, Ms. Abramian was available and she argued the motion.

[26] The Father produced email letters dated August 17, 2020 from Shawn Walia, the owner of Rapid Self Test and Sahil Bhardwaj. The Father also provided the results of the testing that took place on August 13, 2020. I note that the letter was not attached to any affidavit, however no objection was made respecting the inclusion of the letter and both parties relied upon third party hearsay evidence respecting the drug screens.

[27] Mr. Walia’s letter explains that their brand of rapid tests is widely used as a preliminary screening of drugs in clinics, laboratories, addiction centers, doctors’ offices and hospitals. The accuracy of the tests is above 95% and use the same principle of an at-home pregnancy test. Ms. Bhardwaj confirms the chain of command, precautions taken to ensure that the urine is the client’s fresh sample, confirmation of identity and methodology.

[28] Mr. Walia collected the Father’s saliva and urine samples. The saliva test provided by the Father was negative for all drugs and alcohol. The Father states that this screen is accurate for a period of 36 hours prior to the testing. The urine test provided by the Father reveals that there was marijuana in his system. The information provided by Rapid Self Test indicates that cannabinoids (THC, marijuana) stay in one’s system for 5 to 60 days as described in a chart (that was not provided). The Father believes marijuana can be detected 30 days prior to the provision of the urine sample. He admits that he was using marijuana until three weeks prior to the motion.

[29] The Father argues that the Rapid Self Test saliva and urine screen results are sufficient. The Mother maintains that deficiencies in the testing and the Father’s decision to go to Rapid Self Test rather than DriverCheck (as per her request) support her concern that he has been using drugs. She notes that even on the information provided by Rapid Self Test, the detection times and cut-offs for screening cocaine is one to four days, and it is the Father’s use of that drug over the past several months that necessitated that this motion.

[30] While the Father does not believe that any further testing is necessary, he advised the Court that he will comply with any Order made respecting testing, as well as any requirement for the ongoing supervision of his access. The Father states that he loves the children and wishes to have his parenting time expanded (which was reduced when I reinstated his parenting time on August 6, 2020).

Issues and Analysis

The Law

[31] The claims in respect of custody and access are made under both the Divorce Act and the Children’s Law Reform Act.

Custody/Access – Divorce Act

[32] In assessing custody and access issues, section 16 of the Divorce Act, [R.S.C. 1985 c. 3 (2nd Supp) provides direction to the Court. Section 16 reads:

Interim order for custody

16 (2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Custody/Access – Children’s Law Reform Act

[33] In assessing custody and access issues under the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended (the “CLRA”), Section 21(1) provides that a parent of a child or any other person 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.

[34] Section 24 of the CLRA reads as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Order Varying an Order

Section 29 of the CLRA reads as follows:

(29) A court shall not make an order under this Part that varies an order in respect of custody and access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

The Request for a Panel Urine and Hair Follicle Drug Tests

[35] The Father’s behaviour and the children’s responses, as set out in the Mother’s affidavits, are troubling. The three children are young. Their physical safety and emotional health are paramount.

[36] I am concerned that the Father has been using cocaine and/or some other substance which has affected his parenting for the following reasons:

(a) While the Mother acknowledges that the Father is experiencing considerable stress (which she believes may be related to any drug use), there is no reasonable explanation offered by the Father in response to the serious allegations about his changes in behaviour and appearance;

(b) The Father did not address many of the allegations respecting his behaviour or the concerns about his children’s changed behaviours in his affidavit;

(c) In response to the motion, the Father opted to provide an affidavit from a family friend (Ms. Lutsker) recanting statements that she observed the Father bringing cocaine to the cottage New Year’s Eve party. It is not credible that she fabricated this significant allegation in response to her frustration about a dispute between her husband and the Father. While there may have been such a dispute (which has presumably been resolved given the recanting statement in her affidavit), I find the allegation, made within weeks of the cottage party, to be concerning;

(d) The Father opted not to file an affidavit from Mark Breslin (his step-brother’s Father), or from his Mother (who attempted to facilitate the two explosive video calls on July 24);

(e) The provision of a drug screen voluntarily, while a positive step, does not address the concern about drug use from January 2020 to present. The Father was aware that DriverCheck drug screens provide historical information and he chose to submit to a rapid test. These tests provide no information about quantity and cover a considerably shorter time span for the detection of drugs; and

(f) The Father stopped driving the children to and from his access visits, a decision that pre-dates my Order. At the initial return of the motion, the Father confirmed that he is not presently driving the children.

[37] In order to address the concerns respecting the Father’s drug use given the impact on his parenting, the appropriate next step is a testing mechanism that will provide data for a period of several months.

