Court File and Parties

COURT FILE NO.: FS-20-16004

DATE: 2020-09-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARISSA JOSEPH, Applicant

AND:

LASZLO MOLNAR, Respondent

BEFORE: Justice Lorne Sossin

COUNSEL: Heather Hansen, Counsel, for the Applicant

Joan Cushon, Counsel, for the Respondent

ENDORSEMENT

OVERVIEW

[1] The parties have each brought motions relating to parenting rights, an assessment under s.30 of the Children’s Law Reform Act, a restraining order and related relief.

[2] The parties were married on 2012. The date of separation remains in dispute.

[3] The parties have one child, Braeden, who is five years old.

[4] Both Dr. Joseph, the applicant mother, and Mr. Molnar, the respondent father, claim to be the primary caregiver for Braeden.

[5] Mr. Molnar was diagnosed with Bipolar Affective Disorder 1, in 2001.

[6] Following an altercation with his father on October 22, 2017, Mr. Molnar was brought by the police to a hospital, where he was involuntarily admitted for a period of days.

[7] On October 26, 2017, Dr. Joseph, the applicant mother, brought an urgent, ex-parte motion and obtained temporary sole custody of Braeden, an order that Braeden reside with her on a temporary basis and a restraining order against Mr. Molnar.

[8] Once Mr. Molnar was discharged from the hospital, Mr. Molnar’s access was limited to FaceTime calls. The parties retained Brayden Supervision in December 2017 to supervise Mr. Molnar’s access at their access centre. This arrangement remained in place until April 2018.

[9] In the Spring of 2018, the parties negotiated and then executed a Separation Agreement on April 23, 2018.

[10] The Separation Agreement set out that Dr. Joseph would have sole decision-making authority for major decisions relating to Braeden after first consulting with Mr. Molnar. The parties agreed that Mr. Molnar would return to the home.

[11] The parties disagree as to whether the Separation Agreement remains in effect.

[12] Dr. Joseph’s application for divorce was filed on March 5, 2020.

[13] Dr. Joseph brought an urgent motion on March 12, 2020 seeking specified parenting time for Mr. Molnar to be supervised by Brayden Supervision.

[14] The motion was adjourned by Justice Kiteley who specified interim arrangements pending a case conference and the return of the motion.

[15] On March 12, 2020, Justice Kiteley ordered interim access for the respondent on a without prejudice basis on the following schedule: Saturdays (from 12pm to 4pm) and Mondays, Wednesdays, and Fridays (from 3pm to 6pm), to be supervised by his mother or the party’s nanny. The respondent was also ordered not to enter the matrimonial home at pick up or drop offs and that neither parent shall disparage the other to Braeden or others.

[16] This Order was continued by Justice Kiteley with slight modifications (clarifying that supervision would be by Braeden’s nanny or the paternal grandmother, not both, and further restricting contact between the parties) in her endorsement of April 17, 2020, following a case conference.

[17] Dr. Joseph now brings a motion for the following relief:

a. An Order that Braeden shall continue to reside solely with Dr. Joseph on an interim basis;

b. An Order that the Mr. Molnar shall have parenting time with Braeden on the following without prejudice schedule:

i. Wednesdays 3:00pm to 6:00pm; and

ii. Alternating Saturdays from 12:00pm to 4:00pm.

c. An Order that Mr. Molnar’s parenting time shall be supervised by Brayden Supervision Services, at the parties’ equally shared cost.

d. Pursuant to s.35 of the Children’s Law Reform Act and/or s.46(3) of the Family Law Act, a restraining order is made requiring that Mr. Molnar:

i. Shall not directly or indirectly contact or communicate with the Dr. Joseph, other than as set out below;

ii. Shall not come within 100 metres from any residence or workplace of Dr. Joseph, including the home and SickKids Hospital.

e. An Order for an assessment pursuant to s.30 of the Children’s Law Reform Act, to be performed by Dr. Peter Jaffe, at the parties’ equally shared cost.

