[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Scott v. Sawchuk, 2021 ONSC 5903

COURT FILE NO.: 911/17

DATE: 2021-08-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shanel Amanda Scott, Applicant

AND:

Brandon Eric Isaac Sawchuk, Respondent

BEFORE: The Honourable Madam Justice D. Chappel

COUNSEL: S. McCutcheon, Counsel, for the Applicant

K. Armstrong, Counsel, for the Respondent

HEARD: August 20, 2021

ENDORSEMENT

INTRODUCTION

[1] This matter was heard by way of zoom video.

[2] These are my Reasons in relation to two motions that came before me on August 20, 2021. The first motion was that of the Applicant dated August 11, 2021, seeking leave to proceed prior to a case conference, an order for the immediate return of the children to her primary care, temporary sole decision-making responsibility regarding the children and a referral to the Office of the Children’s Lawyer. The Applicant also seeks an order permitting her to enroll the child Isabelle at Frank Panabaker Elementary School in Ancaster, where Isabelle attended for second term last school year, and to enroll Grayson at Ancaster High School, where he attended for second term last year. At the hearing of the motion, her counsel also requested an order that the Respondent’s parenting time with the children be suspended pending further order of the court. Finally, the Applicant requests an order directing the police to assist in enforcing the transition of the children back to her care if necessary.

[3] In response to the Applicant’s motion, the Respondent brought a cross motion dated August 16, 2021, seeking an order changing the children’s primary residence from their mother’s care in Ancaster, Ontario to his care in Woodstock, Ontario. He also seeks an order permitting him to register Isabelle for school at Northdale Public School in Woodstock, and to register Grayson for school at College Avenue Secondary School in Woodstock.

[4] At the outset of the hearing, I advised counsel and the parties that the Respondent’s request to change the children’s primary residence from Ancaster, where they have lived with their mother since 2014, to Woodstock would require a long motion date and Facta and Books of Authorities. I also indicated that it would be critical for the court to have independent evidence of the children’s views and preferences before considering this request. I concluded that the issues raised in the Applicant’s motion are interconnected with those raised in the Respondent’s motion, and that they should therefore also be addressed as part of the long motion. In these Reasons, I am setting timelines for the exchange of supplementary materials for the long motion. I have also scheduled an urgent case conference for September 7, 2021.

[5] I also heard submissions at the outset of the hearing as to whether a Voice of the Child Report should be requested through the Office of the Children’s Lawyer, or whether a general referral should be made to that office with the hope that it would undertake a section 112 investigation. The Respondent requested a Voice of the Child Report, whereas the Applicant’s position was that a general referral to the Office of the Children’s Lawyer would be more appropriate. For oral reasons given, I am making a general referral to the Office of the Children’s Lawyer, with a request that it provide services on an expedited basis if possible.

[6] A decision is required at this time on the issues of decision-making responsibility, primary residence, parenting time and school enrolment respecting the children on a temporary temporary without prejudice basis pending the hearing of the long motions. At this late date, it was simply not possible to obtain the independent views and preferences of the children and schedule a hearing of the long motions prior to the commencement of this school year. I therefore heard submissions and argument on these issues. For the Reasons set out below, I conclude that it is in the best interests of the children that they be returned to the primary care of the Applicant on Tuesday, August 24, 2021 at 7:00 p.m., and that they remain in her primary care on a temporary temporary without prejudice basis pending the outcome of the long motions. I am also granting her sole decision-making responsibility respecting the children on a temporary temporary without prejudice basis. I am ordering that the Respondent have parenting time with the children on alternate weekends, from Friday at 7:00 p.m. until Sunday at 7:00 p.m., commencing September 10, 2021. This order will essentially restore the situation to the status quo that existed prior to July 14, 2021. I am also ordering that pursuant to the Applicant’s sole decision-making responsibility authority, she shall have the right to enroll the children in the schools of her choice, namely Ancaster Secondary School for Grayson and Frank Panabaker Elementary School for Isabelle.

