Phelps v. Childs, 2020 ONSC 5901

Phelps v. Childs, 2020 ONSC 5901

COURT FILE NO.: 13-1145

DATE: September 29, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RYAN TIMOTHY PHELPS

Applicant

– and –

ZOE CHILDS

Respondent

Self-represented

Linda Hanson, for the Respondent

Judith Millard, for the Office of the Children’s Lawyer

HEARD: September 22, 2020 on telephone as per Covid-19 protocols

RULING ON MOTION

PEDLAR J.

[1]

Introduction and Background

This is one more motion in a high conflict family law file that opened in 2013. This specific issue relates to whether the children of these parties will attend school in person or attend school remotely from the home of either of their parents.

2The parties are the parents of three children, M age 13, N age 11, soon to be 12, and E age 8. The parties separated in April 2013 when the youngest child was still an infant, not yet walking. The first court appearance on this file was on November 12, 2013. The children have continued to reside primarily with the Respondent mother since separation. The contested issues between them have mostly consisted of financial issues relating to a spousal support claim by the Applicant father, child support including retroactive claim by the mother and property issues. They had a contested trial which lasted several days in 2015 over those issues with mixed results, but the custody and access issues were agreed to before trial.

3The current order regarding custody and access is a consent order dated January 5, 2015 granting joint custody to the parents with the primary residence of the children with the Respondent mother and access to the father on alternate weekends and one overnight midweek access in between. The Applicant father has now brought a motion for equal parenting time with the children, but this interim ruling is limited to the issue of school attendance. The parties have never co-parented as that term is understood in Family law. The status quo has been in place for seven years with the mother being the primary parent and the father having access.

4From reviewing the court file, it seems the first contested issue decided by the court over custody or access was in June 2019 when the Applicant father overheld the children following an access visit and the Respondent mother received a court order they be returned to her immediately. This current dispute includes other related issues such as child support including extraordinary expenses for the children, which issues are not before the court on this motion limited to the school attendance issue.

[5]

Family History

Each family has its own story. Some of the relevant history of this family has been referred to in the extensive material filed on this motion. The Respondent mother was catastrophically injured at age 17 in a motor vehicle accident in which her then boyfriend lost his life. The vehicle in which they were driving was struck by someone driving while impaired by alcohol. The impact of that incident has left the Respondent mother a paraplegic. She received compensation for her injuries in the form of structured damages which continues to provide her with income that provides the support of personal care health workers to assist her.

6These parents met in the spring of 2005 several years after that accident. They were married in early November 2005. Their oldest child was born in February 2007, youngest at the end of August 2012. They separated on April 24, 2013 when the Applicant father left the Respondent mother and three children in favour of a relationship that he had taken up with a 17-year-old student and babysitter who had been employed by the family. The parties were divorced in February 2017.

7By the time the first contested order was made regarding custody or access the Applicant father had established a new relationship with his current partner, who has two children similar in age to the oldest 2 children of these parents. That relationship is reported to have started in either 2018 or 2019. The Applicant father’s relationship with that new partner and her two children is highly relevant to this motion regarding school attendance. He has filed medical information that both he and his partner suffer from asthma. He relies on that information in bringing this motion in order to minimize the risk of either himself or his partner getting the Covid-19 disease as the result of these children becoming carriers of that disease from their school attendance. His partner’s 2 children are staying home and being schooled remotely.

8The Respondent mother is not employed outside the home. She has support workers to help her with her physical limitations resulting from the tragic accident referred to above. Her evidence is that the children participated in the extended, home-based, learning available through the local school board during the shutdown from March until June 2020 and did well with their schoolwork. It is not contested that the children returned to school when it became available in September 2020 and have just finished the third week of attendance. They wanted to return and have enjoyed the experience, even with strict limitations imposed as approved by the local health officials, the Province and the local Board of Education. The children are represented in this proceeding by counsel from the Office of the Children’s Lawyer who confirmed their wishes and raised concerns about the stress on the children of being caught in the middle of this dispute between their parents.

9It is clear the children have been over exposed to the issues before the court, which has increased their stress. This is an issue to be resolved by adults, taking into account the children’s wishes, but it is not fair to drag them in so that they feel they are letting either parent down by expressing their wishes. My experience over decades of hearing these cases, including interviewing many children along the way, is that the most common wish of children in these circumstances is that the parents would cooperate and work together. In my view the highest risk to the well being of these children would be to continue a high conflict contest. It is also not wise to expect children, at their stage of development, to always express their true wishes or wishes that would be in their best interests when weighed in the balance of adult judgment. They can be influenced by being bribed or threatened or their own feelings of guilt and wanting to please each parent, or one of them.

10As I stated to the parties when this motion was first before me on September 16, custody cases are not won or lost by the parents. It is not about parental rights or being fair to them. We want the process to be fair by having all relevant issues raised, but the results are to be in the best interests of the children. Sometime that requires one, or both, parents to go the extra distance to make parenting after separation work. Children do not always get to choose, and have their wishes complied with, on many less significant matters, such as what they eat, who they hang around with, how much sleep they get, in what extracurricular activities they take part, their dental and medical treatment etc. Why would we think they have the maturity and insight to have the final word on issues surrounding where they live and with whom they live after their parents separate? The cliché is true. It is important to give them a voice, but it is not their choice that will decide these issues.

11It is generally accepted that it is in a child’s best interest to have as good a relationship as possible with both parents. One significant way to accomplish that is to have the non-primary care parent involved in a positive way with the children. That requires healthy communication and cooperation between the parents. That is the best gift that separated parents can give their children. I assume both parents involved in this motion are good parents who love their children. They both have different strengths to share with these children. The most difficult choices in these matters is between good and best. The choice between good and bad is relatively obvious and easy. Good and best is a much more nuanced, detailed, subtle and difficult call. That is what this motion is about. Nothing less is acceptable.

