SUPERIOR COURT OF JUSTICE - ONTARIO

BARRIE COURT FILE NO.: FC-11-1289-0001
DATE: 20120113

RE: NAOMI CHRISTINE COHEN, Applicant

AND:

NASH JEFFREY COHEN, Respondent

BEFORE: McDERMOT J.

COUNSEL:
S. E. Powell, Counsel, for the Applicant
M.A. Cummings, Counsel, for the Respondent

HEARD: January 5, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] The respondent in this proceeding, Nash Cohen, has a problem with alcohol. This problem arose prior to separation, and has continued until recently. Because of Mr. Cohen’s alcohol issues, he and the applicant, Naomi Cohen have been engaged in continuous litigation concerning his time sharing with the parties’ children, Jossalyn and Shilah Cohen, who are five and three years of age respectively.

[ 2 ] Mr. Cohen has had various forms of supervision and/or alcohol monitoring because of his issues. A final order and separation agreement provided for a monitoring bracelet and supervision by the respondent’s parents, Marv and Joan Cohen in the event that the respondent drank with the children present. Most recently, the monitoring bracelet was removed on September 15, 2011 by agreement of the parties; within two days, there was a serious incident arising from Mr. Cohen drinking to the point where he passed out with the children present, resulting in risk and trauma to the children. Ms. Cohen now brings a motion to restrict access to day access only. She believes that the respondent’s parents, who have been the access supervisors of choice since separation, are no longer able to protect the children. She brings a motion for an interim variation to the order and Separation Agreement both as to the supervisors and the duration of access.

[ 3 ] For the reasons set out below, I am ordering that there be an interim variation to the outstanding order in this matter with Joan and/or Marv Cohen supervising the access. I am not ordering a return to the full time sharing as set out in the Separation Agreement although I am ordering overnight access. I am ordering that until further order that a SCRAM monitoring bracelet be worn by Mr. Cohen with a provision that in the event of any consumption of alcohol whatsoever, access to the children will be immediately suspended until further order of the court. My order may be reviewed in six months’ time.

BACKGROUND FACTS

[ 4 ] These parties married in 2005; they have two daughters namely Jossalyn Eva Cohen, born April 15, 2006 and Shilah Noelle Cohen, born February 7, 2008. Mr. Cohen apparently began to drink heavily during the marriage after selling a business and ensuing problems with the Canada Revenue Agency. Ms. Cohen states that the alcohol problems resulted in the separation of the parties on August 12, 2009. At that time, Ms. Cohen left the matrimonial home with the children.

[ 5 ] It is to be noted that Ms. Cummings stated that the past history of the respondent’s alcohol use was largely irrelevant as to review it at any length was to go behind the final order of Thompson J. dated April 19, 2011. I disagree; the respondent’s history of alcohol use is entirely relevant to the present especially when that order incorporated by reference the time sharing arrangement under the Separation Agreement negotiated in July, 2010, and also when we are dealing with an individual who is stating that he is now acknowledging his alcoholism for the first time since he began drinking, yet has sought out treatment for this problem in the past.

[ 6 ] There have been a number of different court orders and agreements regarding access to the children by Mr. Cohen all of which have been, to some extent, driven by Mr. Cohen’s alcohol use and recidivism. The orders and agreements have, from time to time, provided for supervision of access and for electronic monitoring of Mr. Cohen’s alcohol use. Supervision of access was historically performed by the respondent’s parents, who are admittedly quite close to the children. A history of the orders and agreements in this matter can be summarized as follows:

(a) After separation, Mr. Cohen went to Homewood for a recovery program in April, 2010. However, his sobriety was tenuous, and he drank within several weeks of returning from Homewood on May 12, 2010, when the applicant states that the respondent attempted to drive with the children while intoxicated. As a result, the applicant brought an emergency motion in Owen Sound court on May 27, 2010. By temporary minutes of settlement reduced to a temporary order of Quigley J. dated May 27, 2010, the respondent agreed that the applicant would have primary residence of the children; the respondent’s access was supervised by his parents, Marv and Joan Cohen. The access that the parties agreed to was on Tuesdays from 9:00 a.m. to Wednesdays at 9:00 a.m. and on Saturdays from 8:00 a.m. to Sundays at 4:00 p.m. The respondent agreed to undergo random urine screens two times per month for three months to ensure sobriety prior to unsupervised access resuming.

