Jasdeep Singh Sandha v. Amandeep Kaur Sandha

COURT FILE NO.: FS-21-000022072-0000 DATE: 2021-10-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jasdeep Singh Sandha Applicant

– and –

Amandeep Kaur Sandha Respondent

COUNSEL: Harinder Dhaliwal, for the Applicant Andrew A. Sudano, for the Respondent

HEARD: October 15, 2021

ENDORSEMENT

THIS MOTION HAVING BEEN HEARD BY ZOOM PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.

BONDY J.

A. INTRODUCTION

[1] There were two motions before me.

[2] The first was a motion by the respondent mother. The overarching substantive relief sought is an order permitting her on a temporary basis to move with the parties’ child, Fateh Singh Sandha (“Fateh”) born October 17, 2014, from Windsor to British Columbia.

[3] The second was a motion by the applicant father. The overarching substantive relief sought is an order for the child’s return to Windsor and specified parenting time for himself.

[4] The parties were married January 16, 2014 and separated July 21, 2021. They have one child, Fateh. The parties lived in Surrey British Columbia from the date of marriage until July 2019 when they moved to Belle River, Ontario. That is a hamlet in the municipality of Lakeshore, which is close to Windsor. Both municipalities are in Essex County.

[5] On July 24, 2021, the respondent took Fateh to British Columbia. There was consensus that she had represented the trip as a visit. She was scheduled to return on August 16, 2021.

[6] However, shortly after arriving in British Columbia, the respondent commenced an application. The application was ultimately dismissed for want of jurisdiction in September but not until at least one order had been made on an ex-parte basis. The manner in which that application was commenced offers some insight into the bona fides of the respondent and, accordingly, is more fully considered below.

[7] In any event, the applicant then filed this application and the parties filed their respective motions.

B. URGENCY

[8] There has not yet been a case conference in this matter. Motions are discouraged as the opening step in a family law file. The Family Law Rules, O. Reg. 114/99 encourage parties to sit down in a case conference prior to a motion. This rule is an attempt to try to avoid the damage that flows from the “nasty affidavit war” that accompanies the filing of a motion. The exception is an urgent motion: see r. 14(4), Family Law Rules. An urgent motion contemplates issues such as abduction, threats of harm, or dire financial circumstances: see Rosen v. Rosen, 2005 480 (ON SC), [2005] O.J. No. 62 (S.C.), at para. 5, citing Hood v. Hood, 2001 28129 (ON SC), [2001] O.J. No. 2918 (S.C.), at para. 12.

[9] This case involves both an abduction and the risk of harm through family violence.

[10] As to the domestic violence, each party claims the other is aggressive, controlling, and violent. For example, according to the respondent, on May 3, 2020, the applicant saw fit to call the police. The police arrived and spoke to both parties. Fateh was present. No charges were laid. Also according to the respondent, on May 13, 2020, the applicant again saw fit to call the police. Again, Fateh was present. On this occasion, the result of police involvement was the applicant leaving the home with Fateh. The respondent deposed that she did not object to Fateh leaving with the applicant. As is more fully considered below, better evidence as to why the child went with his father and not his mother would have been of great assistance. The Windsor-Essex Children’s Aid Society (“CAS”) became involved with the family at the request of the police.

[11] While I have no difficulty concluding Fateh has been subjected to a series of domestic violence, I am unfortunately unable to ascertain whether the applicant, the respondent, or both are at fault on the frail record before me. The police leaving Fateh in the care of the applicant during their last involvement with the family suggests the respondent instigated violence that day. However, I find it inappropriate to make a finding of fact on the record before me. Objective third-party evidence such as police reports and CAS records would have been of great assistance to the court.

[12] Given the allegation of abduction and obvious family violence, I found this matter urgent and proceeded with the hearing.

C. THE ISSUES

[13] In argument, the respondent’s counsel stated that the relief the respondent sought was pursuant to the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) and not the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Accordingly, I considered the matter in the context of the Divorce Act.

