Court File and Parties

ONTARIO COURT OF JUSTICE DATE: March 15, 2024 COURT FILE No.: FO-23-43602-00

BETWEEN:

ANGELINA MASTRANGELO Applicant

— AND —

CORY ATKINSON Respondent

Before: Justice Jennifer S. Daudlin

Heard on: February 21, 2024 Reasons for Judgment released on: March 15, 2024

Counsel: Theresa MacLean, for the Applicant Cory Atkinson, Self-Represented

DAUDLIN J.:

Part One: Introduction

[1] The Respondent Father has brought a motion to change the temporary order relating to supervised parenting time of Paulseth J., date May 5, 2023, as changed by Meyrick J. on September 15, 2023. He seeks to expand his parenting time with the party’s 2-year-old daughter from one hour supervised once per week, to two hours unsupervised once per week, with exchanges to continue at Access for Parents and Children in Ontario (APCO).

[2] The Applicant Mother consents to the expansion of parenting time to two-hours, but opposes the move to unsupervised parenting time until the following conditions are met:

(1) The Father positively completes the Renascent program with the Toronto Addiction Rehab Centre, (2) He provides a copy of his criminal record, and (3) He provides proof of his current residence,

and contingent that:

(1) He continues completing weekly urine testing, and (2) He continues to use the BACtrack Breathalyzer daily, but at a regular time each day.

[3] The issues for the court to determine on this motion are:

(1) Has there been a material change in circumstances that affects or is likely to affect the best interest of the child that requires a change to the order for parenting time? (2) If so, what temporary order is in the best interest of the child?

Part Two: Background

[4] The Mother is 35 years old. The Father is 38 years old.

[5] The Father has one child of a previous relationship. That child is 17 years old and lives with his Mother. The Father maintains a relationship with him.

[6] The Mother does not have any other children.

[7] The parties were in a relationship and lived together on and off from approximately November 2020 until September 2022. The Mother characterizes her relationship with the Father as abusive. He disputes this but acknowledges 2-3 events which resulted in criminal charges and convictions against him following a guilty plea.

[8] The parties have one child together, Mylee Angel Atkinson, born […], 2021. She is 2 years old.

[9] Mylee has always lived with her Mother.

[10] The Mother is a stay-at-home parent and has not worked since giving birth to Mylee. Mylee and her Mother live with Mylee’s grandmother and aunt.

[11] The Father is employed in the construction industry for a paving company. He works seasonally.

[12] The parties had a difficult relationship. The Father acknowledges struggling with alcohol addiction issues that he says culminated in an incident between the parties resulting in his being criminally charged.

[13] The Respondent has a lengthy criminal record from September 14, 2006, to February 14, 2023, with a notable gap between October 2012 and August 2022.

[14] Among others, the Respondent’s historical convictions include: 7 for assault, 2 for uttering threats, and 6 failures to comply.

[15] The recent convictions all relate to incidents involving the Mother. These include:

(1) August 29, 2022: Assault by choking, suffocating, or strangling. Disposition: Suspended sentence and 12-months probation. (2) October 19, 2022: Fail to comply. Disposition: $250 fine and 1-day pre-sentence custody. (3) February 14, 2023: Operation of a conveyance while impaired, fail to comply, and criminal harassment. Disposition Operate-while-impaired: $1,500 fine, 2 years probation and 12 month driving prohibition (which terminate on February 14, 2025). Disposition Fail to comply and Criminal harassment: suspended sentence, 2 years probation, and discretionary weapons prohibition.

[16] The terms of the Father’s probation prohibit direct contact between he and the Mother.

[17] Both parties state that the Father’s history of criminality coincides with the periods where he has misused alcohol.

Part Three: History of Litigation

[18] The Application was issued on February 21, 2023, and the Answer/claim was filed March 31, 2023.

[19] On May 5, 2023, on consent of the parties, Paulseth J. made the following temporary orders:

(1) Parenting time to the child by the Father each week for half-an-hour, supervised by APCO. (2) The Father to provide weekly alcohol screening tests to the Mother. (3) The Father to pay child support to the Mother.

[20] The visits began in July 2023. By then, Mylee was nearly 2 years-old, and had not seen her Father in 10.5 months (since September 18, 2022).