BACKGROUND AND POSITIONS OF THE PARTIES

[7] By way of general background, the parties were married on August 26, 2006 and resided in Woodstock during the latter part of their relationship. They separated on February 25, 2012. On April 17, 2012, they entered into a Separation Agreement which provided that the Applicant would have sole parental decision-making responsibility and primary residence of the children. The Respondent was granted liberal and reasonable parenting time, to include at least alternate weekends from Friday at 7:00 p.m. until Sunday at 7:00 p.m., and every Thursday evening.

[8] The Applicant moved with the children to the Hamilton region in October 2014, and the Respondent has continued to have regular alternate weekends with the children since that time. The weekly Thursday evening visits did not continue at that point due to the distance between the parties. The Respondent has also enjoyed summer vacation time with the children each year. The Applicant has now remarried and her husband, Dave, resides with her and the children.

[9] The parenting arrangements described above continued from 2012 until July 14, 2021. The Respondent had the children for a two week summer vacation from June 30, 2021 until July 14, 2021. The parties agreed that he would return Grayson and Isabelle to the Applicant’s care on July 14, 2021 by 7:00 p.m. However, the Respondent states that the children refused to return to their mother’s care on July 14, 2021. He describes that on his way to returning them to the Applicant’s care, Isabelle had a major panic attack, stated that she did not wish to return to the Applicant’s care, and started crying inconsolably. He relays that Isabelle described the mother’s home environment as “toxic” due to the conflict between the Applicant and her husband. He states that the children have both talked about their mother implementing punishments which they feel are excessive for insignificant misbehaviour, including taking away internet privileges. In addition, he states that the Applicant and her husband have at times called the children derogatory names in anger. Finally, the Respondent states that Isabelle has described feeling pressured by the Applicant to be involved in too many dance commitments.

[10] The Respondent called the Applicant from his vehicle on July 14, 2021 to advise her of Isabelle’s distraught state, and the Applicant suggested that he bring the children to her home so that they could discuss the situation all together as a family and carry out a peaceful transition of the children to her care. The Respondent refused to do so, and states that the Applicant threatened at that point to call the police for assistance. The Respondent attended at the Woodstock police station later that night to report the events that had transpired. The Hamilton Children’s Aid Society became involved as a result of these events, and the evidence indicates that it did not identify any protection concerns respecting either parent that would warrant it taking a position on the parenting issues. The Applicant’s understanding from her discussions with Society staff was that the children reported that they were happy residing with either parent.

[11] The Respondent had not returned the children to the Applicant’s care as of the date of this hearing. The children have suggested meeting with her in a public setting for visits, but the Applicant’s position is that this would not be in the children’s best interests. Her contact with Grayson and Isabelle has been limited to text communications since July 14, 2021.

[12] In support of her position, the Applicant submits that she has always been the children’s primary caregiver and that she has carried out her decision-making responsibility pursuant to the Separation Agreement diligently and in the best interests of the children. She notes that the Respondent has never raised any concerns until this point about her home environment or her care of the children. She adamantly denies that her home environment is toxic in nature or that she has meted out inappropriate punishments to the children. She highlighted that Grayson has a learning disability for which he requires an Individual Education Plan (“IEP”) at school, and states that she has worked with school professionals over the years to ensure that Grayson’s educational needs have been met. She described having many family members and friends in the Ancaster area who have supported her in raising the children. She acknowledged that the children have a strong relationship with their father and enjoy their time with him, but her view is that it would be contrary to their best interests for them to reside primarily with him. In this regard, she noted that the Respondent has not been extensively involved in decision-making, did not participate in addressing Grayson’s educational needs through the schools over the years, and did not monitor and support him with a summer math course that he had to complete during the Respondent’s summer vacation period. As a result, Grayson failed the course. In addition, she raised concerns about the Respondent’s history of issues with depression, the fact that he and his partner also have his partner’s four other children in their care, and that he has never disclosed his income or increased his child support commensurate with his significant income increases over the years despite his obligation to do so pursuant to the Separation Agreement. In addition, she notes that the Respondent has never provided her with his address over the years, but has simply given his parents’ address despite not having resided at that location. She has concerns that if the children resume their parenting time with the Respondent, he will not return them to her care.

