Court File and Parties
COURT FILE NO.: FC-18-00000140-0000 DATE: July 9, 2024 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: CARA LINDSAY GIBBONS, Applicant – and – JEFFREY WAYNE BYRNE, Respondent
Counsel: Jenna Preston and Erin Lepine, for the Applicant Shawn Duguay, for the Respondent
REASONS FOR DECISION ABRAMS, J
Introduction
[1] The applicant, Cara Lindsay Gibbons (the “applicant”), initiated this proceeding in June 2018, following a seven-year relationship with the respondent, Jeffrey Wayne Byrne (the “respondent”).
[2] The case initially involved the full panoply of parenting and financial issues, as well as tort claims and a parallel civil action. However, the parties have since managed to settle the tort and financial issues, including the civil action, and most of the parenting issues.
[3] The parties’ parenting arrangement was incorporated into the partial final order of Johnston J., dated November 7, 2022. The terms include (a) joint decision-making authority in the areas of health, education, religion and major extracurricular activities; (b) an agreement to engage in parenting coordination to resolve disputed parenting issues; (c) a shared holiday parenting schedule; and (d) detailed provisions on the children’s transitions between homes, telephone and video access, the children’s use of social media, travel with the children, relocation, and counselling for both the parents and the children.
[4] Although the parenting issues were initially high conflict, the parties have managed to develop a functional co-parenting relationship over the past two years. As a result, the trial revolved around three issues: 1) the regular parenting schedule; 2) the respondent’s alcohol consumption during his parenting time; and 3) the children’s direct and indirect exposure to Ms. Ashley Foy (“Ms. Foy”), during the respondent’s parenting time.
Relief Sought
[5] The applicant requests a final order instituting the asymmetric shared parenting schedule that the parties’ parenting assessor, Ms. Chantal Bourgeois (“Ms. Bourgeois”), recommended in her parenting assessment dated January 8, 2021 (the “assessment”). This asymmetric schedule would provide the applicant with one additional overnight on Wednesday evenings, in every two-week period.
[6] The applicant requests a final order making the respondent’s parenting time conditional on his sobriety during his parenting time and requiring him to use an alcohol monitoring device for the period of one year. Ms. Bourgeois recommended the respondent’s use of an alcohol monitoring device for the period of a year to ensure his accountability, to build trust between the parties as co-parents, and to remove the children from the equation given their sensitivity to their father’s drinking.
[7] Finally, the applicant requests a final order requiring the respondent to take all reasonable steps to ensure the children have no contact with Ms. Foy during his parenting time – both through him and his family members. Further, she asks that the respondent refrain from sharing and/or soliciting information to/from Ms. Foy about the applicant, her partner, Brendan Scott (“Mr. Scott”), and/or the children, and that he similarly directs his family members to refrain from sharing and/or soliciting this information to/from Ms. Foy.
Brief Background
[8] The parties began dating in 2011 and separated in April 2018.
[9] They have three children together: Shay Poppy Byrne born September 4, 2013 (“Shay”), Sloane Porter Byrne born May 22, 2015 (“Sloane”), and Kinsley Jordyn Byrne born May 15, 2017 (“Kinsley”).
[10] The parties have both re-partnered. The applicant is in a relationship with Mr. Scott, while the respondent has partnered with Ms. Debbie Goodfellow (“Ms. Goodfellow”).
[11] Complicating matters is the fact that Mr. Scott and Ms. Foy were at one time in a relationship, they share two children together, and they, too, have engaged in protracted family law litigation.
[12] At the core of this decision are the parties’ three children. For the two younger children, this litigation between their parents is essentially all they have ever known, and for Shay, it has been ongoing for nearly half of her life.
[13] This conflict has now spanned nearly five years of family litigation, five investigations by the Family and Children’s Services of Lanark, Leeds, and Grenville (the “FCS”), and a full criminal trial.
[14] Despite this turbulent history, and despite the children’s unfortunate exposure to the parties’ conflict, the evidence heard over the course of this trial has confirmed that:
a. The children are happy, healthy, and well cared for in each party’s care; [1] b. The children have no diagnosed medical concerns or mental health issues, and are performing well in school; [2] c. The children have the benefit of two loving and capable parents, along with a constellation of extended family members, who all want what is best for them; [3] d. The children have strong bonds and loving relationships with both of their parents; [4] e. The children are active and engaged in a range of enriching activities in both party’s care; f. The parties have been able to develop a great co-parenting relationship—described by Mr. Scott as one to be jealous of; [5] g. The parties are able to communicate effectively and put the best interests of the children first; h. The children have long established routines and patterns of care under the current 2/2/5/5 care schedule that stretches back to June 2018; [6] and, i. The children are engaged in counselling aimed at assisting them with any issues arising from their parents’ separation.
