Court File and Parties

COURT FILE NO.: 18-1002 DATE: 20210419

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

C.C. Applicant

– and –

J.B. Respondent

– and –

P.B. and L.B. Respondent Paternal Grandparents

COUNSEL: Kristen Normandin, Cara Senese, Richard Niman, Christopher Mamo and Beth Purdon-McLellan, for the Applicant Alexandra Kirschbaum, for the Respondent Katherine Cooligan, for the Respondent Grandparents

HEARD: April 8, 2021

REASONS FOR DECISION

AUDET J.

[1] This is the return of a motion heard by me on October 29, 2020 related to the temporary parenting arrangements for the parties’ four children. In my decision released on December 10, 2020 (C.C. v. J.B., 2020 ONSC 7610), I adjourned the motion to a date to be fixed through the trial coordinator, before me, once the father would have had at least six virtual visits with the two older children. I indicated that upon the return of the motion, the following issues would be addressed:

1- Whether the paternal grandparents’ and the father’s access to the children should be curtailed, expanded or varied, and whether it should include in-person visits as well;

2- Any outstanding issues related to disclosure and the parties’ compliance with undertakings given at questioning;

3- Any matters pertaining to the due completion of the parenting assessment, including in relation to any arrangements required to ensure that the mother’s and the children’s needs are being met during any required stay in Ottawa for the purpose of the assessment process.

[2] Because the parties had only scheduled this motion for three hours, which was clearly not sufficient to deal with all issues raised by them, I only allowed submissions on the matter of the father’s parenting time with the children, the grandparents’ contact with them, and the choice of assessor for the parenting assessment ordered back in December 2020. I did not deal with issues related to disclosure or questioning, relocation or various other smaller issues raised by the parties. The parties are free to reschedule this part of their respective motions if they wish.

[3] Given the number of parties and lawyers involved in this matter, and the voluminous motion materials each of them filed for the purpose of this hearing – despite my clear directions in my December 2020 Decision – I hereby order that any motion scheduled in this matter in the future shall be scheduled for a minimum duration of one day, unless my leave is otherwise obtained in writing.

[4] As I have also made clear during the hearing, I confirm that if the parties (or anyone of them) need direction in the case or the court’s assistance for the purpose of a motion to be brought, they may seek a brief court appearance before me (who is seized of all motions) or a case conference before Engelking J. (who is case managing this matter) without the need for all parties to consent to such an appearance. The request for a court appearance, which shall be discussed in advance among counsel, can be made by letter forwarded to myself or Engelking J. through Trial Coordination explaining why a court appearance is needed (from the perspective of the party who seeks it), the estimated duration of same and any other relevant information, copied to all other parties.

Parenting Time and Contact

[5] In my December 2020 Decision, I put into place a gradually increasing virtual parenting time schedule for the father and a contact schedule for the paternal grandparents which were to eventually lead to the following temporary arrangements:

Paternal grandparents’ contact

• Every Sunday, with N.J.M.B. (7) and D.N.M.B. (5) only, at 2 p.m.;

• Every Monday, with M.G.M.B. (3) and D.J.M.B. (2) only, at 1 p.m. (while the older two children were in school);

• The virtual visits between the grandparents and the children were to last at least 15 minutes which could be extended to 30 minutes if the children (or one of them) remained engaged.

Father’s parenting time

• With M.G.M.B. (3) and D.J.M.B. (2), the virtual parenting time was to occur at the same time as their visits with their paternal grandparents (every Monday at 1 p.m.);

• In addition to the above, the father was to have parenting time with M.G.M.B. (3) and D.J.M.B. (2) at one other time during the week, on a day and time agreed to between him and the mother;

• With N.J.M.B. (7) and D.N.M.B. (5), the father was to have parenting time once per week for 30 minutes to an hour (depending on the level of engagement of the children), on a day and at a time to be agreed to between the mother and the father.

[6] The virtual visits took place as ordered, and they continue to this day. In the context of this motion hearing, no one is asking that the father’s parenting time or the paternal grandparents’ visits be reduced or curtailed in any way. Orders related to the father and paternal grandparents’ ability to communicate with the children in writing, outside of those visits, were also previously made and they shall remain as is.

[7] The father seeks an order that the children be brought to Ottawa from the beginning of their summer school holidays until the end of the assessment process in August 2021 or until further order of the court. During that time, he proposes that the children reside with their mother in a rental apartment to be secured and paid for by his parents, and he seeks an order granting him graduated and increasing in-person parenting time with the children. Until they arrive in Ottawa for the summer, the father seeks increased virtual access to the children (one hour every evening) as well as an order allowing him to participate in any of his parents’ virtual visits with the children, if invited by them.

[8] The paternal grandparents seek to increase their weekly virtual visits with the children to 45 minutes each, and that they be the hosts of the Zoom calls. They also want to have the ability to invite the father to attend some of their virtual visits with the children, and they seek to have the children in their physical care for in-person visits during the summer and other school holidays.

[9] The mother takes the position that pending the completion of the s. 30 assessment ordered by the court, there should be no change to the father’s parenting time schedule, with the exception that he could be invited to attend one of the paternal grandparents’ weekly visit with N.J.M.B. (7) and D.N.M.B.(5), once per month. The mother does not oppose the paternal grandparents’ request to extend their virtual visits with the children to 45 minutes each. However, the mother strongly objects to the children travelling to Ottawa this summer to visit with their paternal grandparents or to have in-person parenting time with their father, whether she accompanies them or not.