(b) Subsequent to this order, the parties entered into a Separation Agreement dated July 22, 2010 which provided that the parties would have joint custody of the children and they would reside primarily with Ms. Cohen. Mr. Cohen would receive extensive time sharing with the children of at least three days per week and four days for one week every other month. Mr. Cohen’s time sharing was to take place every Saturday to Monday morning and every Tuesday overnight; once every second month, the respondent would have the children the last Monday overnight of the month (para. 4(b)(i), (ii) and (iii)). There was a requirement for supervision, again by the respondent’s parents, Joan and Marv Cohen, but that supervision requirement came to an end “after this agreement is signed.” (para. 4(b)(iv)). Para. 4(c) of the agreement allowed Ms. Cohen to request two urine screens per month on 24 hours’ notice. In the event that the respondent failed a urine screen indicating that he had been drinking when with the children, or alternatively in the event that the respondent refused to attend for a urine screening, the supervision set out in para. 4(b)(iv) would forthwith resume; the time sharing would, however, remain the same as set out in para. 4(b) above.

(c) In November, 2010, the respondent sought permission to go to Florida with the children. Ms. Cohen suspected that the respondent had been drinking with the children due to some ambiguities in the testing provided by Mr. Cohen. She refused to provide permission and on November 12, 2010, the parties again found themselves before Quigley J. in Owen Sound on a motion brought by the respondent to compel the applicant’s consent to the respondent travelling to Florida with the children. Quigley J. stated that if Mr. Cohen did not bring his alcohol problems under control, he would be “at material risk of the joint custody and separation agreement concluded between the parties.” He stated that he accepted that Marvin and Joan Cohen, who were accompanying their son on the proposed Florida trip, would “do everything within their power... to ensure the safety and best interests of the girls while in Florida.” He noted that there was no evidence of a breach of the alcohol use provisions in the agreement and ordered the trip could take place; he took comfort from the fact that Marv and Joan Cohen were accompanying their son on the trip and would be “present most of the time.”

(d) On January 11, 2011, the respondent drank with the children contrary to the agreement and the police were called. He admitted to having a drink, but because the children were at the respondent’s parents’ residence and because they were safe in bed, the police took no steps. There was no allegation that the respondent’s parents had permitted the respondent’s drinking or that they were made aware of it at the time. The applicant brought a motion for custody and to restrict access returnable on January 14, 2011; by temporary order of Thompson J. made on the same date, on consent, the access was to be supervised by Joan Cohen as required by the Separation Agreement; the respondent continued to have his agreed upon access pursuant to para. 4(b)(i) and (ii) of the Separation Agreement.

(e) On February 4, 2011, the parties agreed to proceed to trial and by temporary order of Thompson J, the overnight visits were to be either at the home of Marv and Joan Cohen or they would sleep overnight at their son’s residence if he had the children there overnight. If Mr. Cohen went outside Simcoe or Grey/Bruce Counties, the access would then be supervised; other than as above, access was unsupervised.

(f) After about six days of trial between February and April, of 2011, the parties entered into final Minutes of Settlement. Those Minutes of Settlement were dated April 4, 2011 and were reduced to a final order of Thompson J. dated April 19, 2011. The final order provided that Mr. Cohen would wear a SCRAM alcohol monitoring ankle bracelet provided through Recovery Science Corporation (“Recovery”) which is an ankle bracelet which confirms whether alcohol of any quantity was consumed at any time by the respondent. Under the consent final order, the respondent continued to have access to the children as set out in paragraph 4(b) of the Separation Agreement. In the event of a report confirming that the respondent consumed alcohol 12 hours prior to or during access to the children, para. (f) of the order stated that “the next period that Nash is to have the children as set out in the Agreement will be directly supervised by Joan Cohen or Marv Cohen or a third party or organization as agreed between Nash and Naomi and supervision will continue until Recovery is able to deliver a report indicating no consumption of alcohol for seven full days.” If Mr. Cohen remained sober for that period of time, the respondent would presumably then have full unsupervised access. In the event that there was a second incident of alcohol use with the children, the supervision would last 30 days; in the event of a third “strike”, the supervision would continue for at least 60 days of continuous sobriety. Of note, even if there were numerous incidents of alcohol use with the children, there was no provision restricting the time sharing itself; no matter how many times Mr. Cohen drank with the children, he would continue to have the time sharing provided for in s. 4(b) of the Separation Agreement. The SCRAM bracelet could be removed on October 5, 2011 if there was no evidence of use of alcohol. The Minutes finally provided for a parenting coordinator to be appointed to assist the parties to continue parenting under the provisions of the Separation Agreement.