[38] I am mindful of the concerns arising from the Motherrisk Commission as highlighted by Pugsley, J. in Koenigsberger v. Parsons, 2018 ONCJ 803 at para 28:

It is concerning that no party seems to have considered the propriety of non-forensic hair follicle testing on the essential issue of a child’s residency so recently criticized with scathing effect by the Motherrisk Commission (2015). Although that Commission dealt with the scandalous misuse of hair follicle testing undertaken by one Toronto lab at a world-renowned hospital in child protection matters, a key aspect of the inquiry related to the differences between the standards applied in forensic drug testing and medical drug testing, and the risks of misstated test results when used out of context and for the wrong reason.

[39] To address that concern I requested further evidence about the efficacy of the proposed drug screens, which was provided to me by the Mother’s co-counsel following a communication with Jennifer McKinnon of DriverCheck.

[40] Ms. Tseitlin states the following in her affidavit:

(a) DriverCheck administers testing for the U.S. Department of Transportation (“DOT”) which are limited to individuals who are employed by transportation companies that cross the Canadian/U.S. border as part of their business. They also administer non-DOT testing;

(b) The DOT publishes regulations and provides official interpretations on drug and alcohol testing, including how to conduct tests, and the evaluation and treatment procedures necessary for returning employees to duty after testing violations;

(c) DriverCheck follows the DOT requirements on all non-DOT screens;

(d) A person wishing to undergo drug testing contacts DriverCheck and attends at one of their affiliated laboratories (such as Dynacare). An employee of the laboratory, who is an accredited collector of samples, stands outside the washroom while the individual provides his urine sample. The employee listens to ensure the urine sample is being provided, and subsequently smells the sample and checks the temperature to ensure that it is a fresh sample;

(e) The sample is sealed, placed inside a sealed container and then inside a sealed courier envelope which is couriered to the off-site laboratory for testing. If there are concerns that the sample is compromised, it is not processed and DriverCheck is so advised;

(f) Detection limits for drugs differ between drugs and also differ based on the individual’s weight, level of physical activity, the dose of the drug taken and the frequency of the dosing and metabolic rate;

(g) The detection limit for cocaine in urine can be as brief as two days and 36 hours for marijuana; and

(h) A hair follicle sample can detect levels of drugs in the system for three months and up to six months, if a six month test is requested or court ordered.

[41] The evidence provided by Ms. Tseitlin addresses my concerns about: (1) The process used by the lab to ensure chain of command; and (2) The methodology. I am satisfied that the temporary Order is reasonable and will assist the Mother to be reassured that the Father is not using drugs (such that his access will no longer need to be supervised and he can once again drive the children), or it will enable to Court to support and encourage the Father to obtain appropriate treatment.

[42] The reliability of the drug tests can be addressed through the provision of a letter from DriverCheck responding to this issue, along with a copy of the curriculum vitae of the laboratory technician conducting the tests setting out his/her experience and expertise.

[43] I am mindful that a primary concern described by the Motherrisk Commission is that in various child protection cases, “seemingly damning test results sought to be used to take a child away from a caregiver which in many sad cases proved to have no real reliability at all” (Koenigsberger v. Parsons, supra at para. 30).

[44] However, in this case the purpose is not to take the children away from the Father and, in doing so, terminate his relationship with the children. The Father’s access with the children will continue, under the supervision of his new partner or his mother, until such time that the concerns relating to his drug use, if any, are addressed to the satisfaction of the Mother and/or the Court.

[45] Whether the tests return positive or negative, the Court expects the Father to take steps to work with a counsellor, participate in a parenting program and/or attend for anger management to address the behaviours that lead to this motion. It is in the children’s best interests for the Father’s parenting to return to the positive parenting style that was in place prior to the last several months.

The Father’s Access

[46] Following the Mother’s unilateral decision to withhold the children in July 2020 and to bring this urgent motion, and the Father’s unilateral decision to pick up the Oldest Child from camp on July 29, 2020 and to decline to return him, I varied the Father’s access on August 6, 2020. The current Order provides the Father with access from 10:00 a.m. to 7:00 p.m. on Wednesdays and Sundays, supervised by his new partner or his mother.

[47] While there was an initial issue with the Father’s compliance (in respect of who transported the children and who provided the supervision), it appears that these are now resolved.

[48] The Mother no longer requests that the Father’s access be suspended, merely that it continue to be supervised.

[49] The Father requests a return to the schedule provided for in the MacPherson J. Order dated June 6, 2018.

[50] That is a reasonable request in respect of the balance of the summer, so long as the access continues to be supervised by Tatiana Yozef or Viktoria Kogan. The concerns respecting the Father’s use of drugs meets the test of a material change of circumstances that warrants supervision. Drug or alcohol addiction on the part of one of the parents, coupled with the children doing poorly as a result of the parenting regime, qualify as compelling reasons to vary a temporary Order. (See for example, Shotton v. Switzer, 2014 ONSC 843).