[13] The Respondent denies that he is withholding Grayson and Isabelle from the Applicant, and states that the children simply refuse to return to her care. However, at the end of her submissions, counsel for the Respondent indicated that the Respondent is requesting an order granting the Applicant parenting time with the children on alternate weekends. She relayed that the children have expressed a willingness to have weekend time with the Applicant, and that their objection is to the idea of returning to her primary care. The Respondent submits that there are concerns about the children’s exposure to conflict between the Applicant and her husband, the Applicant’s negative interactions and inappropriate discipline methods with the children, the Applicant’s refusal to accept the children’s wishes regarding their living arrangements and the Applicant’s claim that she is a medium who can speak to dead people. His position is that the children should engage in therapeutic counselling with the Applicant before they are required to resume face-to-face contact with her. The Respondent indicates that he has many family and community supports in the Woodstock area, that he has a positive and loving relationship with his partner and her four children, and that their four bedroom apartment is well suited for the family, including Grayson and Isabelle. He acknowledges that he experienced difficulties with depression in the past but states that his mental health challenge are now well managed through medication.

THE LAW

[14] As I have stated, the parties were married on August 26, 2006 and were divorced on October 5, 2017. In her application, the Applicant relies on both the Divorce Act and the Family Law Act in support of her parenting claims. Under section 2 of the Divorce Act, the term “spouse” includes “former spouse” for the purposes of advancing parenting claims under the legislation. I am therefore applying the Divorce Act in my analysis of the issues in this case.

[15] The main legislative provisions that govern the parenting issues in this case are sections 16.1 to 16.4 of the Divorce Act, which outline the court’s jurisdiction to make “parenting orders.” A review of those provisions indicates that the term “parenting order” encompasses two key concepts, namely “decision-making responsibility” respecting children and “parenting time.” Sections 16.1(1) to (9) are the starting point for the analysis. They set out the court’s jurisdiction to make a parenting order, and the powers of the court in making such an order, as follows:

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

a) either or both spouses; or

b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Contents of parenting order

(4) The court may, in the order,

a) allocate parenting time in accordance with section 16.2;

b) allocate decision-making responsibility in accordance with section 16.3;

c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

[16] Section 2(1) of the Divorce Act defines the terms “decision-making responsibility” and “parenting time,” which are the two key components of a parenting order, as follows:

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

a) health;

b) education;

c) culture, language, religion and spirituality; and

d) significant extracurricular activities

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time.

[17] Section 16.1(4)(b) specifies that in making a parenting order, the court may “allocate decision-making responsibility in accordance with section 16.3.” Section 16.3 provides as follows:

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

[18] Section 16.1(4)(a) directs that in making a parenting order, the court may “allocate parenting time in accordance with section 16.2.” Section 16.2(1) provides that parenting time may be allocated by way of a schedule. Section 16.2(2) stipulates that the concept of parenting time includes the exclusive authority to make day-to-day decisions affecting the child during that time.

[19] Section 16(1) of the Divorce Act directs that the court shall take into consideration “only the bests interests of the child of the marriage in making a parenting order or a contact order.” Section 16(7) establishes that references to a parenting order and a contact order in section 16 include interim parenting and contact orders and to orders varying parenting and contact orders. Section 16(3) sets out a number of factors that the court must consider in carrying out the best interests analysis. In considering those factors, the court is required by virtue of section 16(2) to “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” The primary consideration articulated in section 16(2) recognizes that there may in some cases be conflicts in attempting to weigh the enumerated best interests criteria. The courts have been given a clear direction that any such difficulties in attempting to carry out the analysis should be resolved in favour of ensuring that the child’s physical, emotional and psychological safety, security and well-being are promoted.

[20] Section 16(3) sets out the following factors that the court must consider in determining the child’s best interests:

Factors to be considered

16(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 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 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.

