Court File and Parties

Date: November 9, 2020

Court File No.: D11965/17

Ontario Court of Justice

Between:

G.T.C.

RIDDHI AGARWAL, for the APPLICANT

APPLICANT

- and -

S.M.G.

FERNANDO PIETRAMALA, for the RESPONDENT

RESPONDENT

Heard: October 29 and November 4, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This was the trial of amended motions to change brought by both parties to change the court's order dated July 19, 2018 (the final order).

[2] The final order includes the following terms: that the parties have joint custody of their 3-year-old daughter (the child); that the child have her primary residence with the applicant (the mother); and that the respondent (the father) have parenting time with the child every Saturday for four hours and on alternate Sundays for four hours. It also provides that the father shall pay the mother child support of $261 each month, starting on August 1, 2018, based on an annual income of $31,256.

[3] The father seeks overnight and holiday parenting time with the child and incidents of custody and access.

[4] The mother seeks orders that she have sole custody of the child and that the father have supervised parenting time with the child after first going to anger management and alcohol rehabilitation programs. She proposes gradual increases in the father's parenting time if pre-conditions are met. She also seeks further incidents of custody and access. [1]

[5] The parties agreed to a focused hearing of the motions to change. Direct evidence was provided by affidavit and time limits were agreed to for cross-examinations. The parties testified, as did the father's partner (M.F.) and two community supports for the mother.

[6] The issues for the court to determine are:

a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child regarding the parenting terms contained in the final order?

b) If so, what parenting orders are now in the child's best interests, both with respect to decision-making and the father's parenting time?

Part Two – Background Facts

[7] The mother is 40 years old. The father is 39 years old.

[8] The parties were married on July 2, 2016 and separated on August 31, 2016.

[9] The parties had the one child together. The child has always lived with the mother.

[10] The mother has two other children (ages 11 and 14) who live with her and the child.

[11] The father lives with M.F. and her two children. They have a two-year old child together.

[12] The mother brought an application for custody and child support in December 2017.

[13] The parties consented to the final order on July 19, 2018.

Part Three – Review of Events Since the Final Order

[14] The father issued his motion to change on October 31, 2019.

[15] The evidence informs the court that the joint custody order worked reasonably well until October 2019. The parties filed communications which were generally positive. The mother agreed to the father having some overnight visits starting in July 2019 and asked him to look after the child when she had the opportunity to go on a trip.

[16] The communication between the parties began to deteriorate in October 2019. The father claims that the mother became jealous when she learned that he had moved into a new home with M.F. There was no credible evidence to support this claim.

[17] What the texts filed revealed was that the father started to unilaterally overhold the child on visits. The child would be with him and he would pronounce that he was keeping the child overnight.

[18] The father conceded in cross-examination that "yes, I did keep her longer, but only in those few months". He conceded that he was overholding the child unilaterally. [2]

[19] The father also became increasingly agitated if the mother would cancel a visit because the child was ill. He felt that he could and should care for the child when she was sick.

[20] The mother started to claim that the child was returning from visits with bumps and bruises and not being properly supervised by the father. She alleged that the father failed to properly look after the child when the child was sick and was not properly attending to the child's hygiene. She alleged that the father and M.F. were inebriated at one exchange and alleged that the father accosted her in October 2019 at the church (the exchange point) yelling at her and causing a scene.

[21] The mother reported these matters to the Children's Aid Society of Toronto in October 2019. She says that it kept an open file until December 2019.

[22] The father denied each of these allegations.

[23] Tension between the parties was rising.

[24] The mother filed her response to motion to change on November 20, 2019, seeking supervised access for the father.

[25] In December 2019, the police were called to the mother's home by the mother. The mother had cancelled a visit because the child was sick. She said that the father was furious and came to her door screaming and banging at the door. He wouldn't leave until she called the police. The father said that he had waited for the child in the mother's lobby for 2 hours and then went up to knock on her door. He denied being aggressive.

[26] The father amended his motion to change on January 6, 2020, seeking specified holiday time.

[27] On February 21, 2020, the parties agreed to hold a focused trial of the motions to change on April 29, 2020. That hearing date was postponed because of the pandemic.

[28] The mother became concerned in February 2020 that the father had been driving the child while his licence was suspended. Her counsel wrote to the father about this on February 28, 2020.

[29] The father testified that he only drove when he needed to – even though his licence was suspended. M.F. said that the father was driving the car to work during the second half of 2018 while she was at home with their baby. She said that she knew he was driving with a suspended licence. [3] Both the father and M.F. testified that M.F. usually drove the car on parenting exchanges.

