ONTARIO COURT OF JUSTICE
DATE: July 21, 2023
COURT FILE No.: Toronto FO-41626/21
BETWEEN:
A.V. Applicant
— AND —
B.D. Respondent
Before: Justice Debra Paulseth
Heard on: July 10, 11, 12, 13, 17, 2023
Reasons for Judgment released on: July 21, 2023
Counsel: Philip Viater, for the applicant Kendra Swallow, for the respondent
Paulseth, J.:
Overview
[1] The parties are the parents of a young child, D., born on [...], 2021. The Applicant is the mother and the Respondent is the father. They met online in 2016 and were common law partners from shortly thereafter until August of 2020. Both parents work full time.
[2] Shortly after separation, father entered a residential addiction rehabilitation centre for 30 days in Ottawa.
[3] The parents have resolved many of the litigation issues; specifically, decision making, government documents, child support, and section 7 expenses for necessary items such as daycare.
[4] The major remaining issue relates to the father’s parenting time with the child.
[5] Father has been seeing the child initially through a supervised private facility pursuant to a temporary consent order made on December 29, 2021. Renew Supervision Services (Renew) then terminated their involvement February 16, 2022. Since June of 2022 the visits are supervised through Access for Parents and Children in Ontario (APCO). The visits are weekly on Sunday mornings for one hour.
[6] In addition, a consent order was made on December 16, 2022 for weekly brief virtual visits on Wednesdays at 5:30 pm.
Position of the Parties
[7] It is the mother’s position that father should continue the current supervised parenting regime until he can show 6 months of full sobriety, through random testing that includes a large panel of substances. For a further expansion, father should have hair follicle testing every three months for at least 2 years. Mother also seeks an order that father participate in a parenting program and an anger management course. The costs of these tests and programs are to be borne by the father.
[8] Father’s position is that he should maintain the current supervised schedule until October 1, 2023. Thereafter he would commence unsupervised parenting time for 3 hours a week and at the same time commence a regime of urine tests for 6 months and hair follicle tests every two months for a period of six months. Any positive drug test will immediately result in a return to APCO. Positive results for alcohol and marijuana will not count. He wants his parenting time to increase in January, 2024 to include a mid-week visit for 90 minutes in a public venue and Sundays for the day. All exchanges would be at Tim Horton’s near the mother’s home.
Evidence
[9] Evidence for the mother included the following:
(1) Mother lives with the maternal grandmother in a condominium. Her family members also live in two other units in the same complex. They are very supportive of mother.
(2) Father has generally had only supervised parenting time with the child since birth, based on mother’s concerns for father’s drug and alcohol abuse. On a few occasions the mother did leave father and baby alone for short periods of time.
(3) Mother testified that father used Xanax, cocaine, alcohol, and marijuana every day. The amount was escalating before the separation.
(4) Mother gave evidence of the father in an incapacitated state from drugs and alcohol prior to separation. On one occasion, mother was pregnant and resting in bed, while father was doing lines of cocaine on the couch. Father got up and then passed out on top of her in the bed. Mother went to the couch and opened his work phone. She found messages from escorts. The messages indicated that Father had been seeing escorts, even recently, and had been seeing them in their home. Mother left that night and went to her mother’s home. Father does not dispute this evidence.
(5) Mother went to visit the father once while he was in the rehab centre. They discussed the treatment plan and next steps for father, such as groups and individual counselling. The number one message was that he could not have any drugs or alcohol.
(6) When father came back from the rehab centre he wanted to get back together and she didn’t want to. Father would become very angry, yell and throw things. He would punch her car and the walls and bang his head against the wall.
(7) Mother tried to support the father by letting him share in some pre-birth activities.
(8) After the child was born, they spent time with the baby and mother rented a cottage for a weekend. Father would come to see the baby after work. At no point were they intimate again.
(9) Mother also provided evidence that father was incapacitated due to some combination of drugs and alcohol the weekend of Canada Day, 2021. Mother offered to pick the father up after he spent some time partying with friends. When she picked him up she knew he was high on drugs and alcohol. She dropped him at his home and he said – “you can track me” and she did. At 3:00 am his car and phone were in a different location. She believed he had driven the car while completely incapacitated. Mother referred to this incident as a complete relapse by the father.
