COURT FILE NO.: FS-16-086105-01

DATE: 2021 05 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RAYMOND JAMES TONE

Applicant

• and -

ANA TONE

Respondent

Kevin Chao, for the Applicant

S. Dharamshi, for the Respondent

HEARD: April 20, 2021 by video-conference

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] This motion was brought by the Respondent Mother Ana Tone, wherein she sought an order, in advance of a case conference, that access to the children by the Applicant Father Raymond Tone be varied. In particular, she seeks an order that access be supervised. This motion was brought within a Motion to Change commenced by the Mother wherein she sought the same variation. After this motion was brought, but before it was argued, a case conference was held.

I. Background

[2] The parties were married on January 26, 2013. They have two children of the marriage, both girls, who will be referred to by their initials only. The eldest is M., who is 8 years old and the youngest is J. who is now 6 years old. The Mother and Father separated on February 1, 2015, less than 4 months after J’s birth.

[3] All outstanding issues resulting from their marriage and separation were litigated in a trial before Justice Baltman, which occurred over 15 days in January and February 2020. Her decision was released on May 13, 2020. With respect to parenting, she ordered that the Mother have final decision-making authority on all major decisions and that the children would reside primarily with her, with access to the Father on alternate weekends. The degree of conflict caused by the Father during mid-week exchanges resulted in Justice Baltman eliminating mid-week access.

[4] In her decision, Baltman J. made a number of observations, which include that this was a high conflict matter. She also observed that the Father does not follow court orders (para. 17), that the Father misuses and abuses social services such as the Peel Children’s Aid Society or the Peel Regional Police (para. 19), that he was more concerned with his conflict with the Mother than the best interests of the children (para. 23), and that he did not respect boundaries (para. 29). It was also recognized at trial that the Father’s housing was unstable, given that he was residing at his brother’s home, where he was exercising his access.

[5] In addition to various parenting, support and property orders, Baltman J. ordered that the parties were not to come within 300 metres of the other for any purpose except to facilitate access, in accordance with a court order on the scheduled access dates. She also ordered that neither party was to speak negatively about the other in front of the children or permit other family members to do so. The parties were ordered to communicate through OurFamilyWizard.ca.

II. Events Since Trial

[6] The Mother alleges that the Father’s pre-trial behaviour has continued or gotten worse since trial. In particular, she alleges that the Father has continued his previous practice of calling the police to report abuse or to conduct frivolous well-being checks on the children. He sends harassing texts and does not comply with the access order. Most importantly, the Father disparages and denigrates the Mother and their maternal grandmother in the presence of the children to the point where the children return in tears and are traumatized.

[7] The Mother has provided a summary of access visits since the trial showing that the Father continues to treat the Baltman Order as a suggestion, dropping the children off early, choosing random times for exchanges, and from time to time unilaterally suspending overnights but then recommencing them again. He continues to videotape the children at exchanges and visits. It also appears he started exercising access at hotels either in Toronto or in Niagara Falls. The Mother reports that on July 10, 2020, the Father returned the children after 5 minutes, crying. The children reported to their mother that the Father called the Mother a “whore” or a “cum dumpter” and told the children that the Mother had a new boyfriend.

[8] As a result of the children being returned upset or crying, the Mother arranged for counselling for the children through her Employee Assistance Programme (“EAP”). Through her EAP, she was referred to Sharon Kobrinsky, a registered social worker who works from Victoria, B.C. Ms. Kobrinsky is a member of the Canadian Association of Social Workers. She is a member of the Mother’s Ontario Employee Assistance Programme and a member of the Virtual Counselling Team. She has been providing counselling in all provinces in Canada since July 2020. Ms. Kobrinsky swore an affidavit in support of this motion, on January 8, 2021.

[9] In her affidavit, Ms. Kobrinsky deposed that she has been providing therapy to the children since October 22, 2020. Initially, she spoke to the Mother who relayed that she felt the children were emotionally suffering during the access visits with the Father, and that the Father was saying negative things about the Mother during these visits and that he frequently contacted the police and the children’s aid society to conduct “wellness checks”.

