Court File and Parties

COURT FILE NO.: FS-21-25773 DATE: 20220502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DEVON KATHLEEN BRADY Applicant – and – BRENDAN CONOR FITZPATRICK Respondent

Counsel: Dani Frodis and Charley Levitan, for the Applicant Elliot Birnboim and Hailey E. Corrigan, for the Respondent

HEARD: April 19, 2022

M.D. Faieta j.

Reasons for Decision

[1] The Applicant mother was arrested on two occasions for driving a motor vehicle while impaired by alcohol. Her children were passengers on both occasions. One of the two occasions, the Applicant drove her motor vehicle into a ditch. Although she suffered minor injuries, the children were not injured. The Respondent father states that he has largely withheld the children from the Applicant following the second motor vehicle accident given his fear for the children’s safety while in the care of the Applicant mother given her history of alcohol abuse. The Applicant states that she has abstained from consuming alcohol since the second motor vehicle accident and wants to resume parenting time on a fixed schedule.

[2] The Applicant brings this motion for the following temporary parenting order:

a. Starting immediately until the end of June 2022, the applicant will have the children in her care from Saturday morning at 10 am until Sunday evening at 8 pm every second weekend and every Wednesday from after school until Friday morning return to school; and

b. Starting Friday July 1, 2022, the applicant will have the children in her care every second weekend from Friday morning (when there is no school or afternoon after school) until Monday morning return to school (or return to Brendan Monday afternoon at 5pm if there is no school) and every Wednesday from after school (or 9 am if there is no school) until Friday morning return to school (or return to Brendan Friday afternoon at 5pm if there is no school).

[3] At the hearing of the motion, the Applicant also agreed to an order: (a) that she would not consume alcohol during or prior to her parenting time with the children; (b) requiring her to provide the Respondent with video-recordings of readings from a handheld breathalyzer device (BACtrack) before and during her parenting time.

[4] The Respondent submits that the current interim parenting time order that was imposed on a without prejudice basis as a term of the adjournment of this motion on March 29, 2022, should continue. It provides that the Applicant shall have parenting time with the children to be supervised by the Applicant’s parents as follows: Saturday from 10:00 am to 7:00 pm and Wednesday from after school to 8:00 pm. The Respondent also seeks an order that the Applicant abstain from the consumption of alcohol and that parenting time be supervised by her father.

Background

[5] The Applicant mother is a kindergarten teacher, and the Respondent father is a real estate agent. The parties have been married since July 2012. There are two children of the marriage: CF, age 7, and EF, age 5.

[6] The Applicant states that she is a recovering alcoholic.

[7] The Applicant’s allegations that the Respondent was emotionally, psychologically, and physically abusive during the marriage are denied. The Applicant did not advance these allegations at the hearing of this motion but instead focused her evidence and submissions why she should be granted overnight parenting time with the children on a limited basis.

[8] The Respondent states that the Applicant’s alcoholism was a continuing theme throughout their marriage. Amongst other things, he states that the Applicant returned home extremely intoxicated on various occasions. The Respondent produced police records of one such incident. On the evening of April 29, 2019, the Applicant came home drunk and the Respondent locked her out of the house after she had stepped outside. The police were called after the Applicant kicked and screamed while outside. The police arrived at about 3:00 am. The Applicant was taken to her parents’ home for the evening.

[9] In October 2019, the Applicant enrolled in the CAMH Compass Harm reduction program for alcohol consumption.

[10] In December 2019, the Applicant completed the first of two, 8-week segments of the CAMH program.

[11] On March 5, 2020, the Respondent called the police and reported that the Applicant was inebriated. This was denied by the Applicant. The police attended at the school and determined that there was no cause for concern.

[12] The parties separated on March 15, 2020. The Applicant moved into her parents’ home.

[13] During March break, the Applicant took the children to her parent’s cottage. They stayed for three weeks as the Respondent had to quarantine in the matrimonial home after contracting COVID-19.

