SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 832/14

DATE: 2015/09/04

RE: IZAURINDO RANDY FREITAS, Applicant

AND:

JOHANA MENDOZA CARMONA, Respondent

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
Brigitte Gratl, for the Applicant

Modupe Ehinlaiye, for the Respondent

HEARD: September 3, 2015

ENDORSEMENT

Nature of the Motions

[1] The applicant/father moves on an urgent basis to vary the interim order of Justice Campbell dated October 1, 2014 that the parties shall of joint custody of the children of the marriage Mateo (born October 25, 2011) and Lucas (born September 16, 2013). The applicant seeks custody of the children with a liberal access to the respondent/mother at the applicant’s discretion and supervised by the applicant or unsupervised, as long as the applicant is satisfied that the respondent is sober after completion of a rehabilitation program for which she has applied, and until completion of the rehabilitation program, the applicant shall have complete discretion over access.

[2] The respondent has brought a cross-motion to continue interim joint custody of the children with primary residence with the applicant, the immediate return of the children by the applicant to the respondent and an order that the applicant shall not remove the children from the province of Ontario without the consent of the respondent and a court order.

Procedural Background

[3] It is noteworthy that the order of Justice Campbell was made prior to a case conference and no case conference has been held to date. Counsel for the applicant advises that neither party has pressed the proceeding forward as, until the recent events described in the applicant’s affidavit, the parties were content to abide by the terms of Justice Campbell’s order with respect to custody and access to the children.

[4] The specifics of the parenting regime in Justice Campbell’s order provided that primary residence of the children was to be with the respondent pending the applicant’s seasonal layoff from his full-time employment expected in November 2014 with the applicant to have primary parenting responsibility during that time from 6 PM on Fridays until Sundays at 5 PM. After the applicant’s full-time layoff and until his re-commencement of any full or part-time employment, the parties were to share the care of the children equally on a 4 day/3 day about schedule.

[5] Justice Campbell’s order provided that neither party was to consume non-prescription drugs or alcohol prior to or during access with the children and both parties were to submit to urine screens weekly and to hair follicle testing once per month.

Affidavit Evidence of the Parties

[6] It is fair to say that the affidavit evidence of the parties on these motions is conflicting in many material respects.

[7] The applicant deposes in his affidavit, in summary, as follows:

(a) the parties have largely followed the order of Justice Campbell with certain exceptions including that on many occasions the respondent telephoned him advising that she was not feeling well and wanted him to keep the children a longer than specified in the order;

(b) the respondent stopped having the hair follicle tests conducted and after a while also stopped a regular urine screens, whereas he continued with regular urine screens but stopped the hair tests because of the high cost;

(c) the applicant began to suspect that the respondent had continued drinking however until June 21, 2015 he had no real proof;

(d) on June 21, 2015 upon returning the children to the respondent’s residence the respondent did not respond to the doorbell or to telephone calls necessitating police assistance to gain access to the residence where the respondent was found upstairs asleep. The respondent advised the police that she had been drinking at a bar and had a few more drinks in the home with her sister;

(e) the respondent appeared intoxicated every weekend thereafter when the applicant dropped off the children. To avoid his taking the children back to his home in Cambridge the respondent invited the applicant to stay overnight from July 5 on subsequent weekends;

(f) the applicant says he saw beer bottles and wine bottles under the bed and in the closet at the respondent’s residence and began to take photos of the bottles which he appended to his affidavit as exhibits;

(g) on or about July 13, 2015 the applicant called the Children’s Aid Society and was told that it was up to him to do something and refused to check on the children. On that date when the applicant arrived at the respondent’s residence the door was opened by the older child. Both children were up and unsupervised with the respondent in bed upstairs sleeping. The applicant stayed the night to make the sure the children would be safe;

(h) the applicant stayed at the respondent’s house most of July after his work hours on the days that the children were to be in the care of the respondent pursuant to the order;

(i) during the month of August the respondent’s sister called the applicant reporting that the respondent had gone to hospital suffering from a panic attack;

(j) the respondent advised the applicant by email that she had been prescribed a medication Ativan to help her stay away from alcohol;