[10] After speaking with the Mother, counselling with the children started on October 22, 2020, without the Mother present. She reports that the children volunteered that the Father speaks negatively about the Mother during their visits, that he called her a “whore” and that she should be in jail. When they try to defend their mother, the Father yells, which makes them cry more. There were further counselling sessions on November 18, 2020 and December 21, 2020. Similar information was relayed by the girls. They indicated their desire not to visit with the Father. A further session was planned for February 10, 2021. Ms. Kobrinsky believes the information provided to her is reliable.

[11] The Mother alleges that the Father’s objectional conduct goes beyond issues of parenting. The Mother was given exclusive possession of the Matrimonial Home pending its sale. In anticipation of its sale, the Mother made an agreement with the Father that he could attend at the matrimonial home on November 29, 2020 at 4:00 p.m., with a police escort, to gather his belongings. Instead, at 2:30 p.m. that day, the Father attended on his own, wearing a toque, mask and sunglasses and entered the home. She was originally frightened, but when she realized it was the Father, she asked him why he was there; however, he pushed her aside and went into the house. She had to call 911 and a neighbour for assistance. She alleges that the Father scuffled physically with the neighbour. She states that three police units remained at the matrimonial home until which time the Father left, refusing to provide the police with the mailbox and lobby key as requested.

[12] In November 2020, the Mother received a copy of the Peel Region Children’s Aid Society (“CAS”) records. In her affidavit, she included an excerpt from a meeting that the CAS had with the children wherein they advised that on July 10, 2020 their father told the children that the Mother had a boyfriend, which made the children cry. It also indicates that the children have been hesitant to go on visits for the last 4-6 months because the Father continues to say bad things about the Mother and the maternal grandmother. The children reported that the Father made them cry and they are nervous and worried about visiting him. The CAS made a risk assessment of “high”. Under “Verification”, the notes state:

31C – VERIFIED

Both Children demonstrate high anxiety as the result of the father involving them in the post-separation conflict. E.g. the father has interrogated children about whether mother has a boyfriend, called her named [sic] and made the children cry as a result. The children are nervous about visiting their father and worry that he will continue to denigrate their mother to them. In consultation with TL Erin Snook, 31C will be VERFIED on the father’s part.

[13] The Mother felt she had no choice but to bring a Motion to Change in which she sought that the Baltman Order be varied so that the Father would only have supervised access to the children once per week for up to 3 hours. She also sought more freedom for the children to call the other parent whenever they wanted, and that the clause prohibiting the parties from coming within 300 metres of the other, except for facilitating exchanges, be varied to be a restraining order under s.35 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12.

[14] At the same time that she served the Father with the Motion to Change, the Mother also served him with this interim motion, which was originally returnable on January 22, 2021. In essence, the Mother sought the same relief on an interim basis as she seeks in her Motion to Change.

[15] Following this Motion being served, on February 8, 2021, the Father’s brother advised that he would no longer host access weekends at his house due to his concerns about COVID-19 transmission. Accordingly, the Father continues to bring the children to either the Toronto Airport Hilton or to a hotel in Niagara Falls for this weekend visits.

[16] There were a number of adjournments of this motion for interim relief, during which a case conference was held before Shaw J. This motion was eventually returnable before me, peremptory on the Father. Also, on March 18, 2021, Shaw J. made an order on an interim, interim basis, that the Father’s parenting time on his alternate weekends was varied to Friday after school until 7:00 p.m. that night, and then Saturday and Sunday from 1:00 pm. to 6:00 p.m. In essence, his overnight access was halted. In addition, Shaw J. made an order requesting the involvement of the Office of the Children’s Lawyer.

[17] The Father denies the allegations made by the Mother. He claims the children enjoy the hotel visits and he is conducting the visits in a COVID-19 safe manner. The Father denies that the Mother has shown a material change in circumstances because the trial judge, when she granted the Father alternate weekend access, was aware of the conflict between the parties and that he had unstable housing. Given that nothing has changed (with respect to the ongoing conflict), there should be no reason to change the current parenting time. He also maintains that his brother will allow in person access at his home again in three months.

III. Issues

[18] This court must determine in what circumstances an interim parenting order varying a final parenting order should be made, pending the adjudication of a Motion to Change. Next, if the circumstances allow for such an interim variation, what variation should be made?

