ONTARIO COURT OF JUSTICE

Date: 2021-04-26 Court File No.: Woodstock D65/20

BETWEEN:

J.F.T. Applicant

— AND —

J.S.V. Respondent

Before: Justice S. E. J. Paull

Motions Heard on: April 20, 2021 Reasons for Judgment released on: April 26, 2021

Counsel: James G. Battin, for the applicant(s) Allison M. Nesbitt, for the respondent(s)

PAULL J.:

[1] Before the Court are two motions dealing primarily with the parenting time J.S.V. has with the parties’ two children.

[2] J.F.T., the children’s mother, seeks an interim order that she have decision-making authority and that J.S.V., the children’s father, have parenting time supervised by the paternal grandparents due to J.S.V.’s substance abuse which culminated in a situation on February 23, 2021 where she alleges he was not in a fit state to parent.

[3] In his motion J.S.V. sought a return to the previous parenting arrangement of one of the children residing with J.F.T. and the other residing primarily with him. He denies the allegations that he has any substance use issues which impact his ability to parent. On the date of argument of the motions J.S.V. sought a transitional order for parenting time which would initially continue to be daytime only and in the presence of his parents. He proposed on a without prejudice basis to undertake weekly alcohol screens and one further drug screen. After two weeks of daytime/supervised visits he would have two weeks of supervised overnight visits. After six weeks in total, and if the screens were clear, he proposes unsupervised overnight parenting time from Saturday at 10 AM to Sunday at 7:30 PM, in addition to time during the week.

[4] In addition to the submissions of counsel I have reviewed and considered the affidavits found at tabs 11, 12, 14, 18 and 19, along with the parties 35.1 affidavits. I have also considered the Voice of the Child Report dated April 9, 2021.

Background and Evidence

[5] The parties began living together in July 2005 and separated on December 6, 2017. They have two children together, J.H.V. born […], 2008 (male) and D.G.V. born […], 2009 (male). J.F.T. also has a child, K.T. born […], 2003 (male) from a prior relationship.

[6] Both parties make extensive and serious allegations about the other’s fitness to parent. Each party denies the other’s allegations.

[7] J.F.T. deposes that she has been the victim of consistent physical and verbal abuse by J.S.V. during the relationship and that he continues to have a serious alcohol abuse problem which he has not acknowledged or addressed.

[8] J.S.V. denies any physical or verbal abuse but does acknowledge that the parties were frequently in conflict during the relationship. He denies illicit drug use and acknowledges that during the relationship he,

“regularly consumed alcohol which was triggered by the toxic relationship with the applicant. Currently I only consume alcohol recreationally and no longer regularly consume alcohol in an excessive amount”.

[9] J.S.V. alleges that he continues to be subjected to verbal abuse by J.F.T., and that the difficulties that ended their relationship were due to the long-standing addiction issues J.F.T. has to OxyContin. He alleges she repeatedly drained the family bank account to support her substance use.

[10] J.F.T. acknowledges an addiction to OxyContin but that it is well-managed as she remains on methadone with full carries. She denies her addiction ever impacted her ability to parent or that she has ever been abusive towards J.S.V.

[11] There is disagreement on the nature of the parenting arrangements and the reason for the changes in these arrangements since separation. However, it appears that since August 2020 the parties agreed that J.H.V. would reside primarily with J.S.V. with D.G.V. primarily with J.F.T., with the children being together each weekend alternating between the parents’ homes. This arrangement continued and J.F.T. described the parenting issues as “progressing satisfactorily” until February 23, 2021.

[12] J.F.T. states that on February 23, 2021 the following incident occurred which triggered the motions before the court:

1. J.F.T. attended at J.S.V.’s home at his request to drop off J.H.V. after school at around 4 PM. She waited outside and heard J.H.V. yelling at his father to answer him.
2. J.H.V. requested that his mother enter the home and she observed J.S.V. asleep at the kitchen counter. He was largely unresponsive to her efforts to wake him.
3. She observed Pepsi bottles on the counter which she believed he used to mix alcoholic beverages, and observed a white powdery substance which she believed was cocaine and a small plastic tube in front of him which she believed was used to ingest the cocaine. She took pictures of him and what she believed was the cocaine residue and paraphernalia and attached them as exhibits to her affidavit.
4. She called J.S.V.’s mother and requested that she attend at the home as soon as possible and then left with J.H.V. and returned to her home. J.S.V. called her later and acknowledged excessive alcohol consumption but denied drug use.