Issues
[15] The three issues for the court to resolve are:
- Is it in the children’s best interests to shift from the parties’ current equal-time parenting schedule to an asymmetric shared parenting schedule that provides the children with an additional overnight with the applicant every two weeks?
- Is it in the children’s best interests that the respondent refrain from consuming alcohol during his parenting time, and that he uses an alcohol monitoring device for a year to ensure that be abstains from drinking during his parenting time?
- Is it in the children’s best interests that the respondent take all reasonable steps to ensure the children do not have any direct or indirect contact with Ms. Foy during his parenting time, and that he take steps within his control to limit the amount of information that Ms. Foy obtains with respect to the applicant, Mr. Scott, and the children from him and his extended family members?
Issue #1 – Parenting Schedule
Legal Framework
[16] The court has jurisdiction to make parenting orders respecting parenting time under s. 21(1)(b) of the Children's Law Reform Act. In exercising this jurisdiction, the court shall only consider the best interests of the child. The interests of the parents are secondary. [7]
[17] In considering the best interests of the child, the court must consider:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [8]
[18] In determining the best interests of the child, the court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being. [9]
[19] The multiple factors determining a child’s best interests should not be considered “a checklist to be tabulated with the highest score winning”. Instead, it involves a “holistic look at the child, her needs and the people around her”. [10]
[20] To assist in its determination of the child’s best interests, the court may consider the information and recommendations in a parenting assessment prepared under section 30 of the Children’s Law Reform Act. [11] The information provided by a section 30 assessor essentially amounts to expert opinion evidence respecting the needs of the child and the ability and willingness of the parties to meet those needs. [12] Indeed, the purpose of section 30 assessments is to provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit when determining parenting issues. [13]
[21] In family law disputes, an assessor’s evidence may be the primary source of unbiased information on a child’s views and preferences that can assist the Court in determining the child’s best interests. As the Ontario Court of Appeal stated in Woodhouse v. Woodhouse:
The wishes of the children are among the considerations a court is required to take into account in determining the best interests of a child. To expect children to come to court to express their views as witnesses puts them in an extremely difficult emotional situation. Furthermore, parents cannot be expected to give an unbiased picture of their children. As Bala indicates in "Assessing the Assessor: Legal Issues" (1990), 6 C.F.L.Q. 179at pp. 180 and 225, an assessor may be of assistance in inter alia settling a dispute between parents, evaluating the strength of a child's bond to each parent without creating loyalty conflicts by direct interrogation, expanding the amount of information available to the court, and assisting courts to appreciate the "common sense" importance of stability and continuity in a child's life. [14]
[22] Children’s views and preferences are critically important in making parenting orders, as children have a right to be heard in matters affecting them. [15] In assessing a child’s views and preferences, the Ontario Court of Appeal has held that the trier of fact should consider multiple factors, including how the clear the wishes are; how informed the expression is; the strength of the wish; and the overall context. [16]
[23] There is no presumption that an equal parenting schedule is always in the children’s best interests. [17] This was, in part, the reason for the removal of the ‘maximum contact’ principle from the Divorce Act and the Children’s Law Reform Act following legislative amendments in 2021. [18] Instead, as Justice Karakatsanis recently confirmed in the Supreme Court of Canada’s decision in Barendregt v. Grebliunas, the Court need only consider how much parenting time is consistent with the best interests of the child. [19]
[24] Similarly, there is no presumption at trial in favour of the status quo in determining a parenting schedule that is in the children’s best interests. The status quo is to be considered as part of the ‘history of care’ factor under the best interests test, and it should be weighed alongside all other factors. [20] As Justice McLachlin noted in the Supreme Court of Canada’s decision in Gordon v. Goertz, any presumption that favours one parent over another in considering the children’s best interests should be rejected:
Every child is entitled to the judge's decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected: "No matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met" (Appleby v. Appleby (De Martin), supra, at p. 315). [21]
Analysis
[25] The applicant argues that the respondent is effectively asking the court to sacrifice the views and preferences of the children in favour of his purported entitlement to a continuation of the temporary equal-time parenting schedule. In doing so, the respondent disregards the children’s voice and the law, under which there is no presumption in favour of equal parenting time or the status quo.
[26] Second, the applicant contends that in addition to the children views and preferences, several other factors under the statutory best interests test indicate that an asymmetric shared parenting schedule providing the children with an additional Wednesday overnight with the applicant every two weeks is in the children’s best interests.
[27] Third, the applicant asserts that the asymmetric parenting schedule proposed by the applicant is minimally disruptive. It will result in one additional weekday overnight for her, and the children’s transition into the respondent’s care will continue to take place at school. This modification to the parenting schedule does not increase the number of transitions, nor does it affect the children’s attendance at extra-curricular activities insofar as both parties can attend the children’s activities during each other’s parenting time.
[28] I do not see it that way, for the following reasons.