[18] Mr. Molnar brings a cross-motion for the following relief:

a. An Order that the Applicant’s motion shall be dismissed with costs.

b. An Order that the terms of the Separation Agreement between the parties shall be set aside as to “custody” and decision making.

c. An Order that the parties shall have joint custody of and/or jointly parent Braeden, and more specifically an order that neither parent shall make important decisions about Braeden, including changing his current school, without the consent of the other.

d. Alternatively, if there is no Order as to joint parenting or custody, an Order that neither parent shall make important decisions about Braeden including but not limited to changing his current school, without the consent of the other.

e. An Order that Braeden shall reside with both parents pending a final resolution of parenting, and more specifically no less than 50% of the time with Mr. Molnar;

f. One of the following parenting time schedules:

Option A –

i. Braeden shall be with Respondent/Father as follows: 1. Sunday 9am to Tuesday 9am; and 2. Wednesday 3pm to Thursday 3pm; and Friday 3pm to Saturday 3pm

ii. Braeden shall be with Dr. Joseph follows: 1. Tuesday 9am to Wednesday at 3pm; and 2. Thursday at 3pm to Friday 3pm; and 3. Saturday 3pm to Sunday 9am.

Option B

iii. Braeden shall be with Mr. Molnar as follows: 1. Sunday 9am - Tuesday 9am; and Wednesday 3pm - Friday 3pm

iv. Braeden shall be with Dr. Joseph as follows: 1. Tuesday 9am- Wednesday 3pm; and Friday 3pm to Sunday 9am.

Option C

v. i. Braeden shall be with Mr. Molnar as follows: 1. Wednesday 3pm to Sunday 3pm

vi. Braeden shall be with Dr. Joseph as follows: 1. Sunday 3pm to Wednesday 3pm

Option D

vii. Braeden shall be with each party on a rotating 2-2-3 schedule

g. An Order that Mr. Molnar’s parenting time with Braeden shall be unsupervised.

i. Alternatively, and in the event that the Court does not order unsupervised parenting time for Mr. Molnar, then an Order that his parenting time shall be either in his own condo in North York or in the home of his parents, with either the parties’ former nanny or his mother or his father available to provide assistance as may be necessary for a period of one month and thereafter, the level and amount of assistance shall be reduced or eliminated, and

h. An Order that, if this Court deems appropriate, if the paternal Grandmother or such other “supervisor” and Dr Filipczuk the parties agree, the supervision should be extended either at the same or reduced level.

i. In the event that any level of supervision/assistance of either party is ordered, an Order that the level of supervision shall be specified.

j. An Order that either parent may Facetime the child, Braeden, before bedtime when he is staying overnight with the other parent.

k. In the event that the Court deems a parenting assessment to be necessary, Dr. Jaffe shall not be appointed to complete a s.30 assessment. Instead:

i. the Office of the Children’s Lawyer shall be requested to undertake to assist the Court with a s.112 assessment; or

ii. a s.30 Assessor shall be determined on consent by the parties or further motion.

ANALYSIS

[19] The issues in dispute on these motions are:

a. Is a s.30 assessment of Braeden warranted, and if so, who should carry out this assessment and who should cover the cost of this assessment?

b. Is a change to parenting time and arrangements warranted?

c. Is a restraining order warranted?

d. Is any order respecting the matrimonial home warranted?

[20] Each issue is addressed below.

(1) Section 30 Assessment

[21] Dr. Joseph seeks an assessment pursuant to s.30 of the Children’s Law Reform Act which would appoint an expert assessor to examine the needs of Braeden and ability and willingness of the parties to satisfy his needs.

[22] While the assessment process is ongoing, Dr. Joseph proposes that Mr. Molnar’s parenting time is restricted and supervised.

[23] Dr. Joseph argues that while private supervision is not a long-term solution, it is the safest option pending the results of a s.30 assessment and development of an appropriate parenting plan.

[24] Dr. Joseph proposes the s.30 assessment be completed by Dr. Peter Jaffe. Dr. Jaffe has expertise in relation to mental health issues, safety concerns and high conflict family disputes.

[25] Mr. Molnar argues that a s.30 assessment is not warranted.

[26] Mr. Molnar submits that if an outside perspective is necessary, it should be provided by the Office of the Children’s Lawyer (OCL), rather than a s.30 assessment.

[27] Mr. Molnar also proposes therapeutic intervention (e.g. play therapy) to address the symptoms Braeden appears to be exhibiting.

[28] Subsection 30(1) of the Children's Law Reform Act gives the court the authority to grant an assessment as follows:

The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

[29] Section 19(a) of the Children's Law Reform Act sets out that applications seeking custody and access “will be determined on the basis of the best interests of the children.”