[14] On March 22, 2020, the Applicant drank her parent’s wine and on a return drive from a liquor store, the Applicant states that she drove into a ditch. The Applicant states that the children were unhurt although she suffered “superficial cuts and bruises”. The Applicant was charged with impaired driving and careless driving. The Respondent notes that the Applicant failed to mention in her affidavit that her motor vehicle flipped over after it entered the ditch. The Applicant denies this allegation.

[15] The Applicant was charged with: (1) operating a motor vehicle was impaired by alcohol, or a drug, or both contrary to Section 320.14(1) (a) of the Criminal Code; and (2) careless driving contrary to section 130 of the Highway Traffic Act.

[16] On April 20, 2020, the Applicant was admitted for treatment for stabilization and treatment of substance use disorder at the Greenestone Centre for Recovery. She was discharged on May 27, 2020. While in treatment, the Applicant attended six, one hour 1:1 sessions with her primary therapist and four, one hour sessions with a trauma therapist.

[17] During this period, the Applicant states that the parenting time was on a 50/50 basis. The children stayed with her parents during the period that the Applicant spent 37 days at the Greenestone Centre.

[18] The Applicant was arrested once again on June 30, 2021 in the vicinity of her parent’s cottage. Both children were in the motor vehicle with the Applicant at the time of this incident. She was charged with:

1. having a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood, contrary to Section 320.14(1) (b) of the Criminal Code;

2. having unlawful possession of a substance included in Schedule 1 of the Controlled Drugs and Substances Act, namely, cocaine, contrary to Section 4(1) of the Controlled Drugs and Substances Act;

3. operating a conveyance while her ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to Section 320.14(1) (a) of the Criminal Code; and

4. operating a motor vehicle with open liquor contrary to Section 32 of the Liquor Licence Act.

[19] The Applicant did not notify the Respondent that she had been arrested or that the children had been in the motor vehicle with her. About two weeks after this incident, the Respondent learned of this arrest from a newspaper article that a friend had provided. It reported that the Applicant was arrested by the Ontario Provincial Police following a traffic complaint about a possible impaired driver on Highway 115 at about 4:30 pm on June 30, 2021. It further stated that the Applicant was allegedly found to be under the influence of alcohol and in possession of cocaine. The Applicant’s driver’s licence was suspended for 90 days and her vehicle was impounded for seven days. She was to appear in court on August 3, 2021.

[20] The Respondent immediately contacted the Applicant and she refused to acknowledge that this incident occurred or provide any details. The Respondent only learned of the fact that the children were in the motor vehicle at the time of this motor vehicle accident when he received the Applicant’s Case Conference brief in late January, 2022. He states that the Applicant told the children that “they could not tell Daddy or bad things would happen to Mommy”.

[21] In about mid-July, 2021, after learning that about the June 30, 2021 incident, the Respondent refused to allow the Applicant to have any form of parenting time with the children for several weeks.

[22] At some point in the summer of 2021, the Applicant states that she took steps to return to sobriety. Her daily routine starts at 6:00 am with meditation and journaling. At 7:00 am, she attends a support meeting seven days a week. The Applicant also attends 90 meetings of Alcoholics Anonymous in 90 days. The Applicant sees her new AA sponsor every Monday and Wednesday and attends at Greenestone Alumni support group three times a week. The Applicant sees her therapist once a week and her probation officer once each month.

[23] The Applicant states that she purchased a BAC breathalyzer in August 2021 and has been taking breathalyzer tests at least three times a day and has been providing the results to the Respondent.

[24] This Application was commenced on September 28, 2021.

[25] The charges related to the arrests on March 22, 2020, and June 30, 2021, were resolved as follows on November 10, 2021:

1. The Applicant plead guilty to the charge of careless driving under the Highway Traffic Act in relation to the March 22, 2020 incident. She received a fine of $1,000.00. The charge of operating a motor vehicle while impaired by alcohol, drugs, or both, was withdrawn by the Crown.