My December 2020 Decision

[10] In order to evaluate whether a progressive increase of the time the father and paternal grandparents spend with the children, and whether it would be in the children’s best interests at this time to consider in-person visits, it is important to reiterate why I made the order that I made back in December 2020. Notably, it is important to remember why I deemed it necessary at the time to;

• restrict the paternal grandparents’ contact with the children to one brief virtual visit each week;

• restrict the father’s parenting time to short, virtual and – as far as the two older boys are concerned – supervised visits;

• allow for a number of visits between the children and paternal grandparents to occur before the father’s parenting time with them could begin.

[11] In my December 2020 Decision, I stated that the grandparents’ conduct towards the three older children – they had never met M.J.M.B. (2) – had been nothing but exemplary during the time they were allowed to care for them. I concluded that despite allegations in relation to domestic violence between them, there was no evidence whatsoever suggesting that the paternal grandparents posed any kind of risk to the children. I found that the paternal grandparents were a positive influence in the children’s lives, that they were closely bonded to them and that I had no concerns about their ability to care for the children. I concluded that it was in the best interests of the children to have contact with their paternal grandparents, and that it would be best for them to resume contact with their paternal grandparents first, before parenting time with their father was also re-instated. Finally, I found that such contact should be re-instated gradually, in a way that was sensitive to the children’s emotional needs.

[12] My conclusions with respect to the father were not as positive or conclusive. I found as a fact that it was more likely than not that the parties’ relationship was fraught with intimate partner violence, perpetrated by the father against the mother, and possibly including forms of coercive and controlling behaviour. I noted that the father had never met D.J.M.B. (2) and that given M.G.M.B. (3)’s age when the father last saw her, she likely had no memories or recollection of him as her father. After noting the significant trauma suffered by N.J.M.B. (7) and D.N.M.R. (5) during their early childhood, which had translated in N.J.M.B. (7), in particular, having significant special emotional, psychological and behavioural needs, I expressed serious concerns about whether seeing their father would trigger a positive reaction or cause the children emotional harm.

[13] I also explained that the evidence presented to me so far, including from various professionals who had been or continued to be involved with the children and/or the parents, did not allow me to come to clear conclusions about how the children were currently doing, what past experiences may have caused the two older children’s mental health and/or behavioural challenges[^1], what was the extent of each parent’s involvement in the day-to-day care of the children before their separation, and what was their respective ability to meet the children’s needs.

[14] Until I was provided with a comprehensive parenting assessment which I hoped would give me insight into this complex family and the various dynamics at play, I concluded that contact between the father and the children had to resume slowly and gradually, in a way that would ensure their emotional and psychological well-being. In my view, the first step in re-instating some form of contact between the father and the children was to allow such contact to take place virtually by videoconference, and in a supervised setting. I was of the view that it is important that the father’s parenting time be supervised by a neutral professional, at least at the beginning, to ensure immediate intervention should the children show signs of trauma or distress, and to make available reliable and objective evidence of what was taking place during the father’s visits.

Update

[15] The evidence before me confirms that the virtual visits between the children and their paternal grandparents have gone exceptionally well. The children are always very excited to see their grandparents and they look forward to their next visit when the call ends. According to the paternal grandmother, she and her husband have consistently observed joy, excitement and full engagement in the children during their visits, to the point where the children do not want the visits to end.

[16] The mother acknowledges that the children enjoy the time they spend with their grandparents, and she consents to the increase that they seek in the duration of their bi-weekly virtual visits.

[17] The parties have a very different view about how the virtual visits between the children and their father have been going. The mother alleges that the father has not adequately supported N.J.M.B. (7)’s special needs and has frequently triggered him during his parenting time. She further alleges that since the parenting schedule has been introduced, N.J.M.B. (7) has struggled to adjust to it due to his PTSD, and he has had ongoing issues with dysregulation. The mother states that the father has emphasized secrecy, secret non-verbal communication, and sharing secrets in both his written communication and visits with the children, including by teaching them ASL (sign language), which is problematic in her view given the history of domestic violence in this case.

[18] The mother also raises many other concerns, including that the father is encouraging the children to make fun of their sibling, that he insists on calling D.J.M.B. (2) not by her preferred name, that he favours M.G.M.B. (3) over D.J.M.B. (2) during the course of their visits, that he has used his visits to question the children about her, and the list goes on.

[19] The father takes the view that the visits have been very successful, that he is an engaged and compassionate father, and that the children are really enjoying their visits with him. He indicates that the children have been wonderfully receptive to their reintroduction to him, and that they showed no signs of entertaining trauma, skepticism, or animus towards him at any time. The two younger girls, in particular, are delighted with the idea of their having a father, and they readily show their enthusiasm for their time with him. This evidence is supported by the paternal grandparents, who share with the father their weekly visit with the two young girls.