(10) After this incident, mother cut off all contact with the father. Thus ensued a period of harassment by father against the mother which led to criminal charges. The father called her 70 times and left hundreds of text messages, threatening to kill himself, and demanding to see the child. It had only been two days since he had last seen the child. Twice the police warned the father but he wouldn’t stop.
(11) The charges against father were resolved with a 12 month peace bond in July of 2022 which just expired. The peace bond prohibited contact between the parents.
(12) There are numerous examples of father’s repetitive texts and phone calls with dramatic threats and emotional pleadings prior to and following separation. Father was charged with a breach of the peace bond conditions on December 17, 2022.
(13) Mother says that father has threatened suicide and threatened to take the child to Ireland away from the mother.
(14) Mother believes that father has an anger management issue. Even outside of the courtroom, mother says he has blown up and yelled and sworn on more than one occasion. Most recently, on the first day of this trial, father became very agitated outside the courtroom as they discussed settlement of some issues. He swore at mother and her counsel.
(15) Mother testified that father has falsely accused her of not ensuring the child was up to date with medical vaccinations. Mother obtained a letter from the family doctor to confirm the child was completely current.
(16) Mother has seen the father take numerous kinds of drugs; such as, Xanax, cocaine, marijuana, lorazepam, ketamine, and alcohol. By only asking for the 5 panel drug tests, father is purposely omitting drugs and alcohol that he is known to take.
(17) Mother has never known the father to be diagnosed with a mental health issue, like depression or anxiety. In her view, father self reported these conditions in order to obtain the medical marijuana prescription.
(18) Mother has sought unsuccessfully to obtain disclosure of the father’s drug free condition and compliance with counselling and therapy.
(19) Father has worked for the same company for 6 years. In 2020, his boss and boss’s wife were doing cocaine in the house where their children were. The boss’ wife died of an overdose of fentanyl.
(20) Father produced 3 urine tests and one hair follicle test, in which he declined the testing panels for the more serious drugs that mother had specifically requested. The tests were positive for marijuana.
(21) After the positive tests, father obtained a prescription for medical marijuana, following a 30 minute telephone interview with a cannabis clinic. The prescription was for cbd oil and thc oil.
(22) Mother has had concerns about the child sustaining some minor bruises and bumps during visits. These concerns led to Renew terminating their services to supervise the visits. Similar concerns have recently led to APCO adding some padding to the room where the visit takes place.
(23) Mother has never seen the father be an active parent. As the child is very active and growing, mother believes it is important for father to take a parenting course. Father did take the last half of a parenting course online; the last 5 of 10 lessons. He tried to pretend that he had completed all 10 lessons.
(24) Mother proposes that father have six months of clean random drug and alcohol tests before having unsupervised visits.
[10] Father’s evidence can be summarized as follows:
(1) Father was born in Ireland and has no family in this country. He has few supports other than his current girlfriend and his boss. He had two friends here but one has returned to Ireland.
(2) Father agrees he was addicted when he went to the rehabilitation centre. He agrees he told the centre that he was addicted to alcohol and drugs and had a sex addiction. Father agrees he would have stayed at the centre for longer than 30 days, as was recommended to him but he couldn’t afford it. The cost was about $12,000 a month. He knows there are publicly funded facilities but he did not attempt to get on a waiting list or enquire about them.
(3) Father phoned and wrote letters to the mother while in the centre. She recorded a telephone call and kept the letters. In these, father admits to his addictions – alcohol, drug, and sex. He says he has been using marijuana since the age of 14 and has a longstanding history of depression and anxiety.
(4) Father admits that he had a problem with prescription pills that he was getting from a friend.
(5) He began using marijuana again after his return from the rehabilitation centre, either immediately as stated in his trial affidavit or about a month later, as stated in his cross-examination.
(6) Father says that he and mother spent time together before the baby was born and after the birth. He smoked marijuana in front of the mother routinely. Both parents agree, however, that they did not reconcile.
