Ontario Court of Justice

Date: 2021·04·13 Court File No.: Woodstock D109/20

Between:

M.C. Applicant

— AND —

P.P. Respondent

Before: Justice S. E. J. Paull

Motions Heard on: April 6, 2021 Reasons for Judgment released on: April 13, 2021

Counsel: Glenda D. McLeod, for the applicant(s) S. Bruce agent for Gary D. McQuaid, for the respondent(s)

PAULL J.:

[1] The parties are the parents of one child, S.C. born […], 2020.

[2] There are two motions before the court which focus on the nature of the parenting time P.P. has with his daughter. He seeks an order that he have specified periods of parenting time, unsupervised every Wednesday from 5 to 8 PM and on the first, third, and fourth weekend of the month from Friday at 5 PM to Sunday at 8 PM.

[3] M.C. proposes a transitional order to achieve alternate weekend parenting time starting with 8 weeks of Saturdays from 10 AM to 5 PM, followed by 8 weeks of alternate weekends from Saturday at noon to Sunday at 6 PM, and Wednesdays from 5 PM to 7 PM. After this 16-week transition, P.P.’s parenting time would include alternate weekends from Friday at 5 PM to Sunday at 6 PM and Wednesdays from 5 PM to 7 PM.

[4] In addition to the submissions of counsel I reviewed and considered the parties’ 35.1 affidavits and the affidavits and attachments found at tabs 8, and 11-14 of the Continuing Record.

Background and Evidence

[5] M.C. alleges that the parties had an on/off dating relationship starting sometime in 2017 and that they separated in May 2019 after they cohabited for “a few months in 2019”.

[6] M.C. is 29 years old and P.P. is 34 years old, and S.C. born […], 2020 is the first and only child for both of them.

[7] S.C. has remained in her mother’s primary care since birth and it would seem that until recently M.C. required that P.P.’s parenting time be supervised by herself.

[8] Both parties make very serious allegations about the other’s fitness to parent.

[9] P.P.’s allegations include the following:

1. M.C. comes from an unstable and unsafe home. She continues to reside with her mother, who, along with her boyfriend, have significant substance abuse issues.
2. M.C. also has substance abuse issues and debilitating mental health issues including depression and anxiety which have resulted in numerous hospital admissions.
3. M.C. has anger issues and has been violent towards him and has not been cooperative or supportive of his relationship with S.C..

[10] M.C.’s allegations include the following:

1. P.P. showed little interest in S.C. and has no parenting experience.
2. P.P. has drug dependency issues in that he abuses his prescription medication and uses nonprescription drugs.
3. P.P. has a violent criminal history including convictions for assault with a weapon and aggravated assault from 2016.

[11] Both parties denied the other's allegations. Faced with these diametrically opposing positions the Court at the case conference on February 1, 2021 made an extensive disclosure order which included the following:

1. Both parties to provide criminal record checks.
2. Each party to get a letter from their family doctor outlining any diagnosis, medications prescribed and whether the party is compliant with medications, and whether there are any outstanding referrals.
3. M.C. was required to obtain a letter from the child’s doctor outlining her involvement in prenatal care, attendances of the child for medical care, and whether there are any outstanding referrals for the child.
4. Both parties were to arrange through their family doctor to engage in a drug screen within 10 days.
5. Each party to provide their pleadings to the CAS-Oxford and to request a letter from the CAS outlining what if any contact it has had with the parents and child.

[12] In addition to filing deadlines for this motion regarding parenting time for P.P., the Court also ordered that P.P. provided a written proposal for his parenting time pending the motion by February 8, 2021, with M.C. providing a written response by February 15, 2021.

[13] P.P. proposed that his parenting time be unsupervised on Monday, Wednesday, and Fridays from 5 PM to 8 PM, and Sundays from 9 AM to 5 PM pending return of the motion.

[14] M.C. did not provide a written response as ordered. However, despite this M.C. appeared to agree directly with P.P. that he have 2 visits during the week for 2 hours each and 4 hours on Sundays. M.C. also appears to have agreed that his parenting time no longer be supervised by her. M.C. sought supervised parenting time for P.P. in her Application and confirmed this position at the case conference on February 1, 2021.

[15] P.P resides alone in his home and has maintained long-term full-time employment as a concrete mason earning approximately $61,000 annually. He broke his back when he was younger and had surgery approximately one year ago. His doctor prescribed him Percocet’s, and he also has a prescription for medical marijuana.

