ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 3284/15
Date: 2015-08-10
BETWEEN:
BROOKE REYNOLDS
Applicant
– and –
RON WHALEN
Respondent
T. Ross, Counsel for the Applicant
L. Marshall, Counsel for the Respondent
HEARD: August 6, 2015
Varpio, J.
REASONS ON MOTION
[1] The parties in this case come before the Court facing a difficult and unfortunate situation. They were in a relationship for a period of time and have two children together, ages 2 and 4. They are agreed that they should share the custody of their two children but disagree with respect to the following:
Who should have decision-making authority in the event that the parties cannot agree as to the best course of action for their children;
The access schedule;
Support as a result of the access schedule (although the parties agree to table amounts driven by the ultimate access schedule); and
Other property related issues.
[2] They argued the motion seeking a Temporary Order governing points 2 and 3 above.
[3] For the reasons that follow, I accept that it is in the children’s best interests to maintain a primary residency with the mother on a temporary basis following the access schedule as suggested by her. Accordingly, the father will pay the mother $1207 on the first of the month commencing September 1, 2015 for as long as this access schedule is in place. Said payments will be made using the Family Responsibility Office as a vehicle for payment.
FACTS
[4] The parties began a relationship in 2000 during secondary school. As is the case with most young romances, this relationship did not last and they ended the relationship in or around that year. In 2010, however, with the parties having attained adulthood, their relationship rekindled and they began to cohabit. As indicated above, two children were born as a result of this relationship.
[5] The parties ultimately separated in January 2015 and the cohabitation history was certainly rocky. The specifics include allegations of infidelity by both sides and a suggestion by the mother that the father engaged in emotional and psychological abuse. She claims that the father has since attempted to dictate the access regime and has threatened to withhold the mother’s access post-separation. Further, the mother claims that the father has attempted to procure the services of prostitutes. The mother claims that the father has a problem with alcohol and has anger issues that cloud his actions. She claims that he is using the children as pawns and has a controlling temperament. Although not germane to this motion, she claims that she was forced to sign a separation agreement under duress.
[6] The mother suggests that the father should receive the following access schedule:
Alternating weekends from Friday at 5 p.m. until Monday at 9 a.m.; and
Every Tuesday at 5 p.m. through to Wednesday at 5 p.m.
[7] She states that, although the father is a good parent, it is in the children’s best interests to stay with the mother most of the time since she is the one who can best ensure some form of stability.
[8] The father, for his part, indicates that the wife has had problems with depression and that her attempts to maintain primary residency for the children are actually an attempt to gain more financial support. Further, the father indicates that the relationship was never abusive and that he simply wishes to be with his children an equal amount of time. The father indicates that acceptance of the mother’s access schedule would effectively reduce the amount of access he currently enjoys since he sees the children fifty percent of the time. He submits that it is in the children’s best interests to continue such a regime.
[9] In his affidavit dated August 4, 2015, the father denied trying to meet prostitutes, cheating on the mother, or having a “heavy” drinking problem.
[10] The mother furnished the following evidence rebutting the father’s denials:
Text messages reports showing text messages to escort services with google printouts confirming that the phone numbers involved were, in fact, escort services;
Letters from the father admitting that several problems with the relationship stemmed from his heavy drinking (one letter from 2010, two undated); and
Text messages from the father whose content is, at the very least, highly aggressive and possibly even abusive.
ANALYSIS
[11] Firstly, it should be noted that I do not take the alleged infidelities of either party into account since I do not believe that same is relevant to the parties’ respective parenting abilities. Nonetheless, I do note that the father gave blanket denials regarding the involvement of prostitutes and the evidence furnished upon the motion would seem to indicate that the father was less than forthright in his repudiation of the mother’s accusation.
[12] Secondly, with respect to the allegations of drug abuse by the mother, she indicates that she has used marijuana and was on anti-depressants. She denies abuse of same. I have no independent evidence to suggest that she has abused those substances nor do I have any reason to find that her credibility is less than intact on this point.
[13] Thirdly, I am concerned about the aggression contained within the father’s text messages, aggression that his counsel conceded was inappropriate. One such text indicated, “Fuck u you deceiving lying hore [sic]” Said aggression causes me to believe that there is a real possibility that the father has, in fact, engaged in abusive conduct towards the mother. Exposure to such aggression would be bad for the children.
[14] Fourthly, with respect to the father’s alcohol use, the father has, at the very least, understated his alcohol dependence. His affidavit states that he does not “have a major drinking problem”. One undated letter, however, states that “I know I have a problem with drinking to [sic] much and I really hope I have it under control now!” The May 12, 2010 email makes reference to his ability to stay “sober, rational” as regards a difficult emotional situation. Another undated handwritten note states: “I don’t have an excuse or reason why, all I can say is I had/have a problem and I can’t control myself when I drink a retarded amount. This is why I hurt you so badly again, because I can’t control myself”.
[15] Given the foregoing, I am satisfied that the father has had a meaningful drinking problem at some point in the relationship. The mother indicates that said problem continues to present day. While I have no corroboration for that position, it would seem consistent with the other evidence. When I consider:
the tone of the aggressive text messages;
the father’s admissions regarding the drinking problem in the letters/emails; and
the admission that the father has recently had to leave his car at the mother’s residence lest he drink and drive (i.e. he had too much to drink to get behind the wheel),
[16] I am satisfied that the father continues to have a meaningful alcohol dependency issue.
[17] It is obvious that children require love and stability in their lives in order to thrive. As a result of what appears to be the father’s alcohol abuse as well as his aggressive (if not abusive) texts, I am satisfied that a 50/50 split in time would not likely be in the children’s best interests as I question the father’s ability to remain sober and calm. That said, it is important to note that I am merely deciding this issue based on affidavit evidence. Indeed, I think that involvement of the OCL would be most appropriate in this case since the relationship is certainly “high conflict” and the seemingly admitted allegations of substance abuse cause me to have concerns regarding the children’s psychological well-being.
[18] Thus, the father should receive temporary access to his children as described in paragraph 6 above. The alternate weekend access shall commence Friday, August 14, 2015 at 5 p.m. while the Tuesday overnight access shall commence Tuesday, August 11, 2015 at 5 p.m. Further, the party that is picking up the child will be responsible for the child’s transportation. The parties have also agreed that, irrespective of which parent is supervising the child, that parent should not use any alcohol or medication that is not prescribed for them by a licensed physician.
[19] With respect to support, the father has attached a 2014 T4 that indicates his annual salary is $82,926.15. In his affidavit, he indicates that he was not making nearly that much in earlier this year but, during submissions, counsel indicated that the father is back to work at roughly the same wage as before. As such, I will use the father’s 2014 T4 as a proxy for his current income. He is therefore ordered to pay $1207/month to the mother commencing September 1, 2015.
COSTS
[20] Unless the parties can agree with respect to costs, the mother may provide me with her submissions (no more than 5 pages, not counting authorities) within 20 days of the release of this decision. The father may provide me with his submissions (same length restrictions) within 20 days thereafter.
Varpio, J.
Released: August 10, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BROOKE REYNOLDS
- and -
RON WHALEN
REASONS ON MOTION
Varpio, J.
Released: August 10, 2015