Court File and Parties

Court File No.: FC-20-176 Date: 2021-05-20 Superior Court of Justice - Ontario

Re: Kim Bennett and Christopher Bennett, Applicants And: Renee Lee MacFarlane and Jacob Hunter, Respondents

Before: Justice C. Boswell

Counsel: Nicole A. Meringolo, counsel for the Applicants Muhammed A. Afzal, counsel for the Respondent, Renee Lee MacFarlane

Heard: May 19, 2021

Endorsement

[1] Parents make decisions relating to their children every day of the week, on issues as wide and as varied as the imagination permits. Issues relating to health, hygiene, education, religion, recreation, social activities, meals, clothing, playtime, bedtime, web access and many others are routinely managed in the daily course of a parent’s life. Decisions frequently have to be made about who the children will spend time with, when and under what conditions. Sometimes those decisions involve time spent with extended family members.

[2] Courts generally recognize and respect parental autonomy when it comes to making decisions in the best interests of their children. Parents are responsible for their children’s welfare. They are recognized as being uniquely situated to understand what is best for their children.

[3] This court is regularly asked to make pronouncements about what decisions are in the best interests of children whose parents have separated. Occasionally, the court is petitioned by a non-parent to intervene in the decision-making of a parent and to determine whether the decision(s) in issue are in a child’s best interests. This is one of those occasional cases.

[4] Annabelle Hunter is seven years old. Renee MacFarlane is her mother and primary caregiver. Jacob Hunter is her father. Ms. MacFarlane and Mr. Hunter are separated. Kim Bennett is Ms. MacFarlane’s mother and Annabelle’s grandmother. Christopher Bennett is Kim Bennett’s spouse and is a step-grandparent to Annabelle.

[5] The Bennetts have a conflict-riddled relationship with Ms. MacFarlane. Their conflicts have led to a number of periods of estrangement between them. They are in the midst of one of those periods now. Ms. MacFarlane has all but cut off contact between them and Annabelle since September 2020.

[6] The Bennetts assert that Ms. MacFarlane’s decision to cut them out of Annabelle’s life has not been made in her best interests. They say Annabelle is being used as a pawn to punish them. They want the court to impose a contact order in their favour, providing that Annabelle will spend one weekend per month with them, plus additional weekday times.

[7] Ms. MacFarlane is not entirely against the concept of Annabelle having contact with the Bennetts. But she contends that Mrs. Bennett routinely criticizes her parenting abilities and questions the decisions she makes. She is concerned about the impact that their conflict will have on Annabelle. She asks that decisions about what contact the Bennetts have with Annabelle be left to her discretion. For now she is proposing short, occasional, weekday evening visits between Annabelle and the Bennetts to take place at Ms. MacFarlane’s home.

[8] As I will explain, I have concluded that it is in Annabelle’s best interests to have regular, ongoing contact with her grandparents. I am not satisfied that there is any basis for that contact to be supervised, nor limited to short, mid-week visits.

The Procedural History

[9] Ms. MacFarlane’s decision to cut off the Bennetts’ contact with Annabelle triggered an emergency 14B motion by the Bennetts for an access order. That motion came before Justice Jain, on notice, on October 30, 2020. She dismissed it on the basis that the Bennetts had failed to demonstrate sufficient urgency to justify making any order prior to a case conference.

[10] The Bennetts took another run at an urgent 14B motion about three weeks later. This time they asked for an order for custody of Annabelle and did not serve notice of the motion on Ms. MacFarlane. This second 14B motion came before Justice McDermot on November 10, 2020. It was again dismissed for want of urgency and because it was, in effect, an abuse of process. Justice McDermot directed that the motion was not to be reinstated prior to a case conference.

[11] A case conference proceeded before Justice Douglas on February 5, 2021. Temporary Minutes of Settlement were reached on that day. They provided that the Bennetts would have in-person contact with Annabelle on the first Saturday of each month for three hours. The visits were to take place at Ms. MacFarlane’s home. They were, and remain, subject to the impact of any provincial stay-at-home order relating to the COVID-19 pandemic. In addition, the Bennetts were to enjoy virtual contact with Annabelle once per week, on Mondays at 5:00 p.m. through the Facetime application.

[12] The parties also agreed, at the case conference, that Annabelle’s father, Jacob Hunter, should be added as a party respondent to these proceedings.