[16] He provided the drug test results as ordered which was positive for THC and oxycodone. He filed proof he had requested the information the Court ordered from his family doctor but as of the date of argument had not received a response. He did file proof of a prescription for medical marijuana.

[17] He denied the allegations of a violent criminal history and provided a criminal record check which was clear.

[18] He deposed that he has continued to be involved with S.C. as much as he is allowed, which has included attending S.C.’s medical appointments. M.C. acknowledged that P.P. stayed overnight with her and the child on a number of occasions following the birth.

[19] Once paternity was confirmed P.P. began paying $400 a month in child support which M.C. acknowledges receiving. P.P. recently increased that amount to $573 per month and consents to the order sought for child support. He also consents to an order to maintain the child on his employment benefits, which he states is already in place, and that he would maintain any insurance available through his employment for the benefit of S.C..

[20] P.P. deposes that he has a close-knit family and has the support of his mother and siblings. He has prepared his home for S.C. to be there with the appropriate food, bottles, toys, and a crib.

[21] The parties obtained and filed the summary of the CAS which noted that it had been involved starting January 10, 2020 as a prenatal intake file following a referral from the OB/GYN about M.C. missing prenatal care appointments. The Society worker met with M.C. and confirmed that supports were in place and that she was following through. There is no indication the Society verified any concerns with respect to M.C. or P.P..

[22] The CAS report noted that it received a referral from the Woodstock Police Service that M.C. had called police on June 1, 2020 seeking advice regarding custody and access issues and raised concerns about P.P.. Police contacted P.P. who raised concerns about M.C.. Both parents were directed to contact a lawyer about the family issues. The police took no further steps and the CAS closed the file on June 2, 2020 at the intake level.

[23] The CAS reported one final referral from police on July 7, 2020 when M.C. called with concerns with her mother (who lives with her), that she and her boyfriend attended the home heavily intoxicated. M.C. refused them entry and called police. The CAS investigated the matter on the basis of a concern about M.C.’s ability to protect the child. M.C. addressed the issue with her mother and later reported that since that incident her mother had been abiding by her expectations that the boyfriend not attend the home, that there be no alcohol or drugs in the home, and that her mother will not be welcome in the home if she is under the influence of alcohol or drugs.

[24] On July 31, 2020 the Society concluded its involvement by not verifying any concerns with M.C.’s ability to protect or of caregiver with the problem and closed its file. There have been no further openings since then.

[25] M.C. provided the third-party reports ordered by the court which confirmed the following:

1. Dr. Vu, M.C.’s family doctor, confirmed M.C. suffered from anxiety and OCD and takes the medication prescribed. There are no outstanding referrals for her and there were no concerns noted.
2. Dr. Vu is also the child’s doctor and he has seen S.C. regularly and her immunizations are up to date. The doctor reported no concerns and that S.C. is growing and developing normally. Dr. Vu stated that the child’s “parents have always appeared to have looked after her well”.
3. Healthy Babies Healthy Children confirmed M.C. was actively and positively involved in programming from January 2020 to February 2021.
4. M.C. provided a drug screen which was clear.

[26] M.C. also filed an affidavit of Sandra Kelebunda, who is a case worker with CMHA. Ms. Kelebunda confirmed that she has continued to work with M.C. on a regular and almost weekly basis since 2019. She deposed a positive working relationship with M.C. and that she has never observed any concerns with M.C., or with substance abuse in the home. She has always observed a close relationship and appropriate interactions between M.C. and S.C., and that the home was consistently clean and tidy.

[27] Both parties have filed affidavits outlining significant concerns related to the other’s fitness to parent. Without the benefit of viva voce evidence and cross-examination the Court is not in a position to assess the veracity of all these allegations. Neither is it necessary to do so at this time. For the purposes of this motion, where the parties’ evidence is conflicting I accept the direct and independent evidence from the third-party professionals involved with the family. Their impartiality lends credence to the information provided and their evidence permits the Court to make the findings necessary to deal with the issues in the motions.

The Law and Analysis

[28] Ultimately, the court must decide what order with respect to parenting time for P.P. is in the child’s best interests. In making these determinations, I have considered the “best interest” and other factors set out in section 24 of the Children’s Law Reform Act, as well as all other relevant considerations.

[29] Children should have maximum contact with both parents if it is consistent with the children’s best interests. Gordon v. Goertz, 1996 SCC 191, [1996] 2 S.C.R. 27. Maximum contact with both parents is presumed to be beneficial. Berry v. Berry, 2011 ONCA 705 (Ont. C.A.).