[29] Over the nearly five years since the parenting schedule was introduced, the children have established consistent routines and patterns of care that allow them to develop and maintain their strong loving bonds with both parents and with their extended families. In my view, there is nothing in the evidence to suggest that the current arrangements are not working to promote the children’s best interests, or to suggest that these arrangements need to be changed to meet the children’s best interests. Rather, the totality of the evidence suggests that the children are thriving under the current parenting schedule.
[30] Notably, neither the respondent, Ms. Goodfellow, nor Ms. Bourgeois described observing any stress or anxiety in the children while in the respondent’s care—in contrast to what the applicant described around transition days in her household. As articulated in Ms. Bourgeois’ evidence, this difficulty around transitioning from the applicant’s care may be connected to the emotional state of a parent around transition. This was particularly true of Ms. Bourgeois’ evidence concerning Shay, who was described as “protective” of her mother, with Ms. Bourgeois confirming that Shay expressed the following about care transitions:
Mommy gets upset and sometimes cries about it in the car when going to meet daddy. She cries because she is going to miss us. We didn’t want to go to daddy’s. Mommy always says this: I don’t want to bring you there. I don’t want to give you away.” [22]
[31] The respondent and Ms. Goodfellow both gave detailed evidence of the daily routines carried out by the children in their household, and the close-knit family life they enjoy. Specifically, the respondent testified with respect to the routines on Wednesday afternoons when the children return home from the care exchange with the applicant after a five-day period in her home. As he described, Wednesday afternoons are very important for the children, as they provide them with an opportunity to relax and adjust as part of the transition process. As the respondent said, this is a day in which the children are scheduled for fewer activities, which helps to allow them to better acclimatize to the change between households—before diving into a range of activities, extra-curricular events, and time spent with extended family starting on Thursdays. [23]
[32] Again, while the applicant contends that a change to the existing parenting schedule will be minimally invasive to the children, as I see it, the loss of the Wednesday will dramatically re-orient the nature and structure of the children’s time in the respondent’s care. Either they will lose the long-established routine that helps them to acclimatize to the change in household, or they will need to forego the important time spent with extended family and attending their various activities on Thursdays. Thus, the assertion that this would have no meaningful impact on the children, or the nature of their time with the respondent, fails to acknowledge the importance of this time and the children’s specific needs.
[33] In contrast to the way the applicant presented Ms. Bourgeois evidence, in her testimony she was clear in articulating that:
a. The children are happy, comfortable, and at ease in the respondent’s care; b. The children exhibited no signs of fear of discomfort in the respondent’s care; c. The children were engaged with the respondent, and he with them; d. Shay specifically remarked that “both of her parents pay attention to her and play with her. Both her mommy and daddy give her hugs and she feels loved by both of them.” [24]
[34] The focal point of the court’s analysis must be the current best interests of the children, and the parties’ ability to promote and support those best interests, when looking at the totality of the evidence. In this regard, the evidence from Ms. Bourgeois, and her recommendations, form only one piece of the evidence, and must be weighed against all other evidence in applying these factors. [25]
Section 24 Factors – Evidence Applied
Children’s Needs, and the Need for Stability
[35] While the children do not have any specifically identified special needs that fall within the purview of this factor, the respondent’s evidence was clear about the personal needs of the children, and how the current parenting schedule benefits them. Primarily this consists of having Wednesday afternoons to slowly acclimatize to the transition between households, before engaging in their wide range of activities from Thursday onwards.
[36] In my view, the children’s need for stability is best promoted by the maintenance and continuity of the parenting arrangements that have been in place for nearly five years—as opposed to transitioning them to an entirely new and untested set of care arrangements, based primarily on assessment of views and preferences from 2020.
Nature and Strength of the Children’s Relationship with each Parent & Family
[37] The evidence is undisputed that the children have strong and loving bonds with both sides of their family and have important relationships with various members of their extended family. Although the applicant rejects this notion, the respondent’s evidence was clear that a reduction in his parenting time would impact the extent to which the children can meaningfully spend time with both him and his extended family. In my view, the children should not lightly be denied the right to develop these important relationships with both sides of their family. [26]
Willingness to Support the Children’s Relationship with the Other Parent
[38] I find that the respondent actively encourages the children to maintain a positive relationship with the applicant and has done so since the parties’ separation. The applicant points to the respondent’s allegations of the “vendetta” against him to state that he is not supportive of her relationship with the children, when, in my view, the opposite is true.
[39] Despite allegations of abuse to police and the FCS, the criminal charges, the unilateral over-holding of the children, the perceived role of the applicant’s family in the respondent’s termination from his employment, and the civil proceedings commenced against him and his parents, the respondent has, quite remarkably, maintained the importance of the applicant’s role in the children’s lives.
