ONTARIO COURT OF JUSTICE

DATE: 2021·10·22 COURT FILE No.: Halton 322/19

BETWEEN:

KEVIN ANTHONY THOMAS Applicant

— AND —

PAMELA ROSE HARRIS Respondent

Before: Justice John Kukurin Heard on: Oct 15, 2021 Reasons for Judgment released on: Oct 22, 2021

Counsel: Peter Tensuda, for the applicant Anushika Anthony, for the respondent

KUKURIN J.

[1] These are Reasons for my decision on a motion of the Respondent mother, Pamela Rose Harris (Pamela) to vary the interim parenting time order dated Sept 29, 2020 made by Justice S. Sullivan, apparently on consent of the parties. The other party in this case is the Applicant father, Kevin Anthony Thomas (Kevin).

[2] The contest in this motion is over their child Isabelle, now age 2. Isabelle resides with her father in Milton. Her mother resides in Sudbury, a four hour drive distant.

The Order(s) Sought to be Varied

[3] The order of Justice Sullivan (the Sullivan order) was endorsed but was never incorporated into an actual formal order of the court. Fortunately, Justice Sullivan has good penmanship and her endorsement is very legible.

[4] What the Sullivan order provides is for maternal access to Isabelle. In addition to virtual access which the mother had enjoyed before the order was made, the mother was granted in person “access” [although it is now referred to as parenting time (PT)] subject to a number of terms and conditions:

• supervised by Maxwell Beech, the child’s godfather
• presence at access limited to the mother/child/ Mr. Beech/ the maternal grandmother, and “no other persons”
• visit durations were six hours from 10 am to 4 pm
• frequency was on one Saturday and the following Sunday roughly once per month for the months of Oct, Nov and Dec 2020.
• the mother was to advise Mr. Beech ASAP if she was unable to attend

[5] The Sullivan order contained other provisions that did not relate to access, However, on Jan 7, 2021, Justice Sullivan ordered that, pending adjournment (to April 29, 2021) the mother, Pamela, was to have regular in-person access with the child. She also ordered, on a without prejudice basis, that either Mr. Beech or the father, Kevin could supervise such access visits. This order was also never formalized into an issued court order. I call this the “follow-up order”.

[6] This creates a bit of a dilemma in knowing exactly what was ordered. I will assume that the order sought to be varied was a combination of both orders. Moreover, I interpret the reference to “regular in-person access” in the follow-up order to mean once per month day access on the Saturday and Sunday of a weekend from 10 am to 4 pm. The supervision of the mother’s access, in the follow-up order was by either Mr. Beech or by the father, although this was ordered on a “without prejudice” basis, and only pending the adjournment to April 29, 2021.

[7] The mother asks for her parenting time to be every weekend from Friday at noon to Monday at 3 pm in Sudbury, presumably unsupervised. Alternatively, the mother’s variation request is to have access in Sudbury, at the home of her mother, Cheryl Harris, supervised by either Cheryl, or by the mother’s 20 year old adult daughter Tiana (half sister of Isabelle) who resides in Levack, some 30 minutes from Cheryl. The mother, Pamela, does not say how long her own actual parenting time would be but conceivably, she could sleep over at her mother’s home during the entire time that Isabella was there. The mother proposes that exchanges take place in Parry Sound, an approximate half way point between Milton and Sudbury.

[8] The father opposes such claim. He suggests that the mother can exercise access to Isabelle in Milton at Thrive, a Family Visiting Centre that offers supervised access “generally two hours in length” and is a Supervised Access Facility. He wants her to come to Milton for any exercise of her access.

[9] The mother opposes this and cites her extra expense in food, travel and accommodations that she simply cannot afford. She is an OW social assistance recipient and has no vehicle of her own. The father’s proposed access would be a huge reduction in time with Isabella from what she was getting even under the Sullivan order.

The New Children’s Law Reform Act

[10] Section 29 of the Children’s Law Reform Act (the CLRA) provides:

S.29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[11] There have been a number of changes in circumstances since September 2020, some of which have clearly been material. Such changes are a pre-condition for a variation, even a variation of an interim order by another interim order. More significantly, the only changes that count are those that “that affects or is likely to affect the best interests of the child.”

[12] Counsel often forget this aspect of the pre-requisite condition and fail to address it by evidence or by argument. This failing is not lost on the court. Access, or parenting time, is not the right of the mother or of the father but is the right of the child, regardless of how parenting time orders are phrased. Countless courts and judges have repeated this truism. Few counsel seem to argue that the child’s best interest are impacted by whatever change in circumstances are relied upon, and fewer yet bother to canvas the factors listed in s. 24(3) of the CLRA or to argue how the evidence ties into the court’s mandatory best interests considerations.