(g) In October, 2010, the applicant had moved to Collingwood. Prior to September, 2011, the applicant drove Jossalyn to her original school in the respondent’s catchment area, Beaver Valley Elementary School. Because this was a half hour drive, she now wished to enrol Jossalyn at Admiral Elementary, which was within her school district but the respondent disagreed. Mr. Cohen told the applicant that he would only allow Jossalyn to attend at that school if she would consent to the immediate removal of the SCRAM bracelet. The parties were unable to obtain a parenting coordinator on a timely basis, and Ms. Cohen enrolled Jossalyn in Admiral Elementary. Jossalyn attended this school until her next visit with the respondent, who then took Jossalyn to her old school, Beaver Valley School. This was obviously confusing for Jossalyn, and Ms. Cohen accordingly entered into a written agreement dated September 15, 2011 apparently drafted without assistance of counsel; that agreement provided that the SCRAM bracelet could be removed by Mr. Cohen on September 15, 2011. The agreement furthermore purported to increase Mr. Cohen’s access by giving him the extra Monday every month rather than every second month as set out in para. 4(b)(iii) of the Separation Agreement. The alcohol use clause was amended to provide that neither party (and not just Mr. Cohen) would consume alcohol while caring for the children; this appears to be notwithstanding the fact that there was never any allegation made against Ms. Cohen as to her alcohol use with the children.

[ 7 ] Almost immediately after the bracelet was removed, on September 17, 2011, Mr. Cohen became quite intoxicated while exercising access to the children on his boat. The boat was at dockside. The incident was serious; Mr. Cohen passed out and Jossalyn had to seek outside assistance from a stranger who arrived for an appointment with Mr. Cohen. Mr. Cohen was unresponsive without vital signs. The police and paramedics were called and Mr. Cohen was hospitalized. An affidavit provided by the arresting officer indicates that when Mr. Cohen awoke, he was largely incoherent and became belligerent; he had to be arrested and later restrained in a separate room at the hospital because he was disturbing other patients. He purposefully urinated on himself, his pants and the hospital floor and was taken to gaol; he went home wearing hospital pants.

[ 8 ] Because of this incident, Ms. Cohen believes the respondent to be ungovernable, and has brought a motion to change the order of Thompson J dated April 19, 2011, as well as the time sharing arrangement contained in the Separation Agreement, and incorporated by reference into that order. Ms. Powell brought an emergency motion on September 22, 2011 before Graham J.; on that date he granted a temporary variation of the order of Thompson J. and ordered that Ms. Cohen would have care and control of the children and that access would take place at a supervised access centre. Ultimately, Ms. Cohen seeks to vary access to one 24 hour period every second weekend and one day on the opposite weekend with all access to be supervised by Marv and/or Joan Cohen.

[ 9 ] Because there is no supervised access centre in the Collingwood area, the parties agreed that access could take place through a professional access supervisor; access has since been supervised by Elaine McFarlane who is an agent of Supervised Access for Everyone (“S.A.F.E.”) at the expense of Mr. Cohen. By agreement of the parties Mr. Cohen now sees the children on Wednesdays for 3 hours and on Saturdays for 7 hours. No overnight access is permitted. Mr. Cohen has, as well, voluntarily re-enrolled in the SCRAM program and is wearing that bracelet now. He now states that, for the first time since separation, he realizes that he is an alcoholic and cannot drink at all. He is attending AA meetings.

ANALYSIS

[ 10 ] Ms. Cohen seeks two orders today:

[ 11 ] She firstly seeks an interim variation of the orders and agreements to limit Mr. Cohen to day access only supervised by the professional supervisor only;

[ 12 ] She seeks release of the police report respecting the September 17, 2011 incident noted above.