[20] While he acknowledges that the visits with the two older boys have been more challenging at times given their behaviour towards each other, the father indicates that he has acted to promote a healthy relationship between N.J.M.B. (7) and D.B.M.R. (5) during his parenting time with them, by speaking to both about not bullying or hitting each other. The father states that the three youngest children have had no compunction declaring their love for their father from the very beginning, although he acknowledges that N.J.M.B. (7) was not comfortable saying it until their fifth visit. As visits proceeded, however, the father says that N.J.M.B. (7) has been eager to demonstrate that he remembers life with him, fondly referencing his time in the father’s care. It is the father’s view that the mother’s allegations about deficiencies in his parenting are disingenuous. He indicates that he has been researching the children’s play interests to better connect with them and this has been successful.

[21] In light of this contradictory evidence, I have relied heavily on the objective evidence that was available to me from Krystal DeWalt, Clinical Director of Connected Communities Inc., the supervised visitation center who supervised the father’s parenting time with N.J.M.B. (7) and D.B.M.R. (5). I have also relied on the evidence from Dr. Sadler, who is providing ongoing therapeutic services to N.J.M.B. (7), despite the concerns I raised in my earlier decision about the reliability of some of her evidence and recommendations.

[22] Ms. DeWalt reported that the center supervised a total of eight virtual visits between the father and the two older boys, N.J.M.B. (7) and D.B.M.R. (5). She states that during their initial visit with their father, no significant signs of distress and/or trauma symptoms were observed. While the boys did have some minor behavioral difficulties, they were easily re-directed. Both N.J.M.B. (7) and D.B.M.R. (5) appeared to be somewhat reserved at first but opened up more as the visit went on.

[23] For the next four visits, N.J.M.B. (7) and D.B.M.R. (5) remained together during the visits and the focus of those visit(s) attempted to be split and/or shared between both children. Ms. DeWalt indicated that during the visits together, N.J.M.B. (7) and D.B.M.R. (5) struggled significantly to remain on camera, engaged in physical aggression towards each other and engaged in attention-seeking behaviors such as laughing and behaving in a way that was disruptive to the visit. N.J.M.B. (7) was asked to take a break from the visits a few times as well as D.B.M.R. (5). When the children took a break, they went out to the waiting room to talk with their mother before re-entering the room.

[24] Due to the behavioral difficulties between the children, it was decided by all parties that it was best to separate the visits and allow each child individual time with their father with a brief period at the end for “saying goodbye.” An incentive system was also implemented where the children receive a prize from the “treasure box” if they can follow directions and refrain from physical aggression. Distractions were limited in the room to avoid engagement with multiple toys, games, crafting supplies that caused significant distraction for the first few sessions.

[25] Ms. DeWalt reported that throughout the time that supervised visits have taken place, the father has come to each visit prepared with questions, activities and items to engage the children. He has shared memories of their time in Canada, taught them French phrases and words, taken interest in things that they are interested in and been generally playful. The supervisors have not observed significant signs of distress, trauma-related symptoms or made other concerning observations during any of the visits. They stated that the children were able to laugh, play and share despite minor continued behavioral issues. The supervisors found the father engaged, prepared and genuinely interested in the children’s lives. While the father asked a few questions regarding things that the boys like to do near their home in Virginia, the supervisors reported that this was general conversational questioning and that no specific questions were asked regarding the children’s address or landmarks.

[26] On one occasion, the father asked N.J.M.B. (7) a question regarding a conversation about “good touch/bad touch.” N.J.M.B. (7) stated that he did not remember this conversation and the father moved past the question without pushing further. It was recommended that potentially distressing memories and/or traumatic events should not be discussed during supervised visits at this time unless they are brought up by the children.

[27] Dr. Erin Sadler is a clinical psychologist who completed a comprehensive psychological evaluation of N.J.M.B. (7) on May 19, 2020 (the evaluation has still not been produced in the context of this proceeding). Since then, she has provided N.J.M.B. (7) with outpatient trauma-informed psychotherapy, as well as support to N.J.M.B. (7)’s caregivers. Dr. Sadler’s observations and conclusions were described at length in my December 2020 Decision and I will not repeat them here.

[28] In an updated reported completed on March 12, 2021, Dr. Sadler indicated that N.J.M.B. (7) was able to plan for and participate in a family session with his paternal grandparents on February 23, 2021, and that she also had an opportunity to connect with the father and the paternal grandparents outside of therapy to discuss N.J.M.B. (7)’s therapy goals and provide support. She wrote:

This writer was also connected with paternal family members, [paternal grandparents] and [father] in December 2020 with the intention of providing additional support following the authorization of access via virtual visits. This writer provided insight into treatment course and goals, answered family questions, and provided recommendations in support of [N.J.M.B. (7)’s] treatment. Family members were provided a general overview of treatment and along with current skills building (e.g. use of emotion regulation skills; monitoring trauma responses). More specifically, family members were introduced to [N.J.M.B. (7)’s] “Time Reset” plans for breaks, using planned ignoring, and praising prosocial behaviors. [The father] provided additional background history and has detailed questions regarding [N.J.M.B. (7)’s] development, social interactions inside and outside of the home, and adjustment to visits. [The father] also expressed concerns related to differences in trauma narrative between parents. [The grandparents] have also inquired about ways to reinforce and [sic] emotion regulation skills during visits. This writer has suggested participation [sic] future therapy sessions with [N.J.M.B. (7)]. Each paternal family member expressed interest in participating and desire for continued communication regarding treatment progress and clinical recommendations. At present, [the paternal grandparents] have participated in one session (described above). Planning for a therapy session with [the father] will be reconsidered as [N.J.M.B. (7)] approaches trauma narrative processing in his treatment.