(7) Father now says he was only addicted to Xanax. He maintains that he was diagnosed with depression and anxiety in 2019. It is unclear from the medical notes who in fact diagnosed these conditions, or whether these were self-reported. One medical note from December 24, 2019 indicates that father told Dr Florence that he was anxious and having panic attacks. The treatment plan was one prescription for Ativan and supportive counselling. Father gave conflicting evidence as to whether he ever had that prescription filled. He did not go for counselling.
(8) Father denies the evidence of mother about the Canada Day weekend, 2021. In particular, he denies moving his car in the early hours of the morning to a strange neighbourhood, leaving it in the middle of the road and passing out in the car. He doesn’t know how his iphone would have been located in that location.
(9) Father has a new family doctor since August of 2022. He agreed to provide a report from this doctor, who wrote a letter in November of 2022 but it was not provided to mother’s counsel until trial. The new doctor says he has not found any evidence of substance abuse issues and notes that father has a prescription for “Ellevia, a form of cannabis for his anxiety, depression, and Insomnia which are well controlled”.
(10) Father produced 2 Canna Way Clinic notes from October 18, 2022 and July 6, 2023, prescribing initially 2 grams daily of cbd and THC oil and recently 1 gram of same. Father says he has given the prescription to Shoppers Drug Mart and they deliver it to him. In addition to the oil, he smokes marijuana regularly, if not daily. Father admits that he never told this clinic that he had been in a rehabilitation centre for addiction.
(11) Father admitted in cross examination that he obtained the prescription a year after this litigation began. The advice he received from Dr Stinson was to take the oil in the morning and at night and to avoid alcohol with cannabis.
(12) Father admits to socializing with his boss and boss’s wife. The boss’s wife died from an overdose in November of 2020 and father is now not socializing with the boss. This boss is renting him an apartment in one of the company buildings, to help the father out with his constricting finances.
(13) Father maintains he is not a drug addict, although he did party heavy in the past. He needs the marijuana to help with his depression and insomnia. Father agrees that he wrote mother a letter from the rehab centre admitting he had been an addict since the age of 14 and had smoked marijuana every day since then. He now does not believe he is an addict, just withdrawing from Xanax.
(14) Father also admits he drinks with his new girlfriend whom he sees twice a month. In his affidavit for trial he described their relationship as monogamous but in cross-examination he admitted that it is an “open relationship and she can date others”.
(15) Father maintains that he is not suicidal when sober but may have threatened suicide when he was drunk and/or high in August of 2020 and July of 2021.
(16) Father signed a consent to release for counsel for mother to obtain the records from his therapist. However, the therapist met with father and his counsel and then father refused to provide the notes.
(17) Father admits to using cocaine in June of 2023.
(18) Father wants to see his son and said he would stop drinking and accept supervision if that was the only way.
(19) Father proposes in his draft order that he would keep attending APCO for three months in order to give the mother a “breather”. He is not prepared to start the drug testing until he is guaranteed unsupervised visits.
(20) Father knew that mother wanted his drug testing to include the full 11 panels of substances and mother had offered to pay. He only did 3 panels. He thought the requested 11 panels was excessive. Now he says he would do the entire 11 panels.
(21) Father admits that he was high in August of 2020 and may have broken things and sounded aggressive. He admits that he has sounded agitated and aggressive at various times since then as well. He disagrees that this means he needs anger management help. He now works out regularly and is healthy and occupied.
(22) Father agrees that he is as isolated and depressed today as he was in the past. He works out at a local gym most days which helps and he phones his girlfriend. He agrees that no doctor has ever diagnosed him with depression.
(23) Father believes mother is punishing him for using prostitutes by demanding supervised visits.
[11] Ongoing conflict between the parties and between their counsel led to father not having parenting time for large gaps of time.
[12] Father’s girlfriend gave evidence confirming father’s evidence. She said they also go outside for a marijuana smoke in the evenings.
[13] The current director of the treatment centre where father participated in a 30 day residential rehabilitation program in September of 2020 gave evidence. The notes from the clinic were filed as an agreement between counsel. Both counsel agreed the witness was an expert in operating an addiction treatment centre. The court agrees with this narrow definition of his expertise, because he:
(1) He was a founding member 12 years ago of this Treatment Program which has centres in 3 cities (Ottawa, Kelowna, and Punta Gorda, Florida).
(2) He has over 30,000 hours of counselling experience in addictions.