[21] The case was next before the court on September 15, 2023. On consent, Meyrick J. made final orders regarding the child’s primary residence, terms of decision-making and communication between the parties (once the Father’s probation conditions permit such communication). On a temporary basis, on consent, the Court ordered:

(1) An increase of the supervised visits from half-an-hour to an hour every week. (2) The Father to continue to test weekly for alcohol use and to provide the results to the Mother, through counsel. (3) Terms of the Father’s motion for unsupervised parenting time, to be heard November 8, 2023.

[22] On September 29, 2023, the Father brought this motion.

[23] On November 3, 2023, Bondy J. reviewed a 14B motion seeking an order incorporating the terms of Minutes of Settlement signed by the parties to resolve the Father’s motion. Her Honour declined to make the order sought absent additional evidence in connection with the request, noting:

(1) The Respondent’s extensive criminal record, including crimes of violence and weapons. (2) The Applicant’s assertions: i) the Respondent suffers from serious alcohol and undiagnosed mental health issues, ii) of violence, and iii) of fear for her safety and that of the child, for which seeks a Restraining Order (in the Application).

[24] On November 8, when the parties appeared before Bondy J., she continued to decline the order sought on consent. She adjourned the motion for further evidence from both parties. In addition, Her Honour ordered the Father to:

(1) Participate in daily BACtrack testing during the adjournment, and to provide the results to the Mother, at his cost. (2) Re-enroll in the Renascent program and provide proof of registration and attendance to the Applicant. (3) Provide proof of Alcoholics Anonymous attendance once weekly to the Mother. (4) Provide an updated letter from Dr. Bienenstock relating to his sobriety before the motion’s return.

[25] Bondy J. noted that items (1), (2) and (3), above “are integral to any consideration of moving visitation to unsupervised and Mr. Atkinson maintaining sobriety.”

[26] The motion was argued before me on February 21, 2024.

[27] The pleadings [1], the parties’ 8 affidavits, including their respective Form 35.1 Affidavits [2], and the Respondent’s RCMP Criminal Record as of November 29, 2023, filed during the attendance, were reviewed in consideration of the Respondent’s notice of motion.

Part Four: Position of the Parties

[28] The Father submits that supervised parenting time is meant to be a temporary solution. He states:

(1) He acknowledges his substance abuse issues and past transgressions against the Applicant but submits these should not be held against him in perpetuity. His parenting time need not be so vigorously controlled by the Applicant. (2) He has and is demonstrating his active commitment to the maintenance of his sobriety and his desire and ability to be a present and positive co-parent to Mylee. He has made progress since parenting time began. He points to the following programs that he either participates in or has completed: (a) Comprehensive Treatment Clinic, and regular meetings with Dr. Leonard Bienenstock since May 2, 2023. (b) Regular Alcohol Anonymous meetings. (c) Salvation Army Anger Management Program (completed). (d) Some participation in a voluntary in-patient withdrawal program and attended an outpatient program through the Renascent Treatment Program. (e) Families in Transitions program (completed). (f) Seeking Safety program (completed). (g) Partner Assault program (completed). (h) Weekly urine testing since March 2023. (i) Daily BACtrack testing. (j) Interlock breathalyzer when driving. (3) He loves Mylee and she loves him. He should be given a meaningful opportunity to demonstrate his ability to parent her, and to grow their relationship. All his parenting time with Mylee to date has been positive, as reported by APCO and acknowledged by the Applicant. He has cancelled only one visit due to illness. Any other gaps in the weekly visits were either cancelled by the Applicant, or due to facility closures. Mylee enjoys spending time with him, and she deserves to spend time with her Father outside of the access centre.

[29] The Mother justifies her position on parenting based on the following:

(1) The Father’s history of domestic violence. (2) Her ongoing fear for her safety and that of the child. (3) The Father’s history of alcoholism, and more specifically, his lack of transparency about the recent lapses in his sobriety, and his history of minimizing or denying outright her concerns in this regard.

[30] The Mother supports the gradual and safe expansion of the Father’s parenting time with Mylee, but argues his request for unsupervised parenting time is premature in light of:

(1) his failure to disclose recent lapses in his sobriety, (2) gaps in his BACtrack testing, (3) his removal the Renascent program for non-attendance, (4) his lack of communication with counsel to provide agreed-upon or court-ordered disclosure, and (5) his minimizing the severity of his addiction and his criminal charges (especially as they relate to the Applicant).