12The Applicant father is a qualified music teacher. His ability to continue to earn a living in that profession has been severely curtailed by the pandemic. He is now limited to some online teaching with relatively few students, resulting in a significantly reduced income. His partner is a veterinarian who has voluntarily discontinued working in her profession during the pandemic and has also had her income significantly reduced. Because financial issues are not the primary focus of this motion, although they have some impact, no detailed evidence was given to the court. I am assuming that the Applicant father and his partner have applied for, and received, any financial relief available through various government relief sources, and also that they will have suffered an adverse effect on both their incomes because of the pandemic. Common sense, and common knowledge, leads one to recognize that the number of people who have been diagnosed with Covid-19 represent only a fraction of those who have been negatively affected by this pandemic. Those who died, and their loved ones, have lost the most but many others who have never been infected have suffered deeply as well.

[13]

Medical Evidence

It is important to examine the medical information in support of the Applicant father’s position. Regarding his own health he filed the following letter form Dr. H:

September 8, 2020 - Mr. Phelps has a chronic respiratory condition (asthma) and as such is more likely to have a negative prognosis should he contract a respiratory illness.

Because of his underlying medical condition he is more likely to have severe complications from a respiratory infection such as Covid-19 or influenza.

As such I have encouraged him to have as little exposure to other people as is possible and to take proper precautions to avoid infection (masks, hand hygiene etc.).

14In addition to that letter, the Applicant father also filed some hospital records dating back to March 15, 2008 when he went to an emergency outpatient service. He was given a referral for a chest x-ray. He complained about a fever and chest congestion. He reported having a cold for eight days and was feeling weak and coughing up phlegm. He self-reported his past medical history as “healthy” and he was on no medications at that time. He attended for his x-ray on March 17, 2008 when the findings were reported in the following terms:

Findings:

Incidentally noted mild pectus excavatum deformity of the sternum.

The heart size is normal. Bronchovascular markings are within normal limits.

No active lung disease is suspected.

Impression:

Nil active.

15He returned to the same emergency outpatient facility on May 30, 2008. I am only able to read some of the writing from the attending physician and somewhat more of the writing from the triage nurse. He complained about a cough for the last week and that his sinuses were full and that he had asthma which he described as mild. The clinical diagnosis was confirming his sinus complaint and a mild bronchial condition. He was prescribed some medication and told to continue on his present treatment. This report to the triage nurse included a complaint about a cough and a report that he has asthma and his allergies were acting up the last few days and particularly that evening when he cut the grass and they became more substantial. He reported coughing up phlegm and experiencing post nasal drip. He reported his past medical history as having asthma and that he had been on Ventolin for four days as well as an allergy medication he had started taking two days earlier.

16He returned to the same emergency outpatient service on March 23, 2010. His complaints to the triage nurse included a cough which produced a phlegm. He also reported occasional chills and fever and body aches and a sore throat and occasional headache. He also reported he is allergic to mold and grass. The attending physician’s note indicates he was examined and given a medicine prescription and advised to see his own doctor. He self-reported a symptom of coughing which had been ongoing for the last few days. He found that to be worse when he lays down. He reported that he suffered from asthma and was taking Ventolin and 2 other medications at the time. He appears to have been discharged at for 4:18 p.m. with follow-up to happen by his family doctor and his condition on discharge reported as “good”.

17There is a partial report filed regarding a further attendance on 26 March 2010 at the same emergency facility. The only note filed is a half page of that record with the bottom apparently covered during the photocopy process. The only comments, written in very readable handwriting, is that he was “seen, assessed, advised and discharged to home by Dr.”

18There are two letters filed regarding the relevant medical condition of the Applicant father’s partner RW. Both letters are signed by Dr. S and state as follows:

September 15, 2020

R has a diagnosis of bronchial asthma. She is at risk for complications with regards to Covid-19 and should be following public health guidelines with regards to physical distancing and should mitigate in person exposure to other individuals as much as possible given the risk that this poses.

It is beneficial if she and the members of her household attend both work and school virtually in order to mitigate these risks.

March 22, 2020

Patient has a diagnosis of asthma for which she requires ongoing treatment and is at risk for exacerbation of her chronic asthma should she develop a Covid-19 infection.

19No hospital records were filed about her receiving medical care.

[20]

Positions of the Parties

The Applicant father’s request in this motion is that the three children herein attend at the home where he lives with his partner and be schooled remotely along with her two children. The distance involved between the communities where the parents’ homes are located is in the range of 25-30 kilometres each way. The children would attend for each school day and be returned to the home of the Respondent mother except for the days when the father would have his access on alternate weekends and one overnight visit on alternate Wednesdays, pending any change in that status quo of 7 years that may result in his current ongoing motion for equal time sharing.

21Partly because there is an outstanding issue between the parties regarding child support, in which the Respondent mother claims the father owes her around $10,000 in arrears, which he contests, and that he has never contributed to the children’s extraordinary expenses for things like extra curricular activities, in an attempt to avoid further litigation in this extremely rare and extended file which has been, until recently, about financial issues, I asked the Applicant father if he would undertake that he would not bring any motion to reduce child support based on the fact that children, if attending at his home for school days, would be in his “care “for 40% of the parenting time. He gave me that undertaking. My reason for making that inquiry was also that, if the children attended with their lunch as they would in going to in person school, then, except for any increased cost for the remote learning, which he could possibly claim as an extraordinary expense to which the mother would be contributing, I could not see any extra expenses for the children being there, other than whatever arrangements they made for transportation which might be relevant to that issue.

22The position of the Respondent mother is that the children were well and healthy until this motion impacted them by the father’s attempt to scare them about these issues and the health risks to her, as well as him and his partner and their children. The mother states that the children reported that their father told them their mother could die if she got Covid-19 from them. She believes that it is in their best interests, and consistent with their wishes, that they return to school in person. She has examined the recommendations of the local health authorities and school board as well as the provincial government with regards to the protection of the students and staff during this time of pandemic. She believes it is in their social, psychological and educational best interests to return to school in person.