2. The Applicant plead guilty to the charge of operating a motor vehicle while impaired by alcohol contrary to Section 320.14 (a) of the Criminal Code in relation to the June 30, 2021 incident. The other three charges were withdrawn by the Crown. The Applicant received a fine of $2,500.00.

3. A Prohibition Order was issued that prohibits the Applicant from operating a motor vehicle for a period of 18 months.

4. The Applicant was also placed on probation for 12 months. The Applicant was ordered to: “Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation office and complete them to the satisfaction of the probation officer”.

[26] The Respondent states that the Applicant has repeatedly showed up to the children’s school to pick them up without his knowledge or consent. The letter dated December 6, 2021 from the Applicant’s former counsel indicated that she had plead guilty to certain charges but did not disclose that she was prohibited from operating a motor vehicle for 18 months.

[27] On November 18, 2021, the Respondent states that he was told by the Children’s Aid Society of Toronto (“CAST”) that the Applicant had reported that he had assaulted the children and that they were “bruised”. The Applicant states that she did not file a complaint with the CAST but rather a friend did so. By letter dated November 30, 2021, the CAST notified the Respondent that it had closed its file. The letter states:

As you are aware, a child protection investigation was initiated on November 15th, 2021 due to concerns of the children being emotionally harmed as a result of being exposed to post separation conflict. In addition, concerns were reported that there was a risk of harm to the children due to the physical discipline in your home.

The child protection allegations were not verified. CAST has CLOSED its file given all of the circumstances in existence at the time of this assessment.

If further information is required, a formal request for the file disclosure must be made to the Disclosure Department. … [Emphasis in the original]

[28] On November 19, 2021, the Respondent received a telephone call from a police officer with the Toronto Police Service regarding an allegation made by the Applicant that he had physically assaulted the Applicant many years earlier after an incident on Bloor Street. The Respondent denies any such assault. The Respondent states that he had words with a male with whom he witnessed the Applicant having an extramarital affair. No charges have been laid.

[29] It appears that there was no fixed parenting time schedule from the Summer of 2021 until late December 2021. Nevertheless, the Applicant appears to have had parenting time with the children about two or three days each week. On December 21, 2022, the Applicant kept the children overnight and did not return the children to the Respondent as scheduled. In response, the Respondent denied the Applicant parenting time.

[30] The Applicant refused the following without prejudice parenting time offer that was made by the Respondent on December 23, 2021:

• Friday, December 24, 2021 from 4:00 PM to 8:00 PM: The Respondent will drop off and pick up the children; The Applicant will provide the Respondent with a breathalyzer at 3:30 PM and 7:30 PM.

• Every Sunday from Sunday, December 26, 2021 to Sunday, January 23, 2022 from 1:00 PM to 3:00 PM: The Respondent will drop off and pick up the children; The Applicant will provide our client with a breathalyzer at 12:30 PM and 2:30 PM.

[31] Following the case conference on January 27, 2022, the Respondent offered supervised parenting time with the children every Saturday from 10:00 am to 5:00 pm and every Wednesday from after school to 8:00 pm.

[32] Other offers were made to the Applicant regarding parenting time, however all of these offers were refused whether because the Applicant sought unsupervised parenting or additional parenting time. As a result, the Applicant did not have parenting time with the children until this matter was before the Court on March 29, 2022. At that time, the Applicant’s motion for a temporary parenting time order was adjourned on terms which included that, on a without prejudice basis, the Applicant shall have parenting time with the children to be supervised by the Applicant’s parents as follows: Saturday from 10:00 am to 7:00 pm and Wednesday from after school to 8:00 pm.

Analysis

[33] Given that the purpose of an interim parenting order is to provide stability to the children and the parties pending trial, it has been long established that the status quo will be maintained on an interim motion for a parenting order unless cogent evidence that the best interests of the child dictates otherwise: Papp v. Papp, [1970] 1 O.R. 331, para. 34.

