COURT FILE NO.: FC-20-720

DATE: 20221222

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sara Alicia Miller, Applicant

AND:

Jonathan Zachary Miller, Respondent

BEFORE: The Honourable Mr. Justice JPL McDermot

COUNSEL: Applicant unrepresented

Hilary Goodman and Nadine Finbow, for the Respondent

HEARD: December 9, 2022

Ruling on motion

[1] This was the return of a motion originally brought by the Applicant Mother on November 3, 2022. There were numerous requests for relief in that motion which resulted in Justice Krause setting this matter down for the sittings for the argument of a full day long motion. However, the major issue argued before me was the Applicant’s request to limit the Respondent’s parenting time to weekends as recommended by a recent report prepared through the Office of the Children’s Lawyer.

[2] These parties began living together in 2012 and were married on October 7, 2016. The parties differ on the date of separation; the Applicant Mother says that the parties separated on December 23, 2019 but lived under the same roof for a time. The Respondent Father says that the parties separated on August 14, 2020 when he was charged with spousal assault based upon historical allegations by the Applicant Mother and the parties had to physically separate.

[3] The parties have two children, Chloe who is 8 and Maxwell who is 6. Maxwell has been diagnosed with ASD and has a modified part time program at his school.

[4] Originally, when the charges were laid, the children remained in the care of the Applicant Mother in the matrimonial home. The home is owned by Mr. Miller and he continues to pay the expenses of the home. He initially moved in with his parents and then moved into his own residence.

[5] Mr. Miller was charged with spousal assault on August 14, 2020. Later, the Applicant Mother says she discovered cameras installed in the home and he was also charged with voyeurism on November 30, 2020 after a case conference in this court six days prior. Because of Mr. Miller’s bail conditions, the parties could not communicate with one another for part of 2020 and the whole of 2021. In April, 2022 the parties agreed to vary the bail conditions to allow direct communications, but they still have difficulties as evidenced by the Applicant Mother’s request in her motion to communicate through Our Family Wizard (agreed upon during argument of the motion). All of the charges against Mr. Miller have now been withdrawn and there is no legal impediment to communication between the parties.

[6] Throughout this litigation, the Applicant Mother has complained of family violence at the hands of the Respondent Father. She laid charges of assault in August, 2020 resulting in the physical separation of the parties and the non-communication recognizance. She asserts family violence in her materials. She requested and was granted a restraining order when she commenced these proceedings on August 31, 2020.[^1] She insisted on supervised parenting time and initially the Respondent Father saw the children with the assistance of Braydon Supervision Services Inc. On November 26, 2020, the parties entered into a consent after a case conference which increased the Respondent’s parenting time to Thursday to Friday overnight on week one, and alternating weekends from Friday to Sunday on week two.

[7] Mr. Miller wanted shared care. He brought a motion for shared care on a 2-2-5-5 basis returnable on March 17, 2022. Around the same time, the Applicant Mother brought a 14B motion for support and for appointment of the OCL. On December 3, 2021, Justice Wildman adjourned the support issues to a case conference but appointed the OCL. A case conference was held on December 22, 2021, where filing deadlines were set. The parties attended at a settlement conference before Justice Douglas on March 4, 2022, and he was unable to broker an agreement, but set the TSC for September 20, 2022, with a goal of having this matter going to trial in the November, 2022 sittings. The motion for support and parenting time was argued before Justice Krause on March 17, 2022.

[8] The Applicant requested that the status quo continue as set out in the November 26, 2020 consent. Mr. Miller requested a shift in the status quo to shared care. Justice Krause, in her endorsement of March 17, 2022 stated she could not determine the issues of family violence raised by the Applicant due to the directly conflicting affidavits that had been filed and refused to increase the Respondent’s time as requested by him. She did, however, increase his parenting time to every second Thursday overnight (as in the November 26 consent) and on the alternate weekend, the weekends were increased from Thursday overnight to Tuesday morning drop off at school. This gave the Respondent parenting time 6 overnights out of 14 – almost shared. She also made a support order.

[9] The OCL report was delivered on August 31, 2022. It recommended that the Applicant have sole decision making and primary residence of the children and that the Respondent have weekend parenting time only. Mr. Miller filed a lengthy dispute to the OCL report which presently remains unanswered.

[10] Ms. Miller requested an adjournment of the TSC because she needed counsel for trial and was not prepared to conduct a trial during the November 2022 sittings. Ms. Goodman on behalf of the Respondent agreed to adjourn the TSC. The Applicant Mother then almost immediately brought two motions, one a 14B for Hallowe’en parenting time which was dismissed, and the second being the within motion. As I mentioned above, the major issue was the Applicant’s request to reduce parenting time as recommended by the OCL report. There were numerous other issues also raised in the motion each of which shall be addressed. I shall also address the Respondent’s request that the Applicant not bring further motions without leave of the court.

Parenting Time and Decision Making

[11] In para. 1 to 3 of the Applicant Mother’s Notice of Motion, she requests that she be granted temporary sole decision making concerning the children and primary residence of the children. She also requests that the Respondent’s regular parenting time be as set out the OCL report which recommends parenting time every second weekend from Saturday morning to Sunday evening.

[12] As noted above, when these parties separated, the children ended up living with the Applicant Mother. The mother remained in the matrimonial home with the children and the father eventually obtained his own housing. The father initially had every second Thursday overnight and every second weekend from Friday after school to Sunday evening. On March 17, 2022, over the Applicant Mother’s objections, Mr. Miller obtained an order expanding his parenting time to 6 overnights of 14, which included every Thursday overnight, and every second weekend from Thursday after school to Tuesday morning return to school.

[13] Ms. Miller says that the OCL report makes it clear that Justice Krause made her decision on incomplete evidence. She says that she was not aware of the Respondent Father’s previous involvements with the police in Toronto and that she was not aware of the fact York Regional Police had been called to the Respondent’s home on eight occasions. She says that the court should review the decision of Krause J. based upon the evidence contained in the report as well as the recommendations of the investigator for sole decision making and primary residence to the Applicant Mother.

[14] The report of the OCL investigator, Carole Vaillencourt, was released on August 31, 2022. It was critical of Mr. Miller’s failure to make full disclosure of his living circumstances. The investigator notes that she was told, on May 6, 2022 by the Respondent’s lawyer:

Mr. Miller is not currently nor has he resided with his current girlfriend at any time. To that end, and as she in not a party to the proceeding, her participation in the investigation is voluntary and we can confirm that we do not believe it necessary for you to investigate her background.

