Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 10 08 COURT FILE No.: Sudbury FO-19-00000009-001; FO-19-00000009-002

BETWEEN:

Dylan Milks Applicant

— AND —

Brianna Dubois Respondent

Before: Justice G. Jenner

Heard on: October 2, 2024 Reasons for Judgment released on: October 8, 2024

Counsel: Samantha Prescott, for the applicant Brianna Dubois, acting on her own behalf

Reasons for Judgment on Rule 1 and Interim Parenting Time Motion

Part One: Introduction and Background

[1] The applicant father, Dylan Milks, and the respondent mother, Brianna Dubois, have two children together: B, who is five years old, and A, who is three years old. On October 2, 2024, the court heard the father’s motion for (i) enforcement of a previous order relating to virtual parenting time, (ii) disclosure of certain records, and (iii) a change to his interim in-person supervised parenting time. The disclosure issue was resolved on consent. These are the court’s reasons on the balance of the relief sought.

[2] The parties initially separated before A was born. By final order, the court granted the parties joint custody of B in November 2019. B was to primarily reside with the mother, and the father was granted parenting time on alternating weekends and certain weeknight evenings. The parties reconciled and A was born. Then, the parties separated again. Following a further separation, the parties informally adopted a parenting time regime based on the father’s work schedule, which takes him out of town frequently for multiple weeks at a time.

[3] The parties’ parenting time is among the issues now before the court on the father’s motion to change the final order respecting B, and on a new application dealing with both children. Within those proceedings two temporary orders have been made respecting parenting time. First, the order of Justice Lefebvre dated June 29, 2023, stipulates that “[e]ither party shall have parenting time nightly over Facetime at 7:45 p.m., initiated by the parent who does not have parenting time.” Second, since July 2024 the parties have been governed by a temporary, without prejudice order which grants the father supervised in-person parenting time with the children, including overnights, during periods when he is in Sudbury.

[4] The father alleges that the mother has failed to comply with the virtual parenting term and is seeking to remove the requirement for supervision of his in-person parenting time.

Part Two: Legal Issues

[5] The father’s motion requires the court to address the following issues:

(1) Should the court make a finding under Rule 1(8) of the Family Law Rules, that the mother failed to obey the order of Justice Lefebvre dated June 29, 2023, and if so, what further order(s) should be made?

(2) What interim order ought to be made with respect to the father’s parenting time?

[6] Circumstances also merit addressing a third issue:

(3) What changes, if any, should be made to the interim virtual parenting time?

Part Three: Materials Reviewed

[7] In support of his requests, the father relies on his affidavits dated July 11, 2023, June 14, 2024, and September 24, 2024, as well as the affidavit of the paternal grandmother, Nicole Milks, dated July 11, 2023. The mother is self-represented. She did not prepare a Confirmation of Motion. She has, however, filed her own affidavit dated September 16, 2024. She also filed an affidavit dated May 12, 2023, which I have reviewed and relied on.

Part Four: Analysis

4.1 Rule 1(8) and Enforcement

[8] Rule 1(8) of the Family Law Rules broadly empowers a court to respond to a party's failure to obey an order and sets out a non-exhaustive list of tools. It is discretionary, and only permits the court to make orders in response to a party’s non-compliance.

[9] In a motion brought under r. 1(8), the court must (i) determine whether there has been a triggering event in the form of non-compliance with a court order “in the case or a related case”; (ii) determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party; and (iii) apply its broad discretion as to the appropriate remedy: Ferguson v. Charlton, 2008 ONCJ 1, at para. 64. Implicit in this analysis is the principle that the court’s response to the breach of a court order should be proportionate to the non-compliant conduct: Mills v. Hachey, 2018 ONCJ 779, at para. 15. Additionally, a sanction under rule 1(8) “should be restorative to the victim of the breach and punitive to the noncompliant party”: Price v. Putman, 2018 ONCJ 86, at para. 44.

[10] Rule 1(8) must also be read in conjunction with r. 2(2) which provides that the primary objective of the rules is to deal with cases justly. Per subrule (3), dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[11] The father argues that the mother has denied most of his requests for virtual parenting time with the children. He says that on seven occasions in April and May 2024, he attempted to Facetime the children between the hours of 7:22 pm and 7:58 pm but was denied parenting time. When he complained via text message the mother responded to the effect that she did not need to Facetime him every day for the children if he “lacks communication.” She followed up with two messages in late May 2024 indicating her opposition to facilitating the Facetime calls.