[13] J.S.V. responds that on February 23, 2021 J.F.T. entered his home without his permission which was something she has done repeatedly in the past. He was asleep because he had just worked several long shifts. He denied alcohol consumption or drug use and stated that the pictures of the alleged drug residue and paraphernalia were a “complete fabrication”.

[14] Faced with the parties’ serious allegations, at the Case Conference the Court made an order which included a request for a Voice of the Child (VOC) Report, and that the parties request a letter from the Oxford CAS outlining what involvement, if any, it has had with the family.

[15] Following the Case Conference, the parties arranged for daytime only parenting time for J.S.V. which was exercised at the home of the paternal grandparents.

[16] The VOC Report dated April 9, 2021 outlined the following with respect to D.G.V.:

1. He is 11 years old and in grade 6 and presented as open and friendly. He reported being happy living with his mother and wants to remain there primarily.
2. He reported that his recent visits with his father at his grandparents’ home are going well and he enjoys spending time with his father gaming and engaging in outdoor activities, including fishing.
3. He stated that he had fun with his dad, just not when his dad was drinking. When his father gets drunk he can “get bad” and be a “nasty drunk”, which include saying negative things about his mother.
4. He confirmed that his father does not drink when his grandparents are around, and that he would like his father to stop drinking.
5. D.G.V. expressed a preference in the first interview to continue to spend time with his father at the grandparents’ home. In the second interview he said he may wish to stay overnight and would like to see his father at his home because he would have more time with him there.

[17] With respect to J.H.V. the VOC Report outlined the following:

1. J.H.V. is 13 years old and in grade 7. The clinician reported he was more reserved in the first interview but engaged easily in the second interview.
2. He is happy living with his mother and reported a close relationship with her. He acknowledged living with his father previously when he was not getting along well with his mother.
3. His biggest concern was with his father’s alcohol consumption which at times resulted in him being “not nice”, and that he is never sure how his father will be when he is drinking.
4. When his father is not drinking he is “fun and nice”.
5. J.H.V. reported a preference to continue residing with his mother. In the first interview he stated he was happy with the current arrangements of daytime visits at the grandparents’ home. In the second interview he stated he would like two daytime visits during the week at his father’s home where the family dog is and where he has all his belongings. He stated he did not want sleepovers or weekend time at his father’s because his father would be drinking.

[18] The VOC Report concluded that both children were clear and consistent in wanting to remain in the primary care of their mother. The clinician was of the view that the children’s preferences regarding time with their father appeared to be influenced by his alcohol use. There was nothing in the Report to suggest that the children’s views had been unduly influenced by either parent and the clinician noted that there was no indication that either parent engaged the children in conversations about their interviews with her.

[19] The parties obtained a letter from Oxford CAS as ordered dated April 9, 2021 which confirmed the following:

1. The CAS has had limited historic involvement with the family. In June 2016 the police were called for a domestic dispute between the parents. The police attended and no charges were laid. At the time J.F.T. alleged that J.S.V. had a drinking problem and J.S.V. reported that he was cutting back on his alcohol consumption. The file was closed in July 2016.
2. There is currently an open investigation resulting from the February 23, 2021 incident which has not yet been completed involving concerns with the children’s’ possible exposure to post separation parental conflict and possible substance misuse by J.S.V..
3. The worker recently interviewed the children in the course of the investigation and they both expressed worries about their father’s drinking. They both reported that he often drinks when they are with him and that they do not feel safe when he drinks. At times they have called their mother or grandmother to come and get them when their father had been drinking.
4. The CAS were aware that since February 23, 2021 J.F.T. has insisted that J.S.V.’s parenting time be supervised by the grandparents, and that it has “no grounds, at this time, to override J.F.T.’s parental decision” in that regard.

[20] There is no other evidence of CAS or police involvement in spite of the parties’ stated concerns. J.F.T. has no criminal record, and J.S.V. has a limited criminal record with two dated entries including a break and enter from 2004 and the failure to comply from 2005.

[21] Both parties have filed affidavits outlining many current and historic allegations against the other. 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. The evidence has not been tested and the court recognizes that on urgent motions decisions need to be made on the evidence available at the time.

[22] For the purposes of this motion, I accept the direct evidence from the OCL and CAS, particularly as it relates to the children’s preferences and concerns. The independent and professional status of the CAS worker and OCL clinician involved lends credence to the information they provided.

The Law and Analysis

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

[24] The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child’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.).

[25] 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.

[26] 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).

[27] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ), 2003 ONCJ 52807.

[28] 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.