[15] To the investigator, this sounded like a coverup:

This information is contradicted by a plethora of collateral contacts as well as the disclosures from the children. Ms. Thomson did not sign consents for the police services or the child protection agencies, however, Mr. Miller did and through his consents and the disclosures provided by two of these agencies, it is clear that Mr. Miller and his "partner" of last year, known to the assessor as Ms. Thomson, have had multiple contacts with these agencies, some of which are quite concerning.

[16] The investigator noted that there were eight different occurrence reports involving “domestic issues” at Mr. Miller’s home. She concludes that this “speaks to a very chaotic home situation” and that the children were present for “many of these calls.”[^2] It is plain that she suspects that disclosure of Ms. Thompson’s circumstances might very well show criminal convictions or involvement in domestic disputes.

[17] Ms. Vaillencourt also noted the children’s views and preferences were to either live with their mother or Ms. Thompson. She notes that Max said that he would choose to live with his mother or Ms. Thompson but did not mention his father. She also notes that Chloe described hearing arguments and fighting in the father’s home and that “her mother’s home is safe and she loved being there.”[^3] The investigator said that Chloe “did not describe being at ease in her father’s home and did not speak of that environment as being comfortable and safe.”

[18] The investigator recommended that Ms. Miller have “primary decision-making responsibility” and primary care of the children. She recommended that Mr. Miller have parenting time on alternating weekends from Saturday morning at 9:00 a.m. to Sunday evening at 6:00 p.m. It is noted that the recommendations severely limit Mr. Miller’s parenting time compared to the time sharing that he is now enjoying.

[19] Mr. Miller, through his counsel, has issued a vigorous dispute of the OCL report. Mr. Miller accuses Ms. Vaillencourt of bias and sums up his objections to the OCL report in paragraph 11 of his affidavit:

The Applicant seeks to rely heavily on the OCL Report. I have filed a dispute of the OCL Report. I will not repeat all of the issues that I dispute, because they are extensive and included in my September 29, 2022 affidavit disputing the OCL Report (filed with this court), but in a very summary fashion, the high level issues that I have with the OCL Report are that:

a. There was no linking of Ms. Vaillancourt's recommendations or apparent consideration of section 16 of the Divorce Act nor section 24 of the Children's Law Reform Act, which list the factors that must be considered in determining the best interests of the children;

b. There was little to no clinical assessment of the parties' parenting capacities or to support many of the recommendations made and the investigations that were done were far too brief;

c. My concerns were not assessed in a meaningful way;

d. Ms. Vaillancourt showed an apprehension of bias throughout her investigation.[^4]

[20] Mr. Miller specifically states that Ms. Vaillencourt did not ensure that the children’s views were independent and suggests that their views were “coached” by Ms. Miller. He also says that

Significant weight is placed on the police reports that were obtained from York Regional Police Service. Not only did Ms. Vaillencourt not address these reports with me, I was not given the opportunity to provide context to these reports.[^5]

[21] He continues to maintain that he does not live with his partner notwithstanding the fact that she was present for all of the York Regional Police occurrence reports. He says that “Ms. Vaillencourt drew conclusions regarding my current partner, assuming the worst without providing me with the opportunity to address her concerns.”[^6]

[22] Ms. Goodman on behalf of the Respondent Father strongly urges that I dismiss any claims in the Applicant’s motion which are based on the OCL report. She firstly notes that the case law generally militates against making changes to a status quo on an interim motion. She also argues that the court generally cannot accept OCL recommendations on a temporary motion without opportunity to test those recommendations at trial.

[23] Generally, any disposition concerning the parenting of a child must be in accordance with the child’s best interests as defined in section 16 of the Divorce Act.[^7] The provisions in s. 16 which are raised in this motion is the relative ability of the parties to meet the child’s needs, especially for stability (s. 16(1)(a)), the views and preferences of the children (s. 16(1)(e)) and the issue of family violence as raised by the Applicant (s. 16(1)(j)).

[24] However, in the case of the request by the Applicant to change an existing status quo and order in an interim motion, more is necessary. In addition, the Applicant must meet the high threshold necessary to make an interim change to an existing status quo. In the present case, the Applicant relies upon the s. 112 report completed by Ms. Vaillencourt for the Office of the Children’s Lawyer.

[25] The law concerning changes in a status quo can be summed up as follows:

a. The courts have traditionally taken a dim view of any change in a parenting status quo on a temporary motion. That is because such a motion is brought on unreliable and conflicting affidavit evidence where credibility of parties cannot be determined. As well, if the status quo does change on an interim motion, there is, of course the risk that the change will be undone at trial, resulting in the children moving twice rather than once, creating instability.

b. Because of this, the court requires compelling reasons to depart from the status quo prior to the hearing of the motion. Alternatively, the test has been set out as requiring “exceptional circumstances where immediate action is mandated”: see Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (S.C.J.) at para. 17. Other cases have suggested that there must be some danger to the child remaining in the present status quo: see Miranda v. Miranda, 2013 ONSC 4704 and Elliott v. Filipova, 2019 ONSC 4506.

c. In addition, if a party is seeking to change the terms of an existing court order, temporary or otherwise, there must be a change in circumstances prior to making the order: see the Divorce Act, s. 17(5) and Lonsdale v. Smart, 2018 ONSC 3991 at para. 9.

d. If a party wishes to rely upon the recommendations in an assessment report or s. 112 investigation in changing the status quo, the court must exercise caution in doing so. The traditional viewpoint is that an assessment report or an investigation as in the present case is only one piece of evidence to be used at trial and should not be acted upon until the court can assess the weight to give to the report through cross-examination and trial: see Genovesi v. Genovesi, 1992 CanLII 8562 (ON SC), [1992] O.J. No. 1261 (Gen. Div.), Grant v. Turgeon, supra and JLM v. PDAB, 2012 ONSC 4696 at para. 15 – 16.

e. There is authority, however, that the evidence contained in an assessment report (as opposed to the expert’s recommendations) may be relied upon if it is sufficiently compelling to warrant a change in a status quo or previous order: see Bos v. Bos, [2012] ONSC 3425 and Krasaev v. Krasaev, 2016 ONSC 5951. In fact, in Krasaev, Douglas J. distinguished between the evidence in the report and the recommendations when he says [at para. 38]: “I note that the caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in the report.”

[26] In reviewing the weight to be given to that evidence, Bos v. Bos, supra offers some guidance. Mitrow J. suggested that Genovesi should not prevent the court from reviewing evidence contained in an investigative report, stating [at para. 23] that

…although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo.