[30] A specific clinical issue is not required to order an assessment; Glick v Cale, 2013 ONSC 893. However, it is equally clear that s. 30 assessments should not be routinely ordered; Hauber v. Sussman, 2019 ONSC 6369.

[31] In Glick v Cale, Kiteley J. set out criteria relevant to the decision whether to order a s. 30 assessment (at para. 48):

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child's needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining "high conflict", is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent's ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

[32] Considering these criteria in the context of this case, I am not persuaded an assessment is necessary or in the best interests of Braeden.

[33] There is some evidence that Braeden has been affected by the conflict between the parties. For example, according to Donna McDonald, the former nanny, there is some indication of Braeden regressing in his toilet training. Ms. McDonald also deposed that Braeden has manifested other concerning behaviours, including ideations of self-harm.

[34] Mr. Molnar restates Ms. McDonald’s concerns regarding Braeden’s behaviour, but it is not clear that these concerns are based on Mr. Molnar’s own observations.

[35] Dr. Joseph does not report similar concerns over Braeden’s development or behaviour. Rather, she gives evidence of concerns over what Braeden says after spending time with Mr. Molnar. For example, when Dr. Joseph reported Braeden saying, “Yon don’t love me as much as Daddy, Daddy says.”

[36] While each parent raises some concerns with the parenting competencies of the other, the parents appear able to meet Braeden’s needs.

[37] In Kerr v. Pickering, 2013 ONSC 317, at para. 17, Chappel J. stated, “Although there is a conflict regarding the timesharing regime which would be in the best interests of Grace, the input of an expert is not in my view required in order for the court to make a decision on this issue. Both parties are able to testify as to Grace’s progress and adjustment, there is a child care provider who can also testify on these issues, and any medical professionals involved with the child would be able to assist the court in determining Grace’s health needs and the ability of the parties to meet those needs.”

[38] In my view, a similar analysis applies in this case. In this case, there is ample information about the quality of the parent-child interactions as set out by the parties themselves, family members, the former nanny and others who have had an opportunity to observe the parenting of the parties.

[39] The only clinical issues identified in this case relate to Mr. Molnar’s bipolar condition, but the only expert evidence in the record, from Dr. Filipczuk specifically states that there is no basis for the view that Mr. Molnar’s condition has or will affect his parenting, or the safety or well-being of Braeden.

[40] I find that the proposed assessment, and interruption of Mr. Molnar’s parenting time pending the outcome of the assessment, is not in Braeden’s best interests.

[41] Rather, it is in the interests of both parties, and Braeden’s best interests, to move this matter to trial as quickly as possible so that the parties can acquire some degree of certainty in their affairs and move on with their lives.

[42] In the interim, therapeutic intervention to address Braeden’s behavioural issues should be arranged, and I urge the parties to collaborate on facilitating this support for Braeden.

[43] For these reasons, I find that a s.30 assessment is not required at this time.

(2) Parenting Time and Supervision

[44] At present, as set out above, under Justice Kiteley’s April 17, 2020 Order, the interim parenting time arrangements in place are as follows: Braeden is with Mr. Molnar from noon to 4:00 p.m. Saturdays and on Mondays, Wednesdays and Fridays from 3 – 6 p.m.

[45] The Order of Justice Kiteley stipulated that Mr. Molnar shall not enter the former matrimonial home either at pick up or drop off, and that Mr. Molnar’s parenting time shall be supervised either by the nanny or his mother.

[46] Dr. Joseph seeks the related relief of reduced parenting time for Mr. Molnar, and that the parenting time be supervised by Brayden Supervision Services, a private, professional agency, offering in-home or community supervision.

[47] Mr. Molnar submits that there is no basis for a reduction of parenting time, and that the preponderance of affidavit evidence establishes that he is a loving, caring and competent parent.

[48] There are two issues with respect to parenting which need to be determined: first, whether a change in the parenting time arrangements is warranted, including supervision; and second, whether a change in the pick-ups and drop-offs of Braeden is warranted, including the involvement of third parties.

Is a change in parenting time warranted?

[49] Dr. Joseph seeks to further curtail Mr. Molnar’s parenting time, and to continue supervision by a professional third party for Mr. Molnar’s remaining parenting time.

[50] Mr. Molnar presents several options to expand his current parenting time to an equally shared parenting arrangement, and argues supervision is unnecessary.