[ 13 ] In argument, it became apparent that the Collingwood branch of the Ontario Provincial Police, which was the police service involved in the incident in question, did not have notice of the return of this motion on January 5, 2011. Mr. Cohen has nothing to do with the police records; the release of these records can only be ordered on notice to the police service involved and they have filed no materials on the motion. As such, I advised Ms. Powell that I would not hear that motion on January 5, 2011; as advised, she may re-submit that motion by way of 14B motion on notice to both the respondent and the police service involved.

Material Change in Circumstances

[ 14 ] To vary the order in this case on either an interim or a final basis in this matter, there must be “a material change in circumstances that affects or is likely to affect the best interests of the child”: see s. 29 of the Children’s Law Reform Act . [1]

[ 15 ] Mr. Cohen wishes access returned to the regime under the Separation Agreement, but with his parents as supervisors. He takes the position that this is effectively an event contemplated by para. (f) of the Thompson J. order, which then results in a period of supervision by the respondent’s parents but under the time sharing regime set out in the Separation Agreement. In other words, he states that there is no change in circumstances which would allow for a variation in the order or agreement; alcohol use and the consequences of that use is exactly what was contemplated by the order. Notwithstanding the fact that the period of supervision under the order for the first breach is 7 days, Mr. Cohen is willing to delay the ending of the supervision of access for six months.

[ 16 ] I disagree with the premise that there is no change in circumstances in this case. There was not only alcohol use in this situation; as a result of the actions of the respondent, a situation arose which was both dangerous and traumatizing for the children. The children were forced to observe their father at his worst and this incident has resulted in Mr. Cohen himself admitting that he was an alcoholic which he says is somewhat of a revelation to himself, notwithstanding his earlier stay in Homewood, and the exhortations of Quigley J. in November, 2010. The severity of the incident itself takes it out of the realm of the mere “consumption of alcohol” as set out in para. (f) of the Thompson J. order; this incident not only involved the use of alcohol but the respondent becoming unconscious leaving two very young children unsupervised on a boat and having to reach out to a stranger. They later observed their father arrested. I find that there has been a change in circumstances which permits a temporary variation of the Thompson J. order of April 19, 2011.

Access Supervisor

[ 17 ] The next issue is who is to supervise the access to these children. The applicant states that she no longer trusts the respondent’s parents; she does not believe that they will report alcohol use to her and that they have done nothing other than to enable the respondent’s alcohol use. She says the severity of the last incident calls into question whether Marv and Joan Cohen could deal with that situation physically. She appears to feel that they are partly responsible for the September 17 incident as they left Mr. Cohen alone with the children shortly after the SCRAM bracelet was removed; they should have exercised, according to Ms. Cohen, greater caution. She accuses them of minimizing the respondent’s alcohol use.

[ 18 ] The applicant cannot be blamed for having a lack of trust in this situation. She has observed the results of the respondent’s alcoholism before, and this incident has affirmed for her the need for greater control over the respondent. Relations between the applicant and the respondent’s parents have deteriorated to the extent that the applicant does not now trust them to supervise access by the respondent to the children. It is also true that on September 21, 2011, the respondent’s father was dismissive of the applicant, and stated that his son was “good now” and did not acknowledge the applicant’s legitimate concerns when he responded to the applicant’s refusal to allow access that “as I expected you would think anytime is too soon.”

[ 19 ] That may have been ill advised and insensitive of Marv Cohen; however, the history of this matter indicates a common belief at all relevant times in the suitability of the Cohens as access supervisors in this matter. Throughout, and since separation, the applicant has trusted the respondent’s parents to supervise access to the children. She states in her own Motion to Change that the respondent’s parents should ultimately supervise access to the children. She can point to no incident where the respondent’s parents knowingly allowed him to drink with the children or allowed him to put the children at risk. The respondent’s parents cannot be held responsible for the incident on September 17, 2011; that would take away from where the blame legitimately resides, which is with Mr. Cohen himself. The deterioration of the relationship between the applicant and the respondent’s parents does not affect the ability of the Cohens to appropriately supervise the respondent’s access.