IV. Law

[19] The pertinent provisions of the newly amended Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), are as follows:

Best interests of child

7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child. 2019, c. 16, s. 8.

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(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 up-bringing 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 cooperate, in particular with one another, on matters affecting the child;

(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 cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following in-to account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Variation order

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses,

17(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[20] While the Divorce Act does not specifically provide for the interim variation of a final order, the case law that has developed, prior to the most recent amendment, allows for such a variation in the appropriate circumstances. I see nothing in the most recent amendments of the Divorce Act that has altered the provisions regarding variations in any substantial way. Accordingly, the case law that has developed to this point will continue to be of assistance to this court when determining if such a variation is appropriate. If though, a variation is determined to be appropriate, the new provisions in the Divorce Act regarding the best interests of the child, the avoidance of conflict, and consideration of family violence must be considered when making any order.

[21] In Innocente v. Innocente, 2014 ONSC 7082, Gauthier J. summarized the applicable law as follows:

[45] In those cases where a temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:

(a) To prevent undue hardship;

(b) Where the failure to make the interim order would be incongruous or absurd; and

(c) Where there is a pressing and immediate urgency.

[22] Justice Pazaratz, in F.K. v. A.K., 2020 ONSC 3726 has provided an excellent review of the legal considerations when faced with a request for to change a final order. He sets out the following:

[48] To determine a request to change custody, access or parenting order, the court must embark on a two-stage inquiry: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).

[49] The first step: There must be a material change in circumstances since the last order was made.

a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S. [2011] SCC 64.

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

[50] The second step:

a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).

d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v Rigillio 2019 ONCA 548 (Ont. CA).

[23] Pazaratz J. then identifies that when a party seeks a temporary variation of a final parenting order, the court is required to conduct an even more stringent analysis. He states at para. 52:

a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order -- in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e. But the evidentiary basis to grant such a temporary variation must be compelling.

f. The court must start with the aforementioned two-part material change in circumstances analysis.

g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.

h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

V. Analysis

[24] As indicated in F.K., I start with the two-part test as set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

[25] The Father makes the interesting argument that there has been no change in circumstances that would warrant any changes, let alone on an interim basis. I have reviewed the Reasons for Judgment released by Baltman J. I agree that Baltman J. acknowledged that the parties were high conflict, and that the Father had unstable housing. The Office of the Children’s Lawyer identified the inconsistency of the Father’s access attendances and that the degree of conflict between the parties was evident to the children. The CAS found the Father to be uncooperative and self-absorbed, and more consumed with his conflict with the Wife than with the best interests of the children. I agree that in support of this Motion, the mother is relying on this same behaviour in support of her request for a variation. Accordingly, if I accept the Father’s argument, I am left in the strange situation where, even if the father continued to be conflict driven, inconsistent in his parenting time, have inconsistent housing and expose the children to conflict, no changes should be made, no matter what the effect on the children. The Father would be entitled to continue with his high conflict behaviour, inconsistent housing, and conflict driven behaviour, without repercussion.

[26] With respect, the Father’s position lacks merit and completely disregards the primary consideration in s.16(2) of the Divorce Act when considering the best interests of the children. I find that the Father’s behaviour constitutes a change in circumstances that materially affects the children, which would permit a variation in the Baltman Order.

[27] I find this material change in three respects. First, while Baltman did make the aforementioned observations regarding the Father’s parenting skills, she addressed them in her Judgment. She took away joint decision making, removed mid-week access, ordered that the parties communicate only through OurFamilyWizard.ca and that they not speak negatively of the other in front of the children. All of this was ordered to reduce contact, and therefore conflict, as between the parties and avoid any exposure of same to the children. Nonetheless, the Father has not joined OurFamilyWizard.ca, does not follow the times for parenting time exchanges, has violated the exclusive possession order, and continues to denigrate the Mother in front of the children, as indicated in the CAS records. With the exception of the alleged denigration of the Mother, none of these facts are strenuously refuted. Had Baltman been aware of the Father’s intention to disregard a number of her orders that were designed to decrease conflict, almost immediately following the release of her decision and onwards, her order would likely have been different.