[51] Section 16(10) of the Divorce Act provides that, “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…”

[52] Generally, the parent seeking unequal contact has the onus of rebutting the presumption of maximum contact; and the greater the restriction sought, the more important it becomes to justify that restriction.

[53] The goal of maximum contact with each parent, while a mandatory consideration, is not absolute; Berry v. Berry, 2011 ONCA 705, at para. 27.

[54] The legislation is clear, however, that maximum contact can only be restricted to the extent that it conflicts with the child’s best interests; Tovell v. Jamieson, 2017 ONSC 5079.

[55] Dr. Joseph relies on JBH v TLG, 2014 ONSC 3569, where Justice Lafreniere dismissed the father’s application for primary care of a 5 year-old child and ordered supervised access. Lafreniere J. expressed concern for the father’s mental health, his inability to govern his behaviour and this lack of insight into how his actions in undermining the mother have the potential to place the child at risk of emotional harm (at para. 366).

[56] Leaving aside the factual differences between JBH v TLG and this case, Lafreniere J. had the benefit of a long trial, and the testing of extensive evidence before reaching findings in relation to the impact of the father’s mental health condition on his parenting.

[57] In this case, there is untested, affidavit evidence from each party that paints a starkly different picture of the other parent.

[58] Further, there are third party affiants who support each party’s version of events.

[59] It should be possible to rely on the former nanny, Ms. McDonald, as a neutral but knowledgeable caregiver in Braeden’s life. Ms. McDonald’s affidavit evidence generally supports Mr. Molnar, although the souring of the employment relationship between Ms. McDonald and Dr. Joseph renders her evidence far from neutral.

[60] Considering the significant disruption in Braeden’s life over the past year, I recognize a need to maintain some stability in the parenting time arrangements now in place, pursuant to Justice Kiteley’s interim order, including with respect to supervision.

[61] The goal, however, should be incrementally to increase Mr. Molnar’s parenting time, and decrease the added element of supervision.

[62] Looking at the record in this case from the standpoint of Braeden’s best interests, I do not see a basis for denying Braeden more contact with Mr. Molnar.

[63] The parties also differ on the issue of supervision.

[64] Dr. Joseph proposes that third party, professional supervision is warranted.

[65] Mr. Molnar states that if supervision is to be continued, it should be with Ms. McDonald, or Braeden’s paternal grandmother or grandfather.

[66] While Braeden was trusted in the care of Ms. McDonald without incident in the past, the lack of trust between Ms. McDonald and Dr. Joseph makes her unsuited for the role of supervision.

[67] I am less persuaded by the applicant’s objection to Braeden’s paternal grandparents, and in particular, his paternal grandmother. There is little if any basis in the evidence for the view that Braeden would be at any risk in his grandmother’s care, or with his grandmother’s supervision of parenting time with the respondent.

[68] Therefore, with respect to supervision of parenting time, if the paternal grandmother is available, she shall supervise Mr. Molnar’s parenting time.

[69] If the paternal grandmother is not available, and the parties are unable to agree on an alternative family member or third party to supervise parenting time, then the services of a mutually agreed upon professional service shall be retained, with the cost to be split on a 50/50 basis.

Is a change in the handovers of Braeden warranted?

[70] A source of tension at the moment appears to be the pick-ups and drop-offs of Braeden.

[71] Therefore, one goal in the determination of parenting time should be to reduce the number of handovers.

[72] Additionally, I accept the need for the involvement of a third party in handovers of Braeden, though the friction accompanying handovers may well be diminished by the commencement of in-person school this September, and the opportunity for Mr. Molnar to pick up Braeden for weekday parenting time from school.

[73] Therefore, if the paternal grandmother is available, she shall oversee the handovers involving Braeden.

[74] If the paternal grandmother is not available, and the parties are unable to agree on an alternative family member or third party to supervise parenting time, then the services of a mutually agreed upon professional service shall be retained, with the cost to be split on a 50/50 basis.

Conclusions on parenting time

[75] For the reasons stated above, it is appropriate to modify the current, interim parenting time arrangements on an incremental basis, in two initial stages.

[76] For the first stage, commencing September 7, 2020, the Saturday parenting time will be expanded into overnight parenting time, so that Mr. Molnar will pick up Braeden at 12:00 pm on Saturday, September 12, 2020, and return Braeden at 12:00pmon Sunday, September 13, 2020, and for the Saturdays/Sundays thereafter, for a further four-week period.