[40] While the applicant contends that she has always been supportive of the respondent’s relationship with the children, as of January 2020, her plan of care for the children specified that the respondent should have no parenting with the children—consistent with her application, which was never amended. [27]
[41] While the applicant acknowledged that her position has softened over time, more recently, she continued to allege that the respondent was physically violent towards the children. This included an allegation surrounding the events of June 17, 2022, in which Mr. Scott said that the respondent had “javelined” Kinsley. In my view, there was no basis whatsoever to this allegation, which stand in contrast to the respondent’s description of the events as they transpired. [28] A description which was supported by the testimony of Ms. Melanie Smiley, who observed the children and the respondent mere hours later and noted no injuries to Kinsley, and no indication that the children were at all fearful of their father.
[42] Additionally, there is evidence of the applicant attempting to diminish the respondent’s relationship with the children, including:
a. The notation in the FCS records that Shay communicated that her mom calls her dad a “monster”; [29] and b. The FCS letter dated July 26, 2019, indicating that the FCS was worried based on the children’s comments and the interviews conducted, that the respondent and her family were undermining the children’s relationship with her father, which put them at risk of emotional harm. [30]
The History of Care
[43] Again, the current parenting schedule has been in place for nearly five years. It is all the children have known up until this point, and the fact that the children are all happy, healthy, and thriving confirms that the schedule meets their needs and promote their best interests.
The Children’s Views and Preferences
[44] There is no question that the views and preferences of the children is a factor in assessing what is in their best interests in any given case. However, this factor alone is not determinative of a child’s best interest and is subject to scrutiny based on the circumstances of each case. In other words, the views and preferences of a child must be viewed through the context that surrounds them. [31]
[45] To begin with, the language of section 23(3)(e) itself emphasizes the importance of this scrutiny by noting that a child’s views and preferences should be balanced by “giving due weight to the child’s age and maturity.” [32] Here, the Applicant relies upon Ms. Bourgeois’ assessment as being the sole objective evidence of the children’s expressed views and preferences, and in turn, Ms. Bourgeois confirmed in cross-examination that the views and preference held significant weight in determining her recommendations with respect to the parenting schedule. [33]
[46] In my view, there are a variety of factors in this case that militate in favour of the court giving minimal weight to the expression of the children’s views and preferences in the overall analysis of their best interests, specifically:
a. The last interview performed by Ms. Bourgeois was in December 2020, and at that time the children were only aged 7, 5, and 3; [34] b. The expressed views and preferences of children at that age need to be weighed appropriately in reference to their current ages and stages of development; c. The expression of the children’s views and preference in Ms. Bourgeois’ report are thus dated; d. Accordingly, Ms. Bourgeois’ acknowledged in cross-examination that the children’s views and preferences may have changed, and that the views and preferences articulated in her report may no longer be accurate; [35] e. Sloane’s expression of wanting more time with the applicant was not consistent across all the interviews; [36] f. Kinsley, at age 3, was effectively unable to communicate her views and preferences in a meaningful way; [37] and, g. Shay’s views and preferences need to be understood in the context of the ongoing proceedings, and the serious concerns about the children’s involvement in the proceedings.
[47] With respect to the latter point, although Ms. Bourgeois’ evidence is that she accounted for question of parental influence, in my view the substance of her report raises serious concerns. This included the fact that all three children were aware that the applicant wanted more time with them, Shay’s concerning remarks about not trusting the FCS worker, and Kinsley’s comments about the respondent being a “fake daddy.” [38]
The Children’s Heritage
[48] This factor weighs in favour of the children sharing equal time with both parents, so that they can equally partake in the values and heritage of both sides of their family.
The Plan of Care
[49] To recall, the respondent’s plan of care has been consistent since the parties’ separation and is, in my view, aimed at promoting the children’s best interests and each parent’s important role in the children’s lives. Conversely, while the applicant only recently put forward a plan of care that promotes the role of both parents, for most of these proceedings her plan of care did not involve the respondent having any parenting time with the children.
The Parties’ Ability to Meet the Children’s Needs
[50] In my view, the evidence is unequivocal that both parties are fully capable of meeting the needs of the children, and the current parenting arrangements have been demonstrated to fulfill all those needs.
The Parties’ Ability to Communicate
[51] The parties share joint decision making for the children, and as articulated by the applicant and Mr. Scott, they currently enjoy a successful co-parenting relationship and can communicate effectively about parenting issues. To quote Mr. Scott, the parties are a “great team” when it comes to co-parenting the children. [39]
Family Violence & Other Civil or Criminal Proceedings
[52] I have carefully considered the factor of family violence and its application to this case. While the applicant raised the issue of historic family violence, both in her testimony and her submissions, it has minimal current relevance to the determination of this issue. In fact, as the applicant herself acknowledged in cross-examination: 1) the history of family violence has no impact on the parties’ ability to co-parent; [40] and, 2) the history of family violence has no impact on the parenting schedule. [41]
[53] Further, Wright J. of the Ontario Court of Justice summarized it best in his decision following the criminal trial, noting the accounts of both parties are of a disturbing, dysfunctional relationship plagued by conflict, aggression, and violence, but with each blaming the other as the initiator of the violence. His Honour further noted that the injuries inflicted on the applicant were no less serious than those inflicted on the respondent. [42]
[54] In summary, in applying the totality of the factors under section 24 of the Children’s Law Reform Act, it is clear to me that the children’s best interest are promoted by maintaining the current parenting arrangements. While this status quo is long standing, and by itself is only one factor to be considered, [43] a holistic view of the circumstances of this case makes clear that, beyond being a status quo, the current parenting arrangements are meeting the children’s needs, promoting their best interests, and will, on balance, continue to do so.