[27] In fact, it is the evidence that is contained in this assessor’s report that is of concern. Firstly, the assessor notes that the children both have clear views and preferences to remain in the home of the Applicant. Chloe, the oldest child who is 8, describes the situation in her father’s home as “chaotic” and says that the Respondent Father and his partner “argue and swear” at each other. She says that she loves being at her mother’s home.

[28] Similarly, for Max, much younger with an ASD diagnosis, he would like to live with his mother or his father’s partner. He does not mention his father.

[29] If this was the only evidence to be relied upon, I would choose not to act on it now considering the issues raised by the Respondent Father in his dispute concerning the independence of the children’s views and preferences as provided to the investigator. However, there was more.

[30] Firstly, the appendix to the report discloses eight attendances by the York Regional Police at the home of the father between May 30, 2021 and May 7, 2022. Almost all of these incidents were concerning domestic dispute concerns and involved yelling and screaming in the Respondent’s home. On one occasion, when 911 was called, it was stated to be a “misdial” and the parties said that they were yelling at the dog. The neighbours said that they had often heard loud arguments coming from the home. On one occasion the Respondent was arrested for assault but was released without charges when the woman who was the putative victim recanted and said that there had been no assault. On a number of those events, there was an unknown woman present who was belligerent and uncooperative; on November 28, 2021, she came close to being arrested for obstructing the investigation. On another occasion, the parties in the home claimed that the yelling came from neighbours and not themselves. According to the Applicant’s affidavit, the children were present during the occurrences on May 30, June 18 and November 28 and 29, 2021. In addition, according to the summaries in the report, on May 7, 2022, three children (presumably Ms. Thompson’s child and as well as Chloe and Max) were also present in the home when the police attended. On at least two occasions, the local C.A.S. was contacted.

[31] This is combined with the position of the Applicant that his girlfriend does not live with him and therefore will not provide information or disclosure to the investigator about herself. That was concerning to the social worker and is concerning to the court because, if Ms. Thompson does not live with the Respondent, she was there on every occasion that the police were called concerning domestic disputes in the Respondent’s home. She was also an active participant in the disputes. The neighbour who called the police on occasion said that “the couple had had arguments in the past eight months and were disruptive to the neighbourhood” suggesting that they were in fact living together and fighting a lot.

[32] It is especially concerning to me that six of the eight occurrences noted in the OCL report had taken place prior to the motion argued before Justice Krause on March 17, 2022 and were not disclosed to her. She had noted in her endorsement that, notwithstanding the Applicant’s allegations of family violence, she was unable to find that there was family violence on the affidavit materials before the court. That may very well have been the case because Mr. Miller never disclosed to Justice Krause that the police had been frequent visitors at his home leading up to the argument of the motion. One of the incidents had taken place barely three weeks before the motion, on February 22, 2022. Justice Krause may very well have come to a different finding about family violence had the Respondent disclosed the incidents pre-dating the hearing of the motion.

[33] Justice Krause was also concerned about the Respondent’s narrative about the his girlfriend and his failure to provide information as to their living arrangements. She noted at para. 22 of her endorsement:

It appears from the mother’s evidence that the father has a new partner with whom he resides and at least one of the new partner’s children reside with them full time. The father’s evidence does not address his partner, her children or their living arrangements at all. In his submissions the father indicates that his Affidavits deny the information provided by the mother unless addressed by him. I am concerned that the father relies on such a technical position in relation to a situation which will bear directly on the children.

[34] The evidence on police occurrences contained in the report are the investigator’s summaries of police occurrence reports. Ms. Goodman argued that the evidence in the OCL report regarding the police attendances at the Respondent’s home is double hearsay evidence and unreliable. However, that evidence is corroborated by Chloe’s suggestion to the investigator that she had observed the Respondent and his partner yelling and swearing at each other. She also said that the Respondent and his partner are less than complimentary about the mother and speak of that in the presence of the children. Although Mr. Miller has suggested that the evidence from the children was unreliable and the result of coaching by the Applicant, it is difficult to assert that about the Respondent’s homelife when he had failed to disclose the police visits to the Applicant Mother prior to the OCL report being issued. It is implicit in the Applicant Mother’s affidavit that she did not know about those police visits until the OCL report; she says that her children did not disclose to her the situation in the father’s home.[^8] Ms. Goodman during argument acknowledged that the father also failed to disclose the police attendances. If the mother did not know about the chaotic situation in the father’s home, how could she have “coached” Chloe to disclose this to the OCL investigator?

[35] Moreover, the evidence contained in the report raises the issue of the father’s duty to disclose the police occurrences to the Applicant and to the court. Traditional litigation practice, with a “winner take all” attitude, would dictate that there is no duty to disclose. However, in the civil litigation process, parties were entitled to an examination in discovery; the name of the process implies that this process allows a party to “discover” undisclosed facts from her opponent. Questioning is not available as of right in family litigation today.

[36] In any event, the attitude of the courts and the parties prior to the Family Law Rules[^9] was that if someone did not discover pertinent evidence, that was not the problem of the individual in possession of that information. It was permissible for a party to keep their cards close to their chest subject to that evidence being discovered, sometimes by chance. Winning was everything.

[37] That is not, however, the purpose of the Family Law Rules, which set out the primary object of the rules as follows, in r. 2(2):

The primary objective of these rules is to enable the court to deal with cases justly.

[38] The departure of family law from the Rules of Civil Procedure[^10] was made plain by the Court of Appeal in Frick v. Frick, 2016 ONCA 799 an appeal involving an order striking certain portions of a pleading. In that case, Benotto J.A. stated at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[39] That has been largely confirmed by the structure of the rules which make it clear that there is a positive duty to make full financial disclosure even where that disclosure is prejudicial to the party making the disclosure. I would suggest that the same would apply and indeed are of greater import in matters involving the best interests of the children. To keep children safe and to ensure that their best interests are properly addressed by the court, a party has a positive obligation to disclose all relevant factors concerning those best interests. To fail to disclose evidence that is relevant to the best interests of children may result in a disposition that does not fully address those best interests.

[40] It is difficult to see how the court could deal with this case justly where there was no disclosure of the police occurrences to a judge considering a motion where allegations of family violence were in issue. Family violence is now a relevant factor in parenting disputes under section 16 of the Divorce Act and the court should have a clear picture of the facts surrounding this issue. Until the OCL investigator obtained copies of the police records, the Respondent was the only person who knew about the police attendances which were clearly relevant to the result of the motion. He failed to provide anything to Justice Krause on the hearing of the motion. As I mentioned during argument, the Respondent also failed to address those attendances in his evidence for this motion. He complains in his dispute of the OCL investigation that he was “not given the opportunity to provide context to these reports” but he failed to provide that context to this court in his motion materials. The questions posed by Justice Krause in her March 17 endorsement about the Respondent’s living arrangements remain unanswered.