[30] On March 7, 2020, the father testified that he had an argument with M.F. [4] He didn't want to miss his visit, so he drove a friend's car to pick up the child – not M.F.'s car with the car seats. After the father picked up the child, the mother followed them to the parking lot because of her suspicions that he was driving the child with a suspended licence. She approached his car and saw him in the driver's seat, and the child in the back seat, without a car seat and unbuckled. The parties argued. The mother said that she tried to pull the child out of the car and the father physically stopped her, saying she couldn't stop him from driving. The mother said the father drove into a parking spot and she stood behind him so he couldn't drive out. She called the police and the father left with the child, leaving the car behind. She said that the father returned with the child in the afternoon smelling of alcohol.

[31] When asked at trial if he would have driven off with the child if not for the mother blocking his car, the father said no. He said that he had put the child in the back seat and called M.F. to come and get him out of the charged situation.

[32] The court finds that the father's version of events is unlikely. He admitted in his trial affidavit that he would sometimes drive the child with a suspended licence. The father wrote at paragraphs 86 and 87 of his September 29, 2018, affidavit:

It is true that my driver's licence was suspended, but that is why the vast majority of times when I would pick up the child, M.F. was driving the car.

Only on very, very rare occasions did I drive alone to pick up the child, and this is when it could not be avoided and my relationship with the child overshadowed and took priority over all concerns.

[33] M.F. also testified that the father picked up the child using her car by himself two or three times. She then said she knew for sure of one or two times.

[34] The father acknowledged that he did not have a car seat on that day because he had driven his friend's car instead. Interestingly, M.F. testified that he had taken her car to pick up the child.

[35] The court finds that if the mother had not intervened, the father would have driven the child on March 7, 2020.

[36] The father acknowledged that he made poor decisions on March 7, 2020.

[37] The matter was referred to the Children's Aid Society of Toronto. [5]

[38] The conflict between the parties exploded the following day. The father was scheduled to pick up the child from church at 2 p.m. The mother texted him shortly before the visit (while the father was in the church parking lot) cancelling the visit because of the events of the previous day.

[39] The father was upset. He came into the church and waited at the back of the service. He gestured to get the mother's attention. The mother perceived his actions as being very aggressive. She was worried he might take the child, who was in the church basement. She rushed past the father and went downstairs to the child. The father followed and the parties started arguing.

[40] The mother claims that the father tried to wrench the child from her arms. They struggled and the father pushed her and held her against a concrete pillar. She said she tried to get away and the father pulled her arm back. The child was screaming and crying. Other church members intervened, but the father could not control himself. The police were called, and the father was ultimately charged with assault.

[41] The father claims that the mother provoked him by cancelling the visit. He said he just wanted to speak to her and respectfully waited in the back of the church. She then dramatically rushed past him, instead of just speaking to him. He followed and they argued loudly. He denies physically touching the mother or trying to take the child out of her arms and says that the mother is lying. He acknowledged that the child was screaming and crying the whole time. He denied being out of control and said he was respectful to the church members who intervened. He also testified, "I was frustrated, I have the right to be upset".

[42] The mother called two witnesses regarding this incident. They substantially supported the mother's version of events. They witnessed the father trying to pull the child from the mother's arms and the child crying. One of the witnesses saw the father holding the mother against the pillar so she couldn't get away. The other witness was the church's pastor. He testified that the service was being disrupted from the yelling from the basement. He went downstairs to see what was going on. He saw the mother try to get away from the father and the father grabbed her arm. He described the father as being loud, aggressive and very disrespectful, asking him "what kind of pastor are you"? He said that the father refused to leave the church without the child and had to be escorted out by the police. The court finds that both witnesses are credible.

[43] The father's criminal release terms for the assault charge arising from the events at the church prevent him from having any direct or indirect contact with the mother except through counsel to arrange visitation or through a family court order.

[44] The father's criminal trial has not taken place.

[45] The criminal court will determine if the father is guilty of assaulting the mother beyond any reasonable doubt. It is not necessary for the court to determine that issue for the purpose of this matter.

[46] The court did not find the father's evidence about this incident to be credible or reliable. He was either lying about the incident or was so agitated that he had a skewed perspective about what occurred – likely both. His evidence was contradicted by two witnesses. While the mother's friend was an aligned witness, the church pastor was not.