[ 20 ] There is accordingly no evidence which indicates that there is any change in circumstances which would warrant a variation in the supervision agreements of long standing in this case. There is also no evidence which indicates that the incident of September 17, 2011 changes the trusted role that the respondent’s parents have always had in this separated couple’s dynamic or which indicates that they are now, for some reason, willing to put the children at risk. The evidence indicates that the children are familiar with their paternal grandparents and comfortable in their home. I find that Joan and Marv Cohen are appropriate to supervise the respondent’s access in this case.

Temporary Variation of Access

[ 21 ] The next issue before me is the extent of the time sharing to be enjoyed by the respondent pending trial. As discussed above, under the present order and agreement, the time sharing that the respondent is entitled to is three days per week to be extended to four nights on one occasion every two months. I note that if I take into account the amending agreement signed by Ms. Cohen on September 15, 2011, the access to Mr. Cohen would increase to four overnights every month rather than every second month as set out in the Separation Agreement; because of what happened on September 17, 2011, this change has never been implemented. For the purposes of this motion, however, I do not consider this agreement as being binding upon the parties; there is a court order in place which has not been formally amended by subsequent order and I as well have serious reservations as to the negotiation of that agreement considering the fact that the respondent’s quid pro quo for the increase in access and the removal of the SCRAM bracelet was stable schooling for Jossalyn.

[ 22 ] The applicant’s solicitor states that the access to the children should be limited to the day access that the parties presently have in place. She states that the applicant cannot be trusted with overnight access and will drink again. She says that the children have been traumatized by the applicant’s actions and should not be subjected to extensive time sharing with the respondent. The applicant seeks an interim variation of the April 19, 2011 order and the Separation Agreement to day access only as is presently in place pursuant to the Graham J. order of September 22, 2011.

[ 23 ] The respondent’s solicitor, Ms. Cummings, urges me to return Mr. Cohen to the time sharing as provided for in the April 19, 2011 order and the Separation Agreement. This would provide Mr. Cohen with access three overnights per week and four overnights every second month. As noted above, Ms. Cummings states that the result of the respondent’s alcohol use is already set out in the court order which does not allow for a change in the time sharing arrangement. She states that the appropriate result of the alcohol use is that access to the respondent should be as set out in the agreement as a reduction in access was not contemplated by the parties when they settled their issues. She states that there is no reason, indeed no right, to change the agreement as to access to the children as a result of the September 17 incident.

[ 24 ] I have already commented on the issue of whether there is an entitlement to vary the April 19, 2011 order on an interim basis; I have made a finding that the order may be changed as there has been a change in circumstances beyond that contemplated by the parties when they negotiated the final Minutes of Settlement leading to that order. I also believe that there should be a variation of the access provisions in that order. The order had contemplated largely unsupervised access which was extensive in nature. If there was to be supervision of access, the duration of that access was intended to be short, no more than 7 days in the event of one breach and 30 days in the event of the second. In the present case, even on the submissions of the respondent, the duration of access supervision by the respondent’s parents is to be six months long prior to review and variation. The respondent’s parents have never supervised access to the extent and duration now contemplated; the two occasions during which they were actually to supervise access were between May 27 and the negotiation of the Separation Agreement, when access was limited to two overnights per week being a two month period of time; the second time that they had to supervise access was for two weeks after the January 11, 2011 order; when the parties returned to court on February 1, 2011, the supervision requirement was then relaxed to overnights at the respondent’s parents residence only. Based upon the respondent’s submissions, Marv and Joan Cohen are now being asked to supervise extensive time sharing of three overnights per week, to be extended to four once every two months, for a period of six months. I am not prepared to order this, partly because this is an onerous expectation for any putative access supervisor, and partly because I am truly concerned about pre-determining the applicant’s Motion to Change in this matter; the applicant is requesting that access be ultimately restricted to one overnight every two weeks. I note finally that the duration of supervision may very well extend beyond the six month period. A case conference has not yet been held, and neither party was clear with me as to how this matter is to proceed or as to the means of resolving this dispute. If this matter is to proceed to trial, it may very well not take place prior to the spring 2013 sittings.

