Ontario Court of Justice
Date: January 7, 2021 Court File No.: Brantford F 511/09
Between:
LISA DALTON Applicant
— AND —
NATHAN SAUCIUKAS Respondent
Before: Justice A.D. Hilliard
Heard on: December 14, 2020 Reasons for Judgment released on: January 7, 2021
Counsel: D. Maslov, counsel for the applicant G. Smits, counsel for the respondent A. Macdonald, counsel for the Office of the Children’s Lawyer, legal representative for the child
Hilliard J.:
Overview
[1] The proceeding before the Court is a motion to change regarding the parties’ one child, Preston who is now 13 years old. The issues on the motion to change commenced by Ms. Dalton involved Mr. Sauciukas’ access with Preston.
[2] With the assistance of their lawyers, the parties were able to resolve all outstanding issues in this motion to change with the exception of one: whether Mr. Sauciukas should be subject to a final order prohibiting him from driving with Preston in his motor vehicle.
[3] A focussed hearing was held before me on this issue, during which both parties were subject to cross-examination by counsel. The hearing was held completely virtually using the Zoom platform.
[4] For the following reasons, I have determined that an order will be made on a final basis that Mr. Sauciukas may only transport Preston in a motor vehicle or other conveyance if his blood alcohol concentration is zero (0) and he is not impaired to any degree by a drug.
Background
[5] The parties separated on a final basis in 2007. The one child of the relationship, Preston, was born on […], 2007.
[6] The Children’s Aid Society of Brant has been involved with the family intermittently since 2009 regarding allegations of Mr. Sauciukas struggling with alcohol misuse, specifically being impaired by alcohol while caring for Preston.
[7] A final order was made by Edward, J. on April 9, 2018 granting Mr. Sauciukas access with Preston on terms, which included that he not consume alcohol during or eight (8) hours prior to access. Ms. Dalton filed a Motion to Change on April 26, 2019 requesting changes regarding Mr. Sauciukas’ access with Preston. One of the reasons Ms. Dalton brought the matter back to court seeking a change in the access provisions was because in July 2018 when dropping off Preston after an access visit, Mr. Sauciukas was allegedly impaired by alcohol.
[8] Ms. Dalton brought an interim motion to vary the terms of the final order of 2018. That motion was argued before Baker, J. on August 20, 2019. The decision released by Baker, J. on August 26, 2019 resulted in the following temporary order:
The Respondent shall have access to the child, as follows: i. On alternate Saturdays from 9:00 a.m. until 5:00 p.m.; ii. On the intervening Friday from 4:30 p.m. until 6:30 p.m.; and iii. At such other times and places as the parties may agree.
All access exchanges shall take place at Dalhousie Place or such other place as the parties may agree in writing. The Respondent shall be exclusively responsible for all costs associated with access exchanges and intake for same.
The Respondent shall not consume alcohol or marijuana or other non-prescription drug for 8 hours prior to or during access.
The Applicant shall send the child for access with his cell phone so he may call the Applicant at any time during access.
The Respondent shall not operate a motor vehicle with the child as a passenger at any time. Should the Respondent do so, access shall be immediately and indefinitely suspended until further Order of the Court or written agreement between the parties.
[9] On February 12, 2020, the parties consented to a final order that included paragraphs 2, 3, and 4 of Baker, J.’s temporary order as set out above. Mr. Sauciukas’ access was expanded to include one overnight visit on alternate weekends. The issue of whether Mr. Sauciukas should be prohibited from driving with Preston in his motor vehicle on a final basis was then scheduled for a focused hearing to be conducted based on affidavit evidence subject to cross-examination.
Analysis
[10] It is a criminal offence to operate a motor vehicle while impaired to any degree by alcohol, a drug, or both. A statutorily aggravating factor on sentencing to be considered by the trial judge is whether a minor person was present in the motor vehicle at the time of the impaired operation.
[11] Although he was not charged criminally, Mr. Sauciukas admitted during his evidence that he drove with Preston in the car while he was under the influence of a controlled substance, specifically Lorazepam. This incident of impaired driving occurred in July 2018. Mr. Sauciukas adamantly denies that he has consumed alcohol prior to driving. Ms. Dalton is equally adamant that she smelled the odour of an alcoholic beverage on Mr. Sauciukas’ breath when he dropped off Preston.
[12] Ms. Dalton’s position is that the only thing preventing Mr. Sauciukas from driving drunk with Preston in the car is the current blanket prohibition made by Baker, J. Her evidence is that despite multiple prohibitions on the consumption of alcohol and drugs before and during access, Mr. Sauciukas continues to drink while caring for Preston. She submits that without a blanket prohibition on driving, it is just a matter of time before Mr. Sauciukas drives drunk with Preston in the car, which could result in devastating consequences.
[13] Ms. Dalton’s evidence also describes conversations she has had with Preston while he is at his father’s residence for access. According to Ms. Dalton, when Preston refers to his father as being “annoying” that is code for, Dad is drunk. Ms. Dalton also states that Preston has told her that he has seen his father empty his beer into the sink when he realizes he is about to be caught drinking, and that there are beer bottles in the fridge at his father’s residence on a regular basis.