[47] The court makes the following material findings of fact about this incident:

a) The mother cancelled the visit with very little notice to the father.

b) The father was enraged about the cancellation – his agitation increased by the events of the previous day.

c) The father went into the church to confront the mother. Usually, he waited in the parking lot on the exchanges.

d) The father precipitated this disturbing and chaotic incident, following the mother downstairs and yelling at her to the extent that he disrupted the church service.

e) The father could not control his behaviour, even though he could see that the child was very upset - crying and screaming. He tried to pull the child from the mother's arms, creating a risk of injury to the child.

f) The father could not control his behaviour even when church members tried to intervene.

g) The father was disrespectful and verbally abusive to the mother and other church members who tried to intervene.

h) The mother and the child were very frightened by this incident.

i) In short, the father's conduct was abysmal.

[48] The mother amended her response to motion to change on March 11, 2020. She described the incidents that took place on March 7 and 8 and alleged that the child is afraid of the father because he hits her.

[49] The father has not seen the child since the church incident on March 8, 2020. He said that the mother insisted on supervised access. He proposed M.F. as a supervisor and the mother would not agree.

[50] Neither party brought an urgent motion to change or enforce the final order. The mother should have done this instead of unilaterally denying all contact. Based on this evidence, the court would have changed the order on a temporary basis to address the risk concerns that had developed.

[51] The matter next returned to court on July 31, 2020. A new hearing date was set for September 22, 2020, with filing timelines.

[52] The father sought an adjournment of the trial as he obtained new counsel. This request was granted over the objection of the mother.

[53] The trial proceeded on October 29, 2020.

Part Four – Legal Considerations

4.1 – Material Change in Circumstances

[54] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a custody or access order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child

[55] The Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 S.C.R. 27 sets out a two-stage process for the court to conduct in motions to change custody or access as follows:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[56] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

[57] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.

[58] A party's extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis. See: Chin Pang v. Chin Pang, 2013 ONSC 2564; Roloson v. Clyde, 2017 ONSC 3642.

[59] Worsening conflict can constitute a material change in circumstances affecting the best interests of the child. See: Wreggitt v. Belanger; Hackett v. Sever, 2017 ONCJ 193, per Justice Robert Spence.

4.2 – Decision Making

[60] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[61] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148, (Ont. SCJ). The court must also consider subsection 24 (3) of the Act that deals with past conduct relevant to parenting and subsection 24 (4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.

[62] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

b) There must be evidence of historical communication between the parents and appropriate communication between them.

c) It can't be ordered in the hope that it will improve their communication.

d) Just because both parents are fit does not mean that joint custody should be ordered.

e) The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

f) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

g) The younger the child, the more important communication is.

[63] Families that require constant intervention by Children's Aid Societies and the police due to high conflict are poor candidates for joint custody or parallel parenting orders. See: S.A. v. Y.M., 2020 ONCJ 147.

[64] Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.

[65] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

4.3 – Parenting Time

[66] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.

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

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

[69] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.

Part Five – Material Change of Circumstances

[70] The parties both submitted that there have been material changes in circumstances affecting the best interests of the child since the final order was made that warrant changing the final order.

[71] The court agrees. The most important material changes in circumstances have been:

a) The parties agreed to increase the father's parenting time to overnights, starting in the summer of 2019.

b) The father began to unilaterally overhold the child in the fall of 2019.

c) The communication between the parties significantly deteriorated starting in the fall of 2019. There was frequent police and Children's Aid involvement due to parental conflict from October 2019 until March 2020.

d) The child was exposed to the increasing adult conflict.

e) The father was driving the child in a vehicle with a suspended driver's licence.

f) On March 7, 2020, the father attempted to drive the child in his car, without a car seat, while his licence was suspended, placing the child at risk of harm.

g) The father was charged with assaulting the mother on March 8, 2020. The incident took place in the presence of the child. A term of his release while the criminal charge is pending is that he cannot have direct or indirect contact with the mother, except through counsel to arrange visitation, or through a Family Court Order.

h) The father has had no contact with the child since March 8, 2020.

[72] Having found that there have been material changes in circumstances affecting or likely to affect the best interests of the child, the next step is to determine what parenting orders are in the child's best interests.

Part Six – Decision-Making

[73] The court must decide what decision-making orders are in the child's best interests.

[74] The father submitted in closing submissions that the joint custody order should be maintained. He points to the positive communication between the parties up until September 2019.

[75] The father feels that the mother has acted arbitrarily, without any basis. He submits that she cancels his visits when she chooses to and makes baseless allegations against him, all in an effort to marginalize him as a parent and justify the elimination of the joint custody order.

