Court File and Parties

Court File No.: FC-17-2164 Date: 2022/03/01 Superior Court of Justice - Ontario

Re: Ian Bilodeau, Applicant And: Natalie Desjardins, Respondent

Counsel: Emily Comer, for the Applicant Courtney Shields, for the Respondent

Before: The Honourable Justice M. Shelston

Heard: February 16, 2022

Endorsement

[1] The applicant and the respondent are the parents of two children, aged 6 and 7. The applicant seeks a temporary order changing the children’s primary residence from the care of the respondent to the applicant’s care pending a final hearing of the applicant’s Motion to Change. The respondent seeks a dismissal of the motion and seeks an order varying the exchange point of the children from a Tim Hortons restaurant to her residence.

[2] On May 15, 2019, based on the consent of the parties, Justice Ryan Bell ordered that the children’s primary residence would be with the mother and the father would have access as well as other claims for relief such as:

Decision-making

1. The mother and father shall prefer the interests of the children.
2. The mother and father shall: a. exchange information regarding the children. b. encourage both children have a good relationship with the other parent. c. refrain from making disparaging remarks to the children about the other parent. d. share with each other all information provided by professionals involved with the children. e. consider the input and recommendations of educational professionals in making decisions regarding the children schooling\education. f. consider the input and recommendations of medical professionals in making decisions regarding the children’s mental and physical health care.
3. The parties shall communicate with each other regarding the children using email.
4. The parties shall ensure that the other party has up-to-date contact information including phone number and email address.
5. The parties shall each attend a parenting course regarding post-separation\conflict resolution within 12 months of today’s date or shall provide proof to the other of their attendance at a such course in the past.
6. The mother shall consult the father with respect to important decisions regarding the children’s welfare (including decisions relating the children’s education, non-emergency healthcare, religious upbringing or major reason activities). To this end: a. the mother shall notify the father of any decision to be made and their proposed course of action. b. The father shall have forty-eight (48) hours to provide his input on a decision to the mother. c. The mother shall thereafter make the decision, and inform the father of the decision made, and her rationale.

Regular parenting schedule

7. The children shall continue to reside primarily with the mother.
8. The father shall have parenting time with the children every second Friday from 5 PM until Sunday at 5 PM.
9. Access exchange on both Friday and Sunday shall take place at Tim Hortons located a 1270 Trim Rd., Ottawa, ON.

[3] The order of Justice Ryan Bell resolved the decision-making and parenting schedule issues regarding the children in the original application but there was never a final decision regarding support claimed by the mother against the father. On March 7, 2018, the father was ordered to pay to the mother $200 as child support. The financial issues remain outstanding and have never been resolved. The father continues to pay the $200 per month as child support.

[4] In November 2020, the father commenced this Motion to Change. The parties attended a case conference on February 1, 2021, where the Office of the Children’s Lawyer (“OCL”) was appointed to conduct an assessment. On November 23, 2021, the OCL filed a Discontinued Report after which the father reserved the next available motion date being February 16, 2022. The parties have not attended questioning or a settlement conference. As such, this matter is not ready to be listed for trial and that the earliest that this matter can proceed to trial would be in January 2023.

[5] The applicant (“father”) submits that since the order of Justice Ryan Bell dated May 15, 2019, there has been a material change in circumstances that requires the court to change the principal residence of the children and that it is in the best interest of the children that he have sole decision-making authority, that the respondent (“mother”) have parenting time with the children every second weekend from Friday after school until Monday before school, that the Tim Hortons at 1270 Trim Rd., Ottawa, ON be the exchange point, that the mother provide the children’s original birth certificate, health cards and passports, that the father’s obligation to pay table child support be terminated and that the mother indemnify the father for the costs of this motion. The father’s plan is that the children would complete their school year at the current elementary school and that they will change schools in September 2022 to be closer to the father’s residence in Rockland, Ontario.

[6] The mother submits that there has been no material change in circumstances, that much of the evidence presented is contradictory, that no cross-examinations have taken place and that it would be premature for the court to make such a fundamental change in the children’s primary residence based on contradictory affidavit evidence. Further, the mother seeks to have the father pick up and return the children from her residence for his parenting time.

Background

[7] The parties do not agree when they lived together. The father states that they lived together from May 2014 until the fall of 2015, while the mother asserts that they lived together from 2011 to early 2016. During their cohabitation, two children were born being A., in 2014 and C. in 2015. Since separation in either fall 2015 or early 2016, the children have remained in the mother’s primary care and the father has had parenting time.