[ 25 ] That being said, it is also clearly not in the children’s best interests to restrict access as suggested by the applicant’s solicitor. It is apparent to me that the children enjoy their time with their father, and that he is capable of being a good and loving parent when he does not drink: see the correspondence from the access supervisor which confirms that the children enjoy their time with their father, and also that the children consider the access visits to be too short. They complain about the visits ending and the interactions between parent and children are throughout described as “appropriate.” Mr. Cohen has offered to continue wearing the SCRAM ankle bracelet for at least the next six months and as such, and in view of the terms of the order that I intend upon making, the risks of Mr. Cohen drinking in the presence of the children are small. In my view, overnight access is appropriate and in the children’s best interests under the circumstances. As a guide, I view the access that the parties agreed to initially when Mr. Cohen had difficulties in May, 2010 to be appropriate and manageable; certainly the parties thought it so when they agreed to this arrangement. The time sharing set out in the temporary order of May 27, 2010 allows shorter but more meaningful visits for the children which are easier to supervise over a lengthy period of time.

[ 26 ] I am returning to the monitoring requirements set out in the order of Thompson J. dated April 19, 2011.

[ 27 ] Mr. Cohen has acknowledged being an alcoholic. This means, of course, that he cannot drink whatsoever (and not just when with the children). He states that he did not drink at all after the April 19, 2011 order and has not done so since he returned to the use of the SCRAM ankle bracelet since September 28, 2011. This is probably the respondent’s last and best chance and regularizing his access with his children and he has to understand that any further alcohol use will seriously jeopardize his access and time sharing with his children; these children are entitled to expect that their father will no longer use alcohol. Accordingly, I will be ordering that if there is monitored alcohol use, whether or not with the children present or before access, the access under the order will be suspended.

[ 28 ] Finally, the respondent’s solicitor has stated that she wishes the supervision requirement to come to an end after six months; I am not willing to pre-judge this issue, but I am willing to provide for a review of the supervision requirement under my order after six months has elapsed; the review may take place without a further case conference at the time or change in circumstances.

[ 29 ] As the parties are presently before the court, I do not need to comment on the issue of joint or sole custody. That issue will be left to another day. I note that I received a copy of a draft order prepared by the respondent’s solicitor; many of the clauses contained in that order make sense and are probably not controversial; however, they were not argued and I will leave those issues to be discussed with the justice hearing the case conference.

ORDER

[ 30 ] Accordingly, there will be a temporary variation of the Thompson J. order of April 19, 2011 on the following terms:

(a) The applicant shall have temporary care and control of the children of the marriage;

(b) The respondent shall have access to the children as follows:

i. From 4:00 p.m. Tuesdays to 9:00 a.m. on Wednesdays when the children will be dropped off at school or at the applicant’s residence as the case may be;

ii. On Saturdays from 9:00 a.m. to Sundays at 4:00 p.m.

iii. Such other times as the parties may agree upon.

(c) All access to the children shall be supervised by Marv and/or Joan Cohen or, if they are not available to supervise, a S.A.F.E. facilitator such other professional supervisor as agreed to between the parties; the respondent to bear the costs of access supervision if any.

(d) The respondent shall continue to wear the SCRAM ankle bracelet and shall continue his enrolment in the SCRAM provided by the Recovery Science Corporation until further order.

(e) The parties shall comply with and re-implement the monitoring requirements set out in paragraphs 1(b), (d) and (e) of the final order of Thompson J. dated April 19, 2011, again until further order.

(f) In the event of any monitored use of alcohol by the respondent, all access to the children shall be suspended and either party may forthwith schedule a motion without the need for a case conference in order to determine ongoing access to the children.

(g) The within order may be reviewed on motion by either party after the expiry of six months from this date without the necessity of a case conference or material change in circumstances.

(h) The motion for release of police records is dismissed without prejudice to renew by way of 14B motion on notice to both the respondent and the Collingwood Police Service or Ontario Provincial Police as the case may be.

[ 31 ] The parties may speak to the issue of costs, with the costs submissions to be made by the applicant and then the respondent on a 10 day turnaround. Costs submissions to be no more than three pages in length not including any offers to settle and costs memorandums or bills of costs.

McDERMOT J.

Date: January 13, 2012

[1] R.S.O. 1990, c. C.12