[31] The Mother submits:

(1) the Respondent’s stated commitment to his sobriety is not reflected in his actions. (2) Instead, his lack of transparency, accountability, follow-through, and communication are indicia of an addiction that is not yet under control, and of an increased likelihood of relapse. (3) Mylee is 2. She relies on her caregivers to be her advocate and to shelter her from harm. Until the Respondent has a longer period of confirmed sobriety, is forthright about his sobriety, and has positively completed the Renascent program, he cannot be trusted in this role. The risk that he will relapse while caring for Mylee and (unintentionally) put her at risk, is too high. (4) In time unsupervised parenting time may be in Mylee’s best interests, but it not in her best interests now.

Part Five: Legal Considerations

[32] This is a motion to change a temporary order that was fully argued on its merits with extensive affidavit materials.

[33] Pursuant to section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 the onus is on the Father to prove, on a balance of probabilities, that there has been a material change of circumstances that affects or will likely affect the best interests of the child and that requires the status quo to be changed pending trial.

[34] The Supreme Court of Canada decision in Gordon v. Goertz sets out a two-stage process for the court to conduct in motions to change parenting orders 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.

[35] A “material change in circumstances” does not mean a major change. Zolaturiuk v. Johansen, 2009 ONSC 15907, followed in Burton v. Brown, 2021 ONCJ 322.

[36] On a motion to change a temporary order on a temporary basis prior to trial, while the courts place emphasis on the status quo at the interim stage, the court is not powerless to act where a child is in danger, or where there is some other compelling reason to do so in the child’s best interests. K.A.C. v. PP., 2007 ONCJ 217.

[37] In the case of J.D. V. N.D., 2020 ONSC 7965, MacKinnon J. discussed the relevance of the compelling circumstance test and outlined various alternative factors that could be considered, including but not limited to:

(1) The magnitude of the change sought, compared to the status quo, and (2) The assessment of other evidence that might support (or not) the change sought). [8]

[38] MacKinnon J. concluded:

In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents. [9]

[39] The concept of a “material change in circumstances” in the context of parenting order variation proceedings must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made. Thompson v. Drummond, 2018 ONSC 1975; A.E. v. A.E., 2021 ONSC 8189; J.T. v. E.J., 2022 ONSC 4956.

[40] If the Father meets the first part of the test in Gordon v. Goertz for material change, the second phase involves identifying the parenting orders that serve the child's best interests, taking into consideration all pertinent factors concerning the child's requirements and the capability of the parents to fulfill them. Mokhov v. Ratayeva, 2021 ONSC 5454.

[41] In determining the child’s best interests, the court shall consider the factors set out in subsections 24(2) to (7) of the CLRA [12], including a consideration of family violence, as defined in subsection 18(1) of the Act.

Part Six: Analysis

6.1 Has there been a material change of circumstances?

[42] Applying the more flexible approach, I find that the Father has met the test for material change for the following reasons:

(1) The Father has been consistent with his parenting time and as such, has developed and continues to develop a relationship with the child that is positive. APCO reports that the child interacts easily and comfortably with her Father, she gives him and receives affection from him freely, identifies him as “dada” and tells him that she loves him. (2) The Father has demonstrated an ongoing commitment to addressing his alcohol misuse, including: daily BACtrack testing, regular (if not daily) Interlock testing, weekly urine screening, weekly Alcoholic’s Anonymous meetings, weekly check-ins with Dr. Bienenstock at the Comprehensive Treatment Clinic, and weekly meetings as part of the Renescent Program. (3) Inherent in the Mother’s submissions, is a concession that there has been a sufficient material change in circumstances to change the Father’s parenting time. She just disagrees on what that change should be.

6.2 What parenting order is in the best interests of the child?

[43] The Father wants to increase the duration of parenting time, and to terminate the requirement of supervision. The Mother would agree to increase the duration of parenting time but does not believe unsupervised parenting time is Mylee’s best interests.

[44] In consideration of the factors set out in section 24 of the CLRA [13] I am mindful of the following:

(1) Parenting time is the right of the child. (2) Parenting time should not be frozen in time pending a trial of the issue. (3) Supervised parenting time is meant to be a temporary or intermediate step. Tuttle v. Tuttle, 2014 ONSC 5011; C.S. v. K.M., 2023 ONCJ 106; B.C. v. M.T., 2019 ONCJ 33; L.S. v. M.A.F., 2021 ONCJ 554. (4) The expansion of parenting time in consideration of specific factors including family violence and substance misuse, must be done in a proportionate, cautious and child focused manner.

[45] The Mother opposes the child having unsupervised parenting time for two primary reasons: she continues to fear for her and Mylee’s safety, especially when the Father is drinking, and she believes the Father is still drinking.