23She states that the early indications are that they are very happy to be back in school, even with the restrictions in place, which they take seriously. Her counsel has reported to the court that the mother has been sending email reports daily to the Applicant father about their progress. Although that is not a requirement imposed by the court, and probably is not sustainable over the long term, it is a recognition by her, and consistent with the legislation regarding custody and access issues and children’s best interests, that the access parent is also entitled to information about the health, education and welfare of the children as well as the parent with whom the children are primarily resident. It is not aimed at influencing the children’s views on this matter, but is a generous act showing that she appreciates the role of the Applicant father in their lives. Although she has stated concerns about the Applicant father’s attempts to influence the children’s views on this, she also has indicated that the children would like more one on one time with him and she is willing to consider how the existing status quo of access could be reviewed with that in mind, and with the guidance and input of the Office of the Children Lawyer or a parenting coordinator.

24The Respondent mother’s position is also that if the court finds that it would be in the children’s best interest to be educated remotely, in these circumstances, she is willing to accommodate that at her home, as she did during the time between March and June 2020 when it was available from their schools. She indicates their academic performance was quite good during that process, but they were anxious to connect with their friends, teachers and school environment. She also indicated that if health officials, the school board and Provincial government order that schools close down again, she is quite capable and willing to provide for their remote education from their home where they have lived primarily with her.

25That home was built specifically to accommodate the mother’s health issues and she has professional medical support available as well. It was built, paid for and owned solely by her before the marriage. The Applicant father was awarded an equal share in the net equity in that home after separation following a trial over that issue and other financial matters in 2015. She opposes the upheaval of travel for the 3 girls 10 times in a regular school week, the distance of around 25 to 30 kilometres each way, from their home in which they have been raised and lived all their lives, which she maintains is a loving and supportive environment in which she can provide for their remote education, as she has already done, when needed, in the months when schools were closed earlier this year.

[26]

The Law

The law dealing with custody and access issues during Covid times has been evolving along with, and often connected to, the relevant science available.

27The time honoured, overriding principle, that each decision must be grounded on the basis of what is in the children’s best interest remains firmly in place. There has been no real disagreement as to the legal principles to be applied on this motion. The real issue, as usual on these types of contested matters, is how to apply the story of this particular family to the law. Each family, obviously, writes their own story. This pandemic has presented unprecedented challenges to the current generation of parents and dependent children, along with those public health, education and other parts of our government with the responsibility to manage these difficult issues.

28There are some reported decisions to which the court has been referred in this motion. The reality is that courts across the Province will have decided these types of issues on a regular basis in recent weeks as personal attendance at school has been restored as an option to remote learning, which continues. These cases will have been decided in both the Ontario Court of Justice and the Superior Court of Justice, depending on the location of the court within the province. None of those reported decisions are binding on any of the courts hearing these motions, but they are helpful, particularly as they assist in addressing issues unique to the Covid pandemic. I would like to express my appreciation to those judicial colleagues in both courts who have written and shared these decisions, focused on this specific issue for the benefit of their judicial colleagues, the lawyers and members of our communities coming to our court system seeking justice during turbulent times.

29I look to these decisions primarily not so much for the out come, which is driven by the facts of each family, but for the principles and process recommended. The first reported decision submitted for review was released on August 25, 2020 is that of Chase v. Chase 2020 ONSC 5083. A very brief summary of the facts in this case is that the mother was seeking an order to have the party’s child attend in person school for grade 4 French immersion and the father was asking that the child remain at home until such time that the safety protocols were proven successful based on data obtained from when children had attended school in person. The child was residing with each parent equally. No one in either of their households had any underlying medical condition that made any one of them more susceptible to adverse effects of Covid-19. I find the following quotes from the decision to be relevant:

“22. School attendance in the midst of a pandemic is a challenging issue for many parents. Unfortunately, for some separated and divorced parents this is another battleground; one more arena where their child may become the prisoners of the war.

24. A better approach is to engage in mediation with a professional or third-party trusted family member or friend. I note some of the creative ways to resolve the school attendance dispute: (1) Enrol the child at the commencement of the school year, and review the plan at Thanksgiving, following an outbreak at the school, or at the first opportunity provided by the school board to re-consider the choice; (2) Delay in-person school attendance and review the decision when specific criteria are met; (3) Create a small pod of children who can learn remotely together with the assistance of a parent(s) and/or tutor; or, (4) Explore whether the child may attend school in-person during the morning, (leaving before lunch) and participate remotely in the afternoon.

25. I note that in this case (and in all others currently before the Court) the Mother and Father have delegated the authority to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions.

26. 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.

31. 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.

32. 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 financial relationship between the child and each person who is a party to the application.

34. The… decision, Droit de la famille – 20641, 2020 QCCS 1462, while not binding on this Court, is instructive, L’Honorable Claude Villeneuve, J.C.S., ordered the two children (ages 9 and 11) return to school. In include the relevant reasons (translated from French) below:

(8) First, it is not for the courts, but rather for the competent government authorities, to assess the potential risks of contamination of the population in a pandemic situation and to take the necessary measures to limit the spread of the disease, a virus.

(9) The adoption of numerous recent ministerial orders shows that the government is taking the necessary measures as the situation evolves.

(10) When the government decides to partially lift the containment measures linked to Covid-19 in order to allow, among other things, the resumption of academic activities at the primary level, there is no need for the Court to question this decision, unless one or the other of the parties demonstrates, by a preponderant evidence, that it would be contrary to the particular interests of their children, to resume attending school, for example because of their condition health.

(15) The pandemic linked to the Covid-19 outbreak is certainly an extraordinary situation leading to exceptional measures.

(16) But these are only temporary measures which do not have the effect of modifying the provisions of the Education Act (which provide for the child’s right and the requirement to attend school).

(20) In addition, we must avoid changing the terms of custody unless the situation of the children and the parties requires such a change, which is not the case in the present case because the children are developing well, in general, in shared custody.

(21) Third, in the context where X asks to return to school, it would even be contrary to her interests not to attend school until next September when she wishes to improve her knowledge in certain subjects in which she is having difficulty.

(22) She will soon be 12 years old and her request is absolutely not unreasonable, especially if she is anxious about entering high school.

(23) It is up to both parents to support it.

(28) Therefore, although the way of teaching is with social distancing measures can very likely be very different from what was done before, there is no reason not to trust teachers and teachers, educational insitutions.