[8] The father owns a pool installation business and lives with his partner in a three-bedroom unit in a house in Rockland, Ontario.

[9] The mother is currently not working due to her mental health, receives social assistance and lives with her father and brother in Vanier, Ontario. The brother resides in the basement, the grandfather on the middle floor while the mother and the two boys live on the top floor of the residence. The top floor has three bedrooms, and the backyard has a fence. The children attend an elementary school within walking distance of the mother’s home. The mother states that she was diagnosed with disassociative personality disorder and is currently taking medication. She admits that she previously suffered from addiction issues, has been sober since 2010 and has attended Alcoholics Anonymous, Narcotics Anonymous, and attended Elizabeth Fry for counselling and therapy. She indicates that she was involved in counselling with the Wabano Centre.

[10] The mother has two older children, M., age 15 and T., age 16 who have lived with the paternal grandmother since December 2019. Due to the intervention of the Ottawa Children’s Aid Society (“CAS”), these children lived with the paternal grandmother from 2009 to 2013 and then were returned to the care of the mother in 2013. The children remained living with the mother until December 19, 2019 when the youngest child M., at age 13, moved to live with the paternal grandmother. At some point the other child, T., moved to live with the paternal grandmother. The boys have had no contact with their mother since they have moved with the paternal grandmother.

Position of the father

[11] The father’s original application that started in 2017, sought sole custody of the boys and supervised access to the mother. His concerns were that the mother was changing residences frequently, living with abusive boyfriends, being involved with child protection agencies and Ottawa Police Service, criticizing him and yelling and swearing in the presence of the children. Despite these serious allegations, the father consented to the final order made on May 15, 2019, in the hope that there would be peace for his children.

[12] The father alleges that almost immediately after the parties entered into a final agreement, the mother reverted to her previous behaviour. On October 21, 2019, his counsel wrote to the mother’s counsel alleging the mother was repeatedly breaching the terms of the final order by insisting that the father pickup and drop off the children instead of meeting at the Tim Hortons restaurant, regularly changing the parenting times and interfering with his parenting time. Further, he alleged that the mother was very aggressive and made hurtful comments toward the father, that she threatened multiple times to move the children away and that her current residence was unsafe. The letter concluded with the threat that if the mother did not immediately comply with the terms of the order, he would bring a motion to find her in contempt and that the father would challenge the agreed-upon schedule based on the mother not acting in the best interest of the children. There was no response from the mother. No action was taken by the father.

[13] The father’s position is that there has been a material change in circumstances and that the best interests of the children require that the primary residence of the children be with the father. In support of that submission, he alleges that the mother has breached the court order as follows:

a. Making unilateral changes to the parenting schedule. b. Refusing to meet the father at the designated or other agreed exchange point. c. Not communicating by email. d. Not attending a parenting course. e. Not providing the father with contact information for the children’s schools, doctors, etc. f. Not providing the father with information about the children’s medical appointments. g. Regularly making disparaging comments about the father in the presence of the children. h. Not providing a stable home for the children. i. Not attending to the children’s medical and dental needs. j. Not attending to the children’s educational needs. k. Exposing the children to violent and drug-related behaviour. l. Having untreated mental health issues. m. Undermining his relationship with his children.

Position of the mother

[14] The mother’s position is that the father’s motion should be dismissed because the father’s request reverses the children’s routine that has been in place for numerous years and that it is not in their best interests to reside primarily with the father. In the alternative, she submits that the father shall have parenting time with the children every weekend from Friday after school to Sunday at 5 PM. Further, she requests an order that the father shall pick up the children for his parenting time at school and drop the children off at the mother’s residence.

[15] The mother alleges that the parties’ relationship was extremely volatile as the father was psychologically and emotionally abusive towards her. She alleges that the father never had interest in the children’s health or school, that he is belligerent, angry and can be violent. She alleges he has driven his motor vehicle under the influence of alcohol and smokes cannabis in front of the children. She states that the boys disclosed to her that the father has been rough with them and used inappropriate behaviour such as putting soap in their mouth or squeezing A.’s arm.

[16] The mother states that despite these allegations raised by the father, the CAS has never intervened and removed the children from her care despite attempts by the father by making unfounded allegations against the mother. She admits that she has had to move numerous times related to domestic violence by a partner, roommates not paying their part of the rent and other issues beyond her control. She has requested that the exchange point be at her residence as the father has a vehicle, she does not drive and that the commute from her home to the Tim Hortons restaurant requires a two-hour bus ride one way. She admits that, at times, she receives a drive with her father who is usually present at all exchanges.

