COURT FILE NO.: FC-12-1348
DATE: 2014/02/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jacob Amis
Applicant
- and -
Candace Pakenham (Amis)
Respondent
Counsel: Susan Galarneau, for the Applicant In person, for the Respondent
HEARD: February 7th, 2014 (in Ottawa)
RULING ON ACCESS
Johnston, J.
[1] This a Ruling on Access, following my ruling, released in August, 2013, dealing with a motion to change, commenced by the Applicant, Mr. Amis. In my previous ruling, I dealt with the issues of custody and support, and granted an interim access order. At that time, I felt further evidence was required upon the issue of access given that the Respondent, Ms. Candace Amis, had just been released from custody to serve a conditional jail sentence at the time of the initial hearing, together with the fact that Ms. Amis claimed that she was undergoing drug rehabilitation treatment.
[2] I heard further evidence on February 7th, 2014.
Background
[3] This court previously found that it was in the best interests of the child, Atreyu, (now five years of age) that he be placed in the primary care of his father. Further, this court found as a fact that Ms. Amis has struggled with cocaine addiction for an extended period of time. Ms. Amis loves her son, Atreyu, and when she is sober, she is a capable parent. At the conclusion of evidence in June, 2013, the remaining issue to determine is access, which in turn involves determination as to whether Ms. Amis will maintain sobriety and, in particular abstain from the use of crack cocaine.
Findings
[4] Ms. Amis did not participate in hair follicle testing from the date of my initial order in August, 2013. Ms. Amis renews a promise in February, 2014, that she will obtain a hair follicle sample in early March, 2014 and renews a promise to remain sober. Ms. Amis testified that she did not participate in hair follicle testing for several reasons. First, she testified that she could not afford the $800 testing fee. Ms. Amis indicated there were other reasons, but failed to explain.
[5] Ms. Amis now admits that she relapsed and used cocaine at least once, on November 30, 2013, after a daytime visit with Atreyu. Further, Ms. Amis admits that she lied to this court in her testimony in June, 2013. In her earlier evidence Ms. Amis testified that, except for one relapse, she had been free from the use of cocaine in 2012. Ms. Amis now admits that this was false and she had not maintained sobriety. Ms. Amis replied in cross examination that she could not remember if she used cocaine more than once in 2013, but acknowledged she might have.
[6] Ms. Amis’ demeanor, attitude and response to questions dramatically changed when she was subjected to questions in cross-examination about her drug use. Given the totality of the evidence, I am satisfied on the balance of probabilities that Ms. Amis has used cocaine more than the one time she has admitted to use in November, 2013. I find that Ms. Amis told this court she “could not remember” because she was afraid of the consequences of admitting to cocaine use. It is not conceivable that Ms. Amis would forget further relapse and use of cocaine. Ms. Amis acknowledges that she knows her “bad choices” have negatively impacted the life of her son. Ms. Amis acknowledges that she has a cocaine addiction. Ms. Amis knows full well when and how many times she has used cocaine and she has deliberately refused to be honest to herself and this court. The court cannot trust Ms. Amis at this point, to honestly disclose her cocaine use.
[7] I find as a fact that Ms. Amis did not participate in hair follicle testing because she knew, or was seriously concerned, that the test would reveal her cocaine use. In her most recent testimony, Ms. Amis acknowledged that she is able to obtain money from friends and pay debts. I find that Ms. Amis could have obtained sufficient funding to complete the hair follicle testing if she desired. By failing or refusing to participate in hair follicle testing, Ms. Amis chose to put herself and her addiction before the best interests of her son, Atreyu.
[8] Mr. Amis’ testimony, both in June and most recently, satisfy me that Atreyu wants to see his mother and enjoys spending time with her. Again, it is not an issue that mother does not love her son. The issue is whether it is in Atreyu’s best interests to be exposed to his mother while she is under the influence of cocaine. Ms. Amis has been deceptive on her use of cocaine.