[12] The father emphasizes the importance that virtual parenting time plays for him due to his remote mining job. He generally rotates between two consecutive weeks out of town and one week in Sudbury.

[13] The mother’s evidence is that the parties’ communication is presently much improved, but she denies the allegations that she has refused the father’s requests for Facetime calls with the children. She indicates that on one occasion she did not facilitate an evening call because she thought the father Facetimed with the children earlier that day while the children were in the paternal grandmother’s care. She explains that between May 1 and May 5, 2024, she and the children were camping at a location with no cellular reception to accommodate Facetime. When they returned, the mother sent a message of apology and explanation for missing those calls. On May 13, 2024, she missed a call because the children were playing on the device; she only noticed the attempted call later. Between May 14 and 16, 2024, the children were not in her care, but were with the paternal grandmother.

[14] Based on the evidence, I conclude that for at least some period in the spring of 2024, the mother took the position that she was not required to facilitate the father’s Facetime calls when the children were in her care. Specifically, she states in a text message to the father, “No you’re not Facetiming them, it’s very unfair for them to wonder when they’ll get to see you next because you’re too busy living your life without them to make the effort for visits…”.

[15] The mother may have justifiably questioned whether virtual parenting time was in the children’s best interests—indeed, both parties now agree that mandatory daily virtual parenting time has not functioned well and is contrary to the children’s best interests. But the appropriate response was for the mother to seek a variation of the order either on consent or by bringing a motion. Litigants are not at liberty to ignore court-ordered relief and substitute their owns views on the matter. I find, therefore, that there has been non-compliance with the order of Justice Lefebvre.

[16] As remedy, the father seeks a costs order in the amount of $1,000. I agree that some sanction is warranted to reinforce the need to respect court orders, and that a monetary penalty, as opposed to the other forms of relief set out in r. 1(8), is the most appropriate response. In my view, however, $1,000 would be excessive. The father acknowledges that the mother is of modest means. The mother’s affidavit contains an undertaking to respect the virtual parenting time going forward, and more importantly, there is no evidence before the court demonstrating that the mother’s non-compliance from the spring of this year has persisted into the summer and fall. This context reduces the need to sanction and deter the mother and to make whole the father. I would exercise my discretion to impose payment award of $250.00 as a remedy for the non-compliance.

4.2 Interim Parenting Time

[17] Rule 14(1) of the Family Law Rules permits a party to bring a motion for a temporary order for a claim made in an application or for a change to a temporary order. Section 28 of the Children’s Law Reform Act (CLRA) empowers the court to make orders with respect to parenting time and to impose any necessary and proper corollary conditions.

[18] In determining whether to make a temporary parenting order, the court must consider and apply s. 24 of the CLRA. The court shall only take into account the best interests of the children: s. 24(1). The court shall consider all relevant factors, including those expressly set out in s. 24(3), and shall give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s. 24(2). The past conduct of a party shall only be considered to the extent it is relevant to the exercise of decision-making responsibility, parenting time, or contact: s. 24(5). And, in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with that child’s best interests: s. 24(6).

[19] Section 24 of the CLRA applies equally to interim orders and variations of interim orders: s. 24(7). However, on an interim motion the court is constrained in its ability to assess conflicting evidence in affidavit form. The facts are often in an evolving state of flux. The court must exercise pragmatism and determine a “reasonably acceptable solution on an expeditious basis for a problem that will be more fully canvassed at subsequent stages”: Coe v. Tope, 2014 ONSC 4002, at para. 25; see also Costello v. McLean, 2014 ONSC 7332, at para. 11; Munroe v. Graham, 2021 ONCJ 253, at para. 30; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057, at para. 32.

[20] In the present case, the parties agree that it is in the best interests of the children that they have parenting time with their father during the periods that he is in Sudbury. Though his work schedule fluctuates, this would amount to one week out of every three or four. The disagreement between the parties is limited to whether it is in the best interests of the children that the father’s parenting time be supervised. I will, therefore, focus on that issue.