[21] Section 16(3)(j) specifically highlights the occurrence of “family violence” as an important consideration in determining where the best interests of a child lie in making parenting and contact orders. Section 2 of the Act defines the term “family violence” very broadly as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

b) sexual abuse;

c) threats to kill or cause bodily harm to any person;

d) harassment, including stalking;

e) the failure to provide the necessaries of life;

f) psychological abuse;

g) financial abuse;

h) threats to kill or harm an animal or damage property; and

i) the killing or harming of an animal or the damaging of property

[22] Section 16(4) lists additional factors that the court must consider in situations where family violence has occurred.

Factors relating to family violence

16(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into 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.

[23] Section 16(5) addresses the relevance of a person’s past conduct in conducting the best interests analysis as follows:

Past conduct

16(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

[24] Section 16(6) of the Act must also be considered in determining the appropriate allocation of parenting time. It recognizes that children should have as much time with each parent as is consistent with their best interests:

Parenting time consistent with best interests of child

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[25] The analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than from the parents’ perspective; 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 (Young v. Young, [1943] 4 S.C.R. 3 (S.C.C.), at paras. 74 and 202; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) at pp. 50, 54, 68). All parties bear the onus of demonstrating where the best interests of the child lie (Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.)).

ANALYSIS

[26] I have carefully considered and weighed the principles and factors set out above in reaching my decision in this matter. First, I have considered the history of the parties’ caregiving in relation to Grayson and Isabelle. The Applicant has been the children’s primary caregiver since the parties’ separation in 2012. The evidence indicates that on the whole, she has carried out her decision-making responsibilities pursuant to the parties’ Separation Agreement diligently and in a manner that has supported and promoted the children’s best interests. She has maintained a suitable home, provided for them financially and attended to all of their daily needs. Although the Respondent suggests that she did not address Grayson’s learning disability and educational challenges in a timely manner, the evidence before me does not support this claim. The Applicant described the many efforts that she has made since Grayson’s grade 3 school year to work with school professionals to identify Grayson’s challenges, formulate an appropriate educational plan, obtain necessary resources for him, and enroll him in additional programs to ensure his academic success. I am also satisfied that the Applicant has many family and community supports in the Ancaster area, and that the children have become connected with that community.

[27] I have considered the children’s claims to the Respondent about being exposed to domestic conflict between the Applicant and her husband in the home. The Applicant adamantly denies that this has occurred, and states that she and her husband address issues between them calmly and in private. It is important to note that the Applicant is committed to participating in counselling with the children to explore the various concerns that they have raised, including this issue, and she has already identified a number of possible counsellors. I am satisfied that she will follow through with this commitment, and that the children will have the opportunity to explore their concerns about domestic conflict in the home in counselling sessions with their mother. I note, however, that this issue does not appear to have been raised prior to July 14, 2021, and based on the evidence before me at this time I am not satisfied that there is a concerning pattern of domestic conflict between the Applicant and her husband.

[28] I have taken into consideration the children’s disclosures to their father that the Applicant and stepfather have on occasion called them derogatory names, that their mother imposes excessive discipline for what they perceive to be minor transgressions, and that their mother never seems to be satisfied with the manner in which they complete their chores. With respect to discipline issues, there is no evidence that the Applicant has ever exerted any physical force towards the children. The evidence respecting name-calling is certainly concerning, however it is one factor to be weighed among many in this case, and I am confident that the Applicant would address any such concerns in the counselling that she is pursuing for her and the children. The other concerns under discussion do not in my view raise to such a level as to justify a change in a primary residence situation that has been in effect for nine years now. Rather, my impression from the evidence is that they are reflective of the types of conflict that primary caregiver parents and teenagers typically experience as part of the challenging teenage years.

[29] The Respondent has raised serious concerns about the level of distress that Isabelle exhibited on July 14, 2021 when he attempted to return her to the Applicant’s care. While I have no doubt that Isabelle exhibited a great deal of anxiety on that day, my concern is that the level of her distress as described by the Respondent seems disproportionate to the nature of the concerns that the children have raised. In considering her reaction, it is important to put the events of that day into context. The children had just ended a very enjoyable two week summer vacation with their father, his partner and her four other children. It is to be expected that they would experience sadness that this vacation was ending, and about returning to their daily routine in the Applicant’s care. Significantly, there is absolutely no evidence that either Isabelle or Grayson have reacted in this manner in the past at the time of transitions back to the Applicant’s care. It is important in my view not to place excessive weight on Isabelle’s reactions on July 14, 2021 while ignoring the 9 year history of no such distress upon returning to the Applicant’s care or being in her care. I note that despite the Respondent’s description of Isabelle’s severe emotional “meltdown” on that day, he chose not to take her for medical assessment at that time or since. This finding leads me to conclude that Isabelle’s emotional distress on that date was resolved fairly quickly.