42. I adopt the reasoning set out in Droit de la famille – 20641, 2020 QCCS 1462. The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns. While the parties spent considerable time addressing a recently released report by the Toronto Hospital for Sick Children, I decline to consider same. There are experts on all sides of the Covid-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the Ontario government.

43. There is a consensus between the Ontario government and medical experts that, at this juncture, it is not 100% safe for children to return to school. However, the risks of catching Covid-19 (and the typical effects of the illness) for children are being balanced against their mental health, psychological, academic and social interests, as well as many parents’ need for childcare. There is no end in sight to the pandemic and, as such, no evidence as to when it will be 100% safe for children to return to school. The Ontario government has determined that September 2020 is an appropriate time to move on to a “new normal” which includes a return to school.

44. I note that the Ontario government did not hesitate to shut down all schools in March 2020 and has declined to re-open them until now. The Ontario government has articulated in the media that they will not hesitate to shut down schools again if the number of Covid-19 cases increases materially.

45. All of the above factors weigh in favour of W.C.’s return to in-person learning in September 2020.

46. There is, however, at least one issue that may warrant an order for online rather than in-person attendance, and it is as follows: If W.C. returns to school will he, or anyone in either parent’s home, be at an unacceptable risk of harm?

47. For the following reasons, neither W.C. nor anyone in either of the parents’ household will be at an unacceptable risk of harm:

(a) None of the adults nor W.C. have any underlying medical conditions that make any of them particularly susceptible to adverse effects of Covid-19;

(e) The Father is worried about the impact of wearing a mask at school as it may affect his son’s education. A mask makes it harder to communicate clearly and read facial cues which may impede the development of W.C.s oral skills in French. However, this is not a risk that warrants online learning.

(f) The guilt W.D. may feel if he believes he has infected a family member with Covid-19 (which is another of the Father’s concerns), can be addressed by the Mother, the Father and Virginia assuring him that people catch viruses from many places, and that he is not responsible; and

(g) The fear expressed by W.C. about returning to school until it is safe can be minimized through messages that support the Court’s decision, coupled with reassurances that the Ontario government will continue to monitor risk and take appropriate steps to protect children.”

30The second case submitted was released on September 8, 2020. It is another decision of the Superior Court of Justice reported as J.N. v. A.S. 2020 ONSC 5292. This decision was authored by Justice A. Himel, who also wrote the reported decision referred to above. Both parents brought urgent motions respecting their four-year-old daughter. The mother sought an order that the child attend junior kindergarten in person at a private school for the upcoming school year. The father argued in favour of homeschooling as well as increased parenting time and other issues not relevant at this motion.

31A brief summary of the facts is that the parties started living together in July 2012 and were married in December 2012. They separated in December 2016 when the child was six months of age. Both parents are employed outside of the home. The mother is now engaged to, and resides with, a new partner in Toronto. The father resides in the former matrimonial home in Woodbridge, Ontario. The father is seeking an increase of parenting time, claiming equal time with the child. The marriage is reported to have been difficult. The parties have engaged in high conflict litigation including seven motions, or requests for leave to bring motions, during the first 14 months of litigation. While there are several differences between this reported decision and the story of the family before this court, I consider the following quotes from the decision to be relevant:

“15. Each party alleges withholding and bad behaviour of the part of the other. Neither party acknowledges the impact of the conflict on their young child. Both parties appear to be using time with the child as a tool to achieve other goals.

16. There has been frequent involvement of the York Region Children’s Aid Society (the “Society”) and the police. Each party has made various complaints to the Society. Counsel advise that all investigations have closed.

17. According to a CPIN case-note filed on this motion and dated October 29, 2019, the Society is concerned about the conflict between the parents and the child’s risk of emotional harm. Recently the Society advised the parties to obtain a final parenting schedule from the Court.

18. The parties’ approach to one another and to the conflict resembles high stakes poker: It is an all or nothing, no holds barred, take no prisoners game. For parents who clearly adore K.N. it is unfathomable that the Court needs to advise them that this is not a game: Their daughter’s emotional and developmental well-being that is at stake, and they are holding their child prisoner to their conflict.

19. On August 21, 2020 the parties were put on notice that both issues would be before the Court, and they each provided affidavits respecting same. While the Mother advises that there is considerably more evidence than what could be included, I note that the materials filed by each party (using small fonts and providing little spacing,) effectively violated my Order. They have provided more materials than I authorized. Both affidavits contain many unfounded allegations and inflammatory statements, which is not helpful. Notwithstanding the irrelevant and/or spurious claims I have sufficient appropriate evidence upon which to decide these two distinct but interrelated issues.

20. The Father attests that homeschooling is the best option for the child because of the health risks of Covid-19, as detailed below. Moreover, in-person school attendance is not necessary as he has hired the Tutor (as of August 2020) to attend at his home in Woodbridge for one hour per day when the child is in his care. He reports that K.N. is doing exceptionally well in these studies. The Tutor is prepared to be in the Father’s social bubble. The Father attests that the Tutor agrees to provide services in the Mother’s home.

21. I decline to accept that the Tutor is in the Father’s social bubble, since she is a part-time teacher at two or more schools in York Region and she teaches other children privately. The Tutor resides with her elderly parents (which means that 3 of the 10 person social bubble is already accounted for). There is no evidence (other that the Father’s hearsay statements) that the Tutor will teach K.N. at the Mother’s home given her other work commitments, the Mother’s residence (which is situated in Toronto) and the repeated attempts by the Mother to fire the Tutor (as she was not consulted or informed until this motion that the Tutor was meeting with the child). Even if the Tutor makes herself available one hour per day (and takes appropriate social distancing and PPE precautions), that does not have benefits equivalent to full day school attendance, in-person or virtually. That plan does not meet the child’s needs to meaningfully interact with other children in a small group and structured setting.

22. The Father agrees to follow online programming through the public school system (even though he prefers private to public school). However, I query whether junior kindergarten, which is a play-based program whose focus includes social skills and communication, can be effectively taught to a child sitting in front of a computer. Furthermore, it is impractical to assume that K.N. or any other four year-old child can sit in front of the computer for educational lessons lasting six hours (or perhaps even three hours).