[21] Supervised parenting time is an exception to the norm and should not be ordered lightly. It should respond to a specific issue posing a risk the child. When relied on, it should be regularly reviewed to ensure its necessity in serving a child’s best interests and the goal should be to transition from supervised to unsupervised parenting time: R.A. v. D.A., 2023 ONSC 2873 at para. 3. Generally speaking, the person seeking supervised access bears the burden of establishing that it is necessary: Klymenko v. Klymenko, 2020 ONSC 5451, at para. 23; C.S. v. K.M., 2023 ONCJ 106, at para. 53; Young v. Hanson, 2019 ONSC 1245, at para. 32.

[22] The mother’s claim that supervision is necessary in the children’s best interests rests on concerns that the father abuses substances, which impacts his ability to adequately supervise the children. Her evidence is that he struggled with substance abuse issues throughout their relationship. Specifically, she claims he abuses alcohol, cocaine, oxycodone, and fentanyl.

[23] These concerns were known at the time of the final order of Justice P. Jones dated November 29, 2019, which provided the father with unsupervised overnight parenting time with B during. More recently, however, the mother’s concerns were reanimated by a slew of criminal charges against the father. The mother asserts that since 2020, the father has accumulated four separate sets of charges, mostly related to impaired driving. On one occasion, in May 2023, the father was arrested while the children were in his care and he spent two days in jail. There is no evidence the children were in a vehicle with their father, but the evidence does suggest that the father absented himself from his parenting role during his parenting time, became intoxicated, and was then incarcerated. The paternal grandmother stepped in to care for the children.

[24] The mother also states that in early February 2024 she received a call from the father’s then-partner, Jasmine Breton. Ms. Breton told the mother that she returned to the father’s home at approximately 7:00 pm and noticed him sleeping while the children appeared to be unfed and unsupervised. Ms. Breton told the mother she would be calling police. The mother went to the father’s residence to pick up the children. When she arrived, the father was not there, and the children’s paternal grandmother was caring for them. The mother indicates that two Greater Sudbury Police Service (GSPS) officers as well as a Children’s Aid Society protection worker attended the father’s home. The Society worker explained they had safety concerns for the children if left in the father’s care. The Society worker told the mother that if she allowed unsupervised parenting time, they would “seriously question [the mother’s] ability to follow their directions.” Two weeks later, a GSPS officer called the mother to explain that they had yet to speak to the father about what had occurred, despite attending his home on numerous occasions.

[25] Much of the evidence regarding the events in February 2024 is inadmissible hearsay, but this much is not: during the father’s parenting time, he was not present, the children were in the care of their paternal grandmother, and the police and a Children’s Aid Society worker attended the home. The father does not address this event in his evidence.

[26] Since this time, the mother has followed the Society’s direction, and has only allowed the father to have parenting time supervised by a third party. She asserts that parenting time should remain supervised until the father attends substance abuse treatment or programmes. She provided the court with text messages between herself and the father in May 2023, in which the father acknowledges the mother’s concerns, and agrees to attend a 35-day treatment programme.

[27] The father denies having a drug addiction or using drugs besides alcohol. He has provided corroborating negative substance tests through his employer. He demonstrates some insight into his alcohol struggles. He indicates that he has stopped drinking and, as of July 2023, he has completed the Back on Track Workshop programme through the Sudbury counseling centre. This course would have been a mandated step for him to resume driving privileges following an impaired-driving related conviction. I note as well that it predates the event in February of this year.

[28] The father acknowledges having outstanding criminal charges. He indicates he has been charged with two counts of assault, neither involving the mother. He says he has “been charged” with one impaired driving offence and has two pending impaired driving charges. He also acknowledges having been charged with driving while suspended. He denies that any of his impaired driving allegations have involved children in the vehicle. He is willing to undertake not to drive while the children are in his care.

[29] The evidence with respect to the status of the father’s criminal charges is confusing and contradictory. For example, he appears to have indicated by message to the mother that in July 2024 he was sentenced in respect of a criminal matter to a 12-month conditional sentence order. In his most recent affidavit, he indicates that he has pleaded guilty and is awaiting his sentencing. He also indicates that he is awaiting trial. Unless these are in respect of different sets of criminal charges, it is impossible for the father to be both serving a sentence and awaiting trial. When I asked the father about this apparent inconsistency, he was unable to provide any clarity. The mother has conducted some online research of her own and determined that the father has four different case numbers all scheduled to return to court on October 24, 2024. The ‘information sworn’ dates are November 19, 2020, August 9, 2022, October 22, 2021, and May 7, 2023, respectively.