[30] The Court has to view what is in the best interests of the child, not the parents. The “maximum contact” principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, 1993 SCC 34, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. See: Casselman v. Noonan, 2017 ONSC 3415.

[31] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.

[32] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[33] Generally, children are very adaptable, and they can adapt quite readily to alterations that occur in access arrangements. This notion was based on empirical research which was cited and accepted by the court in Warcop v. Warcop, 2009 ONSC 6423, and support the intuitive conclusion that maximum contact with both father and mother is beneficial to the child.

[34] Neither party has established the extent of the parenting concerns with the other that they have alleged.

[35] M.C. acknowledges having anxiety and OCD, but her family doctor confirms she is compliant with medication. The doctor noted no concerns with M.C. or with respect to S.C. who he has seen regularly and described as developing normally.

[36] M.C. provided a clean drug screen and both CMHA and HBHC noted no concerns and confirmed active and positive involvement with M.C. over a significant period of time.

[37] The CAS did not verify any protection concerns with respect to either parent, and are not currently involved with the family.

[38] While M.C. dismissed P.P.’s concerns about her mother and her boyfriend’s substance use in her affidavit as “absurd”, the CAS report establishes she clearly had the same concern which resulted in her refusing them entry to the home and calling the police on July 7, 2020. Her failure to acknowledge this in her affidavit is a concern. However, it is also clear that she behaved appropriately and protectively in how she handled the issue which resulted in the CAS not verifying a risk of failure to protect the child on her part and closing its file.

[39] M.C.’s allegations of P.P.’s violent criminal record were not supported by the clear criminal record check he provided. The drug screen he provided was not positive for illicit drugs and only contained the prescription medication he acknowledged taking.

[40] There is no evidence the CAS has verified any concerns with respect to P.P. and there was no other evidence the parties had other police involvement in spite of their allegations and stated concerns.

[41] P.P. maintains gainful employment and made voluntary payments of $400 in child support when paternity was confirmed. He has since raised that to $573 per month and consents to the child support order sought. On this issue P.P. has behaved reasonably and in a child focused way.

[42] When the entirety of the circumstances are considered, up to this point M.C. has not done all that would be reasonably expected to support and facilitate S.C.’s relationship with her father.

[43] Access is the right of the child. A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.

[44] However, while M.C. appears to have been overly restrictive in limiting P.P.’s time and insisting it be supervised until recently, she now agrees supervision is no longer necessary and that ultimately P.P. should have regularized parenting time.

[45] The primary concern which M.C. submits justifies the lengthy transition period she proposes is P.P.’s lack of parenting experience.

[46] P.P. is not opposed to the idea of a transition but opposes the length of the schedule proposed by M.C., which would require a further 4 months before he achieves a full weekend of parenting time.

[47] P.P. is a first-time parent, as is M.C., and he has a supportive family including his mother who is ready to help him when necessary. He has readied his home for S.C. and there is no evidence to suggest she will not be appropriately cared for by him. Recently he has been having 3 daytime visits per week and there is no indication that he has not appropriately cared for S.C. during those times.

[48] Dr. Vu’s letter which references observing both parents at medical appointments, supports P.P.’s submission that he has been involved in appointments for the child.

[49] Many first-time parents lack training or experience in parenting skills. However, intelligent and loving parents learn how to parent from experience and learn from their partners, their parents, their friends and from their child. Kaja v. Mihalciuc, 2018 ONCJ 464. I see no basis to conclude that this will not be the case for P.P..

[50] In the circumstances the evidence does not support that a lengthy transition period is necessary.

[51] To ensure a smooth transition to regular parenting time for P.P. a short transition period is appropriate given the young age of the child. P.P. shall have overnight parenting time from Saturday at noon to Sunday at 7:30 PM commencing immediately for two consecutive weekends starting on April 17 and April 24, 2021. It would also be appropriate for M.C. to provide written details of the child’s sleep and feeding routines to assist in the transition.

[52] P.P. shall also have parenting time every Wednesday from 5 PM to 7:30 PM.

[53] Starting the weekend of April 30, 2021, he shall have alternate weekend parenting time from Friday at 5 PM to Sunday at 7:30 PM. Given the young age of the child the Wednesday and Sunday parenting time shall end at 7:30 PM.