[29] A parent does not have an absolute right of access, and a court may limit or cancel access to minimize risk to a child from a parent’s conduct or lifestyle: W.(B.H.) v. W.(S.M.), [2001] S.J. No. 161 (QB).

[30] In Miller v. McMaster, 2005 CarswellNS 420 (N.S.S.C.) the court stated that supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following:

a) Where the child requires protection from physical, sexual or emotional abuse; b) Where the child is being introduced or reintroduced into the life of a parent after a significant absence; c) Where there are substance abuse issues; or d) Where there are clinical issues involving the access parent.

[31] In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve. Izyuk v Bilousov, 2015 ONSC 3684.

[32] On a temporary basis J.S.V. is not opposed to J.F.T. having sole decision-making authority, subject to his ability to have independent access to information regarding the children and that he be consulted on any major issues which may arise.

[33] On a temporary basis this is the appropriate order. In spite of the significant issues the parties have alleged, since separation up to this point they have been able to make parenting decisions without court intervention. Further, since August 2020 and up until February 2021 J.H.V. was residing in the primary care of J.S.V. and other than the concerns of J.S.V.’s substance use, there is no indication that J.H.V.’s needs were not otherwise being met.

[34] Apart from the alcohol issue which will be discussed below, the full extent of the parties’ mutual allegations of abusive behaviour by the other are not supported by the independent evidence from the CAS or in the VOC Report.

[35] There is no evidence of other concerns in the parties limited CAS and police history, and as noted the parties have been able to agree on arrangements without the court’s assistance until now since separating in 2017.

[36] However, the CAS history outlines an incident of parental conflict in 2016 which required police attendance, and J.S.V. acknowledged parental conflict during the relationship.

[37] On a balance of probabilities I accept that the parties have at times engaged in parental conflict in front of the children. Both parents shall be required to refrain from exposing the children to parental conflict or any negative comments about the other parent.

[38] With respect to J.S.V.’s allegation of J.F.T.’s substance abuse, she acknowledges an addiction to OxyContin, but the evidence does not support that there were any recent or current concerns. She remains on methadone with full carries and apparently provided recent drug screens which were clear.

[39] The primary issue in this matter relates to the allegations of J.S.V.’s substance use and its impact on his ability to safely parent. J.S.V. acknowledges a history of excessive alcohol consumption at times but denies that it impacts his parenting ability or that it is a current concern.

[40] However, I am satisfied on the evidence before the court that his alcohol use is currently a significant factor in his ability to parent. The statement in his affidavit that he is no longer drinking excessively can be seen as an indirect indication or admission that alcohol use has been a problem for him.

[41] The children were consistent with both the OCL clinician and the CAS worker that they view their father’s alcohol consumption as a problem and that they did not feel safe with him at times which has resulted in them calling their mother or grandmother to pick them up. J.F.T. deposed that she contacted J.S.V.’s mother on February 23, 2021 and requested her to attend the home immediately. J.S.V. did not address this and offered no affidavit evidence from his mother. The court would expect to receive evidence from her in the circumstances given the allegations, and its absence supports an adverse inference.

[42] That the children expressed similar experiences and concerns to two independent third parties offers compelling grounds to conclude the J.S.V.’s alcohol use is problematic. While he is agreeing to an alcohol prohibition and alcohol screens on a without prejudice basis he denies that there is a concern with his current consumption which he described as recreational. J.S.V. should carefully reflect on his children’s perceptions and experiences of his alcohol use as shared with the OCL clinician and the CAS worker.

[43] With respect to the issue of illicit drug use by J.S.V. the evidence consists of J.F.T.’s observations and pictures from February 23, 2021 and J.S.V.’s denial and claim that the pictures of the powdery substance and straw are a fabrication. There is no other evidence of historic concerns with drug use by J.S.V. and he obtained a drug screen on March 18, 2021 which was negative for illicit substances including cocaine. In the circumstances of his presentation on February 23, 2021, in spite of the conflicting evidence on this issue and the clean drug screen it would be appropriate that he provide two more drug screens, two weeks apart over the next month.

[44] In spite of the negative impact alcohol has had on J.S.V.’s relationship with his children, there is other evidence to support that the children have a loving and close relationship with him. Both children expressed that they have a positive relationship with their father and when alcohol is not involved they enjoy and want to spend time with him. There is no evidence to support that J.H.V.’s academic and health needs were not otherwise being properly addressed by J.S.V. prior to February 23, 2021 when he was residing there primarily. As outlined in the VOC Report, it also seems that the children benefit from a close relationship with their paternal grandparents who they saw regularly during their father’s parenting time.