23. K.N. is an only child. Neither party provided evidence of any regular contact with her peers during the pandemic. In-person attendance at school is the only option provided to the Court to address the child’s social and psychological needs.

24. In terms of in-person or online education, as stated in Chase v. Chase, supra, the Ontario government is in the best position to make decisions about the re-opening of schools.

25. On the totality of the evidence, I find that in-person attendance at school best meets the child’s educational needs. Following Zinati v. Spence, 2020 ONSC 5231, I adopt Akbarali, J.’s conclusion that in-person attendance is in K.N.’s best interests even where the parties do not need the child to attend school in order for them to work (paras. 47 to 48).

26. Following Chase v. Chase, supra, the child should be enrolled for in-person attendance at school unless the following test is met: If K.N. attends junior kindergarten at school will she, or anyone in either parent’s home be at an unacceptable risk of harm?

27. For the following reasons I am not persuaded that K.N. or anyone in either of the parent’s households will be at an unacceptable risk of harm:

(a) The Father’s affidavit states that K.N. is on the spectrum of being high risk due to a prior bout of bronchitis (November 2018). K.N. has used puffers for breathing in the past.

(i) The Father provides no medical evidence to support this claim. In contrast, the Mother appends to her affidavit an email from Dr. Burman (dated August 18, 2020), in response to her query about Covid-19. Dr. Berman, the principal pediatrician, responds as follows:

“If you compare (the child) to with any other child of her age, she is not at higher risk for Covid-19. Since that viral bronchitis that (the child) had in December 2018, she was never sick at all for already 1.5 years (nor any office visits). I do not feel that her risk of illness during the school attendance is much higher than any other child of her age.”

(ii) The Father now concedes that the medical evidence does not support his prior claim respecting the child’s risk of harm.

(b) The father attests that he is 54 years old and suffers from asthma. He relies on hearsay evidence contained in the American Center for Disease Control (“CDC”) that people with moderate to severe asthma are at a higher risk of getting very sick from Covid-19. The only evidence the Father provides to support this claim are pictures of prescribed medication (Flovent and Ventolin). These photos support the conclusion that on August 25, 2020 (the date that the affidavit was due), the Father picked up these prescriptions.

(c) The Mother asks that I make an adverse inference and/or a negative credibility finding against the Father. She attests that asthma was never an issue for the Father prior to this motion. If asthma had been a problem or a concern during Covid-19, the Father would have provided pictures of prescriptions that pre-date the delivery of his affidavit. For the reasons set out in Chase v. Chase, supra, I decline to consider the hearsay evidence of the American CDC. I also decline to make any findings respecting the Father’s asthma, other than to conclude that a doctor prescribed two medications which are in the Father’s name and are dated August 25, 2020.

(d) The Father states that the paternal grandmother, who spends most of her time with the Father, is in a high risk category (age 73) and can die. The grandmother does not reside in the Father’s household. The grandmother’s needs cannot trump those of the child. As stated in Zinati v. Spence, supra “there is no indication that appropriate distancing cannot be maintained between N. and her paternal grandmother (age 78).” The paternal grandmother is aware that the Father and the child, and the Mother and the child are out and about in the community, yet she has continued to spend considerable time at the Father’s home during the pandemic.

(e) The risk of exposure to Covid-19 to all family members already exists. The Father does not dispute that he and K.N. go to the zoo, restaurants and stores. The Tutor brings into his home whatever germs or viruses that she picks up in her day-to-day and professional life.

(f) Finally, the Father asks for a 50/50 schedule even if I order in-person school attendance. This detracts from the argument that he is at an unacceptable risk of harm from Covid-19.

46. What follows is my interpretation of the test for unacceptable risk of harm. I provide this test to assist these parties and others to better understand the evidence that may be persuasive to the Court.

47. It is helpful to consider the evidentiary basis to suspend a person’s face-to-face contact during Covid-19 due to a child’s medical vulnerability, and apply that lens to the in-person versus online dispute. That issue, like school attendance, requires a balancing of competing interests. Both decisions have a significant impact on the child. The evidentiary requirement for suspending access is described in C.L.B. v. A.J.N., 2020 ONCJ 213 at paragraph 31, per Sherr, J.:

A medical report should be provided setting out the child’s medical condition, any increased vulnerability the child has with respect to the Covid-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.

48. In M.A. v. J.D., 2020 ONCJ 283 at para. 48, the Court applied this test and placed weight on a report provided by the child’s family doctor dated April 28, 2020. O’Connell, J. ultimately suspended the Father’s in-person access, relying on this evidence and concerns that the Father was not following the appropriate safety protocols. The family doctor reported as follows:

This is to inform you that M. is a patient at my clinic…M. has a medical condition, she suffers from asthma and severe allergies. She exhibits symptoms of difficulty breathing and coughing due to her asthma.

Her immune system is weak, and it is not advisable for her to be outside with crowds. She needs to maintain social distancing and always wear a mask and gloves. She cannot go out for shopping sprees and have fast foods without taking extreme precautions such as proper washing and sterilizing her hands.

If M. continues to be outdoors among crowds without maintaining social distancing, her immune system may be compromised, causing her health to be at risk.

50. A party claiming that school attendance presents an unacceptable risk should provide a medical report that the child’s attendance in-person will place him/her or a member of household at an unacceptable risk of harm, including:

(a) a diagnosis for the vulnerable person;

(b) a prognosis for the vulnerable person if he/she catches Covid-19 (if the medical practitioner can provide same);

(c) any available treatment that is relevant to the prevention and/or treatment if the vulnerable person falls ill with Covid-19; and

(d) whether there are any precautions that can be put in place to enable the child to attend in-person school without placing the vulnerable person at an unacceptable risk of harm.