[14] The respondent’s counsel characterized this matter as a mobility case. Counsel relied upon case law including, without limitation, paras. 17-18 of Djalal v D’Alessandro, 2020 ONCJ 637. Those paragraphs read as follows:

A leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley, where the court set out the following principles:

(a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial;

(b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location; and,

(c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent's position will prevail at trial.

The following are additional principles regarding temporary relocation cases:

(a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move;

(b) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. In such cases, the court requires a full testing of the evidence;

(c) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result;

(d) Courts will permit temporary relocation where there is no genuine issue for trial or where the result would be inevitable after a trial;

(e ) The financial security of the moving parent is a relevant factor in relocation cases;

(f) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. In MacKenzie v. Newby, supra, at paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun, where the court wrote at paragraphs 32-34 as follows:

32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.

34 An order restricting the residence of the children would, as in Woods v. Woods, (1996) 1996 18119 (MB CA), 110 Man. R. (2d) 290 (Man. C.A.), condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

(g) There is case law that says that if a primary caregiver is happier, this will benefit the child.

[15] While I agree with respondent’s counsel that those are factors to be considered in a mobility case, and that this matter has a mobility aspect, the mobility issue must necessarily be considered in the context of the respondent mother’s resort to self-help and the impact that this has upon the best interests of Fateh.

[16] I reiterate the respondent mother removed the children from the matrimonial home without notice or consent of the applicant. In DeJong v. DeJong, 2020 ONSC 5367, D.L. Summers J. summarizes the list of considerations applicable to such cases, at para. 21:

1. Self-help by parents ought to be discouraged: see also Howard v. Howard, 1999 35009 (ON SC), [1999] O.J. No. 3164 (S.C.), at para. 4; Nyari v. Velasco, 2008 ONCJ 272, at para. 16.

2. If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent: see also Leggatt v. Leggatt, 2015 ONSC 4502 (S.C.), at para. 92.

3. The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction: see also A. (M.) v. D. (J.), 2003 52807 (ON CJ), [2003] O.J. No. 2946 (C.J.), at para. 24.

4. A parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply cannot be trusted with custodial authority they would likely abuse: see also Pazartz J. in Rifai v. Green, 2014 ONSC 1377 (S.C.), at paras. 21 and 22 quoting from Izyuk v. Bilousov, 2011 ONSC 6451; Clement v. Clement, 2010 ONSC 1113. [Emphasis in original.]

[17] To be clear, the overarching focus of the court is always and only the best interests of the child. It necessarily follows that there may be factors that favour removal of the child or children from the matrimonial home without notice in some very limited circumstances. Without limitation, those factors include domestic violence as is alleged in this case. The issue I am confronted with is whether this is one of those limited circumstances.

[18] Section 16 of the Divorce Act reads as follows:

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 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.

Factors relating to family violence

(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.

Past conduct

(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.

Parenting time consistent with best interests of child

(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.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[19] In summary, the best interests of the child are to be considered in the context of the litigation. The issue before me is where the child should be living on a temporary basis. I remind myself that in making this determination, I must remain cognizant that “stability is a primary need for children caught in the throes of matrimonial dispute and the de facto custody of children ought not to be disturbed pendente lite, unless there is some compelling reason why in the interests of the children…” [emphasis in original]: see Donley v. Donley, [2008] O.J. No. 3445 (S.C.), at para. 91, citing Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.); Dyment v. Dyment (1969), 1969 544 (ON SC), 2 O.R. 631 (S.C.); Papp v. Papp, 1969 219 (ON CA), [1970] 1 O.R. 331 (C.A.), at pp. 344-345; and Lancaster v. Lancaster (1992), 1992 14032 (NS CA), 38 R.F.L. (3d) 373 (N.S.S.C). It follows that stability is a significant consideration in the best interests analysis.

D. ANALYSIS

1) The quality of the evidence

[20] I begin with the observation that it is difficult to evaluate the reliability and credibility of the applicant’s and respondent’s affidavit evidence absent the beneficial features of a trial, such as cross-examination. That is particularly true in high-conflict cases such as this where there is disagreement regarding important features of the factual matrix.