(3) He has completed several certificate courses in treatment related subjects, many from the US.
(4) He annually attends educational conferences in this field.
(5) He himself is an addict.
[14] This director gave evidence about the philosophy of the centre and the qualifications of the staff, which are a mix of academic credentials such as PhD’s and Masters in counselling and psychology with experienced staff like himself.
[15] The program recommends total sobriety from all mind-altering substances, especially marijuana and alcohol. The centre provides 30, 60 and 90 day programs and provides two follow up counselling/support sessions. After the program, patients are advised to attend Alcoholics Anonymous (AA), Narcotics Anonymous (NA) and have supportive counselling.
[16] In the director’s opinion, the 30 day program is too short to adequately address the father’s addiction issues. In his experience, the longer the program, the more chances of a successful recovery. The notes of the centre indicate the father did not follow up with the two aftercare sessions.
[17] The office manager where the father works gave evidence. Her role is to manage referrals and schedule appointments with the drivers, like the father. All of the work with the drivers is by telephone. She also manages the accounting. She did not know the father had a drug problem and has not observed him to be under the influence of drugs or alcohol.
Parenting Time
[18] On December 29, 2021, the parents agreed to father having parenting time through Renew.
[19] In March of 2022, the parenting time was to take place through APCO for one hour on Sunday mornings.
[20] On December 16, 2022, the parents agreed to an additional visit with father on Wednesdays for 15 minutes through Face Time.
[21] Mother’s view of the parenting time to date is:
(1) Renew did not supervise closely enough and the child sustained some minor injuries.
(2) APCO is an excellent centre. She did have some concerns about bumps and bruises but the centre added some additional padding to their access room.
(3) The child runs up to the father, saying “daddy, daddy”.
(4) When the video parenting time began, father was not appropriate:
- The screen would be black and they couldn’t even see father;
- Father would sob; and
- Father would make inappropriate comments to the child; such as, “look after your mother” and “ I want to take you to the park but I am not allowed to “.
[22] Father’s view of the parenting time is:
(1) He is always on time.
(2) He maintains there are no accounts of any incidents.
(3) He says that the face time calls are a significant source of stress for him as mother ‘s family may be there and he didn’t want to breach his peace bond conditions.
[23] Counsel for the father agreed to obtain the notes from APCO but they were not available for counsel for mother to review until the third day of the trial.
Legal Framework
[24] Subsection 21 (1) of the Children’s Law Reform Act, as amended 2020, (the Act) reads as follows:
21 (1) A parent of a child may apply to a court for a parenting order respecting, (a) decision-making responsibility with respect to the child; and (b) parenting time with respect to the child.
[25] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Act. Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
[26] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
Factors (3) Factors related to the circumstances of a child include, (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, (k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[27] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
[28] Subsection 24 (6) of the Act states that 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.
Credibility of the Parents
[29] Father’s condition in August of 2020 really frightened the mother. Mother made arrangements for the father to attend the rehabilitation centre. Since then she has maintained that father needs to be completely clean or have supervised visits. The only exceptions were the very few times she left him alone with the baby when she ran an errand.
[30] Mother’s concerns have been reasonable and consistent. These concerns have been communicated to the father numerous times.
[31] Father has conducted this case by admission/denial and obfuscation. Examples of this behaviour are:
(1) August of 2020, he admits to being an addict since age 14 and appreciates while in rehab that he must be completely clean.
(2) By July of 2021, he says he can smoke marijuana daily and have a beer or two. For Canada Day, he says he had 2, maybe 4, maybe 6 beers. The recordings of father’s commentary indicate a very inebriated and/or drugged man.
(3) Father believes that after rehab he only needed to attend a couple of AA and NA meetings.
(4) Father did see a therapist and initially agreed to release the therapist’s information. He changed his mind.
(5) Father agreed to release the rehab centre notes or at least the questions and answers put to the centre. Many months went by before the available questions and answers were in fact released.
(6) Father says he does not need a parenting course. He then takes half a course and pretends it was the full course.
(7) Father denies any drug use and refuses to participate in testing. He then organizes testing through his family doctor but fails to mention the drug panels that should be tested. He then seeks to rely on these limited results. No secure chain of possession is established. The tests are not random. When he tests positive for marijuana, he then phones a marijuana clinic and obtains a prescription for oil.