[76] The mother said that she tried to co-parent with the father, but it has not worked. She described him as being aggressive and overbearing. She said that he "goes from zero to 100" when he doesn't get his own way. She said that there is a long history of domestic violence by the father against her and that she has always tried to appease him. However, when he started putting the child at risk, by driving the child without a licence and a car seat, she felt that she needed to take a stand for the child.

[77] The mother said that she is afraid of the father. She does not trust him with the child.

[78] The court observed that the father would quickly become defensive and agitated when questioned at trial. He is much bigger and more forceful than the mother, who is small and soft-spoken. It was apparent why she would find the father to be intimidating.

[79] The court finds that a joint custody order is no longer in the child's best interests for the following reasons:

a) Communication has broken down between the parties.

b) The communication has become so bad that there has been frequent police and Children's Aid Society involvement. As stated above, this is a strong indicator that the parties are poor candidates for a joint custody order.

c) The parties do not trust or respect each other. These are basic elements required for a joint custody order to work.

d) The father has been charged with assault and restrictions have been placed on his ability to communicate with the mother.

e) The father has acted in a coercive and controlling manner by overholding the child on several occasions.

f) The father has shown very poor judgment by:

i) Driving under the influence of alcohol.

ii) Being convicted of driving while his licence was suspended.

iii) Continuing to drive with a suspended licence even after this conviction.

iv) Driving the child in a vehicle with a suspended licence.

v) Losing control at the church on March 8, 2020, requiring police intervention. He couldn't even control himself when the child kept screaming and crying.

g) The father demonstrated little insight into his poor judgment, preferring to blame the mother. He took little responsibility for his role in not seeing the child. He even blamed the mother for the tension in his relationship with M.F.

h) The father shows a casual disrespect for the law as evidenced by his driving convictions and overholding of the child.

[80] This is not a case where a joint custody order is required to protect the father from a power imbalance. The court's concern is more about a power imbalance in the father's favour and the mother's history of accommodating this.

[81] This is also not a case where a joint custody order is required because the mother has been the primary source of the conflict. The mother is not without fault, but the court finds that the father has been the primary source of the conflict.

[82] The court finds that it is in the child's best interests to grant the mother custody of the child for the following reasons:

a) She has always been the child's primary caregiver.

b) She has responsibly attended to the child's physical and emotional needs.

c) She has made responsible decisions about the child.

d) The child has thrived in her care.

[83] The mother worked very hard to facilitate the father's relationship with the child. He presented to the court as being a difficult person to deal with. She agreed to a joint custody order. It probably wasn't the best idea. She agreed to extend his parenting time to overnights in the summer of 2019.

[84] The mother had every right to be concerned about the father's escalating conduct in March 2020. However, she should have brought the matter back to court for the court's permission to change the final order. She shouldn't have unilaterally stopped the father's parenting time.

[85] The court's order will provide the father the rights to information about the child as set out in subsection 20 (5) of the Act. This subsection reads as follows:

Access

20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

Part Seven – The Father's Parenting Time

7.1 Positions of the Parties

[86] The mother seeks an order that the father must first complete an anger management program and an alcohol addiction therapy program before he can exercise weekly supervised access at Access for Parents and Children in Ontario (APCO). After two months, the length of the visits would be extended and be unsupervised – daytime only. Starting in June 2021, the visits would take place on alternate weekends. All exchanges would, once parenting time becomes unsupervised, take place at a police station.

[87] The father seeks parenting time with the child on alternate weekends, together with a detailed holiday schedule.

[88] The parties both included an array of parenting terms that the court considered.

7.2 – Analysis

[89] The evidence indicates that the father and child were enjoying their relationship together until the fall of 2019. The father's parenting time had expanded. The child also had a good relationship with M.F.'s children and enjoyed her time with her half-sister.

[90] The court also heard that the father is capable of being charming and pleasant. The mother described him this way when she first met him. The pastor testified that the father was a member of the church and struck him as a nice, caring man when he first met him. The father received an award from the church and sang in its choir. The exchanges at the church had previously gone well. M.F. described him as a very good father.

[91] Many of the mother's concerns about how the father was managing the child in 2019 came from statements made to her by the child. The child was only two years old at the time and the court cannot place any real weight on those statements.

[92] The child had some bumps and bruises while with the father, but there was no evidence that she had any more than children that age get when they play. The mother never took the child for medical treatment for these bumps and bruises. Similarly, the evidence that the father neglected the child's hygiene was very thin.