51. No medical report was provided in this case.

52. The Court ought not to rely upon the Father’s bald statements respecting risk of harm.

53. K.N. will be enrolled at and attend E. School commencing September 2020, for the reasons described above.”

32The third reported case addressed on this motion was released on September 9, 2020 cited as Joachim v. Joachim, 2020 ONSC 5355 authored by Justice D. Summers. A summary of this family’s story is that the parties are the parents of two daughters ages six and eight. They began cohabitating in 2007 and married in 2011. They lived separately under the same roof when their marriage broke down in December 2015 and finally separated in 2016. The mother seeks an order to have the children attend school virtually and the father favours in person school attendance for them. Their relationship is high conflict. Following a nine-day trial in 2018 a detailed equal timesharing parenting order was made which includes decision-making responsibility for each parent defined relating to the children. Education is a shared area of decision-making responsibility.

33The mother is an elementary school teacher qualified to teach kindergarten through grade 6. Her common-law partner, with whom she has been together since 2016 and lived together since spring of 2019 suffers from underlying medical conditions and is immunocompromised. He has not been well enough to work since December 2019. Together they have a 15-month-old child, born in June of 2019. The mother is on extended maternity leave until January 29, 2021 and hopes to obtain a further extension at that time.

34The father is a kindergarten teacher who returned to the classroom in September 2020. He shares a house with both his parents, his younger brother and his brother’s girlfriend who is considered part of the family and part of the household’s “bubble”. In March 2020 the parties agree there 5/5/2/2 pattern of parenting time, intended for the school year, would move to the summer schedule of alternate weeks to reduce the number of times the children had to move between households.

35I consider the following paragraphs to be relevant to the issues before me on this motion:

“13. When Covid-19 hit Ontario and the government closed schools, the parties agreed to suspend their 5/5/2/2 school year parenting schedule and move to the summer schedule of alternate weeks to reduce the number of times the girls had to move between households.

14. The only test to be applied in custody and access matters is the best interests of the children. Under s.16(8) and (10) of the Divorce Act, the court determines the best interests of the child by considering the condition, means, needs and other circumstances of the child. The court must also 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.

15. The mother submits it is in the children’s best interests to attend school virtually, at least for the remainder of the 2020 school year. She argues that the risks involved in returning them to the classroom right now are unnecessary. Not only is she worried about them contracting the virus, she is worried about the risk it presents for her partner and their baby. The mother says if the children study online with her, they will follow the online curriculum and she will supplement it with other learning, just as she would if she were teaching in the classroom.

16. The father says he trusts the Ministry of Education, the risk analysis undertaken by the government, and the protocols put in place to keep students healthy and safe. From his perspective, the social, psychological and developmental benefits of young children attending class in person outweigh the potential health risks. He submits that if it is safe for other children to go to school, it is safe for their children and in their best interests to attend.

17. The father further alleges that the mother has confused the children’s best interests with what she believes is best for her partner and their baby. The father states that while he does not wish Mr. Ambroise or their child any harm, they are not his concern. His priority is Thira and Enora. As he sees it, the benefit of the girls returning to the classroom and some semblance of normal life eclipses the health concerns in the mother’s household. The father says if the mother cannot see that, she should not have the right to make decisions for the girls in relation to either their health or their education. Moreover, he proposes the mother’s concerns could be addressed by suspending her parenting time with the girls and allowing them to live with him full-time.

18. The policy of the provincial government is that in-person school attendance is optional for the 2020-2021 school year. If parents decide their children should not return to the physical classroom, remote learning is available. This flexibility allows parents to make the best decision for their family. However, this model breaks down where parents have separated and are not like-minded about their children’s best interests. That is the case for Thira and Enora. The result for them over the past weeks has been ambiguity and confusion about their return to school plus increased conflict between their parents on the heels of what has already been many months riddled with change and uncertainty.

19. There can be no doubt that the school environment offers children social, psychological, and developmental advantages. The question here is whether those benefits outweigh the physical risks of returning to that environment in the context of this two-household family? I consider the following:

a. The evidence from Mr. Ambroise’s doctor that confirms he experienced two significant illnesses between October 2019 and January 2020. The first affected his lungs; the second affected his ability to fight infection. He is still undergoing tests with his medical specialists. His physician recommends extra precaution and says there is high risk of complications should Mr. Ambroise become ill with Covid-19;

c. The child born to the mother and Mr. Ambroise is just 15 months old and vulnerable. His immune system is still developing;

d. There is no evidence that either Thira or Enora experience any social, developmental, or psychological obstacles;

f. I did not receive independent evidence of the children’s views and preferences however, I did ask the parties if either child had voiced her wishes. The father offered that Thira, the eldest child, is a keen student, likes school and wants to return. The youngest, Enora, was not as keen as her older sister and was happy to stay at home. The mother did not dispute these descriptions.

g. The father’s emphasis on the benefit of the girls being exposed to a variety of perspectives within the school setting including social clubs to learn about and discuss important social issues;

h. The parties’ initial agreement and compliance with Covid-19 health and safety protocols in their respective households and the conflict that developed over the summer as the government relaxed its guidelines and the father began to relax the practices in his home;

i. The girls’ potential exposure to the virus will increase even if they do not return to in-class learning once the father and another member of his household return to the classroom. Two of the four educators in his home are college professors and will be working from home and teaching online; and

j. The mother’s plan for the girls’ social, physical, and educational needs since the pandemic started has included, and continues to include, a variety of activities. Some take place virtually, others take place outside, with or without masks, and social distancing, as the circumstances require.

23. I am most persuaded by the medical evidence regarding the risk Mr. Ambroise faces if exposed to the Covid-19 virus and the evidence of his decision to give up in-person time with his children to help minimize the risk to himself and the baby. In this regard, I take notice of the information widely repeated in the public domain that very young children are likely to be at higher risk due to their immature immune systems. A return to in-class learning brings increased risk of exposure to Covid-19 and, in turn, increased risk of transmitting the virus to vulnerable family members. It is a risk that I find unnecessary, for this family, at this time. Thira and Enora are good students and are surrounded by trained educators in both households to help them, if needed. Their mother will be in the home every day at least until late January 2021 to guide and supplement their online learning. I am also satisfied that both parents are attentive to the girls’ need for social interaction, social learning, and physical exercise.