(8) Father suddenly admits to using cocaine with a friend in June of 2023 and then shaves his head for the summer, such that hair follicle testing cannot be easily done.
[32] Where there is a difference in the evidence between mother and father’s version, the court prefers mother’s evidence.
The Best Interests of this Child
[33] The child is described by mother as: friendly, happy, curious, smart, positive and social. He is affectionate. He loves music, his friends, and dogs. He attends a pre-school full time. Some of his extra-curricular activities include: Making Music Together, Water Babies, and Gymoboree.
Needs of this Child
[34] 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. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266; K.M. v. J.R., 2022 ONSC 111.
[35] This child is developing normally according to mother. He has been in a stable home since birth and mother has the support of her family close by. Both mother and father note that the child is very active and often bumps his head and gets bruises. Mother’s concerns about this bruising and bumping led to Renew withdrawing services. APCO has added padding to the access room.
[36] Mother appears to be afraid of the father, particularly when he has been drinking or doing drugs. She was very anxious about starting the video parenting time, as she had had no contact with father since the series of harassing messages in July of 2021. When issues are discussed at court father can become agitated and aggressive. It will be important to ensure mother’s emotional security in any parenting time plan.
Relationships
[37] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.
[38] A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.
[39] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar.
[40] Mother has supported the father’s relationship with the child. Her concerns relate to the impact of father’s addictions and anger management.
[41] The child has relationships with mother’s extended family, who live nearby. Mother is in contact with the father’s family in Ireland and sends pictures of the child.
Ability to Meet the Child’s Needs
[42] There is no dispute that mother does an excellent job in meeting this child’s needs. Father consented to mother having final decision-making, subject to consultation.
[43] Except for the bumps, mother does not dispute the father’s ability to meet the child’s needs while under supervision.
[44] Mother wants father to complete a parenting program. Father did complete half of a program and does not appear to be unwilling to participate in another one. Father unfortunately led mother to believe that he had completed the entire program, which was not true.
[45] Father is anxious that mother will continue to set up roadblocks for his time with the child.
[46] Mother is anxious that father does not have sufficient insight into his addictions and their impact on his relationships. Mother has observed and felt the impact of father’s addictions and poor decision-making.
Conflict
[47] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
33.1 Protection of children from conflict (2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
[48] After father’s relapse in July of 2021, he was charged with harassment. The charge was resolved by way of a 12 month peace bond which prohibited direct contact with mother. For the next year they were forced to communicate through their counsel and the court. Few, if any, agreements were reached.
Communication and Cooperation
[49] The parents have now agreed to communicate through Our family Wizard. This, however, is completely new territory for these parents. They will need to gain experience.
Supervision of Parenting Time
[50] 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 (OCJ).
[51] The person seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451.
[52] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. See: Najjardizaji v. Mehrjerdi, 2004 ONCJ 374, [2004] O.J. No. 5472 (OCJ).
[53] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. See: Tuttle v. Tuttle, 2014 ONSC 5011.
[54] In V. S. J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at para. 135, Blishen J. provided an useful overview of the factors that have led courts to terminate access. Some of the examples were:
Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley.
History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo, (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.
Blishen J. was also careful to remark at para. 136:
None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.
[55] Sadly, it is a common occurrence that addictions in a parent require supervision of parenting time.
Father’s Drug Use
[56] Mother has been consistent in her concerns about father’s drug and alcohol addictions.
[57] Mother has always presented a position of wanting to facilitate parenting time and a relationship for the father and child.
[58] The gaps in parenting time have been very unfortunate for this child. There is no dispute that the child enjoys time with father and father loves this child very much.
[59] Father strains credibility when he:
(1) Admits he is an addict and then wants to be able to drink socially and use marijuana daily.
(2) Does not follow the recommendations of his own treatment program.
(3) Agrees to provide a mental health report and then refuses to consent to its release.
[60] Father’s marijuana prescription was obtained by doctor shopping. He did not disclose his addiction and attempted rehabilitation.