[29] What appears clear from reading Dr. Sadler’s clinical notes is that N.J.M.B. (7) has not suffered emotional trauma or a markedly negative reaction to his re-introduction to his father and paternal grandparents. In her clinical notes from a telephone call with the mother on January 14, 2021, following N.J.M.B.(7)’s first visit with his father, Dr. Sadler noted that N.J.M.B.(7) was reported by his mother to have been emotional the evening following his first visit with his father, but that he was adjusting well. In a telephone conversation with N.J.M.B. (7)’s paternal aunt the next day, she reported typical behaviors following the first visit with his father.

[30] In all her clinical notes written following the resumption of contact between N.J.M.B. (7), his father and his paternal grandparents, there is no mention whatsoever of a set-back in his mental health, behavior and overall treatment objectives. N.J.M.B. (7) is a child with very complicated special needs. Whatever the behavioural issues or challenges that might come up during his virtual visits with his paternal family, they were no different than the behavioural issues and challenges he routinely displays at home, at school or during his counselling sessions with Dr. Sadler, as reported by the mother, her extended family, the school and Dr. Sadler herself.

[31] I have carefully reviewed the mother’s evidence supporting her alleged concerns about the father’s behaviour and/or poor parenting skills during his visits with the children, and I am of the view that those concerns are not founded. In particular, I have watched selected parts of the father’s recorded visits with the children, including but not limited to those segments that the mother specifically referred to in her affidavit to support her allegations, and they did not raise any concerns on my part. Quite the contrary, I echo the access supervisors’ observations that the father was prepared, engaged, patient, and appropriate in his interactions with the children.

[32] Although a cautious approach continues to be mandated in relation to the reintegration of the father in the lives of the children, for all the reasons already outlined in my December 2020 Decision, I am of the view that it is in the children’s best interests to increase the father’s parenting time with them, and to work towards the integration of in-person visits between the children and their paternal family as soon as possible.

Ongoing Virtual Parenting Time and Visits

[33] On consent of the mother, the paternal grandparents’ virtual visits with the children will be increased to 45 minutes. Otherwise, their visitation schedule will remain the same.

[34] The paternal grandparents have reported challenges in obtaining the recording of their virtual visits with the children. This is denied by the mother. Without making no finding in that regard, I have decided to allow the paternal grandparents to be the hosts of their virtual visits with the children from now on, simply to give both sides an equal opportunity to access recordings of those visits. The paternal grandparents shall share those recordings with the mother promptly after each visit. The paternal grandparents will also continue to be permitted to participate in N.J.M.B.(7)’s therapy with Dr. Sadler to the extend and the form requested by her.

[35] The father’s virtual parenting time with the children will continue in accordance with the existing schedule. As a means to increase his parenting time with the children, the father will be permitted to join the paternal grandparents for their virtual visits with them, whenever he is invited by the paternal grandparents to join. In addition, the father shall have one extra weekly visit with each of the two older boys, N.J.M.B. (7) and D.B.M.R. (5), individually and unsupervised, on a day and a time to be agreed to between him and the mother within 10 days from this Decision, for a duration of 30 minutes for each visit.

[36] I am not limiting the father’s additional time with the older two boys because of any concerns I might harbour about those virtual visits. Rather, I am limiting them to 30 minutes at this time because I am mindful of the challenges presented by trying to keep either of these two children in front of the computer for longer periods of time, of the fact that the mother (upon whom the organization of those additional visits will befall) has three other children to care for at the same time, and because I prefer frequency over duration for the moment, wanting to ensure that the virtual visits remain positive moments in the children’s routines and not a burden for them.

[37] I have decided that the father’s joint weekly virtual visit (with both N.J.M.B. (7) and D.B.M.R. (5)) will continue to be supervised by, and take place at, Connected Communities Inc. for the following reasons. I find that it continues to be important for objective professional evidence to be collected in relation to the father’s parenting time with the two older boys, at least until the parenting assessment is completed. In addition, the report of the father’s virtual visits with both boys present confirms that they are exhibiting, at times, significant dysregulation and aggression towards each other which requires frequent intervention and re-direction by the supervisors.

[38] I am simply not confident that the mother will be able to effectively manage those behaviours during the father’s virtual parenting time (which would otherwise take place in her home), and I am concerned that making her responsible for the management of those joint visits will only lead to mutual accusations by the parents that one is the cause of the misbehaviour or that the other is purposefully allowing the chaos in an attempt to sabotage the visits. The important benefit of the supervisors’ in-person interventions with the boys would be lost in a virtually supervised model such as the one offered by the Salvation Army which is proposed by the father given its more reasonable pricing.

[39] The details of the increased virtual visitation schedule that I order today are found at the end of this decision.

In-Person Parenting Time / Visits

[40] The father is seeking an order that the children be brought to Ottawa from the beginning of their summer school holidays until the end of the assessment process in August 2021. During that time, he proposes that the mother stay with the children in a rental apartment paid for by his parents (who have agreed to this), and that a schedule for graduated and increasing parenting time between him and the children be put into place (no suggestion was made about what that parenting schedule would look like).