[13] With the case conference completed, the Bennetts re-initiated their motion for more substantial contact with Annabelle. The motion came before Justice Wildman on March 11, 2021. The Bennetts had, unfortunately, filed motion materials in excess of those permitted by the current Notice to Profession. Moreover, Ms. MacFarlane had only just retained counsel and her lawyer had not yet had an opportunity to review all of the Bennetts’ materials or respond to them. Under the circumstances, the motion was adjourned to April 29, 2021.

[14] Given rising COVID-19 infections in the province, the Chief Justice of the Superior Court of Justice issued a Notice to Profession on April 20, 2021 suspending all but the most urgent hearings until May 7, 2021. The Bennetts’ motion was not considered to be one of the most urgent in the system and, in the result, it was deferred to the spring civil trial sittings. It was called for hearing on May 19, 2021.

The Evidentiary Record

[15] Each side filed a comprehensive motion record.

[16] The Bennetts’ record included the affidavit of Mrs. Bennett sworn May 6, 2021, which attached a number of exhibits.

[17] Ms. MacFarlane’s record included her affidavit sworn May 16, 2021, which also attached a number of exhibits. In addition, she included the affidavit of Jacob Hunter, sworn January 28, 2021 as well as Mrs. Bennett’s affidavit sworn October 22, 2020 for comparison purposes.

[18] The evidentiary record is notable for the markedly divergent recollections the parties have of their lived experiences over the past five years, particularly in relation to the role the Bennetts have played in Annabelle’s life during that period.

[19] According to Mrs. Bennett:

(a) Annabelle was born May 28, 2014. The Bennetts have a close, loving and special relationship with her;

(b) There have been periods when Ms. MacFarlane and Annabelle have lived with the Bennetts for extended periods, including October and November 2014 and then again for a period of about a year commencing June 2017;

(c) Even when not living together, the Bennetts have had extensive contact with Annabelle other than during periods of forced estrangement. That contact has included regular visits and frequent sleepovers. Mrs. Bennett says that Annabelle has been in the Bennetts’ care more often than not during the four-and-a-half year period between March 2016 and September 22, 2020;

(d) Ms. MacFarlane has a history of suspending the Bennetts’ contact with Annabelle whenever there is conflict between them. For instance,

(i) A month after Annabelle was born, contact was suspended for three months, for reasons unknown to Mrs. Bennett;

(ii) In November 2014, an incident occurred while Ms. MacFarlane was living with the Bennetts. She went out for the evening with friends and came home “belligerently drunk”. An argument ensued and Ms. MacFarlane took Annabelle and left, going to the home of a friend. The Bennetts contacted the police and the CAS. An investigation ensued, which went nowhere. Following this incident, Ms. MacFarlane cut off contact between Annabelle and the Bennetts for roughly 18 months; and,

(iii) On September 22, 2020, an argument over pandemic protocols resulted in a third – the current – estrangement; and,

(e) Annabelle’s father, Mr. Hunter, has had sparse and sporadic contact with Annabelle since birth. He has a criminal record, problems with alcohol abuse and a history of violence towards Ms. MacFarlane. He has never paid child support. The last time he was trusted to care for Annabelle he was found passed out in Ms. MacFarlane’s apartment with a duffel bag full of guns and drugs. After this incident he has had almost no contact with Annabelle.

[20] Ms. MacFarlane’s affidavit leaves a significantly different impression. According to her:

(a) She has a history of conflict with the Bennetts and left their home when she was 16;

(b) Since she graduated high school in 2009 she has not lived with the Bennetts save for a three month period beginning in August 2018;

(c) Mr. Hunter has maintained an active relationship with Annabelle save for a period of five months in early 2020 when he struggled with alcohol abuse. He otherwise spends time with Annabelle every other weekend;

(d) The Bennetts have had modest contact with Annabelle throughout her life. In particular:

(i) Three occasions in 2014;

(ii) Four occasions in each of 2015 and 2016;

(iii) Between August 1, 2017 and December 1, 2017 Ms. MacFarlane and Annabelle resided with the Bennetts. There was one other visit in 2017 of roughly three days;

(iv) In 2018, there were one or two overnight visits per month, for a total of about 18, plus five other weekends;

(v) In 2019, there were similarly about 18 overnight visits spread throughout the year. In addition, for two months during the summer of 2019, Christopher Bennett stayed with her and Annabelle for four nights per week, to watch Annabelle while Ms. MacFarlane worked;