[41] In my view, the Respondent failed to disclose the police occurrences at his peril and it is apparent that Justice Krause, when she increased the Respondent’s time sharing, was not aware that the police had been at the Respondent’s residence for domestic disputes on six occasions prior to the motion being argued. The Applicant was also not made aware of those attendances. The only person who was in possession of that information was the Respondent who still continues to withhold his side of the story concerning the numerous calls to his residence.

[42] Turning to the Applicant’s motion, she seeks to change the Krause J. order based upon the OCL report. Although it might be argued that there is no change in circumstances, there is jurisdiction to change an order where a court made a decision on the basis of incomplete evidence: see r. 25(19)(c) which allows a court to address a matter that was before the court but which it did not decide. On March 17, Justice Krause was unable to make a finding of family violence, in part I am sure because of the Respondent’s failure to disclose. That issue can now be determined on a more fulsome basis.

[43] This brings the court, however, around to the issue of the children’s best interests. I am sympathetic to the Applicant’s request; the Respondent “stole a march” on her by failing to disclose evidence relevant to the motion and the concerns she raised with Justice Krause on March 17. The best interests of the children were not properly addressed by the court because Justice Krause did not know about the chaotic situation in the Respondent’s home. However, balanced against this is the fact that a decision to change the present status quo would mean that the children’s time sharing with the parties would change a third time in this litigation with trial approaching in May, 2023 which may result in a fourth change in the status quo. That is extremely disruptive to the children and the court must be satisfied that the requested change is in their best interests.

[44] Other than the contents of the OCL report, based upon the evidence before me, the conditions in the Respondent’s home continue to remain unclear. Mr. Miller has chosen to continue to deny that his partner lives with him. As well, he failed to provide the “context” to the court under which the police visits occurred. I note that without that context and without the Respondent acknowledging that there was a problem in his home, it continues to be distinct possibility that these police visits will continue to occur. One more police visit would be one too many for these children and would also be as disruptive to the children as another shift in the status quo, especially when Chloe complained about the chaotic situation in the Respondent’s home.

[45] For these reasons, I believe it to be in the children’s best interests to restrict the Respondent’s parenting time with the children. No matter how good he says he is with the children, he has continued to expose them to family violence and has not been open with the courts or the Applicant. That information as contained in the OCL report is corroborated from several quarters including statements made by Chloe and the Applicant’s evidence. I realize that this is a further change in the status quo creating instability for the children; however without clear evidence from the Respondent Father other than generalities and denials, and without clear evidence as to his living arrangements, I believe it to be best to limit the exposure of the children to the Respondent’s home which, if the evidence is correct, is a chaotic home atmosphere.

[46] I wish to be clear that this is not about the recommendations in the OCL report and I am not going to implement those recommendations; that is an issue for trial. I am also not specifically making any sort of finding of family violence; my concern is the chaotic living situation in the Respondent’s home, his failure to fully disclose his living circumstances and Chloe’s distress at the situation in the Respondent’s home. However, I intend upon returning to the status quo prior to March 17, 2022, which was that the children lived primarily with the Applicant and saw the Respondent on Thursday overnights and every second weekend. I am going to change that status quo to ensure that there is no face to face contact between the parties with the children being picked up and dropped off at the school.

[47] There will be an order varying the order of Justice Krause to limit the Respondent’s parenting time to Thursday overnight parenting time and to Friday evening to Monday morning, pick ups and deliveries of the children to take place at the school. If parenting time falls on a long weekend, the drop off shall be extended to Tuesday morning at the school.

[48] This is not an appropriate point in time to rule on decision making and no immediate disagreements concerning decision making were disclosed to me. That issue shall be addressed at trial.

Counselling and Classes

[49] In paragraphs 4, 5 and 6 of the Applicant’s Notice of Motion, Ms. Miller asks for orders as follows:

a. That the Respondent participate in parenting classes as well as classes on how to parent an ASD child;

b. That the Respondent participate in an assessment as to alcohol, drug and steroid use; and

c. That the Respondent participate in anger management and partner violence counselling.

[50] All three of these issues may constitute health care treatment requiring consent as required under s. 10 of the Health Care Consent Act.[^11] These are all fairly intrusive requests and unless the Respondent consents to them, the court cannot necessarily force him to participate in these activities.

[51] There is jurisdiction to make the order under s. 16(6) of the Divorce Act which permits the court, in making a parenting order, to make an order for “such other terms, conditions or restrictions in connection therewith as it thinks fit and just.”

[52] In requesting these orders, the Applicant seeks to implement the recommendations of the OCL investigator set out at p. 20 of the report.

[53] I have already stated that I am not here to impose the recommendations of the OCL on the parties. In fact, my decision to limit the Respondent’s parenting time to the children was based upon the evidence contained in the report as to the chaotic situation in the Respondent’s home. It was also based upon the material non-disclosure of the Respondent’s living situation and the police attendances to the justice who originally heard the interim motion. I agree with Ms. Goodman that the place to determine the appropriateness of the orders concerning the counselling, assessment and classes is at trial and not in this motion.

[54] Moreover, there is a detailed analysis of what has to be considered in making such an order in Leelaratna v. Leelaratna, 2012 ONSC 5983. There must be an analysis as to whether there is compelling evidence as to the need for the order, the determination of whether the requested order is “treatment” requiring consent under s. 10 of the Health Care Consent Act and whether the request falls within the exceptions to the definition of treatment in the HCCA. The evidence is not sufficient, at this stage of the proceedings, to enable the court to complete that analysis.

[55] For example, the father acknowledges that he used steroids in the past, but not in the last eight years and if this statement is truthful, an alcohol and drug assessment will not be of much use. The nature of the requested assessment and how it is to be arranged and carried out are absent from the Applicant’s material. Furthermore, trial will be hopefully taking place in the May, 2023 sittings, about six months away from now and these issues can be addressed at trial.

[56] Regarding the attendance at anger management, I repeat that I make no finding of family violence in this motion. I have only highlighted the children’s exposure to fighting and yelling in the father’s home. The mother alleges that the father has anger issues and has been violent, but the charges against the father have been withdrawn as were the charges made in 2006 in Toronto. A finding of family violence is something which can be made at trial and at that time, the trial judge may address any remedy that arises from that finding.