[45] I accept that the children have a loving and close relationship with both their parents. Neither party takes the position that the children do not benefit from meaningful parenting time with each of them. As previously noted, however, I have accepted that the parties likely engaged in a level of conflict at times which is a concern. Both parties will need to work harder to ensure the children are not exposed to conflict over parenting issues or to negative comments about the other parent.

[46] The primary concern is J.S.V.’s alcohol consumption. He will need to abstain completely from alcohol consumption prior to and during his parenting time, and he should strongly consider complete abstinence in the circumstances of his children’s shared experiences, and he should consider seeking out counselling supports to assist him to understand the impact alcohol has had on his family.

[47] Overall, given the ages of the children and the consistency of their expressed views and concerns, their preferences regarding residency and parenting time should be given significant weight. When the totality of the circumstances are considered it is appropriate for J.S.V.’s parenting time to remain in the presence of the grandparents but may take place at either his home or the grandparents’ home.

[48] Subject to the reasonable wishes of the children, and the absence of any evidence of further substance use by J.S.V., his parenting time should be expanded over a relatively short period to include overnights and without the necessity of the grandparents being present.

[49] However, in the circumstances of the children’s current preferences and concerns the court is not prepared to order a timetable for this to happen. I am mindful that the views and preferences of both children were more favourable to spending time with their father from the first to the second interviews with the OCL clinician. It is likely that over the next weeks the children’s comfort level will continue to improve, particularly as they gain confidence that alcohol will no longer be part of their lived experience while with their father.

[50] I am also not prepared to make the order without prejudice, however, it would be appropriate that if the parties agree they shall be permitted to expand parenting time for J.S.V. and be permitted to remove the need for it to take place with the grandparents present. J.F.T. will be expected to behave reasonably in reviewing and expanding the children’s time with their father over the coming weeks and months.

[51] The expectation is that J.S.V. will comply with the alcohol prohibition and that the parties will work cooperatively so that his parenting time can expand and return to overnights without the need for his parents to be present. If the parties are unable to agree on expanding J.S.V.’s parenting time he shall have the right to return the issue to court for a review after four months.

[52] To assist the parties and court going forward with the expansion of J.S.V.’s parenting time and to have an independent source of the children’s views and preferences as they evolve, an order shall issue requesting the further involvement of the OCL by the appointment of counsel for the children.

[53] 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 children. Having considered all the factors outlined herein, and in s.24 of the CLRA, the best interests of the children support daytime parenting time for J.S.V. of two times during the week and one day on the weekend in the presence of the grandparents until J.S.V. can establish abstinence from alcohol use during his parenting time and the children gain the confidence that this will be the case.

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

1. The children shall reside in the primary care of the applicant and she shall have sole decision-making authority.
2. The respondent shall have independent access to any third parties involved in the health, education, and welfare of the children and the applicant shall consult with the respondent regarding any major decisions concerning the children’s health, education, and welfare.
3. The respondent’s parenting time with the children will include the following: a. unless otherwise agreed between the parties or until further order of the court J.S.V.’s parenting time shall include daytime visits 2 times during the week for 3 to 4 hours each and one day on the weekend from 10 AM to 7:30 PM. b. Unless otherwise agreed between the parties or until further order of the court J.S.V.’s parenting time shall take place in the presence of either his parents or another third party has agreed. c. The parties shall work cooperatively and in a child focused manner to expand the respondent’s parenting time as he establishes his absence from alcohol while exercising his parenting time. d. Other times as may be agreed between the parties.
4. The respondent shall abstain from any alcohol consumption 12 hours prior to or during any of his parenting time with the children.
5. The respondent shall provide two additional drug screens in two-week intervals over the next month and shall provide one alcohol screen a week over the next six weeks.
6. If the parties are not able to agree on the expansion of parenting time for the respondent, he shall have the right to seek a review after 4 months from the date of this order.
7. Neither party shall expose the children to parental conflict, or to negative or derogatory language about the other parent or their family.
8. Unless otherwise agreed by the parties, they shall only attend at each other’s residence for scheduled pickups and drop offs, and shall remain in their vehicles in front of the home.
9. An order shall issue requesting the further involvement of the OCL by appointing counsel for the children. The clerk of the court shall provide these Reasons for Judgement to the OCL along with the order requesting its involvement.
10. The parties shall submit their OCL intake forms within 10 days of this order.

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 May 13, 2021, with the responding party filing written submissions, not to exceed three pages, excluding attachments which shall include any offers to settle by May 27, 2021. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: April 26, 2021 Signed: “Justice S. E. J. Paull”