(vi) In 2020 there were five visits plus 1 or 2 ten minute video calls per month after the pandemic hit in March; and,

(vii) In 2021 there have been two visits outside of lockdown periods, pursuant to the temporary Minutes of Settlement;

(e) She was not living with the Bennetts when the incident occurred between them in the fall of 2014. The incident occurred not in November but on October 23, 2014. The Bennetts were babysitting Annabelle. Ms. MacFarlane went out with friends, returning at about 8:30 p.m. She bathed, fed and changed Annabelle and put her to bed. Mrs. Bennett began to criticize her parenting skills. She picked up Annabelle and left. As she did so, Mrs. Bennett tried to pry Annabelle from her arms. She went to a friend’s home. The Bennetts called the police and the CAS;

(f) She has attempted numerous times to “normalize” relations with the Bennetts, but to no avail. The attempts inevitably result in conflict. September 2020 was particularly conflict-ridden, including the following events:

(i) On September 20, 2020 she brought Annabelle to her sister, Rachelle’s, house for an overnight visit with her cousin, Ruby. The following day, she began to receive text messages from the Bennetts and Rachel berating her for being a bad parent. She came and collected Annabelle. When she arrived there were two police cars present and the police escorted Annabelle to her. She had not called the police;

(ii) On September 25, 2020 she received an email from her sister, Rachel, enclosing what purported to be a lawyer’s letter seeking a schedule of fixed contact between the Bennetts and Annabelle. The letter is an obvious forgery; and,

(iii) On September 29, 2020 she received a call from someone from the school board indicating that they had received a letter of intent purportedly signed by Ms. MacFarlane indicating her intention to provide home schooling for Annabelle, effective September 21, 2020. This letter is also an obvious forgery.

[21] Ms. MacFarlane went on to outline, in her affidavit, how busy Annabelle is and how limited her available time is. Though there are some internal inconsistencies in her affidavit, she described the following as Annabelle’s schedule (all subject to stay-at-home orders):

(a) School runs from 9:00 a.m. to 3:00 p.m.;

(b) She has before and after school programs at the YMCA from 7:00 a.m. to 9:00 a.m. and from 3:00 p.m. to 6:00 p.m. daily;

(c) She spends two weekends per month with her father, Jacob Hunter. In addition, she has two to three thirty-minute calls with Mr. Hunter each week;

(d) She spends one weekend per month with her paternal grandfather and his partner. In addition, she has two to three one-hour calls with them each week;

(e) She spends one to two weekends per month with Ms. MacFarlane’s sister, Rebecca, and her children;

(f) She has daily, one-hour phone calls with her best friend, Savanna; and,

(g) She has one or two videocalls each week with Mr. Hunter’s mother, Catherine Sullivan.

[22] Mr. Hunter swore an affidavit on January 28, 2021. He lives in Toronto and apparently works full-time as a roofer.

[23] Mr. Hunter deposed that he and Ms. MacFarlane have come to an agreement whereby he will have weekly video calls with Annabelle and every other weekend parenting time with her.

[24] According to Mr. Hunter, the Bennetts had no relationship with Annabelle for the first two or three years of her life. He offered his opinions about Ms. MacFarlane’s state of mind in relation to her family.

The Governing Principles

[25] The Bennett’s claim is grounded in s. 21(3) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended (the “CLRA”), which provides that any person, including a grandparent, may apply to a court for a contact order with respect to a child. “Contact” is defined as “the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.”

[26] Section 24 of the CLRA directs the court, when considering or making a contact order, to consider only the best interests of the child. In doing so, the court is to consider all factors relating to the circumstances of the child, but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[27] Section 24(3) enumerates a number of other factors that courts should consider when assessing the best interests of a child. They include:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; and,

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.

[28] The significance and weight to be put on any given factor varies from case to case. There is no question that each case turns on its own particular facts. The only issue is the best interests of the child in the context of those particular facts. See Gordon v. Goetz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

The Parties’ Positions

[29] The positions of the parties are relatively straightforward.

[30] The Bennetts submit that they have been active, involved, loving grandparents. They say they have played a significant role in Annabelle’s life; one that is fundamentally important to her emotional and psychological well-being. They believe that she is suffering and will continue to suffer without their regular presence in her life. They contend that Ms. MacFarlane’s decision to eliminate their contact with Annabelle is arbitrary and capricious and not in any way based on Annabelle’s best interests.