[21] As I indicated to counsel, I would have benefited greatly from objective third-party evidence such as copies of the relevant police reports as well as the records of the CAS.

[22] The only third-party evidence that I received was a letter from the CAS. The following are excerpts from that letter:

Ms. Sandha’s file opened to the Society in May 2020 as the Society received a police report in regards to arguments between Jasdeep and Amandeep…. At the present time the file is being closed as the mother has moved to her maternal home and since the parents have separated and have no intent to reunite the risk to the child’s exposure to adult conflict is minimized.

[23] Unfortunately, the author’s involvement in the matter and the source of the information that was conveyed in the letter were not disclosed. While the letter may give me some modest level of comfort, I remind myself that opinion evidence is presumptively inadmissible subject to some exceptions, none of which were put forward in this case. Reliability is an obvious issue because neither the author’s involvement in the case nor the source of the author’s information are disclosed. Similarly, the necessity of letter evidence is questionable. If there was not enough time to obtain CAS records, an affidavit from a CAS worker with direct knowledge of the case should have been sought.

[24] Equally important is the fact that conclusions such as those reached by the author of that letter are a matter for the judge.

[25] In conclusion, I would have benefited far more from the CAS records rather than the opinion of someone with an undisclosed involvement in the matter.

[26] I reiterate that if the records could not be secured in the available timeframe, a properly drafted affidavit would have been of far more assistance to the court. As a result, I was left with a significant evidentiary void on the pivotal issue of each of the parties’ parenting abilities, especially as it relates to the presence of domestic violence.

2) Domestic violence

[27] Counsel for the applicant and respondent agreed that Fateh has been subjected to domestic violence in the past. Given the record before me, I find as a fact that Fateh has been exposed to domestic violence. No child should ever be exposed to domestic violence.

[28] Given the contradictory and irreconcilable evidence of the parties on the nature of this pivotal issue and the lack of objective third-party evidence regarding the issue, I was simply unable to determine which parent presents the greater risk to Fateh. It necessarily follows that if one parent is allowed to assume a predominant role in Fateh’s young life at this very early stage of this litigation, and a better record demonstrates that that parent is the least suitable of the two, yet another seismic shift in young Fateh’s life would occur. As indicated above, an important goal of temporary orders is stabilizing a child’s life and avoiding significant future changes in a child’s world where possible.

3) The respondent mother’s resort to self-help

[29] I have a great deal of difficulty with the respondent mother’s resort to self-help and the manner in which the self-help was executed. There are several reasons.

[30] The first difficulty that I have is that self-help is always to be discouraged.

[31] The second is that the applicant’s lawyer had written to the respondent on August 19, 2021. As a result, the respondent was aware that the applicant was represented by counsel, and the respondent had that lawyer’s contact information several days prior to commencing the litigation. Notwithstanding that information, the respondent commenced her family law proceeding in British Columbia without notice. I find that conduct to be less than honest.

[32] The third difficulty that I have with the respondent’s conduct is that she cut off any contact whatsoever between Fateh and his father. A social worker’s intervention became necessary for Fateh to gain some contact with his father. Paradoxically, it was the mother’s position at this hearing that any reintegration of Fateh with his father should be done slowly given the lack of contact which has occurred since July. In other words, it seems that the respondent mother is intellectually capable of understanding the violent impact that a dramatic change in Fateh’s contact with a parent would have upon him, yet she chose to cut off contact notwithstanding.

[33] As a result, I have concerns about the respondent mother’s ability to put Fateh’s interests ahead of her own. To be clear, I am not making a finding of fact in that regard on the frail record before me. I am only stating that there is a very real possibility that the respondent’s conduct was simply selfish or spiteful and made in an absence of appropriately considering Fateh’s best interests. A better record will be required in order to make a determination in that regard.

[34] I find that Fateh’s best interests would be best served by a situation that, to the greatest extent possible, mimics his pre-separation situation and accordingly involves both of his parents to the greatest extent possible, until better evidence is available. As said above, departing from the status quo at this very early stage of the litigation would potentially be catastrophic to Fateh.