Issue #2 – Respondent’s Alcohol Consumption during Parenting Time
Legal Framework
[55] In determining a child’s best interests under section 24 of the Children’s Law Reform Act within the context of a parenting order, the court has broad discretion to consider whether a parent’s abstinence from alcohol and the accompanying use of an alcohol monitoring system are appropriate. [44]
[56] Apart from the best interests test, there are no separately defined legal criteria that a court must consider before exercising its discretion to order alcohol monitoring as an incident of parenting time. However, the court may consider numerous factors to determine whether a party should be ordered to abstain from drinking during their parenting time and use an alcohol monitoring device to confirm their sobriety. The factors that have spoken to the appropriateness of alcohol monitoring include but are not limited to:
a. a party’s previous use of a breathalyzer device; b. a party’s admission to drinking and driving under the influence of alcohol; c. a party’s predisposition to anger when drinking; d. a party’s minimization of his or her regular abuse of alcohol and lack of insight into the impact of his or her drinking on the other parent and/or the children; e. the risk posed by a party’s drinking to the children’s emotional and psychological safety; f. the other party’s consistent expression of concern over a parent’s alcohol consumption, including during prior negotiations and domestic contracts; and g. third party evidence, such as Children’s Aid Society records, detailing the other party’s or child’s concerns about a party’s drinking. [45]
[57] The court has also used alcohol monitoring as a means of fostering parties’ co-parenting relationship by building trust and providing reassurance between parties. In Diamond v Clark, Charbonneau J. adopted Ms. Bourgeois’ recommendation in ordering that the applicant father use an alcohol monitoring device to help build trust and provide reassurance between the parties. [46]
[58] The applicant bears the onus of proving that the respondent should be required to utilize an alcohol-monitoring device during his parenting time. [47] To that end, the respondent argues that the allegations advanced by the applicant come nowhere close to meeting that onus, or otherwise imposing such severe and invasive restrictions on his parenting time—particularly in the context of a final order and after nearly five years of an equal time care schedule.
[59] Further, the respondent asserts that there is no evidence to suggest that he suffers from any kind of alcohol abuse disorder, or that the consumption of alcohol in any way negatively impacts his ability to provide for the needs of the children. With respect to the latter contention, I do not agree, for the following reasons.
[60] In March 2020, the respondent repeatedly consumed beer during his vacation with the children and his extended family in Ormond Beach, Florida, in breach of Johnston J’s orders dated August 17, 2018, and January 24, 2020. [48] Mr. Rick Raymond (“Mr. Raymond”), a private investigator from Daytona Beach, Florida obtained video surveillance footage of the respondent’s alcohol consumption in Florida. [49] Mr. Raymond testified that during his surveillance, he observed the respondent drinking continuously, driving to a grocery store to purchase more beer after an afternoon of consuming multiple beers, and drinking on the beach while the children ran across traffic lanes. [50]
[61] Further, during the trip to Florida, none of the respondent’s accompanying family members made any attempts to stop him from consuming alcohol despite knowing that he was under court order to refrain from drinking during his parenting time. [51]
[62] The parties subsequently consented to the contempt order of Johnston J., dated August 21, 2020, finding the respondent in contempt. Moreover, the parties consented to the appointment of Ms. Bourgeois as parenting assessor, under the same order. [52] As a sanction for breaching the no-drinking provisions of the order, Ms. Bourgeois was specifically instructed to report to the court as part of her assessment on whether she had any concerns with the respondent’s consumption of alcohol and the impact of the respondent’s drinking on his ability to care for the children. [53]
[63] Ms. Bourgeois testified that she received conflicting evidence from the respondent and his family members during her assessment on whether he was drinking during his parenting time and whether he was driving after having consumed alcohol. [54] Ms. Bourgeois also found that the respondent would lie to the children about his drinking and tell them that he was drinking juice from Bud Light cans. [55] Ms. Bourgeois was particularly concerned that the children were monitoring the respondent’s alcohol consumption. [56] She found that Shay and Sloane would monitor the respondent’s drinks, and Shay explained to Ms. Bourgeois that the respondent’s personality would change after drinking – with Shay describing her father as becoming more “hyper”. [57] Ms. Bourgeois found Shay’s description of her father’s drinking to be commensurate with her age and understanding, and testified that children monitoring a parents’ alcohol consumption can create a dysfunctional parent-child relationship. [58]