[28] Second, nowhere in the Reasons for Judgment is there any finding that the children were at risk of emotional harm. A representative of the CAS was a witness at the trial, but mostly gave evidence related to the Father’s inappropriate use of the CAS and the police to lodge complaints as against the Mother. For this motion, the Mother has filed copies of CAS records that showed that they verified the risk of emotional harm to the children as a result of the actions of the Father, which occurred after the Baltman Order.

[29] While it is acknowledged that the CAS records are not proper evidence in accordance with r.14(19)(a) of the Family Law Rules, O. Reg. 114/99, the Mother also included the affidavit evidence of Ms. Kobrinsky, which is proper evidence to be considered on this motion. The evidence of Ms. Kobrinsky supports the statements in the CAS records. It is clear that the children are emotionally distraught as a result of the Father’s statements during his parenting time. In the endorsement of Shaw J. of March 18, 2021, the return of this motion was scheduled, allowing for cross-examinations on these affidavits, but the Father did not cross-examine the Mother or Ms. Kobrinsky. Other than simply denying these statements or, as is his practice, deflect blame to the Mother, the Father has provided no other evidence on the issue. Had Baltman J. been made aware that the Father would conduct himself in this manner during his access visits, her order likely would have been different.

[30] Third, while the Father’s housing situation was unstable at trial, the Father did have a place to stay, and was able to exercise his access in that home. That situation no longer exists. The Wife doesn’t believe the Husband lives with his brother anymore and doesn’t know where he lives. The lack of a home in which to exercise access in a home environment is a change in circumstances which materially affects the well-being of the children. Had Baltman J. been made aware that there would be no home in which to spend the Father’s weekends, and only hotels, it is likely a different order would have been made.

[31] In making this finding, I have been cognizant of the more vigilant role the court must take, given that the Mother is seeking interim relief. In reviewing the facts, though, I have concluded that the current situation is causing harm to the children and that immediate action needs to be taken. The Mother has satisfied this court that the current situation is creating an intolerable situation for the children, and is jeopardizing the children’s emotional well-being.

[32] I have also concluded that the current situation is not in the children’s best interests, as set out in subparagraphs 16(2) and 16(3) of the Divorce Act. The court is required to give primary consideration to a child’s physical, emotional and psychological safety, security and well-being. In addition, the court is to consider, amongst other factors, a spouse’s willingness to support a relationship with the other parent, their ability and willingness to meet the needs of the children, a person’s willingness to cooperate with the other parent, and the impact of family violence.

[33] The recent amendments to the Divorce Act include a definition of family violence that goes beyond a physical assault. It includes any conduct by one family member against another that is threatening or causes another family member to fear for their safety or for the safety of another person (including the children), and which includes psychological abuse. Even at this early stage in the proceedings, the Father’s practice of denigration of the Mother to the point of causing the children to be reduced to tears, and making them fearful of spending time with the Father, is sufficient that the Mother fears psychological harm to the children. The evidence of Ms. Kobrinsky supports that fear. While the Divorce Act amendments are new, it has long been accepted by the CAS, and other children’s aid societies, that the exposure of children to conflict between their parents puts them at risk of emotion harm, and can justify CAS involvement. The Divorce Act amendments now include a provision that reflects this understanding in s.7.2.

[34] These considerations are at the forefront of my finding that a material change has occurred and that a change needs to be made until which time the Father can demonstrate that he is able to parent these children in a way that does not cause emotional harm. The unfortunate reality is that if the Father simply followed the current order, none of this would be necessary. All he needs to do is just enjoy his time with the children, and not use it as an opportunity to denigrate the Mother, or continue his narrative of the Mother being the source of all things wrong in his life. Unfortunately, he appears unable to do so, to the detriment of his children.

[35] Given that I have found a material change, I must now determine what order is in the best interests of the children.

[36] As indicated, the Divorce Act now provides guidance on the factors to be considered when determining the best interests of the children. In reviewing these factors, I find that the Father does not appear to be able to care for and meet the needs of the children under the Baltman Order. It is not contested that he does not use his access time fully. It is not contested that the children are returned crying. It is not contested that the Father chooses not to bring the children to his own home for access, wherever that is. He also does not appear willing to communicate with the Mother with respect to the children in any meaningful way. Despite the court order that he register for OurFamilyWizard.ca, he has not done so.