[30] The Respondent has concerns that forcing the children to return to their mother’s care will risk causing them serious emotional distress of the nature that Isabelle experienced on July 14, 2020. However, as I have stated, he also indicated through his counsel that the children are fine with having weekend time with their mother, and that the issue for them is returning to her full-time care. The order that I am making is temporary temporary in nature, until the OCL hopefully completes an investigation and pending the completion of the motions. The parties need to explain to the children that the appropriate steps are being taken now to obtain their views and preferences from an independent third party, and that the court will be addressing the issues of primary residence and school registration more fully soon. I expect that these assurances will assist the children in transitioning back to the Applicant’s care. Grayson and Isabelle require a strong message that major changes to long-standing parenting arrangements should not be carried out precipitously without fulsome exploration of all of the relevant information and options. The temporary temporary without prejudice order that I am making will also require them to participate in counselling with their mother to address their concerns and attempt to work them out in a constructive manner. This approach is in my view in the children’s best interests, given the primary caregiving role that their mother has assumed for years and the importance of them learning to work through family issues rather than running away from them.

[31] Based on the level of distress that Isabelle experienced on July 14, 2021, it is in her best interests to ensure that she has therapeutic support in the event that she does experience excessive emotional distress when she transitions back to the Applicant’s care. I am therefore ordering that the exchange occur at the front entrance of McMaster Children’s Hospital in Hamilton, so that the parties can take her for immediate assessment if necessary.

[32] In reaching my decision, I have also taken into consideration the history of the Respondent’s care of the children. He has had regular parenting time with them over the years, and the evidence indicates that he has been able to meet their needs during his time with them. Since July 14, 2021, he has taken steps to arrange for math tutoring for Grayson. The children clearly have a close and loving relationship with him, his partner and his partner’s children. They have had many positive experiences with their father. In fact, the Applicant acknowledged that he has always had the role of the ‘fun” parent. In addition, it is clear that the children enjoy spending time with many extended family members on the paternal side in the Woodstock area when they with their father.

[33] Against the positives outlined above, I note that the evidence before me supports the Applicant’s claim that the Respondent has not in the past been heavily involved in managing and overseeing the children’s general daily needs. I have concerns as well regarding the Respondent’s lack of transparency with the Applicant about important issues respecting the children. For instance, although the Separation Agreement provided for an annual adjustment of child support based on the Respondent’s income each year, the evidence indicates that the Respondent never disclosed his income information and did not increase his monthly child support payments despite significant increases in his income since 2012. He attempted to place the blame for this shortcoming on the Applicant, stating that she never asked him for income disclosure. His attitude respecting child support raises concerns regarding his ability to prioritize the children’s needs over his own interests, and his lack of respect for the “heavy lifting” parenting that the Applicant has been carrying out since 2012. Finally, I accept the Applicant’s evidence that the Respondent has never provided her with his correct address, choosing instead to give his parents’ address. His denial of this point is simply not credible based on the evidence before me. All of these considerations have informed my decision to give the Applicant decision-making responsibility on a temporary temporary without prejudice basis at this time.

[34] Finally, I have considered the children’s views and preferences. Although the Respondent claims that the children are adamant that they do not wish to return to their mother’s primary care at this time, he also acknowledges that they would be comfortable with full weekend time. The Applicant claims that the Society worker who interviewed the children relayed that the children spoke about being happy to reside with either parent. There are no doubt many dynamics at play with the children and their relationship with their mother, and they need to be explored and addressed in a responsible manner. The evidence respecting the children’s views and preferences is not in my view as “black and white” as the Respondent suggests. The comments that they have made must be considered in the context of all of the other important considerations that I have discussed in these Reasons. A more informed and accurate appreciation of their wishes respecting the parenting arrangements will in my view be available after they have had an opportunity to engage in the counselling that their mother will be arranging and to speak with an OCL representative if that office agrees to become involved.