[64] As a result of her findings, Ms. Bourgeois recommended that the respondent’s parenting time be conditional on his sobriety and for the respondent to use an alcohol monitoring device for one year, with multiple testing times both preceding and during his parenting time. [59] According to Ms. Bourgeois, the one-year duration is necessary to show that the respondent can refrain from alcohol use for a prolonged period of time. [60] Multiple testing times are also necessary to ensure the respondent’s continued sobriety throughout the day, as the respondent’s drinking often occurs late at night during his hobbies (e.g., hockey), and during the day given the nature of his employment as a commercial insurance broker (e.g., client lunches). [61]
[65] Significantly, Ms. Bourgeois testified that an alcohol monitoring device is necessary to build trust between the parties and remove the children from the equation. [62] These devices can be used discretely without the children knowing, and their use protects the respondent from any false allegations by the applicant, while assuring the applicant that self-help measures (e.g., hiring a private investigator) are unnecessary to ensure that the respondent is sober during his parenting time. [63]
[66] Although the respondent and Ms. Goodfellow described the Florida incident in March 2020 and the resulting contempt order as a learning experience, [64] both of them also gave evidence that this was not an isolated incident of drinking in breach of Johnston J’s orders. [65] During the parenting assessment, Ms. Goodfellow told Ms. Bourgeois that the respondent consumed alcohol during his parenting time, including drinking wine at the cottage with the children present. [66] In cross-examination, Ms. Goodfellow acknowledged that her interview with Ms. Bourgeois for the assessment occurred in October 2020 – seven months after the March Break incident and two months after the contempt order. [67] Further, in his cross-examination, the respondent agreed that he continued to consume alcohol around the children, particularly at the cottage. [68]
[67] Of utmost concern to me is the respondent’s admission to drinking and driving on several occasions. [69] Yet, he does not see any problem with doing so because, according to him, he will never drink-and-drive with the children in the car. [70] Although he purportedly maintains a “three-drink rule” for driving after drinking, he agreed under cross-examination that he drove after drinking five to six alcoholic beverages during the parties relationship on multiple occasions; that he showed up to the children’s daycare in March 2018 after having consumed several beers and subsequently drove his friend’s car home; and that he regularly drives from Stittsville to Munster after drinking beer following his late-night hockey league. [71]
[68] The totality of the evidence leads me to conclude that the respondent has little insight into the negative aspects that his alcohol consumption has on the children nor his ability to provide for their needs. Moreover, his abject refusal to abstain from the consumption of alcohol during his parenting time when court ordered to do so is particularly concerning. It is for these reasons that I agree with Ms. Bourgeois’ recommendation that a neutral and proactive enforcement mechanism is necessary to ensure that the respondent abstains from drinking 12 hours before and throughout his parenting time.
Issue #3 – Direct or Indirect Contact with Ms. Foy
[69] To recall, the applicant is not only asking for a final order that the children not have any direct or indirect contact with Ms. Foy during the respondent’s parenting time, but she is also asking that he take steps to limit the amount of information that Ms. Foy obtains with respect to the applicant, Mr. Scott, and the children from the respondent and his extended family members.
Legal Framework
[70] In her submissions, the applicant framed the relief sought as falling within the purview of section 28(1)(b) of the Children’s Law Reform Act only, as being an incident of the respondent’s parenting time. [72] In contrast to this, the terms of the actual order sought notes that the relief is claimed pursuant to both section 28(1)(b) and section 28(1)(c)(ii). [73] While this may seem semantic, it strikes at the core of the court’s jurisdictional concerns and the apparent overreach in terms of what the applicant is asking for. Notably, the specific terms of section 28(1)(c)(ii) are limited to engaging in conduct in the presence of a child or at any time the person is responsible for the care of the child. [74] [emphasis added]
Analysis
[71] The evidence across the testimony of the applicant, Mr. Scott, the respondent, and Ms. Goodfellow identified five incidents of any substance giving rise to this head of relief.
[72] The first was when the respondent and the children accidentally encountered Ms. Foy at a McDonalds. The respondent’s evidence was that this was a brief interaction where the children said hello to their stepsiblings, and he and the children went on their way. [75]
[73] The second was when the respondent and Ms. Goodfellow initiated a FaceTime call with Ms. Foy, at the children’s request, to wish Jaxson a happy birthday. There was no answer to this call, and that was the end of this involvement. [76]
[74] The third was when the respondent, again at the children’s request, extended an invitation to Audrina and Jaxson to attend a birthday party for Sloane and Kinsley. Audrina and Jaxson were unable to attend, and there was no further communication with respect to this incident. Notably, Sloane’s birthday is in May, and Jaxson’s birthday is in early June. By the applicant’s own evidence, her formal requests that the respondent abstain from having the children contact Ms. Foy came in late June 2023. From that point on, there were no further attempts by the respondent to facilitate any contact between the children and Ms. Foy.