[61] In CAST v SB, 2014 ONCJ 518, Justice Sherr had this to say about daily marijuana use:
[142] The mother testified that she uses marijuana daily. She says that she does this to reduce her stress. She does not have a prescription for this drug. She claimed that her OBGYN knows of her drug use and has told her it is not a problem. She did not provide any supporting evidence (such as a medical report) for this claim.
[143] The mother has refused the society’s requests to take a hair-follicle drug test. She said that this is because she is being honest about her drug use. She admitted to using crack cocaine in the past with J.K. and says that she has not used it since she broke up with him.
[144] The court is not willing to give the mother the benefit of the doubt on this issue and will not blindly accept, based on her word alone, that it is not a protection concern. The mother was not honest with the court about her housing situation and she does not have credibility concerning the drug issue. Drug use may very well explain some of the mother’s instability. The court would want to see reliable evidence about the extent of the mother’s drug use before it could safely place a child in her care.
[62] Father requires ongoing supports for his drug and alcohol addictions, because:
(1) His addiction to drugs is longstanding;
(2) He self-medicates to “feel better” and to “sleep”;
(3) He believes that he is in control when there are many examples that he is not;
(4) He has been trying for some time to negotiate around the basic truths about addiction; and
(5) Very few people can stop without help and supports.
(6) The evidence shows that father’s behaviour becomes aggressive when he is under the influence of alcohol and/or drugs. He lacks judgment and impulse control. This puts a young vulnerable child at risk of harm.
[63] In this case the father has addictions that remain untreated and thus continue to pose a risk to the child. By untreated, the court specifically notes:
(1) One 30 day residential program is a very good start.
(2) Follow up attendance at alcohol anonymous groups and narcotics anonymous groups is a real support to recovering addicts.
(3) Counselling to gain insight and appreciation is also a concrete support.
(4) Continued use of alcohol and marijuana pose a risk to ongoing recovery.
Domestic Violence
[64] In subsection 24(4) of the Act, the court is required to take into account factors relating to family violence; such as:
(1) The nature seriousness and frequency of the violence.
(2) Whether there is a pattern of coercive and controlling behaviour.
(3) Whether the violence is directed towards the child or whether the child is directly or indirectly exposed to the violence.
(4) The physical, psychological and emotional harm or risk of harm to the child.
(5) Any compromise to the safety of the child or family member.
(6) Whether the family violence causes the child or other family member to fear for their own safety.
(7) Any steps taken by the person engaging in the family violence to prevent any further violence and to improve that person’s ability to meet the needs of the child.
[65] Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.
[66] Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.
[67] A pattern of repeated infidelity coupled with lying, coercion, emotional manipulation and harassment around the infidelities" can, in some cases, qualify as "family violence". See: McBennett v. Danis (2021), 57 R.F.L. (8th) 1 (Ont. S.C.J.).
[68] The Supreme Court in Barendregt v. Grebliunis, 2022 SCC 22, states at par. 145 that the suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497.
[69] In Catholic Children’s Aid Society of Hamilton v. I.B., 2020 ONSC 5498 the court said this:
Domestic Violence
162 The Ontario Legislature has recognized that domestic violence is a significant factor in determining the best interests of children, as reflected in paragraph 24(4) of the Children’s Law Reform Act. While the Child, Youth, and Family Services Act, specifically references violence against a child or spouse only in relation to the supervision of access, it is abundantly clear that consideration of whether a person has at any time committed violence or abuse against their spouse is a relevant consideration in child protection proceedings: Children’s Aid Society of Ottawa v. L.J., 2014 ONSC 1675 at para. 17.
163 Children of parents in abusive relationships have been found to be in need of protection by many courts, and the negative impact of children’s exposure to domestic violence is well-documented, including for example: insecure attachments, aggressive and antisocial behavior, poor academic performance, propensity for delinquency, peer violence, conflict and suicidality: Children’s Aid Society of Hamilton v. C.G. and S.B. 2013 ONSC 4972 at para. 157.
164 Domestic violence is not limited to physical assault: it embraces a range of behavior which includes mental and emotional abuse, with implications that spill-over to children. The environment in such households is frequently chaotic, volatile, escalating, charged and degrading and the exposure of children to such an environment on a pattern basis is devastating to their development: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70 at para. 75.