[17] She has provided copies of the boy’s report cards which indicate that A. is doing well in all subjects and C. is progressing in all subjects except French. She confirms that the school is very close to her residence, that the father knows the school and that she walks the children to and from school on a daily basis. She does not deny police involvement because of partner violence but indicates that she left these individuals to protect her children. She states that the outstanding criminal charges of assault for bodily harm and mischief under $5,000 relate to an ex-partner and have yet to proceed to trial.

OCL report November 23, 2021

[18] On November 23, 2021, the OCL clinician filed his report where he indicates that the report was discontinued due to the continued delays in the mother’s participation in the investigation. The father relies heavily on this discontinued report because he indicates that once he reviewed the report, he immediately brought the motion as he was concerned about his children’s mental and physical health.

[19] The clinician indicates that four attempts were made to schedule an initial interview with the mother which were either cancelled or she forgot about the meeting. On May 20, 2021, the mother was notified that the report would be discontinued due to her lack of participation. On May 26, 2021, the mother participated in a virtual meeting with the clinician. Upon receiving information that the mother had moved in with her father and brother, the clinician worked with the mother to involve her brother and father in the assessment by way of signing releases for information for police and CAS and participating in an observation visit. The clinician sought to have an additional observation visit as she had moved in with extended family members who had contact with the children. The mother advised that her father and brother did not want to participate, and she requested additional time to persuade them. On August 13, 2021, the mother declined to a release of information regarding the children’s dentist and that an observation visit on October 11, 2021 was cancelled by the mother as was a rescheduled visit on October 12. On October 13, 2021, the clinician advised the mother, who was self-represented at this time, and counsel for the father, that the report was being discontinued.

[20] Despite discontinuing the report, the report provides significant information based on one interview with the parents and observations with their children. Both children were interviewed by the clinician on two separate occasions. The clinician obtained information from third parties such as the children’s family doctor, teachers for the children at school, the father’s family doctor, a clinical lead at the Wabano Centre, the father’s partner, the maternal grandfather and the mother’s brother. The clinician also received records from the Children’s Hospital of Eastern Ontario, Valoris-Prescott Russell, Children’s Aid Society of Ottawa records for the mother, her brother and her father and finally, the records of the mother and father with the Ontario Provincial Police and the Ottawa Police Service.

[21] Due to the mother’s repeated delays in participation, on October 13, 2021, the clinician advised that the report would be discontinued. The clinician indicated that he had obtained an abundance of collateral information, however, because final interviews were not conducted, the parties did not have the opportunity to respond to the allegations thereby impeding the ability to draw conclusions and make formal recommendations. Further, the mother’s current living situation was not fully assessed prior to the investigation being discontinued.

Legislative and jurisprudential framework

[22] The Children’s Law Reform Act, RSO 1990, c C. 12 at s. 29(1) (“CLRA”), provides that a court shall not make an order that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[23] Section 24(1)(2) of the CLRA provides that the sole consideration in making a parenting order is the best interests of the child and in assessing their best interests, primary consideration should be given to their physical, emotional and psychological safety, security and well-being.

[24] Section 24(3) of the CLRA enumerates a list of factors that are to be included in assessing the best interests of the child such as:

a. The child’s needs, given the child’s age and stage of development; b. The nature and strength of the child’s relationship with each spouse; 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; f. The ability and willingness of each person to care for and meet the needs of the child; g. The ability and willingness of each person to communicate and cooperate on matters affecting the child; and h. Any family violence.

In Gordon v. Goertz, 1996 2 SCR 27, the Supreme Court of Canada defined the term “material change in circumstances” as follows:

a. A change in the condition, means, needs or circumstances of the children and/or the parent’s ability to meet the children’s needs; b. The change materially affects the child; and c. The change was either not foreseen or could not have been reasonably contemplated when the order was originally made.

[25] To change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less, instability in the child’s life. Moreover, evidence at a trial has the benefit of being tested through cross-examination, whereas evidence at a motion is by affidavit where conflicting versions of truth cannot be determined with any certainty and the court is unable to make credibility findings. Southern v. Ree, 2019 ONSC 1298.

[26] Where a party seeks a temporary variation of a final parenting order, the court must exercise caution before changing an existing arrangement which the children are used to, especially where it is based on a final order. The court must determine whether the change in circumstances has 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. The moving party must establish that the current circumstances that the situation is so serious and potentially harmful that any delay is likely to continue or exacerbate actual or potential physical and/or emotional harm. The court must conclude that the child’s best interests require an immediate change and that the existing order is demonstrably contrary to the child’s best interests and that a temporary variation is urgently needed to shield the child from likely future harm. Further, the court must determine that the new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. The court must be cautious on a temporary motion to make such a determination based on 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. F.K. v. A.K., 2020 ONSC 3726.