[35] To be clear, the situation to which Fateh should be returned goes far beyond the proportion of each parties’ parenting time. It includes the entire world he was used to including such things as friends, familiarity with the neighbourhood, school, etc. All of that was lost when Fateh was taken to British Columbia and not returned.

4) The parties’ respective support networks

[36] Further, the available evidence as to the parties’ respective support networks is not compelling.

[37] The respondent mother maintains that Fateh’s best interests would be served by him continuing to live in British Columbia so that he can benefit from the support of the respondent’s parents. The applicant, however, deposed that Fateh’s maternal grandfather has in the past exhibited aggressive behaviour toward Fateh. The last thing Fateh needs in his life is more domestic violence. To be clear, I am not making a finding of fact in that regard on the frail record before me with respect to the maternal grandfather. I am only stating that given the possibility that the allegation is true, it tends to mitigate any benefit that the respondent mother and, more importantly, Fateh may receive from that perceived support network.

[38] The applicant father maintains that he will receive assistance from his mother. She lives in India and was scheduled to arrive in Canada on October 18, 2021 in order to help. The respondent mother observes that Fateh has never met his paternal grandmother and, as a result, has no meaningful relationship with her. Again, that tends to mitigate any benefit that the applicant father and, more importantly, Fateh may receive from that perceived support network. That is of course at least until a meaningful relationship develops between the paternal grandmother and Fateh.

5) The respondent’s financial situation

[39] The respondent maintains that she is not working, has not worked for some time, and as a result does not have any money. It necessarily follows that her financial situation would not be much different in Essex County than it is in British Columbia. That is with the exception of the cost of accommodation, which in British Columbia is subsidized by her family. The applicant father offered a one-time $5,000 payment to assist the respondent coming back to Windsor, finding accommodation, and obtaining food. A case conference was scheduled by me with the consent of counsel for January 4, 2022.

[40] I find that offer reasonable.

6) Conclusions

[41] There was some suggestion that the mother’s move to British Columbia had established a new status quo. I reject that argument for two overarching reasons. The first is that as said above, it would be dangerous to allow a status quo to be set by the unilateral and surreptitious actions of one party. The second is that the applicant father acted immediately once it became clear to him that the respondent had no intention of returning Fateh to his home. That action included not only legal action but also engaging the paternal grandmother to come all the way from India to help with Fateh.

[42] There is a significant geographic separation between Ontario and British Columbia. If Fateh has one parent living in each province, he will necessarily have very limited physical contact with the other. That unfortunate result should only occur after consideration based upon a much better record than that available to me.

[43] I conclude that Fateh’s best interests would be served by the greatest extent possible in the circumstances restoring Fateh’s world as he knew it prior to his mother taking him to British Columbia. I find that can be best accomplished as follows.

[44] Fateh should be returned to Essex County to live in the neighbourhood and go to the school to which he is accustomed. That environment will give him contact with his friends and offer stability in his young life. In addition, I find that he should have as much contact with each parent as is possible until better evidence is available about the amount of contact with each parent that would serve his best interests. As indicated, I simply cannot decide how much contact with each parent is in his best interests given the evidentiary void before me.

[45] In the meantime, I find that Fateh should reside primarily with the respondent mother presuming she is prepared to move back to Essex County while the issues between the parties are resolved. There are two overarching reasons for that conclusion.

[46] The first is that Fateh has been living exclusively with his mother since she left the matrimonial home. In the evidentiary void with which I am confronted, it seems to me that history would favour significant continuing contact between the respondent and Fateh.

[47] The second is that the applicant concedes that Fateh’s primary residence should be with the respondent if she returns to Essex County.

[48] In the event that the respondent does not see fit to return to Essex County then, for all of the reasons above, Fateh should reside primarily with the applicant.

[49] I find that Fateh’s best interests would be best served by the applicant being the decision-maker for major decisions on a temporary and without prejudice basis. There are three reasons for that conclusion.