[13] Of note is the injunction to the courts in s.24(1)

S.24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

[14] This prohibits the court from taking into account adult issues between the parties that have little or nothing to do with the best interests of the child.

[15] Also noteworthy is s. 24(2) which provides

S.24(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

[16] The CLRA underwent significant changes effective March 1, 2021. Firstly, I agree that material changes in circumstances of the kind described in s.29 have taken place. These include:

(a) a parent’s move at least 4 hours distant from where she resided before has literally put some geographical distance between mother and child (b) the resolution of the mother’s criminal charges which placed a stress on her and consequently on her ability to interact with the child. (c) the refusal of Mr. Beech, and now the father Kevin to supervise the mother’s access to Isabella has resulted in no access taking place since July 2021 and the resultant lack of contact between mother and child. (d) the father’s refusal to transport the child half way for access exchanges has contributed to no access time for Isabella (e) Although not in the evidence, it appears that the father has enrolled Isabella in day care in Milton thereby reducing the time available for Isabella to spend with her mother.

[17] With respect to Isabella’s “physical, emotional and psychological safety, security and wellbeing”, I heard not one word, and read little more in the evidence filed

Analysis and Discussion

[18] The statutory pre-condition for variation is met. On a practical basis, the decision by Mr. Beech and by the father to stop supervising the mother’s access necessarily requires some changes to the Sullivan order and to the follow up order. The choices are supervised access at the Thrive Family Center or access in Sudbury, either unsupervised or supervised by the maternal grandmother and the adult half sister of the child.

[19] I start with the premise that Isabelle should have parenting time with both of her parents. I do not propose to vary Isabelle’s primary residence with her father. I am only concerned with a decision on what maternal parenting time is in Isabelle’s best interests in the current circumstances. Those circumstances include the practical consideration of the length to date of this proceeding and the prospect of when it will be resolved. I reckon that it won’t be for a while yet. Accordingly, a varied interim access is a needed measure to govern the parties and the child pending a final resolution.

[20] Access proposed by the father is both ungenerous and impractical. The mother cannot afford to travel to Milton to exercise two hours of access per access visit. This is not conducive to fostering the mother-child bond, and barely maintains it, particularly as it is proposed by the father to take place in an institutional setting and not in a home where a child may be more comfortable visiting with a parent. This type of parenting time does not take into account the feeding, bathing, discipline, learning, affection and bedtime practices that a child would normally experience with a parent. The father may be concerned with the mother’s drinking problem and emotional issues but those were more in the context of their adult relationship, although I do not wholly discount evidence that the mother was under the influence for some assess visits.

[21] Access in Sudbury has inherent problems as well. First is the concern with respect to the mother’s abuse of alcohol and how this will affect her access visits with Isabelle. Second is an adequate access supervisor. Third is transportation.

[22] Interim orders are intended to remain the status quo until a final hearing or other resolution. I cannot condone a parenting time regime that reduces the mother’s parenting time from two six hour visits on two successive days once per month to two two-hour visits on two successive days once per month at a supervised access centre. On the other hand, I find that a jump to Friday at noon until Monday at 3 each week is excessive for a two year old child who would have to travel a minimum of four hours each way for each visit.

[23] I must be concerned with Isabelle’s physical, emotional and psychological safety, security and well being as foremost and overarching issues. The order I make is not perfect but it does take these into account.

[24] Firstly, a home milieu for access visits is generally more desirable than an institutional setting. I do not accept the mother’s residence with her stepfather as an appropriate one for access to take place. I am told very little about it, but it would basically leave the mother and the child unsupervised. The maternal grandmother, on the other hand, has offered her home which is not where the mother resides. However, it is the grandparental home and the grandmother lives there as her primary residence. Moreover, the home is alcohol free and the grandmother does not drink. From the child’s point of view, the grandmother’s home seems to me to be a superior choice of venue for access visits.

[25] Secondly, I am not prepared to jump from fully supervised to totally unsupervised maternal access visits. There is evidence, that is admittedly contradictory, about the mother’s consumption of alcohol even into 2021. The affidavits have not been tested by cross examination leaving the court in the quandary of an evidentiary impasse. However, there is sufficient evidence that the mother did have a significant alcohol abuse problem and may still suffer from it. There is evidence that she was placed on probation with a condition to attend assessment and/or counseling or rehabilitative programs for “alcohol abuse”. There is no evidence that she has had any assessment or any counselling or other treatment even thought the order is dated Dec 3, 2020 (some 10 months ago).