Status Quo

[34] The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation, by any consensual arrangement made after separation, or by court order: Gray v. Canonico, 2020 ONSC 5885, para. 48. However, the status quo is not changed by a parent who, for any reason, unilaterally imposes a parenting regime. Self-help is not a legally effective strategy for modifying parenting arrangements. A parent that changes the status quo due to concerns about a child’s safety while in the care of the other parent must seek the court’s approval at the earliest opportunity: Skitch v. Hiscock, 2018 ONSC 5581, para. 15.

[35] Accordingly, the Respondent’s unilateral action to keep the children in his care while seemingly well-intentioned, does not alter the 50/50 parenting arrangement that existed prior to the Applicant’s arrest in June 2021.

Best Interests of the Children

[36] In allocating parenting time, a court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.), s. 16(6); Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), s. 24(6); Knapp v. Knapp, 2021 ONCA 305, para. 34. The court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, s. 16(2); CLRA, s. 24(2).

[37] The following evidence is relevant to the Applicant’s ability to care for and meet the needs of her children:

• The Applicant was arrested twice (both post-separation) for driving under the influence of alcohol. The children were in her automobile on both occasions. The Applicant sustained minor injuries in respect of the first incident. The Applicant plead guilty to careless driving for the first incident and plead guilty to impaired driving in respect of the second incident.

• The Applicant did not disclose the second incident and arrest in June 2021 to the Respondent. In fact, she denied the incident when asked by the Respondent.

• The Applicant failed to disclose to the Respondent at all, or at the very least in a timely manner, that her driver’s license was suspended following either incident for which she was arrested or following her convictions in November 2021.

• The Respondent asserts that the Applicant continued to drive an automobile after her license was suspended. This allegation is denied.

• The Applicant lives with her parents and is willing to have her parenting time with the children supervised by her parents.

• The Applicant has taken, and continues to take, numerous steps to address her alcoholism.

• There is no evidence that the Applicant has consumed alcohol since her second arrest on June 30, 2021. Since August 2021, the Applicant has taken a breathalyzer test at least three times a day and sends the results to the Respondent.

[38] I find that there is cogent evidence that the children’s best interests are served by modifying the status quo parenting time arrangements as described below.

[39] The children’s safety is of paramount concern. The Applicant’s battle with alcohol is serious and has been ongoing for at least several years and has clouded her judgment as it relates to her children given that they were with her on both occasions when she was arrested for having operated a motor vehicle after consuming alcohol.

[40] To greatly minimize the risk that the Applicant’s parenting time with the children is impaired by the consumption of alcohol, I find that it is in the children’s best interests that the Applicant be sampled for alcohol before and during her parenting time with the children. I also find that the Applicant’s offer of breathalyzer sampling requires more structure. Amongst other things, the delivery of the Applicant’s breathalyzer tests should be taken at specific times and should not be dependent upon the Applicant sending the test results to the Respondent. I find that the Soberlink Alcohol Monitoring System should be used in this case given that it provides for facial recognition of the sample provider, the scheduling of breath sampling, the immediate notification by email of the results of each sample to the other parent, and the immediate notification by email to the other parent of the failure to take a sample.

[41] The Respondent seeks to have the Applicant’s parenting time with the children supervised by the Applicant’s parents. However, the Applicant’s mother has suffered a significant recent illness and neither party realistically expects her to play a meaningful supervisory role in caring for the children. The Respondent also has some concern that the Applicant’s father has, in the past, minimized the Applicant’s alcoholism. The Applicant submits that parental supervision is unnecessary and impractical as there may be occasions when the Applicant and the children are not at the Applicant’s parents’ home or cottage.

[42] In Stec v. Blair, 2021 ONSC 6212, paras. 22-24, Fowler Byrne J. reviewed the law related to supervised access:

Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.

23 The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)

24 The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.

[43] In the circumstances, I find that the additional measure of supervision by the Applicant’s father is appropriate for a two-month period.

[44] Given their age and need to be nurtured and to have a strong bond to both parents, I also find that it is in the children’s best interests to resume some overnight access with the Applicant. The Respondent’s approach does not provide for overnight access. I prefer this aspect of the Applicant’s proposal.