[50] The first is the lack of meaningful communication between the parties since the respondent left the matrimonial home. That suggests that joint decision-making will be difficult or perhaps impossible in the immediate future. Notwithstanding that observation, I am hopeful that as this situation stabilizes each party will learn to put Fateh’s best interests ahead of their dislike for each other and learn to communicate appropriately.

[51] The second is that while I am not prepared to make a finding of fact on the record before me, I do have some concerns regarding the respondent’s honesty given that she commenced the British Columbia proceedings on an ex-parte basis while aware both of the applicant’s representation by counsel and counsel’s contact information. That surreptitious conduct makes it difficult to avoid the conclusion that she was attempting to gain a litigation advantage by establishing a status quo in British Columbia before the applicant was even aware of a legal proceeding.

[52] The third is that, as said above, I find it important to maintain balance between the parties. That balance is intended to mimic Fateh’s pre-separation environment to the greatest extent possible, and to avoid a seismic change in Fateh’s life if one parent has a dominant presence in his life, and it turns out that parent is not suitable for that role.

[53] Finally, under different circumstances I would have found it appropriate to make an order for police enforcement given the respondent’s conduct. I have not done so for two reasons. The first is that applicant’s counsel withdrew the request at the hearing. The second is that respondent’s counsel left me with the impression that the respondent would comply with any court order.

[54] To be clear, the respondent should not take the lack of a police enforcement order as a suggestion the court will not deal swiftly with any failure to follow the terms of the orders below. That could include a police enforcement order if necessary. If the respondent seeks to avoid the significant trauma that an engagement with police would no doubt cause Fateh, she only need comply with these orders.

E. ORDER

[55] For the reasons set out above, I make the following order:

1. The respondent, Amandeep Kaur Sandha, shall deliver the child, Fateh Singh Sandha born October 17, 2014 (Fateh), to Essex County as soon as possible, but in any event no later than Thursday, October 28, 2021. Thereafter, Fateh shall not be taken outside of Essex County by anyone, for any reason, except medical emergency requiring treatment outside of Essex County, until further order of the court.

2. A case conference shall be held on January 4, 2022 at 12:15 p.m.

3. The applicant shall forthwith make a $5,000 payment to the respondent to be credited against any future support payments. That payment shall be facilitated through counsel and not directly between the parties. The issue of support is to be further addressed at the conference.

4. In the event the respondent returns to live in Essex County, then on a temporary and without prejudice basis the parenting time schedule shall be as follows:

a) The child, Fateh Singh Sandha born October 17, 2014, shall have parenting time with the applicant Jasdeep Singh Sandha,

i. Every alternate weekend from Friday after school to Sunday at 5:00 p.m. commencing the first weekend Fateh is back in Essex County.

ii. Every Wednesday from after school to Thursday school drop off commencing the first Wednesday that Fateh is back in Essex County.

iii. Daily telephone or video access from 7:00 p.m. to 7:30 p.m.

b) The child, Fateh Singh Sandha born October 17, 2014, shall have parenting time with the respondent Amandeep Kaur Sandha the rest of the time.

5. In the event the respondent does not return to live in Essex County, then on a temporary and without prejudice basis the parenting time schedule shall be as follows:

a) The child, Fateh Singh Sandha born October 17, 2014, shall have parenting time with the respondent Amandeep Kaur Sandha:

i. In Essex County one weekend per month from Friday after school until Sunday at 7:00 p.m.;

ii. Daily telephone or video access from 7:00 p.m. to 7:30 p.m. Windsor time.

b) The child, Fateh Singh Sandha born October 17, 2014, shall have parenting time with Jasdeep Singh Sandha the rest of the time.

6. On a temporary and without prejudice basis, any significant and/or long-term decisions for the child Fateh shall be made by the applicant Jasdeep Singh Sandha. By way of a nonexhaustive list of examples, that would include such things as medical decisions, dental decisions, education decisions, extracurricular activities, etc. Any day-to-day decisions shall be made by the parent with whom Fateh is residing at the time.