[70] This court finds that the father’s behaviour, in particular:
(1) Yelling and swearing.
(2) Hitting things.
(3) Banging his head.
(4) Threatening suicide.
(5) Large emotional swings.
(6) False allegations against the mother.
(7) Aggressive conduct that he later does not recall.
(8) Ignoring warnings from the police to stop harassing the mother.
(9) Ignoring prohibitions in a peace bond, thus incurring a breach charge.
form a dangerous pattern of emotional abuse.
[71] Father has no insight into the impact that this behaviour can have on another parent and on a child.
The Path to a Motion to Change
[72] Father’s parenting time must be supervised for the foreseeable future. Mother has agreed that it can be up to two hours weekly at APCO and the virtual visits can continue on Wednesdays at 5:30 pm.
[73] Visits that are cancelled cannot be made up as they are already very frequent.
[74] Father should begin a regimen of regular drug and alcohol testing on a large panel (at least 11) of drugs. A motion to change should include at least one year of completely clean screens. In the earlier days of this litigation, mother might have accepted a shorter time frame but after trial and father’s inability to acknowledge the problem, the litigation has to end.
[75] Father would benefit from counselling, parenting, and anger management programs. He should start with counselling to support him in gaining insight into his needs and his relationships.
[76] Many adults, including the mother, still see many strengths in the father. The court appreciates that he has made significant changes to bring him to this stage.
Travel
[77] The court may make orders regarding travel in the child’s best interests. See: Karol v. Karol, 2003 CarswellOnt 4832 (SCJ).
[78] When determining whether to grant a parent permission to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks; the weighing process is very fact specific. See: Verbanac v. Dawson, 2019 ONSC 4473; Saini v. Tuli, 2021 ONSC 3413.
[79] The parents do not agree on the travel conditions to be attached to the order. Father wants to receive the details of any travel plans and make up time. He wants to prohibit mother from leaving the country without his written consent, which would not be unreasonably withheld.
[80] The parents have a very poor history of communication, including a 12 month peace bond that prohibited contact because of allegations of harassment.
[81] The parents have a history of very uncooperative conduct, which has resulted in long gaps in parenting time.
[82] It is in the best interests of a child to experience international travel without obstruction.
[83] The court finds that mother should be able to travel outside of Canada for up to 2 weeks, without the consent of the father. Mother should give the father her itinerary and make best efforts to provide a make-up visit of at least two hours.
Payment of Child Support Arrears
[84] The parties agreed on final orders dealing with child support and section 7 expenses. They agreed that there are arrears of $14,361. but could not agree on the payment plan.
[85] Father earns about $74,000. He has no assets or debts other than these arrears and invoices to his counsel. He proposes to pay between $300 and $500 a month, making his total payments no more than $1200 a month with child support. This would eliminate arrears in 3 years.
[86] Mother argues that the arrears are the father’s own creation and he should pay them all within a year, making payments of about $1200 a month.
[87] Although it is true that father knew of or should have known of the build up of arrears, some of these relate to section 7 expenses and counsel for father argued that the receipts or invoices were not forthcoming in a timely way. This is one of many examples of the parties ongoing conflict over what many involved in the family justice system would view as standard process.
[88] The court will order the father to pay arrears at $500. a month starting September 1, 2023. A support deduction order will be issued.
Final Orders
Father to continue weekly visits at APCO on Saturdays or Sundays, whichever is available for 2 hours. Father to pay the fees.
Father to have weekly virtual visits on facetime on Wednesday at 5:30 for 15 minutes.
Mother may travel for up to two weeks with the child, including to places outside of the country, without notice to nor consent of the father; subject to providing father with information about the location and dates. Mother to make best efforts to provide make up visits for any missed parenting time.
Father to pay $500. A month towards arrears commencing September 1, 2023. With a support deduction Order to be issued and enforceable through the Family Responsibility Office.
Costs: If not agreed upon, counsel for the applicant may serve and file cost submissions of a maximum of 3 pages, excluding offers and bills of costs, within two weeks. Counsel for the respondent may respond with the same maximum page limits to apply within two weeks of receiving the applicant’s submissions. No reply. These submissions should be filed in the trial office.
Released: July 21, 2023 Signed: Justice Debra Paulseth