[41] The paternal grandparents seek an order that, subject to any explicit COVID-19 travel prohibitions, the mother deliver the children for in-person visits to them in Ontario for summer and school holidays. They also do not provide a clear plan as to frequency or duration for those visits. While COVID-related land border requirements are in effect, they propose that the paternal grandmother meet the mother at a designated location on the US-side of the Kingston-Ontario border crossing, where the children could be placed in her care to travel back to Ottawa. The paternal grandparents propose to pay for the mother’s gas expenses to travel to and from each access visit.

[42] The mother is strongly opposed to in-person visits between the children, their father and their paternal grandparents to the extent and in the manner suggested by them. She is strongly opposed to the children travelling to Ottawa this summer to see their paternal family, but she is open to the paternal grandparents (not the father) having supervised visits with the children in Virginia, in the community, should they be willing to travel there. Although she states in her March 17, 2021 affidavit that she is proposing a gradual reintroduction of in-person access between the children and their father pending the s. 30 assessment, I have been unable to find in her materials any reference to what this gradual reintroduction of in-person access might look like.

[43] The mother’s suggestion that visits between the children and the paternal grandparents should be supervised is entirely baseless, in my view. The only reason for the mother’s insistence on supervised visits is her allegation that there was, and may still be, domestic violence between the paternal grandparents which may put the children at risk while in their care. I have already ruled that whether there was domestic abuse in the past between the grandparents (something that remains to be proven), there is no evidence whatsoever suggesting that there were any incidents related to domestic violence or abuse at any time during the period following the family’s return from Afghanistan, and to this day. Further, I have previously ruled that I had no concerns whatsoever in the paternal grandparents’ ability to care for these children or to keep them safe, as evidenced by the mother’s own extensive reliance upon them to care for the children on a daily basis while they were still in Ottawa, despite having clear knowledge of the past domestic abuse allegations looming.

[44] I also find that there are valid reasons supporting the father and paternal grandfather’s refusal to travel to the United States at this time. Trust between all parties runs very low, and it is undisputed that the mother has, in the past, made allegations to the American federal and state police and other law enforcement agencies about the risks that they presented to the mother and the children. It cannot be ruled out that the father or paternal grandfather may face serious consequences should they travel to the U.S., and their unwillingness to take that risk at this time is reasonable based on all of the circumstances. The evidence provided by the mother to support her contention that there are no pending criminal offences against the father in the United States has not satisfied me that it would be safe for him to travel to the U.S. at this time.

[45] The mother is clearly opposed to the children spending a significant amount of time away from her to spend the summer with their paternal family. She does not believe that placing the children in the care of their paternal grandparents for weeks during the summer, as they suggest, is in their best interest. She notes that the paternal grandparents have not seen the children or cared for them for over two years (they never did as far as D.J.M.B. (2) is concerned), and being away from their primary caregiver for weeks at a time is not appropriate for the children given their young age and N.J.M.B. (7)’s special needs. I entirely agree with the mother on this point.

[46] When asked at questioning whether she would be prepared to travel to Ottawa with the children in the event that the court ordered them to spend part of the summer in Ottawa, the mother confirmed that she would not want to be away from them for this long, and that she would of course come with them.

[47] I am of the view that, aside from COVID-related concerns and practical challenges resulting from the distance between the parties’ residences, there is no legitimate reason at this time to limit the father’s parenting time and the paternal grandparents’ contact with the children to virtual visits. It is my view that it is in the children’s best interests to implement a graduated and increasing parenting time schedule between them and their father, and to allow them to have in-person visits with their paternal grandparents. I am of the view that the children’s summer vacation offers the perfect opportunity for this to happen.

[48] In addition, given my conclusions further explained below, that Dr. Pishva should be appointed to complete the parenting assessment which will require that the children be present in Ontario for in-person observation visits, the children will have to be brought to Ottawa for this purpose. It is very important that some in-person visits take place before observation visits take place, and this requires the children to travel to, and stay in Ottawa for a reasonable amount of time to allow for this process to take place. One longer stay (as opposed to two or more separate visits) in Ottawa has the added advantage of limiting the need to travel and to – possibly – having to self-isolate to one time only.

[49] I take judicial notice of the fact that Public Health’s travel restrictions and quarantine requirements in both Ontario/Canada and Virginia/the U.S. are in a continual state of flux. Presently, the entire province is under a month-long lock-down. As the vaccine roll-out in Ontario and in the United States continues to evolve and the number of confirmed COVID cases vary, it is hoped that these restrictions will slowly abate and we may eventually see a return to some form of normalcy for the summer holidays; however, this is far from certain.

[50] Considering this, I see no point in trying to speculate in advance what those restrictions might be when the summer comes. All we know is that, at this time, travellers from abroad are required to self-isolate for a period of 14 days upon entry to Canada. We also know that throughout this pandemic, the exercise of parenting time has always been considered an “essential service” in Ontario, allowing for international and inter-provincial travel for that purpose. There are also exceptions to the requirement to self-isolate upon entry to Canada, and the father’s evidence suggests that this family’s special circumstances may allow them to benefit from one of those exemptions. The evidence before me at the time this motion was heard confirms that there is no such quarantine requirement in Virginia, although it is recommended, which means that the mother and the children would not have to self-isolate upon re-entry into the United States.