24. I do not accept the father’s contention that somehow the children’s best interests can be severed from the health and safety of their step-father and baby brother. On the contrary, I find their best interests are inextricably connected to the well-being of both households – their mother’s as well as their father’s. It is in the children’s best interests to keep both families whole. These are the people most dear to them, that love and care for them, and that they love and depend on. I am satisfied that the risks to the health and well-being of the mother’s household presently outweigh the benefits of in-class learning for the girls. For these reasons, I find it is in Thira and Enora’s best interests to attend school virtually for the 2020 fall semester and to do so from their mother’s home. The father is away from the home during the day and the other members of his household are working, either from home or away from the home.”

[36]

Analysis

As noted above, all three of these decisions are helpful in providing principles and process when deciding the issue of school attendance or virtual learning. There are, as would be expected, significant differences in the facts reported in those and this case. In the first case of Chase v. Chase, supra, the child resided with each parent equally and was an only child. No one in either of their households had any underlying medical condition that would make any of them more susceptible to adverse effects of Covid 19. Nevertheless, a critical question in that case, and this one, is highly relevant and stated at paragraph 48 as; Will the child “or anyone in either parent’s home, be at an un-acceptable risk of harm ?“if the child attends school in person rather than “online.” The answer to that question is inextricably woven into answering the essential question of the best interests of these three children. There are several other comments and questions that are also relevant and helpful as well.

37The same question is asked in the second reported decision, J.N. v A.S. at paragraph 44. Again, the court was dealing with an only child and this child was just entering junior kindergarten and neither party provided evidence of any regular contact with her peers during the pandemic. One assumes the father is a person of considerable means as his child support was fixed by the court at $3000 per month for this child. After claiming there would be an unreasonable risk to the child’s health, the father abandoned that during trial, but raised the issue as it related to his health. He is 54 years of age and lives alone. His evidence was found to be inadequate to meet the criteria of establishing an un-acceptable risk of harm for the reasons set out in paragraph 45 sub paragraphs (b) through (f) inclusive. Paragraphs 46 through 50 and beyond are helpful in principle when applied to the risk to the Applicant father herein, and his partner and her children, that the three children in this case could present to them, if allowed to attend their schools in person. They also apply as to whether the Applicant father has presented sufficient evidence of an unacceptable risk. Again, that issue is inextricably woven into the impact on the children’s herein best interests.

38The third case, Joachim v. Joachim, the parents have two children ages 8 and 6. The parents share equal time with these children. The mother wishes the children to attend school virtually and the father favours in class learning. It is another high conflict case as the one before this Court. The mother has a common-law partner and together they have a 15-month-old child living in their home. Her partner suffers from underlying medical conditions and has not been well enough work to since December 19. Details of those medical conditions are spelled out in paragraph 22 sub paragraph (a) and are far more serious than any medical condition of anyone in either household in this motion. The risk medically to his health is defined as being “high.” The evidence is that he did not voluntarily withdraw from his employment but is prevented from continuing from working for about 4 months before the Covid shutdown. There is also a 15-month-old child in that household who is at higher risk than older children or adults as set out at paragraph 22 (c). The father had also relaxed his approach to Covid safety protocols over the summer. At paragraph 22 the court also states there is no doubt that the school environment offers children social, psychological, and developmental advantages. The court goes on to ask whether the benefits outweigh the physical risks of returning to the in-school environment in the context of the two-household family involved in that litigation. At paragraph 24 the court also states: “I find their best interests are inextricably connected to the wellbeing of both households – their mother’s as well as their father’s. It is in the children’s best interests to keep both families whole.”

39As stated earlier, although there are several facts that distinguish these cases, they are all important in terms of the principles to be applied, the evidence required, and the process be followed in determining whether it is in the best interests of these three children to continue in school attendance personally. From the material filed, it is evident that approximately 80% of students have returned to personal school attendance in the relevant school districts. The request for the option of remote learning as requested by the Applicant father in this case puts the onus on him to present evidence to support his position that the risk of the three children attending in person is unacceptable because of the health risk for both him and his partner. The evidence presented confirms that they each have been diagnosed with asthma. His condition is described as chronic and states that he is more likely to have severe complications from a respiratory infection such as Covid-19 or influenza. He has been encouraged to have as little exposure to other people as possible and to take proper precautions to avoid infection, such as mask and hand hygiene, etc. The hospital records filed confirmed he has attended from 2008 up until 2010 on occasions for treatment of coughs including self-reports of coughing up phlegm and other symptoms. An x-ray of his lungs on March 2008 indicated “no active lung disease suspected.” After most visits he was prescribed some medication and referred back to his family doctor.

40The medical information regarding his partner confirms her diagnosis of bronchial asthma. It states she is at risk for complications with regards to Covid-19. She should be following public health guidelines with regard to physical distancing and should mitigate in person exposure to others as much as possible given the risk that this poses. The last sentence states: “It is beneficial if she and the members of her household attend both work and school virtually in order to mitigate these risks.” There are no other medical or hospital records presented regarding her health.

41I find that the Applicant father has failed to present sufficient evidence to establish an “unacceptable” level of risk to either himself or his partner or her children as a result of the three children who are the subject matter of this motion attending in person school class. The medical evidence, including hospital reports, falls short of that requirement. The court can only rely on the evidence presented to it and take a snapshot of conditions that exist at the time of the hearing. It is possible that the level of risk in these school populations may increase requiring further restrictions. The Respondent mother in this case has clearly indicated that she will respond in those circumstances and take action, as needed, that is in the best interests of the children. She has been their primary caregiver for over seven years and the children have been well cared for during that time. Any evidence to the contrary has not been established at this stage of the proceeding. I find that the issue before the court is causing stress and upset to the three children, based on the evidence of the mother and the report of counsel on behalf of the office of the children’s lawyer. This application, as well-intentioned as it may be, is a major source of that stress. I find that the children are currently put in an unfair position for them. The evidence before me is that they are keen to go to school in person, and want to be safe, as would be expected. It appears that the father has put considerable pressure on them by the manner in which he has chosen to discuss the issues before this court with, at least, the oldest two children.