[27] The court should not, at a temporary motion, act upon recommendations of a parenting assessment. These recommendations should be left to the discretion of the trial judge who would receive evidence from both sides, observe cross-examination of the parties and the assessor and receive other relevant information. Genovesi v. Genovesi (1992), 8562 ONSC. However, there are rare and exceptional cases that require the court to act immediately upon the information contained in an assessment. Grant v. Turgeon ONSC.

[28] On a temporary motion, where one party seeks to disturb the existing status quo, the court can consider the observations and undisputed facts contained in an OCL report which highlighted the need for immediate intervention to address urgent issues, such as the mother leaving the children unattended for extended periods, uncertain residential plans, continuing problems organizing and prioritizing the children’s lives. Marcy v. Belmore, 2012 ONSC 4696. Bos v. Bos, 2012 ONSC 3425.

Change of the children’s primary residence

[29] The father has filed two lengthy affidavits with exhibits as well as an affidavit from the paternal grandmother while the respondent has responded with a lengthy affidavit with exhibits. Throughout these affidavits, allegations are made and denied by both parties. Many of the allegations are historical in nature including reverting back to before the final order of Justice Ryan Bell. No one sought cross-examinations of either the other party or the OCL clinician.

[30] As I am proceeding on untested affidavit evidence only, I must be cautious and consider the risk of changing the children’s primary residence on a motion and then the trial judge reversing that decision after a trial. It is at a trial, where the trier of fact will hear the viva voce evidence of the various witnesses, the cross-examination of these witnesses and receive other evidence that will allow the court to make its findings of fact as well as credibility.

[31] However, at a motion, if I can determine, based on admissible evidence, that there is a compelling and urgent need to intervene to protect the physical or mental health of children on a temporary basis, I must act. The moving party, in this case the father, has the burden of proof to prove on a balance of probabilities that there is such a compelling and urgent case.

[32] I make the following findings of fact:

a. Since the separation, the children have always resided in the primary care of the mother. b. Despite concerns about the children’s welfare, in May 2019, the father consented to a final order that the children would remain in the primary care of the mother. c. Despite alleging that the mother was in breach of the court order by letter dated October 21, 2019, the father did not commence proceedings until November 2020 to change the primary residence of the children. d. Since the final order, the mother has moved multiple times for a variety of reasons such as leaving a situation of domestic violence, not being financially able to pay the rent resulting in being evicted and seeking support from her father. Since the summer of 2021, she has moved in with her father and brother and have provided the children with stability at the time of this hearing. e. The children were exposed to incidents of domestic violence, including situations where the mother was the victim. Currently, the mother has outstanding charges arising out of a domestic situation. f. Both parents have police records. Currently, the mother is facing criminal charges stemming from an incident with an ex-partner. g. The mother had interaction with the child protection services regarding her two older children as well as the two boys, C. and A. The mother had a significant involvement with Prescott-Russell and CAS dating back to C.’s birth. In April 2020, her file was transferred to the Ottawa CAS. There have been numerous investigations which have resulted in inconclusive findings. Despite the allegations of the father, the Ottawa CAS have not intervened. h. The children are registered in school on a full-time basis. The children have had numerous absences and have been late for school, especially in the last term of the 2020-2021 school year, that has continued in the 2021-2022 school year. i. Both parties have moved multiple times since the final order. j. The children have attended multiple schools since the final order.

[33] I have also considered the observation and undisputed facts contained in the Discontinued OCL Report to assist me in determining whether there is a compelling and urgent need for an immediate change in the children’s primary residence. I find that the evidence in the discontinued OCL report is especially important when the evidence provided by the parties conflicts and there is little corroboration and no ability to determine the credibility and reliability of the statements. In this case, there are no recommendations but rather observations and third-party collateral information. I have considered the following:

a. The observations of the father with his children were positive. The children appeared relaxed and content. There were no concerns noted throughout the observation. b. The observation of the mother with her children indicated that the mother was appropriately engaged. The children appeared disinterested and apathetic during the first portion of the observation. The children’s spirits marginally improved when they played cards but remained fixated about going to the park and reuniting with their friend, who had been present immediately before the observation began. c. During interviews with the children, they described their time with the father as generally positive. When the children were observed in the mother’s care, the children displayed strong apathy and disinterest in participating in activities despite the mother’s persistence. Both boys indicated that they enjoyed the present parenting schedule. d. C. was absent a total of 41 days and late 26 days during the academic year ending June 2021 and that A. was absent 35 days and late 16 days during his kindergarten year ending in 2021. The majority of the absences were in the final term. e. The mother’s family doctor did not see the mother from 2017 to 2019 and did not diagnose her with any mood disorders and that the mother did not follow through with referrals to specialist appointments or counselling. The mother indicates that she was diagnosed at a clinic because she did not find that her doctor took her seriously and was not very helpful. f. The father’s family doctor indicated the father struggles with feeling of anxiety and expressing an interest in reducing his use of cannabis. g. The CAS indicated that they will be able to close their file when the mother and father do not expose their children to conflicts, and violent behaviours, risking their physical and emotional safety.

[34] During the motion, counsel for the applicant submitted that there were six reasons why the court should intervene immediately, being:

a. The children’s continued absences and being late for school. b. The mother’s denial of parenting time to the father. c. The mother’s history of noncompliance with court orders. d. The mother is teaching the children to not respect the father. e. Delay in leaving the children with the mother raises a significant risk to their physical and mental health. f. The mother’s lack of attention to the children’s medical and dental needs.

[35] The problem of the children missing and being late for school that occurred in the last term of the school year ending in June 2021 continued in the fall semester when C. missed 10 days and A. missed 12 days as well as being late on 11 days. From January 5 to February 14, 2022, both boys missed 7 days of school and were late 7 and 8 days respectively. According to the mother, some absences were related to being too tired, a leaking nose, slept in, sniffles, earache/headache or dental appointment, not feeling well or coughing. Further, the mother’s statement that the children do not like going to school and she finds it difficult to motivate them to go to school to be very concerning. The mother must ensure that the children attend school on time and only miss school due to medical appointments or being ill. To continue to allow the children to miss so much school is not in their best interests. Despite the absences, the children successfully passed the 2020-2021 school year and in their November 2021 school report cards, both children are progressing well in all subjects and positive comments are contained in each report by the respective teachers.

[36] With respect to the denial of parenting time, the mother’s decision to deny the father parenting time on the weekend before the motion was very concerning. This indicates a lack of understanding of the importance of the children having parenting time with their father. The mother’s explanation that she did not send the children for the father’s parenting time was because the children were concerned about leaving the mother’s primary care because of the upcoming motion is a very immature response to a very serious issue. The mother cannot interfere with the children’s parenting time with their father. Secondly, it is clear that the children are aware of the litigation because the mother disclosed the upcoming motion to the children. Children should be insulated from any knowledge of the litigation between the parents. Neither party should discuss these issues with their children.

[37] Upon a review of the father’s allegations, he describes many incidents where his parenting time was denied covering the period June 2019 to January 2020. The next incidents are in February 2021, two incidents in July 2021, August 2021 and thereafter, the weekend of February 11-13, 2022. With each incident identified in the father’s affidavit, the mother has a reply which challenges the father’s version of events. However, even based on the father’s own affidavit evidence, since January 2021, there have been less than five incidents where his parenting time did not occur and the parties do not agree on why it did not occur.

[38] On the issue of the mother failing to email the father, the father indicates that until sometime in 2021, he received calls and text messages from the mother from different phone numbers and that her text messages were difficult to understand. He also indicated that from December 1, 2021 to January 1, 2022, he received 30 emails from her. He indicates he does not look at her communications too often because they are usually very upsetting. The mother indicates that she calls and text messages the father because he will not email her back and that he does not consistently check his emails. It appears that both parties are at fault with respect to communication by email.

[39] Neither party complied with the court order by completing a parenting course one year from May 15, 2019. The father indicates that in April 2021, both parties registered for the same parenting course. As the mother was uncomfortable being in the same course as the father, he indicates that he withdrew. The mother states that this conflict was in November 2021. The father admits that he started in the parenting course on September 14, 2021, completing on November 23, 2021. The mother indicates that she has now completed a course but does not provide the name of the course or when she completed the course.

[40] Regarding the father’s allegation that the mother is teaching the children to disrespect the father, the father indicates various incidents over the years where he alleges that the mother would not answer a phone call so that he could wish the boys happy birthday and that she interfered with their verbal agreement to permit him to have Skype contact with the children as well as arguing about parenting time at Christmas 2021. The mother denies each of these allegations and provides a different factual context.