[31] Ms. MacFarlane submits that the Bennetts are prone to conflict with one another and certainly have a history of conflict with her. She has done her best to promote a relationship between Annabelle and the Bennetts but the regular and persistent conflict that arises in their relationship is not good for Annabelle, or any of them for that matter. She is prepared to facilitate contact between Annabelle and the Bennetts going forward, but asks that it be entirely in her discretion to decide what is best for Annabelle.

[32] I note that Ms. MacFarlane has served and filed her own notice of motion. She seeks orders declaring that she and Jacob Hunter are Annabelle’s biological parents, granting her primary care of Annabelle, granting her the discretion to determine whether and under what conditions contact between Annabelle and the Bennetts will occur and an order restraining the Bennetts from posting photographs of Annabelle on any social media applications with her prior, written consent.

Discussion

[33] The Bennetts’ motion is for contact with Annabelle. There appears to be no dispute that Ms. MacFarlane and Mr. Hunter are Annabelle’s biological parents. Nor is there any dispute that Annabelle’s primary residence has always been, and remains, with Ms. MacFarlane. There is no evidence, apart from the alleged alienation of the Bennetts, that Annabelle’s needs are not being met, or that she is not doing well in Ms. MacFarlane’s care.

[34] I am content to make the following orders sought by Ms. MacFarlane:

(a) The order declaring that she and Mr. Hunter are Annabelle’s biological parents; and

(b) The order that Annabelle reside primarily with Ms. MacFarlane. Implicit in this order is that Ms. MacFarlane have primary decision-making responsibility for Annabelle.

[35] Ms. MacFarlane contends, in essence, that as Annabelle’s mother and primary caregiver, her decisions about Annabelle should be respected, including decisions about who Annabelle has contact with, when and under what conditions.

[36] There is appellate authority that tends to support Ms. MacFarlane’s position. In Chapman v. Chapman, 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705, the Court of Appeal came out strongly in support of parental autonomy in terms of making decisions in the best interests of their children, saying, at para. 21:

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

[37] Chapman was, like here, a case where a grandparent sought access to her grandchildren. The evidence was that she was a strong-willed and, arguably, overbearing person. There was significant conflict between her and the parents. The children in issue did not have a positive relationship with their grandmother. The Court of Appeal supported the parents’ decision to deny her the contact she was seeking.

[38] While respecting the autonomy of the parents in Chapman, the Court of Appeal recognized that loving and nurturing relationships with extended family members are generally important to children. The relationship between a child and her grandparent will ideally enhance the emotional well-being of the child. If those relationships are interfered with in an arbitrary fashion the court may intervene to ensure the continuity of the relationship. Again, the only concern is for the best interest of the child, in the case-specific circumstances. See also Khan v. Ahmad, 2019 ONCA 614

[39] All of the foregoing is to say that as a starting point, Ms. MacFarlane’s decisions with respect to the parenting of Annabelle, including with whom and under what conditions she will have contact with others, are entitled to deference. The court will interfere only where it is demonstrated that Ms. MacFarlane has an inability to act in accordance with Annabelle’s best interests.

[40] The state of the evidentiary record makes it difficult to determine with any confidence what Ms. MacFarlane’s motivations are or precisely the level of involvement the Bennetts have had in Annabelle’s life. As I noted above, the parties’ evidence is markedly divergent in many important respects.

[41] It is always difficult to make assessments of credibility and reliability on a paper record. I do not know who is telling the truth here. Frankly, I do not find either of the principal protagonists – Mrs. Bennett and Ms. MacFarlane – to be particularly credible and reliable sources of information.

[42] In terms of Mrs. Bennett, in my view, she has understated her own role in the historical conflict with her daughter. Her eagerness to contact the police and the CAS does not impress me. None of her complaints appear to have had any real merit. I am not sure she fully appreciates that the principal source of concern to the court, in terms of any contact between the Bennetts and Annabelle, is the shielding of Annabelle from the conflict between her mother and the Bennetts.

[43] I am also very concerned about the forged solicitor’s letter and the forged letter provided to the school. The evidence does not support a finding that either of the Bennetts had a hand in creating those documents. But they did not file any responding affidavit to explain them or to disavow their knowledge of them.

[44] The forging of these documents is extremely serious. There are signposts pointing at the involvement of the Bennett’s daughter, Rachel, in the creation and utterance of these documents. But I must say, I am highly suspicious that the Bennetts were complicit in them. They have a track record of utilizing questionable methods to impose their will upon Ms. MacFarlane in terms of the care of Annabelle. To repeat, they have attempted to involve the police and the CAS as aiders, unjustifiably in my view. And they have proceeded twice by 14B motions to obtain orders favourable to them on little or no notice to Ms. MacFarlane.