[51] The mother takes the position that travelling to and staying in Ottawa for the entire summer, as requested by the father, will be very disruptive to the children, as it will significantly disrupt their routine and supports for months. She states that N.J.M.B. (7), in particular, becomes very dysregulated whenever there is significant change or disruption in his life, and having to travel to Ottawa this summer may cause him to be much more dysregulated and to regress in the progress he has made.

[52] I note that N.J.M.B. (7)’s very special needs have not stopped the mother from relocating from Ottawa to Pennsylvania with the four children, only to relocate them once again in less than one month to another State and another community, far away from their significant supports in both places.

[53] I further note that there are currently no supports in place for any of the children, except for N.J.M.B. (7) who has ongoing counselling sessions with Dr. Sadler. However, those sessions are currently taking place remotely. Therefore, N.J.M.B. (7)’s place of residence for the summer will have no impact on his ability to continue his ongoing therapy with Dr. Sadler. There is no evidence that the children are enrolled in any kind of activity for the summer, and the two younger ones are not going to daycare. The mother does not work outside of the home. She has provided no evidence that she is currently enrolled in a program of education that will be imperilled if she is required to stay in Ottawa during the summer.

[54] The evidence before me (which includes the mother’s evidence adduced in the context of the December 2020 motion) reveals that the mother has very little supports in her Virginia community, and her extended family members live hours away from her. Other than living in a different home (and neighbourhood) with their mother for a few weeks, and the novelty of seeing their father and paternal family for the first time in two years, there will be no major disruption in these children’s day-to-day routine and supports. This will be no different than, and could be as exciting as, going on a summer vacation with their mother and siblings.

[55] The paternal grandparents have confirmed that they are willing to arrange and pay for the mother’s and the children’s accommodation in the Ottawa area for the duration of the mother’s stay, as well as her gas to drive here and back. They are also prepared to arrange for and cover the costs of travel health insurance for the mother and the children for the duration of their stay in Canada. The drive from Virginia to Ottawa (the exact place of residence of the mother is unknown to me, so the actual distance may vary) is – roughly – a ten-hour drive.

[56] For all the above reasons, I am of the view that it is in the children’s best interests that the mother be required to come to Ottawa during the summer of 2021, for a period of three consecutive weeks (if no period of self-isolation is required) up to five weeks (if a period of self-isolation is required). This will give the children the time to settle in, and to have in-person visits with both their father and their paternal grandparents in accordance with a gradually increasing schedule that will be sensitive to their needs.

[57] This said, and as previously stated, I continue to be of the view that a cautionary approach remains necessary with regards to the father’s parenting time with the children, at least until the parenting assessment is completed. Such cautionary approach is supported by the many concerns expressed in my December 2020 Decision in relation to domestic violence between the parents, which may or may not have included controlling and coercive behaviours, as well as allegations of child mistreatment, among others.

[58] For that reason, I am of the view that the father’s in-person parenting time with the children should take place at the paternal grandparents’ home, and under their “general supervision” for the time being. By “general supervision”, I mean that one of the grandparents must be present in the home during the father’s parenting time. However, it does not mean that one of the grandparents must always be at the father’s side when he exercises his parenting time. For instance, it is wholly appropriate for the father to play with the children in the backyard or to go for a short walk in the park without one of his parents being present. He would, however, be contravening this court order if he exercised his parenting time at a place other than his parents’ home or the vicinity of his parents’ home without one of them being present.

[59] The details of the order I make in relation to the in-person parenting time and visitation schedule is further detailed below.

Parenting Assessment

[60] In my December 10, 2020 Decision, I ordered the parties to complete a number of steps within 45 days to ensure that the parenting assessment I ordered would start within a reasonable time. If there was a dispute in relation to the choice of assessor, any terms to be included in the retainer agreement (including the requirement for travel to facilitate interviews or observation visits), or compliance with the assessment process, I invited the parties to arrange a hearing before me on 7 days’ notice to the other parties, and I would decide.

[61] Four months later, the parties have still not been able to agree on the choice of the assessor who will complete the s. 30 assessment.

[62] The father and paternal grandparents propose Dr. Rana Pishva. Dr. Pishva is a clinical psychologist who practices in Ottawa. She was the assessor that the father and paternal grandfather proposed from the outset, and she confirmed early on that she was available and willing to undertake this assessment. Dr. Pishva has set out a detailed plan for her proposed process, confirming that the entire assessment, except for observation visits, could be conducted virtually. Dr. Pishva is not prepared to travel to the United States for observation visits, but she is prepared to travel within Ontario to do so.

[63] The mother takes the position that the entire assessment process, including observation visits, should take place virtually. She proposes Dr. Shely Polak or Dr. Helen Radovanovic, who have both confirmed their ability and willingness to conduct s. 30 assessments virtually, including observation visits. Dr. Polak is a social worker with significant experience in completing s. 30 assessments and who specializes in re-integration therapy for high conflict families. Similarly, Dr. Radovanovic specializes in providing therapeutic services for high conflict families and has significant experience completing parenting assessments. Both practice in the Toronto region.

[64] I have decided that Dr. Pishva should be appointed to conduct the assessment for the following reasons. Dr. Pishva has a Master’s degree and a Doctorate degree in clinical psychology. Her resume makes it abundantly clear that she has significant experience in the field of clinical psychology, delivering mental health services to diverse and complex child, adolescent and adult populations including in the field of child protection, family court and the criminal justice system. She has conducted numerous assessments during her career, including court-ordered parent capacity assessments of the family dynamics, parenting ability, child well-being, and risk of neglect and/or maltreatment. There is no question, nor is it alleged by the mother, that Dr. Pishva is qualified to take on the assessment of this family’s complex needs and of the parents’ ability to meet them.