Order

[45] Pursuant to the Divorce Act and the CLRA, I find that it is in the children’s best interests to make the interim parenting order described below.

[46] Order to go as follows:

(1) Starting May 7, 2022, and until the end of June 2022, the Applicant will have the children in her care from Saturday morning at 10 am until Sunday evening at 8 pm every second weekend and every Wednesday from after school until Friday morning return to school.

(2) Starting Friday July 1, 2022, the Applicant will have the children in her care every second weekend from Friday morning (when there is no school or afternoon after school) until Monday morning return to school (or return to the respondent on Monday afternoon at 5 pm if there is no school) and every Wednesday from after school (or 9 am if there is no school) until Friday morning return to school (or return to the respondent on Friday afternoon at 5 pm if there is no school).

(3) The Applicant’s parenting time shall be supervised by her father, David Brady, until the end of June 2022.

(4) The Applicant shall not consume alcohol during parenting time with the children and for a period of 12 hours before parenting time with the children.

(5) The Applicant, at her sole expense, shall sign up for the Soberlink monitoring program, Level 1 (Parenting Time Only), Plus Plan, by May 5, 2022.

(6) The Applicant shall provide her irrevocable consent to permit the Respondent to access her Soberlink program.

(7) Until the end of June 2022, for the Applicant’s parenting time from Saturday morning at 10 am until Sunday evening at 8 pm, the Applicant shall provide a test: (a) Saturday at 9 am, 1 pm, 5 pm, 9 pm and at midnight; (d) Sunday at 7:00 am, 11:00 am, 3:00 pm and 7:00 pm).

(8) Until the end of June 2022, for the Applicant’s parenting time from every Wednesday school until Friday morning return to school, the Applicant shall provide a test: (a) Wednesday, at 3 pm, 7 pm, 11 pm on Wednesday; (c) Thursday at 7 am, 3 pm, 7 pm and at midnight; (d) Friday at 7 am.

(9) Commencing July 1, 2022, for the Applicant’s parenting time that occurs second weekend from Friday morning (when there is no school or afternoon after school) until Monday morning return to school (or return to the respondent on Monday afternoon at 5pm if there is no school), the Applicant shall provide a test: (a) Friday at 7 am, 11 am, 3 pm, 7 pm and at midnight; (b) Saturday at 7 am, 11 am, 3 pm, 7 pm and at midnight; (c) Sunday at 7 am, 11 am, 3 pm, 7 pm and at midnight; (d) Monday at 7 am, 11 am, 3 pm.

(10) Commencing July 1, 2022, for the Applicant’s parenting time that occurs every Wednesday from after school (or 9 am if there is no school) until Friday morning return to school (or return to the respondent on Friday afternoon at 5pm if there is no school), the Applicant shall provide a test: (a) Wednesday at 7 am, 11 am, 3 pm, 7 pm and at midnight; (b) Thursday at 7 am, 11 am, 3 pm, 7 pm and at midnight; (c) Friday at 7 am, 11 am, 3 pm.

(11) In the event that the Soberlink test shows that the Applicant has consumed alcohol before her parenting time, the Applicant shall not have parenting time with the children.

(12) The Applicant’s parenting time shall terminate in the event that the Soberlink test shows that the Applicant has consumed alcohol during her parenting times. In these circumstances, the Applicant shall request that her father be present with her and the children until the Respondent can attend to retrieve the children.

(13) Should the parties be unable to resolve their claims for costs of this motion, then they shall deliver their costs submissions by May 10, 2021 and their responding submissions by May 17, 2021. Each costs submission shall be no more than three pages exclusive of their offers to settle and outlines of costs.

[44] I also understand that the parties have requested a copy of the CAST’s records in respect of these parties without success or response. The question of issuing an order requiring the production of these records was raised on this motion however notice of same had not been provided to CAST. I direct that the parties share this decision with CAST in the hope that the need for a motion can be avoided.

Mr. Justice M.D. Faieta

Released: May 2, 2022