[54] P.P. seeks three weekends of parenting time a month on the basis that M.C. does not work, and that he works full-time during the week. He submits that weekends are his only opportunity to exercise meaningful parenting time with the child.

[55] Other than that P.P works full time and M.C. does not, the Court has few other particulars about the circumstances of the child and each parties’ parenting plan. On a temporary basis I am of the view that alternate weekends are appropriate. This will ensure that each party has equal weekend time when typically there are more opportunities for a parent and child to engage with family and friends. The issue of any additional weekend time for P.P. will be addressed at a trial if necessary along with the parties’ other claims when the Court will have a more complete evidentiary record of the current circumstances of both parents and the child. Further, I disagree that a working parent is not able to have meaningful parenting time during the week. If P.P. plans in a way that will make the most of his time with his daughter even the shorter periods of care will be important and meaningful.

[56] However, it would be appropriate to extend P.P.’s weekends to include Sunday overnight to Monday morning if he is able to confirm in writing that his employment would accommodate a later start time on Monday. He appears to work for himself or a family business which bears his last name, and if he confirms that he can start work at 8 AM or later on the Monday mornings following his weekends it would be appropriate for his parenting time to be extended to Monday morning at 7:30 or 8 AM.

[57] It is also appropriate that both parents have two non-consecutive weeks of uninterrupted time during the summer, and that they equitably share other holidays and special occasions.

[58] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 of the CLRA, the best interests of the child support an immediate and short transition to regular parenting time for P.P..

[59] On the basis of all these considerations an interim order shall issue as follows:

1. The child shall reside in the primary care of the applicant with parenting time for the respondent as follows unless otherwise agreed in writing by the parties: a. The respondent to have parenting time from Saturday at noon to Sunday at 7:30 PM on the weekends of April 17 and April 24, 2021. b. Commencing the weekend of April 30, 2021 and on alternate weekends thereafter the respondent to have parenting time from Friday at 5 PM to Sunday at 7:30 PM. c. Commencing in May 2021 if the respondent’s parenting time falls on a weekend where Monday is a holiday, his parenting time shall be extended to Monday at 7:30 PM. d. Commencing in June 2021 the respondent’s weekends of parenting time may be extended to Monday mornings at 7:30 or 8 AM if he confirms in writing that he is available to care for the child until that time. e. Commencing immediately the respondent to have parenting time each Wednesday from 5 PM to 7:30 PM. f. Unless agreed otherwise, each party to have two non-consecutive weeks of uninterrupted time during the summer holidays which shall entail adding the Monday-Friday onto a weekend that parent has the child pursuant to the regular schedule. Commencing in 2021 and in odd years thereafter, the respondent shall confirm by May 15 the weeks he chooses with the applicant confirming the weeks she chooses by June 1. This will be reversed in even numbered years with the applicant having the first choice of summer holiday weeks. g. If Father’s Day does not fall on a weekend where the respondent has parenting time, he shall have the child in his care from 11 AM to 7:30 PM. h. If Mother’s Day falls on a weekend where the respondent has the child in his care, the child shall be returned to the applicant by 11 AM. i. An equitable sharing of other holidays and special occasions as agreed between the parties. j. Other times as may be agreed between the parties.
2. The applicant to provide a written summary to the respondent of the child’s sleep and feeding routines by April 16, 2021.
3. Both parties shall only take their prescription medication as prescribed and neither shall consume illicit drugs. Neither party shall consume alcohol in excess 12 hours prior to or during their parenting time. Each party shall ensure that the child is not exposed to illicit drug use or excessive alcohol consumption during their periods of parenting time.
4. The respondent shall forthwith follow-up with his family doctor and provide the letter he was ordered to obtain on February 1, 2021.
5. The respondent shall be permitted to make inquires and to be given information regarding the health and welfare of the child directly from service providers.
6. Commencing June 1, 2020 and monthly thereafter child support shall be payable by the respondent to the applicant for one child in the amount of $573 per month based on an income of $61,000 annually, with the respondent receiving a credit for any payments he did make up to the date of this order.
7. The respondent to maintain the child on any extended health care benefits available to him through his employment, and to designate the applicant as beneficiary in trust for the child of any insurance available through his employment.

The parties are strongly encouraged to agree on the issue of costs in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments which shall include any offers to settle by April 27, 2021, with the responding party filing written submissions, not to exceed three pages, excluding attachments which shall include any offers to settle by May 11, 2021. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: April 13, 2021 Signed: “Justice S. E. J. Paull”