[77] The overnight, weekend parenting time may be at Mr. Molnar’s residence or the parental grandparent’s residence.

[78] The overnight, weekend parenting time will be supervised by Braeden’s parental grandmother.

[79] The weekday parenting time between Mr. Molnar and Braeden will be modified to Wednesday and Friday, 3:00pm to 6:00pm.

[80] This modification and the removal of the Monday afternoon parenting time means the number of handovers will be reduced from four to three, while Mr. Molnar’s overall weekly parenting time will be increased.

[81] Further, the daytime parenting time on Wednesday and Friday, will no longer need to be supervised, commencing on September 16, 2020, although the handovers between the parties will still require the involvement of Braeden’s parental grandmother.

[82] The second stage of the parenting time arrangements will commence on October 5, 2020.

[83] In this second stage, Mr. Molnar’s parenting time will increase to Wednesday 3:00pm – Friday 3:00pm, and Saturday 12:00pm - Sunday 12:00pm.

[84] Also commencing on October 5, 2020, this parenting time will be without supervision, although the involvement of Braeden’s parental grandmother still will be required for all handovers.

[85] This second stage will be in place for two months. After that period, commencing the week of December 7, 2020, a third stage will commence, which will reflect roughly equal parenting time.

[86] I reiterate that for purposes of supervision in Stage One and handovers in Stage One and Stage Two, if the paternal grandmother is not available either for supervising parenting time or handovers, and the parties are unable to agree on an alternative family member or third party to supervise parenting time, then the services of a mutually agreed upon professional service shall be retained, with the cost to be split on a 50/50 basis.

[87] In the first week of December, prior to the conclusion of Stage Two of the parenting arrangements, the parties shall schedule a case conference in order to address which option for roughly equal parenting time may be preferable, among the options proposed by Mr. Molnar, or a further option which may be negotiated by the parties.

(3) Restraining Order

[88] Dr. Joseph seeks a restraining order against Mr. Molnar.

[89] Pursuant to s.35(1) of the Children's Law Reform Act (“CLRA”) and s.46(1) of the Family Law Act (“FLA”) the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful.

[90] Section 35(1) of the CLRA reads as follows:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[91] Section 46 of the Family Law Act provides:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

[92] In Children’s Aid Society of Toronto v. L.S., 2017 ONCJ 506, Paulseth J. reviewed the case law on restraining orders and summarized the key principles (at para. 44):

• Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

• A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

• It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.

• Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.

• The person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

• A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

• It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

• A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

• A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

• Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242.

• In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra.

• It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. See: D.C. v. M.T.C., supra.

• A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. See: F.K. v. M.C., supra.

• A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Children’s Law Reform Act. On a temporary motion the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

• In Catholic Children’s Aid Society v R.M. (2015) O.J. No 4305 (SCO), Justice Chappell considered the long history of domestic violence, the history of failing to comply, current threats at the time of access visits, and the fact that the protection of the Society would no longer be a “safety buffer” in granting a restraining order in a matter under the same Act.

[93] Dr. Joseph argues that a restraining order is needed based on her observed conduct of Mr. Molnar. She states in her factum (at para. 123):

Laszlo has no boundaries. He feels entitled to enter the home, to intimidate of scare Marissa when he feels like it. On numerous occasions since he has vacated the home, Laszlo has entered the home without Marissa’s permission and/or when she is not there. On one occasion, he attended at the home and removed part of Marissa’s home alarm system. On that same occasion, he attended at the home with his brother (whom the parties previously agreed posed a safety risk and could not spend time with Braeden), and left a “noose” on Marissa’s bed.

[94] While I accept that Dr. Joseph has a degree of subjective fear for her safety in light of Mr. Molnar’s conduct, I am not persuaded there is a need for a restraining order at this point in time.

[95] The affidavit evidence of Dr. Joseph, while a basis for legitimate concern, has not been tested, and is denied by Mr. Molnar.

[96] Dr. Filipczuk, who has been treating Mr. Molnar, has deposed that at the present time, Mr. Molnar is not a threat to anyone’s safety.