[14] Mr. Sauciukas denies consuming alcohol while in a caregiving role in contravention of the court order. His evidence is that he does not have an alcohol problem as alleged by Ms. Dalton. Mr. Sauciukas claims that he only drinks occasionally, and when he does, he drinks in a social setting with friends and his consumption is moderate – two to three drinks. Mr. Sauciukas suggests that it is normal for a 13 year old boy to think his father is being annoying. He denies the allegations that Preston has seen him pouring beer down the drain and that there is regularly beer in the fridge at his home.
[15] I do not accept Mr. Sauciukas’ evidence that he is only a social drinker and consumes moderately and infrequently. He was defensive and argumentative during cross-examination when confronted with inconsistencies between his previous statements regarding what substances he had consumed prior to driving Preston home in July 2018. Initially Mr. Sauciukas claimed he had consumed cannabis, not Lorazepam. He tried to explain this discrepancy during his cross-examination by stating that he did not feel it necessary to disclose his personal medical information, such as his prescription medication.
[16] In assessing Mr. Sauciukas’ evidence, I have also considered the explanation of his blatant breach of the temporary driving prohibition. There is no dispute that in May 2020 Mr. Sauciukas drove Preston during an access visit. Although there is no allegation that Mr. Sauciukas was under the influence of drugs or alcohol on that occasion, it is conceded that there was a valid prohibition on him driving Preston in place at the time. Mr. Sauciukas’ explanation was that he thought Ms. Dalton had agreed that he could drive with Preston in his car. On this evidence alone, I find that Mr. Sauciukas does not take seriously the need for him to comply with court orders. Although there have been provisions in the court orders allowing Ms. Dalton and Mr. Sauciukas to agree on additional access times, there is no such provision allowing them to agree to suspend or terminate the driving prohibition.
[17] I accept the evidence of Ms. Dalton that Preston uses “annoying” as a way to communicate to his mother that Mr. Sauciukas is drinking. Although I have no doubt that many teenage children find their parents annoying, I find that it is more likely than not that Preston, at age 13, recognizes the symptoms of intoxication in his father. It may be that Preston finds Mr. Sauciukas annoying, but I find that the annoying behaviour Preston is relaying to his mother is mostly likely due to intoxication by alcohol.
[18] Driving is a privilege not a right. I accept that Mr. Sauciukas is a fully licenced driver and therefore has been granted driving privileges by the Ministry of Transportation. However, I may curtail Mr. Sauciukas’ privilege to drive with Preston in his motor vehicle, as an incident of access, if there is sufficient evidence to satisfy me that such an order is necessary and appropriate taking into consideration the best interests of Preston.
[19] However, a family court order ought not be punitive in nature. In my view, that is the purview of criminal courts. Were Mr. Sauciukas to be convicted of impaired driving, he would be subject to a 12-month minimum mandatory driving prohibition. But Mr. Sauciukas is not before me for sentencing on a conviction for impaired driving. Any preventative order that I make in the family context must be logically related to the concern raised and not overbroad in its scope.
[20] The concern in this case is the risk to Preston’s safety if Mr. Sauciukas drives while under the influence of drugs or alcohol or both with Preston in the vehicle. It is common place in criminal courts across the country to hear judges comment about the devastation and death caused by impaired drivers. I am satisfied that based upon Mr. Sauciukas’ past actions and current denials of ever having any issues with alcohol or drug misuse that a prohibition is both necessary and justified.
[21] However, the risk exists only if Mr. Sauciukas is driving Preston while under the influence. There is far less risk if Mr. Sauciukas is driving while completely sober, although by no means is driving an activity that is without risk. A blanket prohibition on Mr. Sauciukas driving with Preston in the vehicle, particularly on a final basis, would be overbroad and punitive. The purpose of the restriction is to eliminate risk, not punish past behaviour. By preventing Mr. Sauciukas from driving with Preston even while completely sober, I would be punishing not only Mr. Sauciukas but Preston as well, as such a prohibition would necessarily limit what father and son can do on access visits.
[22] As I was reminded by OCL counsel, I must also consider the extent to which Mr. Sauciukas would be able to demonstrate a material change in circumstances in the future in order to be successful in applying to have the prohibition lifted. An all out ban on driving with Preston does not provide Mr. Sauciukas with any opportunity or incentive to demonstrate sobriety and responsibility.
[23] The balance to be struck is weighing the interests of Preston in being protected from his father’s irresponsible conduct and reckless choices with Preston’s interest in being able to do things with his father during his access periods that require travel in a motor vehicle. Although Ms. Dalton states that Mr. Sauciukas could take public transit with Preston, that option, at present at least, brings its own risks as both Preston and Mr. Sauciukas would be required to be in close contact with persons unknown to them in the middle of a global pandemic.
Conclusion
[24] I am satisfied that an order should be made on a final basis restricting Mr. Sauciukas’ driving privileges while his son is in the motor vehicle.
[25] Therefore, a final order shall issue as follows:
- The Respondent, Nathan Sauciukas, shall only transport Preston in a motor vehicle or any other conveyance if his blood alcohol concentration is zero (0) and he is not under the influence of alcohol, drugs, or both.
Released: January 7, 2021 Signed: Justice A.D. Hilliard