[93] The court notes that the mother's allegations about the child's fear of the father escalated during her cross-examination – ending with statements that the child was terrified of the father. This language was not included in her trial affidavit. The court treated this evidence with caution. It was apparent that the mother is anxious about the father's resumption of parenting time with the child. The child, if she is expressing fear of the father, may be responding to the mother's anxiety.

[94] The police reports filed were also informative. The mother told the police on March 7, 2020, that she had no concerns about the safety of the child in the father's care. She was only concerned about his driving with the child. She also did not report to the police any threats or assaults by the father, when asked.

[95] The father asked to re-set this matter to where he was in September 2019. However, the court cannot ignore what has taken place since then.

[96] The evidence gives the court significant parenting concerns about the father. It has concerns about his anger, impulse control, controlling and coercive behaviour, his judgment and his honesty. Several examples of these concerns have already been set out above. The court is concerned that the father was reckless in driving the child while his licence was suspended and attempting to drive her without a car seat. It is very concerned about how he exposed the child to intense adult conflict, even when he saw her screaming and crying at the church on March 8, 2020 – it was the second physical struggle over the child in two days.

[97] The court also has some concern about alcohol misuse by the father and how that might fuel his anger and affect his judgment. Most of this evidence came from the mother, although the court notes that the father was convicted in 2018 of driving under the influence.

[98] The court will not order the pre-conditions sought by the mother for the father to commence his parenting time. The child has gone far too long without seeing him and it is in her best interests that parenting time start as soon as possible.

[99] The evidence does not support the mother's claim for full supervision of the child's parenting time with the father. The court notes that the father and M.F. are parenting three other children without any need for supervision. The parenting concerns about the father can be addressed with conditions.

[100] The court finds that it is in the child's best interests to have the parenting exchanges supervised by a professional access supervisor to ensure safe and conflict-free transitions. This will also act as a safeguard against any unilateral overholding of the child by the father.

[101] Ordinarily, the court would have ordered that the parenting exchanges take place at APCO, since the cost is very low. However, APCO is closed indefinitely due to the pandemic. The parties will need to use a private supervised access organization, such as Brayden Supervision Services, Side-by-Side or Renew Supervision Services. The father will choose this service and pay for it. The parents are to communicate only with the professional access supervisor and not directly with one another about parenting times and arrangements.

[102] The court is aware that this will be costly for the father, who has limited financial resources. However, the court is not confident that the child's or the mother's physical and emotional safety can otherwise be ensured.

[103] The court is not prepared to permit M.F. to supervise parenting exchanges. She has been aware that the father has been driving with a suspended licence. The court is not confident that she has any real control over the father's conduct.

[104] The court will not order that exchanges take place at a police station, as requested by the mother. The court's recent comments in M.S. v. D.M.F.A., 2020 ONCJ 497, equally apply to this case. The court wrote at paragraph 94:

The court will not order exchanges at a police station. It sends the wrong message to children. It can undermine the child's sense of safety and stability – that the police need to be involved and they may be in some danger. Here, the child already has to emotionally manage the mother's anxiety about the father's parenting time. Exchanges at a police station will only reinforce the mother's perspective that the visits with her father are not safe.

[105] The court will order graduated parenting time to the father. It is very possible that the child will be anxious about seeing the father again and will need a period of adjustment.

[106] The court will not order overnight or extended holiday parenting time, as requested by the father. An order on a motion to change should be responsive to the material changes in circumstances that have taken place since the original order. Where most of those material changes are due to the poor behaviour of one parent, it is not in the child's best interests to increase that parent's parenting time. The father cannot act badly and then say, "since my bad conduct has created a material change in circumstances, I should now have my parenting time increased".

[107] The father will start with 4 hours of parenting time each week. This will increase to 6 hours after 12 visits and then 8 hours after another 12 visits. This will be subject to the availability of the access supervisor. The father's parenting time will take place on Saturdays.

[108] The father will need to show that he can exercise his parenting time in a consistent and responsible manner before the court will contemplate ordering overnight parenting time. This means that he should not expose the child to adult conflict and should treat the mother with respect, stay out of legal trouble and comply with the conditions of this order.

[109] The father could also prove himself to the court by engaging in meaningful personal counseling. Such counseling should address his issues with anger, impulse control and alcohol use. Hopefully, such counseling would give him the necessary insight to reflect on what has happened and to take steps to ensure that he does not repeat his mistakes.