[75] The fourth are the allegations made by the applicant, entirely based on hearsay, that the children had been exposed to cell phone messages from Ms. Foy during the respondent’s parenting time. Both the respondent and Ms. Goodfellow denied sending or receiving any such communication to Ms. Foy on that occasion, or any other time. [77]
[76] The last allegation deals with the attendance at Kinsley’s hockey games. The respondent gave evidence that he consistently sits in the same location, which is away from the Gibbons family given the level of historical conflict, and that occasionally Ms. Foy will opt to sit nearby. Consistent with this, the respondent also gave evidence that the other children did not routinely attend these games, as they were engaged in other activities. The respondent’s evidence was that he does not try to engage with Ms. Foy but will be polite and friendly if she sits in the same area. [78]
[77] In her evidence, the applicant spoke of a specific conflict between her and Ms. Foy at a hockey tournament where she was “attacked” by Ms. Foy, as being indicative of the respondent’s overall approach to this issue. The respondent testified that this event occurred across the arena, and there was no meaningful way for him to engage—nor did he have any desire to become engaged in this conflict, for which the children were not present. [79]
[78] The applicant testified that when she subsequently informed the respondent of this incident through counsel, he deemed the incident “unfortunate” and abdicated any responsibility to intervene. [80] In re-examination, when asked what he could have done to address the altercation between the applicant and Ms. Foy, he answered that he would simply “go the other way”. [81] Query, why should he have been expected to do anything else? The very suggestion that the respondent had a duty to intervene in the circumstances perhaps best exemplifies why the order sought is overreaching. Moreover, it is conceded that Mr. Scott has made every attempt to control Ms. Foy’s behaviour without success. Yet, the respondent is criticized for failing to intervene.
[79] Furthermore, the allegations levelled at Ms. Foy by the applicant forming the foundation of the order requested raise an obvious evidentiary issue: Ms. Foy, a non-party to the litigation, was not present to answer the allegations. Thus, the court is restricted in its ability to critically analyze the veracity of the applicant’s evidence on this issue.
[80] For these reasons, the relief sought by the applicant in paragraph 3(b) of her draft order extends well beyond the scope of both sections 28(1)(b) and (c)(ii) in that it seeks to restrain the respondent’s conduct, and the conduct of his family members, both outside of the presence of the children and outside of the respondent’s parenting time. Notably, neither the applicant’s submissions nor book of authority directed the court to any other instance where the court has imposed this type of restriction.
Conclusions
[81] The current equal-time parenting schedule is hereby affirmed as being in the children’s best interests.
[82] The respondent shall refrain from consuming alcohol during his parenting time, and he shall utilize an alcohol monitoring device for a period of one year to ensure that be abstains from drinking during his parenting time.
[83] The relief requested in relation to Ms. Foy is hereby dismissed.
[84] If the parties are unable to resolve the issue of costs, written submission of no more than 10 pages shall be filed, together with a bill of costs and any offers to settle, within 30 days.
The Honourable Mr. Justice B. W. Abrams Released: July 9, 2024
References