7. The respondent, Amandeep Kaur Sandha, shall have the same right as the applicant to make inquiries and to be given information with respect to the child’s health, education, and general well-being.

8. Communication will be strictly by way of Our Family Wizard unless an emergency dictates communication by text. The following shall apply to its use by the parties:

a) The Our Family Wizard expense shall be a joint responsibility. In even years, the mother shall pay the cost and in odd years the father shall pay the cost.

b) Both parents are to provide the other by way of Our Family Wizard with their current addresses and a phone number where they can be reached at all times.

c) Both parents are to advise the other by way of Our Family Wizard if the child will be at home other than the mother’s or father’s for more than one night, and to provide the details of where the child is, as well as a phone number where the child can be reached.

d) The information the parents exchange shall be restricted to information pertaining to the child’s health and welfare, pertinent child-related information, medical information about extra-curricular activities, and information pertaining to routines. In shall also be restricted to the parties informing each other as it might relate to the health, education or well-being of the child, or restricted to items under this heading. Apart from keeping each other informed about any medical or health issues, the inability to care for the child, or the need to consult on a major issue, there shall be no need to communicate more than once per week, and the parents are to be at all times civil and respectful.

e) If there is a special event, the request to change the schedule so as to allow the child to attend with either parent shall be made with at a minimum 14-days’ notice with an expected response within 72 hours. In the event of an emergency or truly time-sensitive matter, the parents may text each other. If a reply requires more time than 72 hours, an Our Family Wizard communication shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected.

f) The parties shall only utilize the Our Family Wizard “messaging feature” when information cannot be conveyed in available features such as the “calendar”, “expense”, “info bank”, etc.

g) The parties’ entries shall be viewable via a “professional account”" to both parties’ lawyers of record, if any.

h) The parties shall utilize the Our Family Wizard “tone meter” function.

i) In the event any parenting issue is returned to court, the communication on the Our Family Wizard shall be copied and filed with the court.

9. Neither parent shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child.

10. Neither parent shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the child, or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by the child.

11. Neither parent shall leave out or make accessible to the child information or documents pertaining to any issue arising from the parties’ separation and divorce, including any material that pertains to the matters referred to in the paragraph above, and neither will permit the child access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the child will not have access to information regarding the parties’ separation and divorce by password-protecting any area of their personal computers that hold such information.

12. The parents shall share all documents pertaining to the child by scanning the document and then sending it to the other parent by Our Family Wizard. The parents shall not rely on the child to transport documents between them.

13. Any discussions between the parents at transition times, activities, or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one parent considers that the discussion is not courteous, both shall discontinue the conversation.

14. If one parent finds what the child said about the other parent to be of significant concern, that party shall first ask the other parent, by Our Family Wizard, what actually happened. If a complaint is made by the child to one parent about the other, the child shall be encouraged to talk directly to the parent he or she is complaining about.

15. The parents should consider engaging in a counselling program to improve their communication skills with each other regarding their parenting of the child.

16. In the event that the parties are unable to agree on costs within seven (7) days, then costs submissions shall be in writing on the following basis:

a) The applicant’s counsel shall serve a “Cost Outline” upon the respondent’s counsel within five (5) days of the date of the release of this decision. In the event the foregoing is not complied with within that time period, the applicant shall be deemed to have waived his right to do so.

b) The respondent’s counsel shall have a further five (5) days to serve a “Cost Outline” on counsel for the applicant. In the event the foregoing is not complied with within that time period, the respondent shall be deemed to have waived her right to do so.

c) Counsel for the applicant shall have two (2) further days to provide a reply to counsel for the respondent. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the applicant shall be deemed to have waived his right to do so.

d) Once all those steps have been completed, counsel for the applicant shall provide all the submissions to the court through Trial Co-ordination.

e) The costs submission shall be double-spaced and use a “Times New Roman” font no smaller than 12 pitch. All references to the length of submissions exclude Bills of Costs and Costs Outlines and any Offers to Settle.

Original signed by Justice Christopher Bondy

Christopher M. Bondy Justice

Released: October 19, 2021