[65] Whereas the father has provided Dr. Pishva’s detailed plan for this assessment, the mother’s evidence leads me to believe that Dr. Polak and Dr. Radovanovic have only recently been approached to gather their availability to complete this assessment (the mother had initially proposed Dr. Barbara Fidler, but she was either not available or not doing this type of work at this time). The mother has not provided me with any written communication between her and those two professionals nor has she provided me with a detailed proposal for the assessment, including the terms of their retainer agreements or a proposed timeline.

[66] Although her assessment schedule will now have to be revised due to the passage of time, Dr. Pishva has confirmed, in writing, that she is able to take on this assessment within a reasonable amount of time (she would have been able to begin in May, but due to the delays in confirming her retainer I was advised during oral arguments that she might only be able to begin in July or August). In other words, Dr. Pishva has confirmed, in writing, her intention to accept the retainer should one be extended to her. She has also made herself available for an initial virtual meeting with all counsel.

[67] Dr. Pishva has raised concerns about the observation visits being conducted remotely. In her view, there are too many variables during virtual visits. Someone could be off camera. The camera will have a limited focal point. Key interactions might therefore not be captured. She indicated that the observation visits have to be in person and in a naturalistic environment. She further indicated that it would not be appropriate for her to observe a reunification visit, as that visit would not be representative. Although she could not put a number on the visits that would have to occur prior to the assessment, she indicated that she would want parenting time between the children and the various parties to have normalized prior to the assessment taking place. She further added that she could perform a “compressed” assessment, whereby all observation visits with one party would take place during a one-week period.

[68] This evidence does not lead me to conclude that it would be inappropriate in all or most cases for observation visits to be conduced virtually. However, this is not an ordinary case. Given the length of time that the children have not been in the physical presence of their father and paternal grandparents, and given the allegations being made by each parent about past child maltreatment by the parents (or any of them), intimate partner violence between the parents (by one of them or both), and the children’s alleged exposure to it – which may be the cause of some trauma suffered by N.J.M.B. (7) and/or D.B.M.R. (5) – I wholeheartedly agree that this case requires in-person observation visits. They are necessary for the assessor to fully assess the children’s current level of comfort in the presence of each parent as well as any signs of distress or past trauma that might provide better clarity about the children’s past experiences.

[69] Finally, Dr. Pishva is located here in Ottawa, where three of the four parties to this case reside. This is where the family resided while living in Ontario, this is where this court proceeding is taking place, and this is where the trial will be heard. There is significant evidence in Ottawa and from Ottawa professionals about each member of this family. Since the father’s in-person parenting time and the paternal grandparents’ visits with the children will take place here in Ottawa, Dr. Pishva is the logical choice.

Order

[70] As a result, the following order is made:

Virtual visitation schedule

1- The paternal grandparents’ virtual visits with the children, as set out in my December 10, 2020 Order, shall be increased to 45 minutes each visit.

2- The paternal grandparents will be the hosts of their virtual visits (via Zoom) with the children. They shall share those recordings with the mother promptly after each visit.

3- The paternal grandparents will continue to be permitted to participate in N.J.M.B. (7)’s therapy with Dr. Sadler to the extend and the form requested by her.

4- In addition to the virtual parenting time set out in my December 10, 2020 Order, the father shall have the following additional virtual parenting time:

a. The father shall be permitted to join the paternal grandparents for their virtual visits with the children, whenever he is invited by the paternal grandparents to do so.

b. The father shall have one extra weekly visit with each of the two older boys, N.J.M.B. (7) and D.B.M.R. (5), individually and unsupervised, on a day and at a time to be agreed to between him and the mother within 15 days, for a duration of 30 minutes for each individual visit. The day and time chosen for these individual visits shall remain the same every week unless expressly agreed to otherwise by the parents.

c. During the unsupervised virtual visits taking place in the mother’s home, she shall ensure that the child(ren) who are scheduled to have a visit with their father is(are) in a more isolated area of the home where they are able to engage in the visit without being disturbed or their visit interfered with by the other children.

d. The mother shall continue to record all virtual visits between the father (alone) and the children, and to promptly provide him with a copy of the recording after each visit. If the mother fails to do so, I may be spoken to.

e. The father’s weekly visit with the two older children, N.J.M.B. (7) and D.B.M.R. (5), shall continue to be supervised at Connected Communities Inc., until further order of the court, unless expressly agreed to otherwise by the parents.

f. The father shall be permitted to participate in N.J.M.B. (7)’s therapy with Dr. Sadler when invited to do so by her, and to the extend and in the form requested by her.

In-person visitation schedule

5- The mother shall travel to the Ottawa region during the summer of 2021 for a period of three (3) weeks. If the mother and the children are required to self-isolate for any number of days upon their arrival in Canada in accordance with Ontario’s or Canada’s Public Health’s restrictions in place at that time, their stay in Ottawa shall be extended by an equal number of days.

6- The mother’s gas to travel to and from Ottawa shall be paid by the paternal grandparents.