[51] Following the Father’s non-payment of child and spousal support which resulted in the temporary move to the Maternal Grandparents’ home in Bradford, Ontario, the children currently reside one hour away from the Father’s home in Vaughan. I find that there are compelling circumstances that are sufficient to justify the move (See for example, Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ)).

[52] A different parenting time schedule is required once the older two children attend Chris Hadfield Public School in September 2020. The parenting time schedule set out below provides the Father with parenting time each weekend, as well as mid-week time in the Maternal Grandparent’s community. It is designed to ensure ongoing regular contact between the Father and the children, while recognizing the challenges faced by the requirement that the access be supervised and the distance between the two residences.

[53] If the Ontario Government imposes restrictions on the Father’s ability to take the children to indoor public places, (such as a library, shopping center, restaurant or community center) the mid-week access may need to be suspended temporarily. I trust the parties to work together to ensure that regular access continues if Covid restrictions are imposed.

[54] Once the financial issues have been resolved and the Mother’s financial circumstances (child support, spousal support and/or employment income) are sufficient to enable her to rent suitable accommodations for herself and the children, she shall secure housing within a reasonable timeframe that complies with paragraph 5 the MacPherson, J. Order. That Order requires the Mother to reside within 15 km radius of 19 Sir Francesco Street, Maple. If, once the financial issues have been resolved, the parties cannot agree whether the Mother’s financial circumstances are sufficient to enable her to return to Maple, Ontario, and/or the timing of the move, either party may bring a motion.

Order to Go as Follows:

1. Within 48 hours, the Father shall submit to a urine panel drug test that includes cocaine and a six month hair follicle test. The drug screens shall be facilitated through DriverCheck Inc. Medical Testing and Assessments.

2. The results shall be sent directly to the Father and the Mother and/or her legal counsel.

3. The Mother shall file the results of the testing as well as a letter from DriverCheck responding to the issue of the reliability of the testing, along with a copy of the curriculum vitae of the laboratory technician conducting the tests setting out his/her experience and expertise.

4. Pending negative results for cocaine or other illegal drugs on the DriverCheck drug screens, further Order of the Court or the written agreement of the parties, the Father’s access shall be supervised by Tatiana Yozef or Viktoria Kogan. If neither supervisor is available, the access shall be forfeited or shall end when the supervisor is no longer available.

5. A supervisor other than Tatiana Yozef or Viktoria Kogan may supervise the visits if he/she has been agreed to by the Father and Maternal Grandmother or Mother’s counsel, in advance of the pick up and in writing. The Father shall provide as much notice as possible if any access needs to be reduced or cancelled.

6. The pick up and drop off for all access shall take place at the Maternal Grandparents’ home. The driver or Tatiana Yozef shall pick up and deliver the children for access without any other accompanying adult, unless otherwise agreed to by the parties in writing.

7. Pending further Order of the Court or agreement of the parties, the Father’s access shall be as follows for all three children of the marriage:

(a) Summer Access 2020:

i. Saturday August 22, 2020 from 10:00 a.m. to Sunday at 7:30 p.m.;

ii. Friday September 3, 2020 from 10:00 a.m. to Sunday at 7:30 p.m. (unless the parties agree that the Father may take the Oldest Child on a long weekend within Ontario and supervised by Tatiana Yozef or Viktoria Kogan, in which case access shall be limited to the Oldest Child for the dates agreed to by the parties in writing);

iii. Wednesday August 26 and September 3, 2020 from 10:00 a.m. to Thursday at 7:30 p.m.; and

iv. Monday August 31, 2020 from 10:00 a.m. to Tuesday at 7:30 p.m.

(b) Regular Schedule: For so long as the children reside with the Mother in the Maternal Grandparents’ home and the Father resides more than 15 km away:

i. Week 1 - Commencing Saturday September 12, 2020 at 4:30 p.m. to Sunday at 7:30 p.m., on alternate weekends;

ii. Week 2- Commencing Friday September 17, 2020 at 4:30 p.m. to Sunday at 7:30 p.m., on alternate weekends; and

iii. Every Wednesday in the community where the Maternal Grandparents reside from 4:30 p.m. to 7:30 p.m.

(c) The Holiday Parenting Schedule: As per paragraph 4 of the MacPherson J. Order dated June 6, 2018.

8. The Father shall not drive with the children and he shall not be present during access exchanges.

9. For the period of 12 hours before all access, and during all access, the Father shall refrain from consuming any drugs (legal or illegal except for any prescription medication).

10. The Father shall seek counselling, parenting program(s) and/or anger management support, as may be appropriate.

11. The parties shall cooperate to engage the Oldest Child in counselling. They shall each participate as requested by the counsellor. Any counselling for the Middle Child shall be as agreed, in writing.

12. A settlement conference, before me, shall be scheduled by the Trial Coordinator.

13. In the circumstances of the Covid emergency, this Endorsement is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval of this Order is dispensed with: either party may submit a formal Order for signing before me.

DATE: August 20, 2020 Justice A. Himel