[110] A realistic time frame for the father to prove himself to the court is 12 to 15 months.

[111] The court will order the following conditions to ensure that the father's parenting time is safe for the child:

a) The father shall not drive a vehicle with the child in it. [6]

b) The father shall ensure that he and M.F. do not consume alcohol while the child is in their care.

[112] The court will be terminating the provisions in the final order permitting the father to travel with the child, as he will be limited to day parenting time.

[113] The court will also order terms regarding the confirmation of visits and the cancellation of visits, so that they occur in a predictable and orderly manner.

Part Eight – Conclusion

[114] An order shall go changing the final order as follows:

a. Paragraphs 1, 4, 5-10, 12, and 13 are terminated.

b. Paragraphs 2, 3, 11 and 14-22 shall remain in force.

c. The mother shall have final custody of the child.

d. The father shall have rights to information about the child as set out in subsection 20 (5) of the Act.

e. Parenting exchanges shall be conducted by a professional access supervisor. Any of APCO, Brayden Supervision Services, Side-by-Side or Renew Supervision Services are acceptable.

f. The father shall choose the professional access supervisor.

g. The parties shall complete the intake process of the professional access supervisor as soon as the father makes his choice.

h. The parties are to comply with any rules set out by the professional access supervisor.

i. The father shall pay the fees of the professional access supervisor.

j. Once the professional access supervisor is available to start, the father shall have parenting time every Saturday from noon to 4 p.m. There will be no visit on December 25, 2020.

k. After 12 visits, the hours shall be increased to 10:00 a.m. to 4 p.m.

l. After a further 12 visits, the hours shall be increased to 10:00 a.m. to 6 p.m.

m. All times set out above are subject to the availability of the professional access supervisor.

n. All communication shall be between the parties and the professional access supervisor, not directly between the parties.

o. The father shall not drive a vehicle with the child in it.

p. The father shall ensure that he and M.F. do not consume alcohol while caring for the child.

q. The professional access supervisor is requested to ensure that the parties have no contact with one another on the exchanges.

r. If APCO opens for parenting exchanges, and the father requests it, APCO shall supervise the exchanges as soon as it can be arranged by the parties.

s. The father shall not remove the child from the City of Toronto, without the prior written consent of the mother, or court order.

t. If the mother needs to cancel a visit because the child is ill, there is a special event, or she is on vacation, she is to provide the father with reasonable notice and the visit is to be made up at the earliest opportunity.

u. The father must confirm the weekly visit with the private access supervisor by the Thursday before the Saturday visit. Otherwise, it will not take place.

v. If the father cancels or does not arrange his weekly visit, it will not be made up.

w. The mother may travel outside of Canada with the child, for vacation purposes, not to exceed 14 days without the father's consent. For longer trips, she must first get the father's consent or a court order. She shall provide the father with one week's notice for any trip and provide the father with written details of the trip and contact information.

x. The father's support arrears are fixed at $3,985.18. They shall be paid on the terms and conditions set out in the court's order made on October 29, 2020.

[115] Counsel for the mother should take out this order and the order made on October 29, 2020.

[116] If either party seeks costs, they shall serve and file their written costs submissions by November 23, 2020. The father will then have until December 9, 2020 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

[117] The costs submissions should be delivered or emailed to the trial coordinator's office on the second floor of the courthouse.

[118] The court thanks counsel for their professional presentation of this matter.

Released: November 9, 2020

Justice S.B. Sherr

Footnotes

[1] The mother also sought increased child support in her response to motion to change. At the start of the trial, the parties agreed that ongoing support would remain unchanged. The parties asked the court to make an order, based on their oral submissions, regarding the payment of support arrears that had accumulated pursuant to the final order. The parties agreed that the arrears were $3,985.18. The court delivered oral reasons and ordered the father to pay the outstanding arrears at the rate of $200 each month, starting on November 1, 2020, with the provision that if he was more than 30 days late in making any ongoing or arrears payment, then the remaining arrears then owing, would become immediately due and payable.

[2] This is despite him deposing in his trial affidavit that all increases in access were mutually agreed upon and denying ever having had extended access without the mother's consent.

[3] The father's driver's licence has been suspended three times – for driving under the influence in 2018, and for driving while suspended and for unpaid fines in 2019.

[4] The father and M.F. blamed the mother's behaviour for causing friction in their relationship.

[5] Neither party provided evidence from the Children's Aid Society of Toronto.

[6] This condition applies whether or not the father's driver's licence is suspended.