[57] Finally on the issue of parenting classes, again there is little evidence as to the necessity of these classes. Mr. Miller has provided certificates of the courses that he has already attended, including Triple P Parenting as well as a course on ASD. It appears that Mr. Miller has already done what the OCL investigator recommended (although he says that the investigator should have known this from her interview with him).

[58] These requests are therefore dismissed.

Attendance at Extra-Curricular Events

[59] This request, that the parties can each attend at extra-curricular activities during the other’s parenting time, can be found at para. 7 of the Applicant’s Notice of Motion.

[60] Neither party spoke to this issue during argument. There was no evidence in the Applicant’s materials about attendance at extra-curricular activities and the Respondent points this out in his affidavit and says that he does not know what extra-curricular activities the Applicant is referring to.

[61] Neither do I. This request is dismissed.

Holiday Schedule

[62] I will only deal with the holidays which are coming up between now and the trial expected to take place during the May, 2023 sittings.

Christmas Parenting Time

[63] For the past two Christmases since separation, for the “magical days”, Christmas Eve, Christmas Day and Boxing Day, the parties have exchanged the children at 3:00 p.m. on Christmas Day. Mr. Miller points out that in the past two years, the Applicant has had the children Christmas morning; Ms. Miller did not disagree with that.

[64] Ms. Miller says that the children do not like the exchange at 3:00 p.m. on Christmas Day. She suggests in her motion that, during even numbered years, the children spend December 23 from 10:00 a.m. to December 26 at 10:00 a.m. with her and that they spend from December 26 at 10:00 a.m. to December 29 at 10:00 a.m. with the Respondent. In odd numbered years the schedule would reverse.

[65] Considering the history of the matter and that the children have never spent Christmas morning with the Respondent since separation, that would be unfair. Therefore, I will address this Christmas only and the parties can address ongoing Christmas parenting time at trial. In 2022, the children shall have parenting time with the Respondent from after school on December 23 to December 25, 2022 at 3:00 p.m. Thereafter, the children shall have parenting time with the Applicant from 3:00 p.m. on December 25, 2022 until 10:00 a.m. on January 2, 2023. The Respondent shall have the second half of the Christmas break from January 2, 2023 at 10:00 a.m. to the morning of commencement of school when the children shall be returned to the school. This schedule shall supersede the regular parenting time schedule.

Easter

[66] Usually the Easter weekend is equally divided between parties irrespective of any parenting time weekend schedule.

[67] However, on March 30, 2022, Ms. Miller wrote to Ms. Goodman to advise that the Respondent had the Easter weekend in 2021 as his regularly scheduled weekend and that this year it was his weekend again. She requested the Easter weekend in 2022, but that request was denied; the most that Mr. Miller was willing to do was to give her some time on Easter Monday.[^12]

[68] Therefore, the Applicant shall have the full Easter weekend in 2023 irrespective of the parenting time weekend schedule. Ongoing Easter parenting time can be addressed at trial.

March Break

[69] March break in 2023 will be divided equally between the parties, with the party whose weekend it is at the beginning of the school holiday having the first half, and the other party having the second half. The exchange will take place on Wednesday at 4:30 p.m. This schedule shall supersede the regular parenting schedule, specifically the Thursday parenting time of the Respondent if it falls during the Applicant’s half of the March break.

Children’s Documentation

[70] The Applicant requests an order that she have possession of the children’s documentation, including their birth certificates, health cards and passports.

[71] She also asks for an order that the documents may be renewed as necessary.

[72] Ms. Goodman acknowledged during argument that these documents are already in the possession of the Applicant. Apparently, the Respondent has a copy of the health card of the children. The Respondent objects to the order because the Applicant had previously failed to advise him until 10 days prior to proposed travel with the children that the passports had expired and because of this he was unable to renew the passports or travel with the children.

[73] That was in the past and will not affect the children in the short term. As far as I know there is no proposed travel with the children pending trial. Mr. Miller has copies of the health cards. There is therefore no prejudice to an order as requested regarding custody of the documentation. The documentation shall be released by the Applicant to the Respondent in the event that it is reasonably necessary for any health issues or reasonable travel agreed to by the parties.

[74] There is no evidence that any of the documentation will need renewal pending trial. That order need not be made.

Communication Through Our Family Wizard

[75] During argument, both parties consented to an order that the parties communicate through OFW. Both parties to pay their subscription fees (the Applicant may apply for a reduction in fees based on her income level).

Exchange at Police Station

[76] The Applicant requests an order that all parenting time exchanges that do not take place at the school take place at the local OPP police station.

[77] In K.M. v. J.R., 2022 ONSC 111, Pazaratz J. opens his endorsement with the following plea:

Please, Please, Please...don’t use a police station for parenting exchanges.

[78] He then goes on to discuss [at para. 9] why exchanges at police stations offer nothing other than a false sense of security:

The “safety” rationale for police station exchanges is dubious at best.

a. The police aren’t equipped for this type of service. The station is not a child-friendly environment.

b. They don’t know you’re coming.

c. They don’t want you there.

d. They don’t know anything about you, or what to watch for.

e. Generally, they’re so busy with other duties, they may not notice who’s doing what.

f. At any given time, there may not even be a police officer anywhere in sight.

[79] Moreover, as children become more aware of their surroundings (and I am sure Chloe is quite aware of what is going on), it becomes an embarrassment that she has to endure parenting time exchanges at a police station. It is not something that she would easily admit to her friends as she grows older and not a childhood memory she will cherish into her adulthood.

[80] The Applicant says that she would exchange at the supervised access centre but the Respondent refused to pay the fee. I would suggest that if the Respondent wants to pick up his children for parenting time, he pay the fee in order to avoid pickups and deliveries at the police station.

[81] Access pickups and drop-offs which do not take place at the school shall take place at either the Simcoe Muskoka Supervised Access Centre in Barrie or alternatively a public place that the parties agree upon through OFW.

Child Protection Records

[82] Both parties indicated their consent to an order as per paragraphs 12 and 13 of the Applicant’s Notice of Motion.

Order for Counsel to Respond

[83] The Applicant complains that the Respondent’s counsel has not responded on a timely basis to matters affecting affairs between the parties and parenting issues. Until recently, it was necessary for the Applicant to communicate through counsel as the parties were unable to communicate directly because of the criminal recognizance and their inability to agree to use OFW.