[26] The evidence of Eric Cashmore, who describes himself as a “mental health worker” of the mother is, frankly, suspect. He has known the mother for two years and says that he has been her mental health worker for two years, but he resides in Sudbury and the mother has resided for most of those two years in and around Milton. Moreover, he says he was told, but does not identify by whom he was told, that the mother can remain alcohol free during access, clearly an anonymous opinion and not in accordance with Rule 14(19) of the Family Law Rules. I have to discount almost all of what Mr. Cashmore says about the mother. Even if he is her mental health worker, her much bigger issues is with alcohol misuse and its effects on her. I do not accept that he has any expertise in alcohol abuse counselling or treatment. The father’s evidence paints a very pejorative picture of the mother and of the effects of alcohol on her. This, even dated as it is, is enough to make the court tread cautiously.

[27] Thirdly, the mother Pamela proffers her mother as her access supervisor, and when her mother is not available, her adult daughter Tiana. The grandmother is the more acceptable of the two for several reasons. Firstly, she is the boss in her own home where I propose that maternal access take place. She is a recovered alcoholic and has been sober for eight years. I expect that with her history she will be able to more readily make observations if the mother falls off the wagon. Thirdly, even the father concedes that he believes that the grandmother’s house is alcohol free, and that the grandmother would not allow the mother to drink in her presence.

[28] I discount the father’s evidence that the grandmother has shown a disinterest in Isabelle. The grandmother went to Milton and apparently supervised a maternal access visit in a hotel before this proceeding was ever started. Moreover, she stayed overnight with the mother at Mr. Beech’s home (in Milton) on another occasion of the mother’s access. She has volunteered to drive to pick up the child, albeit she prefers to a mid way point. She has opened her home for the child to stay while in Sudbury. She has volunteered to supervise the mother’s visits and to ensure that the mother is not under the influence during access. At most, I have the father’s suspicions and little else that might suggest she is an inadequate access supervisor.

[29] With respect to Tiana, the adult half sibling of Isabelle, I have little evidence that she is an inadequate access supervisor for her mother. The father refers to an incident two years ago when she was with her boyfriend in Milton and she was drinking - but he does not say that she was drunk. Tiana’s inability to control her mother is only speculation by the father. He does not even know Tiana or her circumstances. She now owns a home and is a college student. She states under oath that she is aware of the mother’s drinking problem and will ensure that she stays sober throughout her parenting time. Moreover, Tiana indicates that she does not smoke or drink. She is not put forward as a primary access supervisor but only for the mornings when the grandmother is not available. I do not find that Tiana would be an ineffective or an inadequate access supervisor of her mother’s access based on the evidence presented.

[30] Fourthly, there is another advantage in having access take place in the maternal grandmother’s home, namely that Isabelle would enjoy the benefit of contact with her maternal family in the home environment of the maternal family. She would be the object of familial affection and care, not only by her mother and grandmother but also her half sister and any other extended family that might drop in. This accords with s.24(3)(b) CLRA.

“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;”

[31] Fifthly, the CLRA statute requires in s.24(6) that

S. 24(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[32] The father’s proposed maternal access would reduce the mother’s parenting time under the Sullivan order by 66% if Thrive could only accommodate 2 hour visits. This makes no sense from the child’s standpoint as the person benefiting from maternal access. The mother’s alternative proposal, on the other hand, increases her time with the child much more than she had under the Sullivan order. As I indicated, I do not believe that weekly access involving a four hour trip each way is necessary or beneficial to Isabella, In addition the winter months will soon be upon us and winter travel can be treacherous. I do note, from the evidence of Mr. Beech, that the mother was travelling to Milton, her fare occasionally paid for by the father, and that she was staying with him (the father) for typically 1 ½ weeks at a time, at his residence from August 2020 to July 24, 2021. This is a considerable duration of maternal parenting time, even with the father present.

[33] In short, I propose to vary the Sullivan order to permit maternal access in Sudbury, at the home of the maternal grandmother, and supervised primarily by her with morning supervision, if needed, by the adult half sibling, Tiana.

[34] I will also provide that the mother may have supervised access at the Thrive facility for day access on one two-day period per month subject to this facility’s rules and availability, and provided that the mother and father comply with the Thrive requirements.