[45] In terms of Ms. MacFarlane, it is my view that she has grossly under-represented the role that the Bennetts have played in Annabelle’s life. In stark contrast to the tone of her affidavit is the content of a number of text messages sent by her to Mr. Bennett in April 2020. They include:

I told cathy belle wont be visiting toronto for at least a year and she wasnt happy but unfortunately you guys are annabelles second home and I cannitrisk Annabelle getting sick and bringing it to you guys.

…she said they are safe and clean but I explained to her that I depend in you guys to watch belle so I can work. So for the next year it will he a social distancing hang out at a park near by. (Repeated in its native form, without correction of typographical or grammatical errors)

[46] Recall that in her affidavit sworn May 16, 2020 Ms. MacFarlane said that in 2020 there were only about five visits between the Bennetts and Annabelle and then just one or two ten- minute videocalls after March. This is a glaring and unexplained inconsistency. On its own it would cause me to approach any of her evidence with great caution. But it is not on its own.

[47] I find that Ms. MacFarlane has not been candid about her relationship with Mr. Hunter or the role he has played in Annabelle’s care. I find that she is overplaying his involvement in an effort to make it appear that there really is no time in Annabelle’s life to spend time with the Bennetts.

[48] I return to Ms. MacFarlane’s text messages from April 2020:

Jacob has ways to contact me. If he missed Annabelle he would be emailing or messaging me or trying to call or face time or ask for photos of her. He does none of that.

…Until Jacob has completely parenting classes and AA and such then he cannot be around her. I have emails of him threatening to kill me or guys I date or kidnap belle from school, etc. So hopefully a judge will see that as a good reason why I denied access right now.

[49] According to Ms. MacFarlane, it was only during the period January 2021 to May 2021 when she was having difficulty with Mr. Hunter. She blames the difficulties on his alcohol abuse during that period. She claims he has had an active and involved relationship with Annabelle other than during that five-month period. While I accept that the April 2020 text exchange is consistent with a limited period of difficulty with Mr. Hunter, the general tone of the messages suggests to me that there have been longer and deeper problems between them. The content of the texts is consistent with Mrs. Bennett’s description of Mr. Hunter’s history of limited parenting involvement.

[50] The overplaying of Mr. Hunter’s role in Annabelle’s life is consistent with the ridiculous account Ms. MacFarlane has provided of Annabelle’s schedule for visiting with family and friends. Realistically, there are not enough weekends in the month, or hours in the day, to accommodate all of the visits and phone calls Ms. MacFarlane has described. She is working a little too hard at trying to convince the court that Annabelle just doesn’t have the time to fit in contact with the Bennetts.

[51] Despite the weak credibility and reliability on both sides, I am satisfied about the following:

(a) There remains a good deal of conflict between the Bennetts and Ms. MacFarlane;

(b) Despite that conflict, I find that the Bennetts, unlike the grandmother in the Chapman case, have a positive relationship with their grandchild. Even on Ms. MacFarland’s evidence, they have been a consistent and meaningful presence in Annabelle’s life. There is no evidence that Annabelle has anything but a positive and loving relationship with them. Indeed, the many photographs filed by the Bennetts demonstrate just that;

(c) Another daughter of the Bennetts’, Rachel, lives with them, along with Rachel’s daughter, Ruby. Annabelle and Ruby were born about a month apart and they have a close bond with one another;

(d) The Bennetts have been supportive of Ms. MacFarland over the years. I am satisfied that they have taken Ms. MacFarland and Annabelle into their home at least twice since Annabelle was born, when Ms. MacFarlane has found herself in difficult circumstances. They have assisted her financially and co-signed a lease for her as recently as 2019; and,

(e) The historical termination of contact between Annabelle and the Bennetts does coincide with disagreements between Ms. MacFarland and, principally, her mother. I tend to agree with Ms. Meringolo’s assertion that Annabelle has been used as a tool to punish the Bennetts.

[52] In my view, Annabelle has a closer and more involved relationship with the Bennetts than an average grandchild would have with a grandparent. I reach this conclusion on the basis of what I find to have been extensive historical contact between Annabelle and the Bennetts, including extended periods where Annabelle and her mother have lived with the Bennetts.