42I find the mother’s attitude towards the father, in his parental role, is more generous than his attitude towards her as a parent. That, in spite of the very difficult history of the breakup of their relationship. This motion is brought in conjunction with a motion for equal parenting time that has yet to be addressed by the court. The mother offered to address this school attendance issue through mediation in early August. She received no reply from the father. The matter ended up being the subject of extremely stressful discussions over the weekend right before school was to commence. As stated in strong terms in some of the reported decisions presented in this case, and as a matter of common sense, this kind of winner take all, high conflict litigation over the best interests of children is not in their best interests. The immediate risk to these children is the high conflict approach of the father when he states if this motion is denied he will have either no ability to spend time with these three children or he will have to spend no time with his current partner and her two children. He also stated in his submissions that this is a matter of life and death. Neither of those extreme statements are accurate based on the current information provided to this court. The Applicant father’s motion is dismissed.

[43]

Costs and Disposition

There are many options that can be discussed between the parties, likely most effectively with a mediator rather than court proceeding with literally hundreds of pages of material filed with the accompanying stress and cost. The father has taken an extreme action by choosing to pay for outside accommodation for himself and the three children during the access times that have occurred since this matter has been before the court during the last couple of weeks. That is not, in my opinion, a reasonable action to take under these circumstances. He continues to openly express concern about the financial constraints of his current circumstances and that of his partner. Those are reasonable issues to raise provided there are no other sources of income that could be available to deal with that issue recognizing the needs of all concerned.

44On a without prejudice basis, he could have arranged to have daytime access with the children at some other location than his home. The weather over the past couple of weeks has been very suitable for time spent outdoors. The Respondent mother has offered to arrange daytime access at the former matrimonial home, in her absence. The children and his partner and her children could have met with these three children outdoors, away from either residence and include wearing masks etc. while waiting for a court decision. It may be that more frequent visits of shorter time, on a temporary basis, could be a solution and certainly could have been during the last few days. I find the Applicant father’s action in spending around $1,000 to rent accommodation for recent access visits to be disingenuous. That is not a reasonable response and appears to be an attempt to put additional pressure on both the Respondent mother and the children, as he has claimed compensation from her to pay entirely for those visits, which claim I deny. The children will be at risk of feeling guilty as his financial constraints are well known to them during this pandemic.

45It is also interesting that he felt safe enough to exercise that access alone, in spite of his underlying medical condition. That does not minimize his concern about his partner’s health but there were many options available to address how that access could take place and he chose a route that is impossible to continue under the circumstances to try to strengthen his position, while it has the opposite effect. I note that the Applicant father has been described by another judge as disingenuous in taking a position regarding the division of the parties’ interest in the matrimonial home even after the trial in 2015 was concluded and that issue ruled upon. His conduct was also described as unreasonable relating to his choice to overhold the children following the time of his access in June 2019. Although he has no counsel of record, he has received legal advice during this process and has still litigated in a manner that is excessive. He has attempted to apparently overwhelm the Respondent mother with the volume of material that is filed, much of it on very short notice, making it as awkward as possible for her to respond.

46I do not find the Applicant father has been deliberately untruthful in an attempt to mislead the court. What I do find he has done is either exaggerate at times, or use partial truths and present them as absolute. He has attempted, unsuccessfully, to undermine the Respondent mother’s parenting of these children by attempting to create mistrust in her although she has been the primary parent for over seven years. The litmus test of those years of her primary parenting is the children, who have turned out to be doing well and have been kept safe. This dispute has caused distress for them, but they have thrived throughout her time as primary parent. If as much energy had been put into seeking creative solutions as has gone into these proceedings it is unlikely it would have been necessary, and the children’s stress would have been greatly reduced or negated.

47While his manner of conducting this motion has been excessive and his actions, in apparently deliberately running up expenses in order to attempt to gain leverage on the access issue, were unreasonable and his refusal to respond to a request for mediation was not done in the spirit of cooperation and attempts to resolve matters required by the rules and legislation dealing with the issue of custody and access before the court, the issue itself, if it were dealt with and responded to properly, is one that has arisen throughout the Province frequently over the past few weeks. The issue is important and difficult for parents. The father has overreached in the manner in which he has conducted this motion.

48I am not critical of the Applicant father for raising this issue. It is a legitimate and important matter. I am critical of the manner with which he has chosen to do so, which is consistent with his approach throughout this litigation, which is an extreme example of how the process can run out of control to the detriment of the parties. Thankfully, this is not how the high percentage of family litigation proceeds. High conflict family litigation always carries negative consequences for the wellbeing of all family members involved. These issues require a balancing of, and managing of, risks. That is a regular feature of many family and child protection issues faced regularly by our courts. I am not questioning that each of these parents love their children and want the best for them. They each view those interests through a very different lens.

49Parents are certainly entitled to take different points of view about the best interests of their children, but they are expected to address those issues in a much less hostile and extreme manner than the way in which the Applicant father has conducted this process. Under the circumstances, the Respondent mother is entitled to her costs of this urgent motion. Assuming that the parties will likely not agree on those costs, I will receive written submissions and a draft Bill of Costs from counsel for the Respondent within 30 days with a 10 day right of reply to the Applicant. Submissions are limited to a maximum of 3 typed pages in a normal font, not including the draft Bill of Costs.

50I find that the Applicant father’s approach to this motion, and other proceedings in this extensive file put it into a category way out on the extreme edge of family law litigation, teetering on falling over that edge into litigation that is well beyond reasonable and into a category of vexatious and counter-productive.

51In my role as the Local Administrative Justice for the Superior Court of Justice for the Counties of Leeds and Grenville, I am ordering that the Applicant father herein is not entitled to bring any further motions or proceedings in this matter, other than attending and filing material for a Case or a Settlement Conference, without leave of the Court, until the costs previously awarded against him in June 2009 of $3,000 are paid, plus whatever costs are awarded against him in these proceedings.

52Counsel for the Respondent mother may take out this order dismissing the Motion of the Applicant father, without approval as to form and content by him.

The Honourable Mr. Justice K. E. Pedlar