[30] In determining whether supervised parenting time is in the children’s best interests, and in prioritizing the children’s physical, emotional, and psychological safety, I must be mindful that the children are quite young and vulnerable. A is just three years old.

[31] A single and brief instance of insufficient supervision due to a parent’s intoxication can have catastrophic consequences where young children are involved. On the evidence before me, it is clear the father struggles with alcohol abuse, and I am concerned he presents an unacceptable risk to the children if his parenting is unsupervised. There is not admissible evidence that the children have been harmed due to the father becoming intoxicated while in a caregiving role, but there is direct evidence that the father makes dangerous and in fact criminal decisions when influenced by alcohol. There is also circumstantial evidence from which I infer that as recently as February of this year the father’s abuse of alcohol caused him to abdicate his parenting responsibilities in favour of extended family. This event echoes the events of May 2023 wherein the father found himself incarcerated for two days during his parenting time.

[32] I am not persuaded that conditions that the father not consume alcohol while in a caregiving role and not drive a motor vehicle with children as passengers would sufficiently mitigate the risk. I have limited insight into the causes of the father’s alcohol abuse, but I am not persuaded he is sufficiently resilient to the enticement of alcohol such that court-imposed rules will deter him.

[33] I am also concerned about the significant gaps in the evidence with respect to the extent and nature of the father’s criminal charges. While the mother has the onus of justifying supervision, and the father is presumed innocent in respect of outstanding charges, the father is also under a duty to furnish the court with up-to-date information about concluded and pending criminal charges: r. 35.1(7). His inability to clarify to the court the status of his criminal charges and findings of guilt frustrates this court’s ability to assess risks posed to the children and militates against granting interim relief at this time.

[34] In the result, the father’s parenting time shall remain supervised at this time.

4.3 Revisiting Virtual Parenting Time

[35] While not squarely before the court on the father’s motion, the court canvassed the parties’ views as to virtual parenting time going forward. Both parties agreed that the status quo was dysfunctional, and both agreed that virtual parenting time in the range of three sessions per week was more appropriate. I concur. The parties and the children require simplicity. While flexibility would clearly benefit the children, I am concerned that injecting discretion into the matter will do more harm than good, given the communication issues between the parties. The new temporary order of the court will address this, below.

Part Five: Conclusion

[36] The court orders as follows on a final basis:

(a) The mother is found to have breached the order of Justice Lefebvre dated June 29, 2023, and as remedy is ordered to pay to the father $250.00. Payment shall become due December 1, 2024, and may be set-off against any costs awards flowing from this motion.

[37] The court orders as follows on a temporary basis:

(a) The father shall have parenting time with the children from Thursday to Sunday when father is in Sudbury, on three (3) days’ notice, with either the paternal grandmother Nicole Milks, the paternal aunt, Ms. Celeste Milks, or a mutually agreed-on third party approved in writing present. [1] Should the father be in Sudbury greater than 50% of the time, his parenting time shall be limited to eight (8) days per month, unless the parties agree otherwise in writing. The mother may relieve against need for supervision of the father’s parenting time, in writing, in her discretion. This condition replaces that respecting the father’s parenting time in any earlier order of this court.

(b) Each party shall have virtual parenting time with the children on odd-numbered calendar days when the children are in the care of the other parent. The parent who does not have care of the children shall be responsible for initiating the call. Should circumstances arise where a call is impossible (due to a special event or lack of cell phone signal), the parent who has care of the children shall communicate that to the other parent in advance, and where possible, offer an alternative time or date. This condition replaces that respecting virtual parenting time in any earlier order of this court.

[38] If the parties cannot agree with respect to the costs of this motion, they shall make written submission to the court. Each party shall be permitted to exchange and submit no more than two (2) pages, exclusive of exhibits, by October 21, 2024.

Released: October 8, 2024 Signed: Justice G. Jenner

[1] There is evidence that in addition to the paternal grandmother, the paternal aunt, Ms. Celeste Milks, has acted as a supervisor and may be available to assist in future.