[84] By May, 2022, the parties had agreed to permit communication about parenting issues and to relax the provisions of the recognizance in order to do so. However, the evidence indicates that the Respondent Father’s counsel requested the Applicant Mother to sign up for OFW without success. There was one instance, on May 31, 2022, when Ms. Goodman advised that, because of the cost to her client, she would no longer respond to scheduling requests by the Applicant when the parties could communicate directly through OFW.[^13] I find this to be a reasonable position to take when the parties had agreed to direct communications and OFW was available for that purpose. I also do not find that position to be an ethical breach in any way.

[85] Other than this, I have no evidence of any unreasonable delays in communication by Ms. Goodman. There were numerous examples of communications between the Applicant and Ms. Goodman throughout the materials.

[86] The parties can now communicate as the criminal charges against the Respondent have been withdrawn. As well, the parties have agreed to communicate through OFW.

[87] This obviates the need to communicate through counsel. I therefore do not need to make this order and the claim for counsel’s response is therefore dismissed.

Section 7 Expenses

[88] The Applicant requests “an order for section 7 expenses proportionate to income.” She does not outline what s. 7 expenses that she is seeking reimbursement for.

[89] There was one disagreement referred to in the materials which was respecting summer camp in 2021. However, that was largely concerning the fact that Ms. Miller signed the children up for summer camp without the consent of the Respondent who was therefore unwilling to pay for it.

[90] This is reflected in the Applicant Mother’s statement in her reply affidavit that the Respondent says “in many emails he will not agree to enrolling the children into extracurricular's because he cannot afford the expense, then when I am willing to pay he say's (sic.) that he did not agree to having the children in them.”[^14]

[91] There was also a disagreement in June, 2022 about s. 7 expenses. Ms. Miller asks on June 15 about the Respondent’s contribution to soccer. In a lengthy letter responding to this request, Ms. Goodman advises that Mr. Miller would like to be consulted about extracurricular activities but would pay for soccer when receipts were provided. Ms. Miller feels that this was unresponsive to her requests, but Ms. Goodman is indicating her client’s agreement to paying for the expense.

[92] It is unknown whether Ms. Goodman received the receipts so that her client could pay those expenses.

[93] Ms. Miller said in submissions that Chloe is in swimming and dance classes in addition to soccer. These are extracurricular activities, which must, under s. 7(1)(f) of the Child Support Guidelines be “extraordinary” for them to be s. 7 expenses; otherwise, they are deemed to be covered through the base child support. She provided, in her materials, no evidence of the costs of these activities and therefore whether they were “extraordinary” in nature as defined by s. 7(1.1) of the CSG.

[94] There was no other evidence that I could find where the children were deprived of activities or that extra expenses were not being paid to their detriment. There are no particulars of future expenses (between now and trial) that need to be paid. I don’t know what the Applicant is requesting and I have no proof of the actual expenses. This request in the motion is therefore dismissed for lack of particulars; ongoing s. 7 expenses can be addressed at trial.

Repairs to Home

[95] When the parties separated, the Applicant and the children remained in the matrimonial home. That home is located in New Tecumseth and is solely owned by Mr. Miller. He now rents in Newmarket and has been ordered to pay the expenses of the home as part (most) of his support obligation.

[96] The home is in poor repair. It needs a new roof and there is a hole in the roof. Pictures of the hole and the deteriorating roof were supplied with the Applicant’s material. The Applicant submits that water is getting into the home and damaging the home. She says that this is causing electrical and mold problems which put the children at risk. She has no income of her own and cannot afford to move out of the home.

[97] Throughout the Applicant Mother’s materials, she posits that the home is partly hers. She speaks in an April 13 email about the Respondent buying out her “share” in the matrimonial home.[^15] She repeats this in correspondence dated June 15 and July 6, 2022.

[98] However, the Applicant has no “share” in the home as she is not an owner as the Respondent is solely on title to the home. She makes no trust claim against the home in her materials. At this point in time, all that she is entitled to is an equalization payment, and any waste to the home as a result of Mr. Miller’s failure to repair is prejudicial only to him and him alone. Although the Applicant spoke of amending her pleadings to make a trust claim based on unjust enrichment, it is becoming late in the day to do this considering that trial is fast approaching.

[99] That being said, I cannot understand how the Respondent would not want to repair his home and keep it safe for the children who are primarily living there. As well, it is in the Respondent’s interest to maintain the home that he will be left with once the net family property is equalized between the parties.

[100] I am concerned that I do not have jurisdiction lies to order Mr. Miller to repair his own home, but it is apparent that he fails to repair the home to his own detriment and the detriment of the children which may affect his claims for decision making and parenting time at trial. However, until the Applicant Mother can satisfy me of my jurisdiction to make the order, I am not willing to do so. This claim is dismissed.

Compliance Issues

[101] The Applicant Mother says that the Respondent Father is in breach of seven different orders made in these proceedings and she requests an order that the Respondent comply with these orders. They are as follows:

C.A.S. Records

[102] The parties have already entered into a consent concerning C.A.S. records. There is no reason for an enforcement order under the circumstances.

Response to Request for Information

[103] On March 4, 2022, at a settlement conference, Justice Douglas ordered as follows:

Within 30 days the parties shall exchange Requests for Information. They shall respond on a best efforts basis within 30 days of receipt of the request, including, as applicable, an explanation for inability to produce any requested disclosure.

[104] Ms. Miller says that the Respondent has not complied with this paragraph. She says in her November 8 affidavit that she served Respondent’s counsel with a Request for Information on April 4, 2022 but has received no response to that request. The Applicant filed her request to admit dated April 3, 2022;[^16] she had an affidavit of service attached but it is unclear what date it was actually served.

[105] Ms. Goodman acknowledges that a response was not made within the 30 days ordered by Justice Douglas, but that a response was, indeed, sent. Mr. Miller deposed that he has responded to the Applicant’s Request for Information three times and Ms. Goodman said that she sent a 265 page document to the Applicant in response to the Request to Admit.

[106] However, I cannot determine whether there is a breach of the order on the basis of conflicting affidavits and I am therefore unable to make an enforcement order concerning the Applicant’s allegation that the Respondent failed to provide his response to the Request to Admit.

Withdrawal of Chloe from School Early

[107] As part of her temporary order made on March 17, 2022, Justice Krause ordered as follows:

Chloe shall not be withdrawn from school early by either parent even if Maxwell is being collected prior to the end of the school day.

[108] In her November 8, 2022 affidavit, the Applicant does not address breaches of this term of the order except to say, “The secretary at the children's school has once again has (sic.) asked the RF not to take the children out of school early.”[^17] The Respondent, in his responding affidavit, denies that he removes Chloe from school early.