[53] It is detrimental to Annabelle’s emotional well-being for her to be cut off from contact with the Bennetts. Her mother may have a beef with them, but Annabelle does not. It will make no sense, from her point of view, that she has frequent contact with so many in her extended family, on both the paternal and maternal sides, but limited or no contact with the Bennetts, with whom she has been particularly close.

[54] With regard to the relevant factors enumerated in s. 24(3), I find as follows:

(a) Annabelle, like any young child, will benefit from stability in her life. That stability includes, in my view, the continuity of her relationship with the Bennetts. I am alive to the negative impact that conflict can have on a child’s development and stability. And there is certainly conflict between the Bennetts and Ms. MacFarlane. I do not believe, however, that avoidance is the only, or even the best, solution to manage or limit conflict. I believe a solution can be achieved here where Annabelle is not exposed to conflict while at the same time maintaining a relationship with the Bennetts;

(b) Annabelle has a close, positive and meaningful relationship with the Bennetts and with her cousin, Ruby, who resides with the Bennetts. The Bennetts play an important role in Annabelle’s life;

(c) Annabelle has a history of extensive contact with the Bennetts. That contact has not been limited to family functions or social events. The Bennetts, by Ms. MacFarlane’s own admission, have played an active caregiving role to Annabelle. Their home has been Annabelle’s “second home”;

(d) The Bennetts have an ability and willingness to care for and support Annabelle’s needs. They have a proven track record of doing so; and,

(e) The communication between the Bennetts and Ms. MacFarlane is currently at a level I would describe as poor. But with a set schedule of limited, defined contact, my view is that any difficulty between them in terms of communication plays a relatively minor role in the overall circumstances of the case.

[55] I am satisfied, in the circumstances, that Ms. MacFarlane’s decision to terminate contact between Annabelle and the Bennetts has not been made in Annabelle’s best interests. It has, in my view, been made in an arbitrary and capricious fashion. It reflects Ms. MacFarlane’s harsh feelings about her mother; feelings which tend to ebb and flow. It does not adequately take into account Annabelle’s feelings, needs and interests, in both the short and long term. In my view, the personal conflict Ms. MacFarlane has with the Bennetts has negatively affected her ability to make decisions in the best interests of Annabelle, at least insofar as Annabelle’s relationship with the Bennetts is concerned.

[56] While I support the implementation of a fixed schedule of contact between the Bennetts and Annabelle, I am not persuaded that the frequency and duration of contact sought by the Bennetts is necessarily in Annabelle’s best interests.

[57] Annabelle has a broad extended family. She is lucky that there are many people in that extended family who love and value her and with whom she has regular contact. While I think the schedule of Annabelle’s activities described by Ms. MacFarlane is far-fetched, I accept that Annabelle is a busy young girl. There are a lot of balls in the air to be juggled by Ms. MacFarlane.

[58] In the result, on a temporary basis, I make the following order:

(a) The Bennetts shall have in-person contact with Annabelle one Saturday per month, commencing on the second Saturday following the lifting of the current provincial stay-at-home order. The visits will commence on Saturdays at 10:00 a.m. The length of the visits will alternate on a two-month rotation. The first month’s visit will end Saturday at 7:00 p.m. The next month the visit will include one overnight and will end at noon on the following Sunday. The length of the visits will alternate back and forth after that so that there is an overnight visit every second month;

(b) The Bennetts may also have virtual contact with Annabelle once per week, on Mondays at 5:00 p.m., consistent with the temporary Minutes of Settlement;

(c) The Bennetts are to pick up and drop off Annabelle for all in-person access visits;

(d) All parties are to refrain from making negative or critical comments about any other party while in the presence of Annabelle, or within hearing range of Annabelle;

(e) The Bennetts are to refrain from making any critical comments to Ms. MacFarlane about her parenting skills or decisions and from offering any parenting advice to her; and,

(f) The Bennetts are not to post any photographs of Annabelle on any social media site or file sharing application without the prior written consent of Ms. MacFarlane.

[59] This does not strike me as an appropriate case in which to order costs. That said, the parties have not had an opportunity to make submissions on the issue. If they wish to do so, they may do so in writing. They should follow a fourteen-day turnaround. The Bennetts’ submissions should be served and filed by June 3, 2021 and Ms. MacFarlane’s by June 17, 2021. The submissions should not exceed two pages in length.

C. Boswell J.

Date: May 20, 2021