7- The paternal grandparents shall secure proper housing for the mother and the children for their entire stay in the Ottawa region, within a reasonable distance from their home, the cost of which shall be covered by the paternal grandparents.

8- The paternal grandparents shall not disclose to anyone (other than counsel) the location where the mother and the children will be residing while in the Ottawa region.

9- The non-contact order made by Engelking J. on July 23, 2018, shall remain in full force and effect as it relates to the mother only. Any provisions contained therein restraining or restricting the father’s ability to be in the presence of the children is hereby removed (if not done already).

10- Beginning on the second day[^2] after the mother’s arrival in the Ottawa region, or on the first day following any period of quarantine required by Public Health directives in place at that time, and for the three weeks following, the parties shall adhere to the visitation schedule attached to this decision as Schedule “A” (they may make changes to that schedule as long as it is on consent of all parties).

11- The father’s parenting time with the children shall take place at the paternal grandparents’ home, and under their “general” supervision (as defined earlier in my decision). No supervision by the paternal grandparents shall be required during the father’s observation visits with Dr. Pishva.

12- The paternal grandparents (or anyone of them) shall be responsible for the transportation of the children to and from their home. The mother and paternal grandparents may agree on a place other than the mother’s residence for the exchanges to take place. Unless otherwise agreed, the exchange of the children will take place at the mother’s residence.

Section 30 assessment

13- Dr. Pishva is hereby appointed to complete a parenting assessment pursuant to s.30 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12. (“CLRA”). To be clear, the mandate given to Dr. Pishva under s. 30 of the CLRA is to assess and report to the court on the needs of the children and the ability and willingness of both parents to satisfy them.

14- Within five (5) days of the release of this decision, the parties shall have scheduled a teleconference between Dr. Pishva and the parties’ counsel at Dr. Pishva’s next available date to discuss the logistics surrounding the completion of the assessment. The parties’ counsel shall make themselves available for that meeting at the date set by Dr. Pishva or appoint an agent to participate in their place if they are unavailable.

15- The assessment will follow the process set out in Dr. Pishva’s email sent to the parties’ counsel on March 3, 2021, subject to any changes that Dr. Pishva, in her sole discretion, may wish to make to her process once she has a better understanding of this family’s needs and any scheduling challenges.

16- If there are any difficulties or disagreements between the parties in relation to Dr. Pishva’s assessment process, I may be spoken to on 24 hours’ notice to all parties.

17- The children’s stay in Ottawa shall be scheduled in a way that will allow Dr. Pishva to conduct the following observation visits:

a. two in-person observation visits between the children and their mother, at any time during her entire stay in the Ottawa region (subject to quarantine restrictions);

b. two in-person observation visits between the children and the paternal grandparents during week 2 or week 3 of the children’s stay in the Ottawa region;

c. two in-person observation visits between the children and their father during week 3 of their stay in the Ottawa region.

18- Every effort is to be made to ensure that the mother can return home to Virginia with the children before school resumes. However, if this cannot be achieved as a result of conflict/unavailability in Dr. Pishva’s work schedule, priority is to be given to the assessment process over the children’s school schedule.

Madam Justice Julie Audet

Released: April 19, 2021

	DAY 1	DAY 2	DAY 3	DAY 4	DAY 5	DAY 6	DAY 7
WEEK 1	Visit with all four children, for 3 hours	1 visit with the two girls, for 2 hours and 1 visit with the two boys, for 2 hours	Visit with the two girls, for 4 hours	Visit with the two boys, for 4 hours	Visit with the two girls, for 4 hours	Visit with the two boys, for 4 hours	Visit with all four children for 4 hours
WEEK 2	Visit with the two girls, for 6 hours	Visit with the two boys, for 6 hours	Visit with the two girls, for the day (after breakfast to before dinner)	Visit with the two boys, for the day (after breakfast to before dinner)	Day with the mother	Visit with all four children for the day (after breakfast to after dinner)	Visit with the two girls, for the day (after breakfast to after dinner)
WEEK 3	Visit with the two boys, for the day (after breakfast to after dinner)	Visit with the two girls, for the day (after breakfast to after dinner)	Visit with the two boys, for the day (after breakfast to after dinner)	Visit with the two girls, for the day (after breakfast to after dinner)	Visit with the two boys, from 11 a.m. overnight to noon on Day 6	Visit with the two girls, from noon overnight until 4 p.m. on Day 7	Visit with the two boys, from 10 a.m. to 4 p.m.

SCHEDULE “A”

Notes:

• All visits are for both the father and the paternal grandparents.

• The parties shall agree to the time at which each visit will begin and end (if not otherwise specified) no later than two weeks before the mother and the children’s arrival in Ottawa.

• For any overnight visits, the father shall leave the paternal grandparents’ home by 10 p.m. and may return as early as 7 a.m. the next day.

• For the duration of any observation visits (by Dr. Pishva) between the grandparents and the children, the father shall not be present. For the duration of any observation visits between the father and the children, the paternal grandparents shall not be present.

[^1]: Was it their captivity in Afghanistan, their exposure to alleged intimate partner violence and/or alleged child abuse by one or both parents, the mother’s mental health challenges, or a combination of all these factors?

[^2]: This is to allow the mother and children one full day in Ottawa, including an overnight, to settle in before the children have a visit with their father and paternal grandparents.