[109] No specifics of any early withdrawal of Chloe from school were provided by the Applicant and the affidavit evidence is conflicting. I therefore cannot find that the Respondent is in breach of this provision from the evidence provided. The request for enforcement of this provision of Justice Krause’s endorsements is dismissed.

Respondent Speaking Negatively About the Applicant

[110] On March 17, 2022, Justice Krause ordered that, “Neither party shall speak negatively about the other parent to the children or in the presence of the children nor allow anyone else to do so.”

[111] During the OCL investigation, Chloe disclosed to the investigator that her father and his girlfriend breach this provision of the order by speaking negatively about the Applicant Mother. Chloe told Ms. Vaillencourt that the Respondent Father “says thing (sic.) about her mother than make Chloe feel sad.”[^18] Chloe also told the investigator that “both her father and his partner speak negatively about her mother.”[^19] The Applicant Mother relies upon these statements to prove breach of this provision in Justice Krause’s order.

[112] Mr. Miller denies saying anything negative about the Applicant. He attributes Chloe’s statements to the investigator to the Applicant saying that “I am concerned about what the Applicant is telling the children considering what Chloe told the OCL clinician.”[^20]

[113] There has not been a voir dire concerning the admission of Chloe’s statements through the OCL and that will only happen at trial. I have spoken of the statements made regarding the fighting between the Respondent and his partner which I found were not coached considering the fact that the police attendances were not previously disclosed to the Applicant. This is different from the statements regarding deprecation of the Applicant which may not be similarly independent. I am not able to assess the independence and reliability of Chloe’s statements to the investigator regarding the Respondent’s deprecation of the Applicant and this is a major issue in the dispute filed by the Respondent. I therefore decline to find the Respondent in breach of this provision of Krause J.’s order based upon the investigator’s statements as to the statements made by Chloe. This issue will have to be deferred to the trial.

Child and Spousal Support / Payment of Expenses on the Home

[114] The enforcement of provisions regarding support are related to the Applicant’s request for an accounting of what expenses that the Respondent is paying on the home. That is because Justice Krause ordered that the Respondent pay the Applicant child support of $1,150 per month in temporary child support and $932 per month is temporary spousal support. She ordered as well that the lion’s share of this support be paid through payment of the expenses on the matrimonial home in which the Applicant and the children are living:

The father shall continue to pay the expenses for the matrimonial home in lieu of support. Subject to adjustment by the trial judge, these expenses are fixed at $1750.00 per month. The father shall therefore pay the difference of $336.00 per month to the mother, commencing April 1, 2022.

[115] On January 24, 2021, Boswell J. ordered, on consent, that the Respondent provide all of the statements concerning the expenses of the home.

[116] The Respondent admits that he is not paying the support. He says he knows that he’s behind but he simply can’t afford the support ordered. He also acknowledges that he is not paying the property taxes on the home, although he denies that there is any tax sale pending.

[117] If the court habitually excused payors for non-payment of support because they could not afford it, there would be numerous unenforced support orders in the system. The famous maxim is that orders are not suggestions; they are meant to be obeyed. Support orders are the same, if not more important than many other types of orders. It is doubtful that a bank or financial institution would excuse a debtor from making payments because they said that the debt payments were unaffordable; child and spousal support should be treated no differently.

[118] This particular order has permitted the Respondent the latitude which would allow him to disobey the order. The order is not, as far as I can see, subject to a Support Deduction Order and I could find no SDO on the endorsements section of the file. It appears that there is no enforcement of the $336 per month by the Director.

[119] The Respondent says that he has provided the statements ordered by Boswell J. on January 24, 2021 through the response to the Request for Information. I do not have the Respondent’s response to that request. Mr. Miller also says that he is paying the expenses of the home although no one knows what those total. In any event, because the Applicant is not an owner of the home, she has no idea whether and how the expenses on the home are being paid. If there was, in fact, a tax sale concerning the home, the only one to know about it would be the Respondent who is the registered owner of the home.

[120] Ms. Miller deserves to know as to whether the support is being paid both through an accounting of what expenses on the home are actually being paid by the Respondent Father and whether these expenses in fact total the estimated expenses to be “adjusted” by the trial judge. That accounting is necessary for trial and to confirm that Mr. Miller is paying his support and in what amount.

[121] I therefore find that the support order is in default but I do not know the extent of the default.

[122] There shall be an order that the Respondent bring any arrears of the $336 per month into good standing within 30 days of the date of this order. As well, within that 30 day period, the Respondent is to provide the Applicant with an accounting of what expenses are being paid by the Respondent and what expenses have not been paid or are in default since the date of the order made by Justice Krause on March 17, 2022.

[123] When that accounting is received and the 30 days has expired, if the support remains unpaid at that time, the Applicant has leave to return the matter by way of motion for a penalty under r. 1(8) of the Family Law Rules, including a motion to strike pleadings or for costs. I remain seized of that issue and the motion shall be placed before me.

Disclosure of Tracing of Funds re Promissory Note

[124] This relates to the consent order of Justice Boswell made January 24, 2021. On that date, the parties agreed to an order that the Respondent provide “All financial disclosure related to the tracing of the funds with respect to the promissory note dated July 20, 2015.”

[125] This disclosure has been provided. The Respondent has confirmed that a previous mortgage in favour of his parents was discharged in return for the promissory note. His evidence is that no money changed hands at that time. That will presumably be his evidence at trial, which is one of the major purposes of disclosure.

[126] This request for enforcement is dismissed.

Order Preventing the Applicant From Bringing Any Further Motions Without Leave

[127] The Respondent says that the Applicant Mother should not be permitted to bring any further motions without leave of the court.

[128] Five motions have been brought in this proceeding as follows:

a. The first was brought by the Applicant for a restraining order which was granted on August 31, 2020 and finally resolved by consent order on September 10, 2020. The order was permitted to expire, presumably because the Applicant was protected through the criminal recognizance.

b. The second was a Form 14 motion filed by the Applicant in November, 2021 to be heard in writing. She requested support and the OCL. The Respondent brought a 14B motion in response. Justice Wildman ordered the OCL pursuant to the Applicant’s motion, and adjourned the remaining relief to a conference. The support issues raised by the Applicant were eventually adjourned to be argued before Justice Krause on March 17, 2022.

c. The third was a motion brought by the Respondent for parenting time. That motion was heard by Justice Krause along with the Applicant’s request for spousal support and child support on March 17, 2022. Although the Applicant was forced to increase parenting time, the Respondent had to pay support that he did not agree upon. The Respondent did not receive the order for shared care that he wanted. Justice Krause did order costs of $2,500 against the Applicant.

d. The fourth was an ill-conceived 14B motion brought by the Applicant for parenting time on Hallowe’en which was dismissed.

e. The fifth was this motion, on which the Applicant has had some measure of success.