[1] Examination in Chief of Jeffrey Byrne, April 20, 2023; Examination in Chief of Debbie Goodfellow, April 21, 2023; Examination in Chief and Cross Examination of Cara Gibbons, April 17-18, 2023. [2] Ibid. [3] Ibid. [4] Ibid. [5] Examination in Chief/Cross of Cara Gibbons April 18, 2023; Examination in Chief/Cross of Brendan Scott April 18, 2023. [6] Examination in Chief of Jeffrey Byrne, April 20, 2023; Examination in Chief of Debbie Goodfellow, April 21, 2023. [7] Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 21(1) and 24(1) [CLRA]; Mathew v. Barazmi, 2021 ONSC 7240 at para 14, Applicant’s Book of Authorities [ABOA] – Tab 19. [8] Children’s Law Reform Act, supra, s. 24(1)(3). [9] Children’s Law Reform Act, supra, s. 24(2) [10] Mathew v. Barazmi, supra, at para 15, ABOA – Tab 19. [11] Children’s Law Reform Act, supra, s. 30(1). [12] A.A. v. D.S., 2022 ONSC 1389, at p. 12-13, ABOA – Tab 4. [13] Baillie v. Middleton, 2012 ONSC 3728, at paras 23, ABOA – Tab 8. [14] Woodhouse v. Woodhouse, at p. 26-27, Respondent’s Book of Authorities [RBOA] – Tab 17. [15] A.C.V.T. v. A.M.T., 2019 ONSC 1559, para 133, ABOA – Tab 6; M. v. F., 2022 ONSC 505, at para 12, ABOA – Tab 17. [16] Decaen v. Decaen, 2013 ONCA 218, at para 42. [17] Children’s Law Reform Act, supra, s. 24(6). [18] Barendregt v. Grebliunas, 2022 SCC 22, at paras 133-135; Theriault v. Ford, 2022 ONSC 3619, at paras 18-20, RBOA – Tab 13; Knapp v. Knapp, 2021 ONCA 305 (Ont. C.A.), at paras 30-34, RBOA – Tab 10. [19] Barendregt v. Grebliunas, 2022 SCC 22, at paras 133-135. [20] Brownson v. Brownson, 2022 ONSC 5882 at para 26, RBOA – Tab 7. [21] Gordon v. Goertz, 1996 CarswellSask 199, at para 44, ABOA – Tab 14; Ackerman, supra, at para 32, ABOA – Tab 5; Malhotra v. Henhoeffer, 2018 ONSC 6472, paras 93-94, ABOA – Tab 18. [22] Cross-Examination of Chantal Bourgeois, April 19, 2023. [23] Ibid. [24] Cross Examination of Chantal Bourgeois, April 19, 2023. [25] Ukiri v Erskine, 2020 ONSC 4294 at para 33. [26] Examination in Chief of Jeffrey Wayne Byrne, April 20, 2023. [27] Cross examination of Cara Gibbons, April 18, 2023. [28] Examination in Chief of Jeffrey Wayne Byrne, April 20, 2023. [29] Agreed Statement of Fact at para 196, Respondent’s Trial Record Tab 3. [30] Ibid at para 189. [31] Knapp v Knapp, 2021 ONCA 305 at para 26. [32] Children’s Law Reform Act, RSO 1990 c C12 s 23(3)(e). [33] Cross-Examination of Chantal Bourgeois, April 19, 2023. [34] Ibid. [35] Ibid. [36] Ibid. [37] Ibid. [38] Ibid. [39] Cross Examination of Brendan Scott. [40] Cross Examination of Cara Gibbons, April 18, 2023. [41] Ibid. [42] Agreed Statement of Facts, at paras 153-154, Respondent’s Trial Record Tab 3. [43] Ackerman v Ackerman, 2014 SKCA 86 at para 32. [44] Children’s Law Reform Act, supra, s. 24. [45] Atkinson v. Tempest, 2020 ONSC 7891, at para 21, ABOA – Tab 7; E.M.B. v. M.F.B., 2021 ONSC 4264, at paras 162 – 165, ABOA – Tab 13; S.C. v. C.C., 2022 ONSC 1763, at para 98, ABOA – Tab 20; Klymenko v. Klymenko, 2020 ONSC 5451, at paras 31-34, 39, ABOA – Tab 15. [46] Diamond, Robert v. Clark, Kimberly, 2020 ONSC 7532, at paras 26, 36, ABOA – Tab 12. [47] Moncur v Plante, 2018 ONSC 4813, at para 55; TT v JDB, 2022 ONSC 3376 at paras 5 & 14-15. [48] Cross Examination of Jeffrey Byrne, April 21, 2023; Applicant’s Trial Record, Tabs 5 – para 2, Tab 6 – para 8. [49] Evidence in Chief of Rick Raymond, April 19, 2018, Exhibits 14, 15. [50] Ibid. [51] Ibid, Cross Examination of Jeffrey Byrne, April 21, 2023; Ms. Goodfellow in her own testimony admitted to being aware that the Respondent was under a Court Order not to drink while he was in Florida, and did absolutely nothing to stop him. [52] Ibid, para 2. [53] Ibid, para 5. [54] Evidence in Chief of Chantal Bourgeois, April 19, 2023; Applicant’s Trial Record, Tab 8 [55] Ibid. [56] Ibid. [57] Ibid. [58] Ibid. [59] Ibid. [60] Ibid. [61] Ibid. [62] Ibid. [63] Ibid. [64] Evidence in Chief of Jeffrey Byrne, April 20, 2023; Cross Examination of Debbie Goodfellow, April 21, 2023. [65] Ibid. [66] Cross Examination of Debbie Goodfellow, April 21, 2023. [67] Ibid. [68] Cross Examination of Jeffrey Byrne, April 21, 2023 [69] Cross Examination of Jeffrey Byrne, April 21, 2023. [70] Ibid. [71] Ibid. [72] Written Closing Submissions – Applicant C. Gibbons at para 80. [73] Ibid, Schedule A at para 3. [74] Children’s Law Reform Act, RSO 1990 c C12, s 28(1)(c)(ii). [75] Ibid. [76] Examination in Chief of Jeffrey Wayne Byrne, April 20, 2023; Examination in Chief of Debbie Goodfellow, April 21, 2023. [77] Ibid. [78] Ibid. [79] Ibid. [80] Cross Examination of Jeffrey Byrne, April 21, 2023 [81] Redirect of Jeffrey Byrne, April 21, 2023.