[37] That being said, I am not satisfied, on a temporary basis, that supervised access should take place. Supervised access is an extreme solution. I note, as indicated in F.K., that the status quo has a strong gravitational pull. Supervised access as requested would only allow for 3 hours every other weekend. This would be a substantial variation that runs the risk of altering any positive aspects of the children’s relationship with the Father. If it is ultimately determined that the Baltman Order is to stay in place, it may make the move back to that access schedule more difficult.

[38] In addition, the Office of the Children’s Lawyer (“OCL”) has been requested to become involved. The OCL should be given an opportunity to view the children with the Father in a home setting, such as his brother’s home or his own home.

[39] Accordingly, it would be in the best interests of the children that they continue to see the Father on a regular basis, as determined by the Baltman Order, but that it should take place in a more appropriate environment, and with strict conditions.

[40] Until which time the Father starts to stay with the children in his brother’s house, or in his own home, the interim interim order of Shaw J. will continue in place. If the Father can assure the Mother that his brother is willing to accommodate the children again, or the Father provides evidence of where he is living, overnight access shall be restored. The children should also feel free to contact the Mother whenever they wish when at the Father’s home. Finally, the Father is put on notice that the denigration of the Mother in the presence of the children in the circumstances set forth in the CAS notes and by Ms. Kobrinsk could be considered family violence under the Divorce Act, and should stop immediately. He is also to follow strictly the parenting times set out herein and be put on notice that attending at the Mother’s house otherwise as ordered will be considered a breach of the Baltman Order, and could result in a restraining order being put in place.

VI. Conclusion

[41] Based on the foregoing, I make the following orders:

a) The Father shall immediately advise the Mother of his current address, and provide a sufficient description so that the appropriateness of the residence can be ascertained;

b) On an interim basis, the Father’s regular biweekly parenting time, as set out in the Baltman Order is varied to be every second weekend from Friday at 4:30 p.m. until 7 p.m. and Saturdays and Sundays from 1:00 p.m. to 6:00 p.m. The applicant is to pick up and drop off the children at the respondent’s home – except the Friday pick up shall be at school if in person school resumes. These pick up and drop off times may be varied only by written agreement between the parties or their counsel, or by court order;

c) Counselling with the children shall continue, with whomever the Mother chooses; both parties are entitled to any notes and records of those counselling sessions.

d) Upon the Father providing evidence that the brother will permit access to take place at his home, or the Father provides satisfactory evidence of his current housing situation, overnight access will resume in accordance with the Baltman Order;

e) Both the Father and the Mother are to forthwith register with OurFamilyWizard.ca if they have not already done so; both parties are to ensure their registration fees are kept up to date; all communication shall be through OurFamilyWizard.ca as contemplated by the Baltman Order;

f) The children are permitted to contact the Mother by telephone at any time they are with the Father;

g) The Father is not to speak negatively about the Mother or her family in the children’s presence, and is not permitted to question the children about the Mother in any way;

h) In the event that the Mother is able to provide proper evidence that the Father continues to denigrate the Mother in the presence of the children, the Mother may bring a motion seeking to make the Father’s access supervised or further curtailed.

i) The Applicant is granted leave to file his Response to Motion for Change, his s.35.1 Affidavit, and his responding materials to this motion, which were affirmed at the hearing of this motion, within 14 days of the date of this Order.

j) If no settlement conference has been scheduled, the parties are to forthwith contact the trial coordinator and obtain a settlement conference date that provides the Office of the Children’s Lawyer sufficient time to complete their investigation and provide a report;

k) At the settlement conference, the parties will serve and file their Settlement Conference Brief, an Offer to Settle and a draft order;

l) The Mother is entitled to her costs of this motion; the mother shall serve and file her written submissions on or before 4:30 p.m. on May 31, 2021. The Father shall serve and file his responding submissions on or before 4:30 p.m. on June 7, 2021. The Mother may file reply submissions on or before June 14, 2021. All written submissions are restricted to two pages, single-sided and double-spaced, exclusive of costs outline and offers to settle; and

m) The remainder of the motion is dismissed.

Fowler Byrne J.

Released: May 25, 2021