[97] While Dr. Joseph takes issue with Dr. Filipczuk’s evidence, and believes it is internally inconsistent with other contemporaneous notes and observations by Dr. Filipczuk, there is no other expert report or affidavit in the record regarding Mr. Molnar’s condition.

[98] In my view, there is not a sufficient basis on this record to conclude that there has been a history of harassment sufficient to justify a restraining order.

[99] I would characterize this case as a case where a no-contact order constitutes an alternative to a restraining order that can accomplish similar goals.

[100] I am persuaded that a no-contact order is appropriate as part of the interim arrangements arising from this motion.

[101] In her endorsement of April 17, 2020, Kiteley J. ordered that the parties were to communicate using Our Family Wizard (OFW) and only about issues regarding the child. Additionally, neither parent was permitted to initiate contact more than two times per day, (or two times in a 24-hour period). Finally, in light of tensions arising in the aftermath of the COVID-19 pandemic, Justice Kiteley ordered that the parties were to have no contact with respect to discussing social distancing.

[102] In light of the escalating tensions since April 17, 2020, I find that it is appropriate to expand the no-contact order.

[103] Therefore, absent an emergency, the parties are not to have contact with one another, except the limited written contact using OFW respecting child-centred issues, as stipulated in Justice Kiteley’s endorsement of April 17, 2020.

[104] For added clarity, and in light of additional allegations of inappropriate disparagement and surveillance, the no-contact order extends to not disparaging each other, or engaging in surveillance of any kind of each other.

[105] Additionally, for clarity, Mr. Molnar is not to visit or contact Dr. Joseph at work.

[106] The compliance with this no-contact order can also be assessed at the case conference, to be scheduled for the first week of December, 2020.

(4) Exclusive Possession of the Matrimonial Home

[107] In oral submissions, Dr. Joseph raised the issue of the need for an order of exclusive possession of the matrimonial home.

[108] Mr. Molnar’s position is that this issue need not be addressed at this time.

[109] I agree.

[110] Dr. Joseph’s factum does not address this issue, nor did Mr. Molnar’s factum respond.

[111] In the absence of full argument, and without any pressing need to resolve the issue at this time, I decline to make an order in relation to the matrimonial home.

[112] Justice Kiteley’s order that Mr. Molnar not enter the matrimonial home, however, is continued.

ORDER TO GO AS FOLLOWS

[113] For the reasons set out above, neither party has been completely successful on their motion.

[114] I make the following Order in relation to the parenting time schedule:

Stage One – September 9 – October 4, 2020

a. Commencing September 9, 2020 Mr. Molnar’s parenting time with Braeden will be on Wednesday and Friday, 3:00pm-6:00pm, and Saturday, 12:00pm- Sunday 12:00pm;

b. At all other times, Braeden shall be under the care of Dr. Joseph.

c. Braeden’s paternal grandmother shall supervise Mr. Molnar’s weekend parenting time and oversee all handovers of Braeden, if available.

Stage Two – October 5 – December 6, 2020

d. In Stage Two, commencing on October 5, 2020, Mr. Molnar’s parenting time will increase to the following times: Wednesday 3:00pm – Friday 3:00pm, and Saturday 12:00pm to Sunday 12:00pm.

e. At all other times, Braeden shall be under the care of Dr. Joseph.

f. In this stage, Mr. Molnar’s parenting time no longer needs to be supervised, though the parental grandmother’s involvement will continue to be required for handovers.

g. If the paternal grandmother is not available either for supervising parenting time or handovers, and the parties are unable to agree on an alternative family member or third party to supervise parenting time, then the services of a mutually agreed upon professional service shall be retained, with the cost to be split on a 50/50 basis.

No Contact

h. Absent an emergency, the parties are not to have contact with one another, disparage one another, engage in surveillance of one another of any kind, and shall limit their communications to written contact using OFW respecting child-centred issues, as stipulated in Justice Kiteley’s endorsement of April 17, 2020.

[115] If the parties cannot agree on costs, the parties shall submit brief written submissions as to costs, not to exceed 3 pages, together with a costs outline. Mr. Molnar shall submit his submissions on costs by September 14, 2020, and the Applicant shall respond, by September 28, 2020.

[116] This judgment and resulting order are effective from the date indicated below and are enforceable by law without any need for entry and filing. Either party may nonetheless submit a formal order for original signing, entry and filing when the Court returns to regular operations.

Sossin J.

Released: September 1, 2020