[41] With respect to the allegation that the mother has not addressed the children’s dental issues since June 2021, the mother states she has taken the children to the dentist every six months since 2016 in Rockland until she moved. In the mother’s affidavit, she explains that she has taken A. to the dentist to review his teeth as recent as December 10, 2021 and that she is waiting for an appointment to address a cavity. She indicates that C. has also been seen by a dentist.

[42] With respect to the lump on A.’s neck, the mother states that the child received antibiotics and that she called the doctor who asked if the lump was gone. The mother indicated it was gone and that there was no need for her to see the doctor. Further, she indicates that test results came back negative. There is no information as to what test results the mother is referring to. There is no information provided by the doctor except the hearsay evidence that she spoke to counsel for the applicant and that based on that information, the father believes that the mother did not follow up and there has been no contact with the children. This statement is double hearsay and I have disregarded it.

[43] With respect to providing the father with information regarding the children’s health or school, the mother indicates she tried to involve the father, but he did not attend the events and that she denies interfering with the father’s communication with the children. Further, she indicates that when she moved in with her father and brother, she advised the father that the children would be starting school at our Lady of Mount Carmel. Further, she states that she provided the father with the report cards that she received for the first semester in 2021.

[44] In addition to the list of factors requiring urgent intervention, in the father’s factum, he submits that the mother continues to be involved in violent and drug related behaviour and exposing the children to that behaviour. The mother’s affidavit does not deny that she has police involvement because of partner violence, but she is no longer with these individuals, and she left these individuals to protect her children including calling the police. The mother admits that there are outstanding criminal charges involving an ex-partner. She indicates that she no longer consumes drugs but does drink socially but not to the point of intoxication. There is no evidence the mother is currently involved in violent or drug related behaviour.

Disposition

[45] I find that the father and mother have a dysfunctional relationship, with the two boys being caught in the middle. Both parties have been involved with illicit drugs, impaired driving, multiple interactions with police services and a history of friction between them both before and after the order of May 15, 2019. Both parties have moved on numerous occasions since the final order. Throughout these numerous moves, the children have remained in the primary care of the mother while the father has had parenting time. I find that there are numerous allegations raised by the father and by the mother that require a full hearing at trial where the court will make findings of fact, determine the credibility and reliability of the various witnesses and render a final decision in the best interests of the children.

[46] The father has an onerous burden of proof. I agree with the father that the children’s numerous absences and being late for school is very worrisome and must be addressed immediately. I do not find that the father has proven that the mother has interfered with his parenting to such an extent that the children must change residences. I cannot find that the mother is teaching the children to disrespect the father or failing to comply with the existing order. Finally, I cannot conclude that the mother is not attending to the children’s medical and dental needs. As such, I do not find that the father has met his burden of proof to show that there is the compelling and urgent need to change their residence at this time and consequently, the father’s motion is dismissed.

Location for Exchanges

[47] The next issue to resolve is the pickup and drop-off of the children. The existing court order requires the father to pick the children up at 5 PM on Friday and return them at 5 PM on Sunday at the Tim Hortons restaurant at 1270 Trim Rd., Ottawa, ON. The mother seeks an order that the father should attend at her home to retrieve the children and bring them back at the end of the weekend. The father’s position is that the existing exchange point should continue.

[48] The mother does not own a car and when she cannot receive a lift by her father, she states that the bus ride from her home to the restaurant is two hours one way and that it is too long for her to travel with the children to deliver the children and then to go home on Sunday evening. Further, she does not find that it is safe for the children to take public transit during the COVID‑19 pandemic. The father denies the mother’s allegations and indicates that the commute is approximately 43 minutes, including a 15 minute walk, based on a Google map. The father indicates that the drive from his home in Rockland to the restaurant is 20 minutes.

[49] Over the years, the parties have moved and had different locations for the exchange of the children. I do not find that the mother has provided evidence to indicate that there is an urgent and compelling need to change the location for the exchange of the children. This issue is best left to the discretion of the trial judge. The mother’s request is denied.

Costs

[50] I request that the parties attempt to resolve the issue of costs by March 11, 2022. If they are unable to do so, it appears that the respondent was the successful party on this motion. As such, I request that the respondent provide her costs submissions not to exceed two pages plus any offers to settle and a detailed Bill of Costs by March 18, 2022. I order the applicant to provide his costs submissions not to exceed two pages plus any offers to settle and a detailed Bill of Costs by March 28, 2022. There shall be no right to reply.

Released: March 1, 2022 Justice Mark Shelston