[129] The Court of Appeal recently allowed an appeal from an order preventing a party not to bring further motions in Rodriguez v. Vella, 2022 ONCA 870. In that case, the Court allowed an appeal of such an order because “this type of prohibition is typically reserved for vexatious litigants and those found to have abused the court’s process [para. 11].” Although one of the Applicant’s motions was ill conceived and should not have been brought, I do not find that Ms. Miller’s overall conduct to be vexatious or abusive to the court’s process. Indeed, Ms. Goodman acknowledged this in argument. Although Ms. Miller asked to adjourn the TSC and then brought this motion, I do not find that conduct to be vexatious or abuse of the court process considering the result of this motion. If Ms. Miller takes the risk of bringing a motion that has no merit, she will pay for that in costs as she did on March 17. As far as I can see the costs of the Hallowe’en motion which was dismissed is reserved to myself.

[130] As well, there is no history of bringing unsuccessful motions. In fact, Ms. Miller’s motions, other than the Hallowe’en motion, were successful, at least in part. There is no history of bringing motions which were frivolous or without merit.

[131] The motion to restrict the Applicant’s ability to bring motions in this proceeding is dismissed.

Order

[132] Therefore, temporary order to go as follows:

a. Paragraphs 1 and 2 of the order of Justice Krause dated March 17, 2022 shall be varied to provide that the Respondent shall have parenting time as follows:

i. During week 1, Thursday overnight from the end of the children’s school day to Friday morning; and

ii. For week 2, every second Friday evening to Monday morning, pick ups and deliveries of the children to take place at the school. If this parenting time falls on a long weekend, the drop off shall be extended to Tuesday morning at the school.

b. Pending trial, the parties shall share holiday parenting time as follows:

i. For the Christmas break in 2022 - 23, the children shall initially have parenting time with the Respondent from after school on December 23 to December 25, 2022 at 3:00 p.m. Thereafter, the children shall have parenting time with the Applicant from 3:00 p.m. on December 25, 2022 until 10:00 a.m. on January 2, 2023. The Respondent shall have the second half of the Christmas Break from January 2, 2023 to the morning of commencement of school when the children shall be returned to the school. This schedule shall supersede the regular parenting time schedule.

ii. The Applicant shall have the full Easter weekend in 2023 including Good Friday and Easter Monday irrespective of the regular parenting time weekend schedule.

iii. March break in 2023 will be divided equally between the parties, with the party whose weekend it is at the beginning of the March break school holiday having the first half, and the other party having the second half. The exchange will take place on Wednesday at 4:30 p.m. This schedule shall supersede the regular parenting schedule, specifically the Thursday parenting time of the Respondent if it falls during the Applicant’s half of the March break.

c. The Applicant shall have possession of the children’s birth certificates, OHIP cards and passports. If reasonably necessary for any health issues or reasonable travel agreed to by the parties, she will forthwith release those documents to the Respondent on request.

d. On consent, both parties shall communicate on issues concerning the children on the Our Family Wizard app. Both parties shall pay their respective subscription fees as arranged through OFW.

e. Any pickups or drop-offs of the children that do not take place at the children’s school shall take place at the offices of the Simcoe County Supervised Access Centre. Both parties to pay their subscription fees and complete their intake forms for the access centre forthwith.

f. On consent, there shall be an order to go as per paragraphs 12 and 13 of the Applicant’s Notice of Motion.

g. The Respondent shall bring all arrears of the $336 per month payment to be paid to the Applicant directly under para.7 of Justice Krause’s order of March 17, 2022 into good standing within 30 days of the date of this order. As well, within that 30-day period, the Respondent is to provide the Applicant with an accounting of what expenses concerning the matrimonial home are being paid by the Respondent and what expenses have not been paid or are in default and by how much since the date of the order made by Justice Krause on March 17, 2022.

h. When that accounting is received and the 30 days has expired, if the support remains unpaid at that time, the Applicant has leave to return the matter before this court by way of motion for a penalty under r. 1(8) of the Family Law Rules, including a motion to strike pleadings or for costs. I remain seized with that issue.

i. The balance of the claims made by the Applicant in her Notice of Motion are dismissed.

j. The Respondent’s motion to prevent the Applicant from bringing further motions only with leave of the court is dismissed.

[133] Regarding costs, success appears to have been divided to some extent, although the Applicant has had success on the major issue argued, being the request by the Applicant to reduce parenting time to the Respondent. There are also the costs of the ill-fated motion for parenting time for Hallowe’en. The parties shall have leave to make written costs submissions, the Applicant first and then the Respondent, on a 20-day turnaround. Costs submissions to be no more than 5 pages in length not including offers to settle and bills of costs.

MCDERMOT J.

Date: December 22, 2022

[^1]: After being extended on consent on September 10, 2020, the restraining order appears to have expired November 24, 2020. [^2]: Report of the Children’s Lawyer dated August 31, 2022, p. 17 [^3]: Ibid., pp. 16 - 17 [^4]: Respondent’s affidavit sworn November 17, 2022, para. 11. [^5]: Respondent’s dispute of the OCL report dated September 29, 2022, para. 15 [^6]: Ibid., para. 16 [^7]: R.S.C. 1985, c. 3 (2nd Supp.) [^8]: See para. 16 of the Applicant Mother’s affidavit where she says that the children would not “open up” to her. [^9]: O. Reg. 114/99 [^10]: R.R.O. 1990, Reg. 194 [^11]: S.O. 1996, c. 3, Schedule A. [^12]: See Ex. B to the Applicant’s affidavit sworn November 22, 2022. [^13]: See Ex. I to the affidavit of the Respondent sworn November 17, 2022. [^14]: Affidavit of Applicant sworn November 22, 2022, para. 13. [^15]: Included in Ex. B to the Applicant’s affidavit sworn October 20, 2022 [^16]: Tab 38 of the Continuing Record. [^17]: Affidavit of the Applicant Mother sworn November 8, 2022, para. 27. [^18]: OCL Investigation dated August 31, 2022, p. 15. [^19]: Ibid., p. 16. [^20]: Respondent’s affidavit sworn November 17, 2022, para. 71.