[46] The Mother’s concerns are not unwarranted and need to be taken seriously.

[47] The Father has an extensive history of violent offences and non-compliance with (criminal) court orders. His most recent offences were against the Mother and were perpetrated while he was under the influence of alcohol.

[48] Although the Father eventually admits to his wrongdoings and takes some responsibility for his actions in his pleadings and submissions, he does so only after initially denying the Mother's allegations of his abuse and alcoholism, and subsequently attempting to justify or downplay his behaviour.

[49] Equally troubling is the Father's apparent lack of understanding (at best) and apparent readiness to potentially deceive or manipulate both the Mother and the court (at worst).

[50] The Father portrays his addiction to the court as a resolved issue that he has successfully tackled. He claims to have been “sober for over 8 months” [15] at the time, suggesting he had abstained from alcohol during that period. However, this was not accurate. He consumed two glasses of wine during the Labour Day weekend, not two weeks prior to signing his affidavit. He only disclosed this information to the court after Bondy J. ordered him to provide an updated letter from Dr. Bienenstock, and Dr. Bienenstock included this detail.

[51] While Dr. Bienenstock noted that amount of alcohol was “insufficient to meet the positive cutoff threshold of his next urine drug screen performed on Sept 8, 2023”, [16] had Dr. Bienenstock’s letter not been produced, the Father would have been content to allow the Mother and the court to rely on the negative urine screen analysis produced in his supplementary affidavit of September 8, 2023, to make orders to expand his parenting time.

[52] While I am encouraged by the Father’s honesty to report his lapses to Dr. Bienenstock, the Father will need to be as honest with himself, the Mother, and this court if he wants the expansion his parenting time to continue.

[53] Integrity isn't just a cornerstone of addiction recovery; it's essential for rebuilding the shattered trust between parents involved in family legal disputes.

[54] The court does not expect perfection of the Father. Neither should the Mother. The road to recovery, and to the development of a parent-child relationship, is often imperfect. The Father has made incredible strides in both and, as such, his parenting time should be expanded.

[55] Given the Father's lack of transparency regarding his sobriety and his apparent lack of insight, if not a deliberate attempt to manipulate the court (and the Mother) in his sworn testimony, however, I am of the opinion that a more careful approach to increasing the Father's parenting time is necessary to safeguard the best interests of the child, while still fostering a positive relationship with her Father.

Part Seven: Disposition

[56] For the reasons outlined above, I make the following orders:

(1) Commencing immediately, the Father’s supervised parenting time shall be expanded from one hour every Sunday to two hours every Sunday, supervised by Access for Parents and Children in Ontario. (2) After three two-hour visits, the Father shall be permitted to leave the access centre after 30 minutes supervised parenting time with the child, and exercise parenting time in the community for 60 minutes before returning to the access centre with the child for the duration of the supervised visit. (3) The Father shall not drive with the child during this parenting time. (4) The Father’s parenting time will be reviewed on May 2, 2024, when the matter returns to court. (5) The Father shall continue to use the BACtrack breathalyzer daily. Until such time as he returns to work, he will administer the test between 9:00 and 9:30 a.m. each morning. When he obtains notice of his return to work, he will notify counsel for the Mother of a consistent thirty-minute window when the test can be administered during his workweek, and will continue to administer the test on non-working days between 9:00 and 9:30 a.m. (6) If the Father fails to test within the scheduled testing period, he will immediately provide a test and notify counsel for the Mother as to the reason for the delay. (7) The Father will continue to attend until he successfully completes the Renascent Phase 2 program. (8) The Father will continue to attend AA meetings a minimum of once weekly. (9) The Father will continue to attend the minimum recommended clinic visits with Dr. Bienenstock and the associated urine drug screens with at the Comprehensive Treatment Clinic. (10) The Father will continue to follow all recommendation made to him by Dr. Bienenstock as it relates to his addictions counselling, treatment, and care. (11) Prior to the return date, the Father will serve and file a further update from Dr. Bienenstock, copies of his urine drug screen reports, his BACtrack reports, and APCO reports. These shall be attached to his Case Conference Brief and will not count towards his page limits for filing.

[57] If the parties cannot reach an agreement regarding costs, written costs submissions are to be served and filed no later than April 5, 2024. Submissions are to be no more that five-pages, double-spaced, twelve-point font. Offers to settle and Bills of Costs shall be attached and will not count towards the page limit.

Released: March 15, 2024 Signed: Justice Jennifer S. Daudlin