[9] Ms. Amis has not followed through with drug rehabilitation to the extent that she testified she would in June, 2013. Ms. Amis was permitted to file, late, a letter dated February 5th, 2014, from Amethyst Women’s Addiction Centre. The letter confirms that Ms. Amis has attended the Addiction Centre treatment program since June, 2013; she has only attended four group sessions. In June, 2013, Ms. Amis testified that she would regularly attend individual and group counselling sessions to deal with her addictions issues and her childhood trauma issues. It would appear that Ms. Amis’ current drug use is connected to her traumatic childhood. Until Ms. Amis is prepared to deal with her own trauma, it is unlikely that she will be successful in her battle to overcome addictions. I am satisfied that Ms. Amis wants to abstain from the use of cocaine and wants to be a good parent to Atreyu. I am not satisfied that she is able to follow through on abstinence, at least for the present.
[10] This court is left with a significant dilemma, in an attempt to ascertain the best interests of Atreyu. On one hand, Ms. Amis has demonstrated that she can be a capable and loving parent. It is further obvious, even in father’s evidence, that Atreyu loves his mother and wants to see her frequently. Ms. Amis was recently incarcerated and unable to visit Atreyu for three weeks. I am satisfied that Atreyu was very upset not to be able to see his mother during her period of incarceration. On the other hand, Ms. Amis is volatile and unpredictable when under the influence of cocaine. It is not safe for Atreyu, either on the basis of his immediate physical safety or on the basis of his long-term psychological wellbeing, to be exposed to his mother while she is under the influence of intoxicating substances.
[11] Ms. Amis acknowledges that she has engaged in some inappropriate behaviour towards Mr. Amis as it relates to telephone calls and text messages. However, Ms. Amis denies the pattern of abusive conduct alleged by Mr. Amis. Ms. Amis needs to realize that her son, Atreyu, needs her to be a capable mother. However, to achieve this, she must be free of cocaine. It appears that Ms. Amis blames those closest to her for her current predicament. Ms. Amis lacks insight into her own needs and, more importantly, Atreyu’s needs.
Position of Ms. Amis
[12] Ms. Amis requests that this court order overnight access between herself and Atreyu. Ms. Amis also seeks extended visitation with her son during holidays. Ms. Amis argues that Atreyu needs her and it would be wrong in law not to order overnight access.
[13] In the light of the findings above, I cannot agree with Ms. Amis. Overnight access is simply not in Atreyu’s best interests, at this time. Atreyu is five years of age and vulnerable. Atreyu wants to spend more time with his mother; however, he is far too young to understand the safety risks that mother poses while she is using cocaine. It was hoped by this court that Ms. Amis would use the intervening time, between June, 2013 and now, to begin to deal with her trauma and addictions issues. Instead, Ms. Amis used cocaine on at least several occasions and breached her conditional jail sentence and was returned to jail for three weeks in December, 2013.
[14] Father argues that the existing access should continue, however, Wednesday visits should be modified to reflect the fact that Atreyu is now attending senior kindergarten. Father is not seeking an order that visits be supervised at the commencement of visitation, however, he is requesting that he be permitted to cancel a visit if he is of the view that Ms. Amis is under the influence of non-prescribed drugs.
[15] I have given serious consideration to whether Ms. Amis’ access to Atreyu should be further reduced from my interim order. In all of the circumstances and given father’s position that he is content with the existing access, I am prepared to order the access continue, with a slight modification. Both parties testified that Atreyu seems to be tired on his Wednesday visits. Most recently, Wednesday visits have been from after school (approximately 4:00 p.m.) to 8:00 p.m. Given the child’s age and given that he is attending full time kindergarten, Atreyu should return to his father’s care by 7:30 p.m.
[16] Order
(a) Ms. Amis shall have access to Atreyu Amis each Saturday from 9:00 a.m. to 5:00 p.m., provided that Atreyu shall attend karate classes on Saturday mornings.