[35] I have considered whether a police enforcement clause is required in this case. I have serious concerns about the Respondent’s decision to keep the children in his primary care on July 14, 2021 without having a family meeting as suggested by the Applicant on that date or since that time. However, I am confident that he will comply with this order and take all reasonable steps to ensure that the children return to their mother’s care. There is no evidence that he has inappropriately withheld the children in the past. I accept his evidence that he was in fact in the process of driving the children to the Applicant’s home on July 14, 2021 when the situation with Isabelle erupted. I do not believe that he had hatched a plan with the children in advance of July 14, 2021 to have the children remain in his care. In the unfortunate event that the Respondent and children do not comply with this order, the Applicant may bring a further motion prior to the case conference to request a police enforcement clause.

[36] Turning finally to the Applicant’s request that the Respondent’s parenting time with the children be suspended pending the outcome of the long motions, such an order would not in my view be in the children’s best interests. They clearly have a close and loving relationship with their father and enjoy their time with him. A suspension of their time with him would simply fuel the fire between the parties and generate resentment on the part of the children towards the Applicant. It is in the children’s best interests that they continue to see their father in accordance with the longstanding status quo that was in effect prior to July 14, 2021. This arrangement will provide them with stability during the week while they are at school, which is particularly important for Grayson having regard for his challenges in school and his need for additional academic support.

TERMS OF ORDER TO ISSUE

[37] Based on the foregoing, order to go as follows:

1. The application is adjourned to a case conference on September 7, 2021 at 11:30 a.m.

2. This matter is referred to the Office of the Children’s Lawyer in the usual form.

3. The motions are adjourned to a long motions hearing date to the sittings commencing October 18, 2021 and Purge Court of October 12, 2021 at 9:00 a.m., for estimated one half to a full day.

4. The following timelines shall apply with respect to supplementary materials for the long motion:

a) The Applicant shall serve and file any supplementary materials in relation to her motion by no later than September 20, 2021.

b) The Respondent shall serve and file any supplementary responding materials in relation to the Applicant’s motion and any supplementary materials in relation to his motion by no later than September 27, 2021.

c) The Applicant shall serve and file any supplementary reply materials in relation to her motion and supplementary responding materials in relation to the Respondent’s motion by no later than October 4, 2021.

d) The Respondent shall serve and file any supplementary reply materials in relation to his motion by no later than October 11, 2021.

e) The parties shall serve and file Facta and Books of Authorities by no later than October 11, 2021.

5. The Respondent shall return the children Grayson Alexander Sawchuk, born November 30, 2006, and Isabelle Ruth Sawchuk, born April 21, 2008 (“the children”) to the care of the Applicant on Tuesday, August 24, 2021 at 7:00 p.m. The exchange of the children shall occur at the front entrance of McMaster Children’s Hospital in Hamilton.

6. On a temporary temporary without prejudice basis:

a) The Applicant shall have sole decision-making responsibility respecting the children. She shall consult with the Respondent before making significant decisions about the children’s well-being.

b) The children’s primary residence shall be with the Applicant.

c) The Applicant may enroll the children in the schools of her choice for September 2021, namely Ancaster Secondary School and Frank Panabaker Elementary school.

d) The Respondent shall have parenting time with the children on alternate weekends from Friday at 7:00 p.m. until Sunday at 7:00 p.m., commencing Friday September 10, 2021.

7. The Applicant shall forthwith take all necessary steps to arrange for family counselling between her and the children. She shall be fully responsible for any costs associated with this counselling.

8. The issue of costs in connection with today’s appearance is reserved to the judge who disposes of the motions on a final basis.

9. Court staff shall email this endorsement as follows:

Mr. McCutcheon: steven@mccutcheonfamilylaw.ca

Ms. Armstrong: karmstrong@svlaw.ca

Date: August 23, 2021