Parenting Time Logistics

[35] The order I make is set out below. It terminates both the Sullivan order and the follow up order. I refer to portions of these orders descriptively since no one has bothered to take out formal orders. There are other aspects of Justice Sullivan’s orders that are ‘case management’ in nature and I do not wish to disturb those.

Order to Go:

1. That paragraphs 1 and 8 of the order of Sullivan J. endorsed Sept 29, 2020 is terminated.

2. That paragraph 2 of the order of Sullivan J endorsed Jan 7, 2021 is terminated.

3. That the Respondent mother, Pamela Rose Harris, shall have temporary in person parenting time with the child Isabelle Rose Harris (aka Isabelle Rose Harris-Thomas) born […], 2019 on two periods of time each month commencing in November 2021, or as soon as can be arranged, as set out and described below:

   Milton Parenting Time: (a) shall take place at the Thrive Family Visiting Centre in Milton (b) shall be for a minimum of two hours per visit subject to Thrive’s protocols (c) may take place on two successive days and times chosen by the Respondent mother provided that they are communicated by her to the Applicant father and to Thrive, at least 15 days beforehand and are accepted by Thrive (d) each parent shall contact Thrive forthwith to enrol with Thrive and shall comply with Thrive requirements (e) the Applicant father, Kevin Anthony Thomas, or his designate, shall transport the child to and from the Thrive facility for each instance of exercise of maternal parenting time (f) the respondent mother shall be responsible for her own transportation to Thrive for each instance of her parenting time with Isabelle. (g) the respondent mother shall give notice to the father and to Thrive forthwith if she is unable to attend at any arranged parenting time visit, in which case, such visit will be cancelled with no make up visit resulting.

   Sudbury Parenting Time (a) shall take place at the home of the maternal grandmother, Cheryl Harris at [address removed] Street Sudbury Ontario, or in the community from that address (b) shall be personally supervised by the said maternal grandmother or by Tiana Harris, the adult half sibling of the child Isabelle (c) the child shall reside with and in the home of the maternal grandmother for the duration of time of such parenting time visits (d) the respondent mother shall be free to attend to exercise her parenting time at any time or times between 7:00 am and 8:00 pm during the time that the child is with the maternal grandmother but shall not remain overnight (e) neither the respondent mother nor the grandmother nor the half sister shall consume any alcohol during and within 24 prior to the mother’s attendance of any exercise of Sudbury parenting time (f) the maternal grandmother and the half sister of the child, Tiana Harris shall not permit the mother to exercise in person parenting time with the child if either of them is of the opinion that the mother has not abstained from alcohol during or within 24 hours of her parenting time (g) the paternal grandmother shall be responsible to pick up the child from the child’s home with the applicant father for the commencement of Sudbury parenting times, and the applicant father shall be responsible to pick up the child from the home of the maternal grandmother at the conclusion of Sudbury parenting times, provided that the father and the maternal grandmother shall be free to make alternative pick up/drop off arrangements so long as they are in writing and made in advance of the parenting time visit (h) the Sudbury parenting time shall be once per month from Friday at 11:00 am to the next following Monday at 11:00 am (i) the maternal grandmother shall notify the father of the Friday dates and the Monday dates for the monthly Sudbury parenting time visits before the last day of the month prior to such visit and each shall provide to the other his or her contact information, and any changes thereto (j) the father, mother, maternal grandmother and the half sister shall all follow COVID protocols and directives issued by the Government of Ontario and in effect during any Sudbury parenting times (k) the child’s car seat shall accompany the child wherever the child may go during such Sudbury parenting time visits, provided that should the maternal grandmother obtain her own car seat, this provision may be waived by the parties.

   Remote and virtual Parenting Time (a) The respondent mother shall be entitled to have remote parenting time with the child Isabelle during any time that she is not exercising her parenting time between the hours of 9:00 am and 5:00 p.m. every second day, by telephone, Skype, Face Time, Zoom or any similar program, and the Applicant father shall co-operate to accommodate such parenting time. (b) The applicant father shall be entitled to have remote parenting time with the child Isabelle during any time that he is not exercising his parenting time between the hours of 9:00 am and 5:00 p.m. every day, for 15 minutes, by telephone, Skype, Face Time, Zoom or any similar program and the mother and/or maternal grandmother and/or maternal half sister shall co-operate to accommodate such parenting time.

[36] I expect that the mother, as the moving party, and her counsel will take the steps necessary to prepare a formal order and arrange to have it issued and entered.

[37] I have already adjourned this motion and the application is likewise adjourned to Dec 15, 2021 at 12:00 noon

Justice John Kukurin

Per ……………………………. Court Clerk

Released: October 22, 2021