(b) Ms. Amis shall have access to Atreyu each Wednesday from after school (approximately 4:00 p.m.) to 7:30 p.m.
(c) On all statutory holidays, Ms. Amis shall be entitled to an additional visit of four hours the weekend of the statutory holiday.
(d) At Christmas, Ms. Amis shall be entitled to a minimum of four hours on Christmas Day. If the parties cannot agree, access shall be from 12:00 noon to 4:00 p.m. Also, she shall have access for two additional days during the school Christmas holidays from 9:00 a.m. to 5:00 p.m. each day, the days to be agreed upon; in the event of no agreement on December 27 and 29 (provided neither day is a regularly scheduled access visit)
(e) Ms. Amis shall have access on each Mother’s Day from 9:00 a.m. to 5:00 p.m., and a minimum of two hours on Atreyu’s birthday and a minimum of three hours on mother’s birthday.
(f) If Atreyu is too ill to exercise access, the visit shall be cancelled and rescheduled.
(g) During March school break and summer school break Wednesday visits (or such other day as agreed upon) shall be from 9:00 a.m. to 5:00 p.m.
(h) Such other times as the parties may agree upon in the best interests of Atreyu.
Conditions of access
[17] Ms. Amis shall not be under the influence of alcohol or non-prescribed drugs 12 hours immediately before, during or after access visits. Mr. Amis shall be entitled to meet with Ms. Amis at the commencement of scheduled access visit and determine whether or not she is under the influence of non-prescribed drugs or alcohol. If Mr. Amis is of the view that Ms. Amis is under the influence and not capable of exercising access, in his sole discretion, the visit shall be cancelled. I have considered Ms. Amis’ argument that Mr. Amis will unreasonably cancel visitation. Since the parties appeared before me in June, 2013, I am satisfied that Mr. Amis has facilitated access. I am satisfied that Mr. Amis realizes the benefits to Atreyu to have visitation with his mother. For this reason, I am satisfied that Mr. Amis be given responsibility to determine if Ms. Amis is under the influence of intoxicants at the commencement of visitation.
[18] Ms. Amis is to continue her drug treatment at Amethyst Women’s Addiction Centre treatment program or other similar treatment program, until she receives a letter from a recognized addition centre that the treatment program has been successfully completed.
[19] Neither party is to speak to Atreyu in a negative manner about the other parent absolutely.
[20] Ms. Amis shall be entitled to reasonable telephone contact with Atreyu at a minimum of three evenings per week. In the event the parties cannot agree, the telephone access shall occur Sunday, Tuesday and Thursday, between the hours of 6:00 p.m. and 7:00 p.m.
[21] The parties shall communicate with one another regarding the welfare and best interests of Atreyu by email. However, neither party is to use email exchange for the purpose of knowingly harassing or belittling the other party. Communication must be related to Atreyu and must contain civil language.
[22] This court anticipates access will be varied in the future. In order to satisfy a court that access should be increased, it is likely Ms. Amis will be required to demonstrate that she has successfully completed a drug rehabilitation program, that she has maintained consistent sobriety as verified through monitored hair follicle testing and that she is able to meet the ongoing needs of the child and that such increase or decrease in access would be in the child’s best interests.
Costs
[23] In the event the parties cannot agree on costs, Mr. Amis shall prepare and serve additional submissions on costs limited to two pages with a Bill of Costs. Upon receipt of costs submissions, Ms. Amis shall be entitled to serve and file a response, also limited to two pages. The response shall be served and filed within 21 days of her receipt of costs submissions.
Mr. Justice John M. Johnston
Released: February 14 , 2014
COURT FILE NO.: FC-12-1348
DATE: February 14, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jacob Amis
Applicant
- and -
Candace Pakenham (Amis)
Respondent
RULING ON ACCESS
The Honourable Mr. Justice J. M. Johnston
Released: February 14, 2014