(k) the respondent reported to the applicant that she was feeling depressed and indicated that she was applying to be admitted to a rehabilitation program;

(l) during conversations between August 8 and 22,015 the respondent advised the applicant that she continued to drink and was trying to stop;

(m) shortly after midnight on August 22, 2015 the respondent contacted the applicant by text advising that she was at a bar, asking the applicant to come to get her. The next morning she was taken to hospital for her withdrawl symptoms and was accepted to WomanKind for five days of residential detoxification;

(n) on August 28, 2015 the respondent sent a text to the applicant which indicated that she wanted to change her life;

(o) the applicant states that it is his conviction that is it in the children’s best interest that he should have custody of them given that the respondent is currently waiting for a place in rehab which would take her away for at least a month. He states that in the interim the children are not safe with the respondent since she could relapse as she is done numerous times before. He states that he has every intention to grant generous access to the respondent so long as he can be certain that she is sober.

[8] The respondent deposed in her affidavit, in summary, as follows:

(a) following the order of Justice Campbell the applicant was very upset and threatened to “show” her;

(b) as ordered by the court, the respondent underwent hair follicle testing on October 9, 2014. Following the test she was informed by Children’s Aid Society of Halton that they would no longer fund further hair tests as there were no concerns with drugs or other substance abuse. Accordingly, it was not her decision to discontinue the hair tests. She never stopped doing the weekly urine tests ordered by Justice Campbell and appended to her affidavit copies of test results from September 29, 2014 to August 13, 2015;

(c) the respondent did not request the applicant to stay overnight at her apartment so as to take care of the children but rather the applicant always felt the need to control her and he continued to find means to be involved in her life;

(d) in the last couple of months the applicant and the respondent had become closer and the applicant had asked her to reconcile. The applicant requested to spend the night in the respondent’s apartment and the respondent did not object. It was not as a result of his helping out with the children nor as a result of any incapacitation on her part to care for the children;

(e) the respondent vehemently denied the allegation of the applicant that she kept any sort of alcoholic beverage in her home and denied that the photographs of bottles appended to the applicant’s affidavit were taken at her home;

(f) the respondent denied any incidents of the children opening the door upon the applicant arriving;

(g) the respondent acknowledged her difficulties with alcohol and depression prior to having children but indicated that she had sought help and had gone through rehabilitation to deal with alcohol consumption;

(h) following the marriage breakdown, focusing on the children’s well-being, she quit drinking and remained motivated to work harder at staying clean and sober;

(i) in the first week of July, 2015 the parties agreed to settle the custodial issues via a separation agreement however that did not proceed further;

(j) on August 17, 2015 the children and the respondent had symptoms of flu in August 19, 2015 the applicant offered to take the children so that she could take care of herself and rest. The applicant picked the children up on that date. The respondent was very depressed and went to a bar, however she became very uncomfortable there and sent a text to the applicant requesting him to take her home;

(k) on August 20, 2015 the applicant took the respondent to the hospital and thereafter she decided to go to WomanKind where she could get counselling as she was very depressed. The respondent checked in on August 21 six day detox and counselling program and was discharged on August 26, 2015;

(l) over the next several days the parties planned activities including the children but the applicant became upset when the respondent advised that she had an appointment with Alcoholics Anonymous and wanted to go to the gym. They had a dispute with respect to when the applicant was to return the children to the respondent at which time the applicant threatened to take the respondent to court and “expose” her. The respondent deposed that the applicant had threatened on several occasions in the past that he would take her to court whenever he was not pleased with her challenging his authority or not doing exactly what he wanted;

(m) the respondent states that she has never put the children at risk and that the applicant knows this. Justice Campbell’s order provided that neither party is to consume or ingest alcohol when the children are in their care or within 12 hours of them coming into their care and she has always abided by that;

(n) the applicant has unilaterally kept the children away from the respondent since August 30, 2015 and has refused her telephone access to the children since that date. The applicant is also refused to take the older child to school (daycare) since August 19, 2015 and as a result of the child’s non-attendance the respondent was contacted by Halton Region that he might lose his school subsidy due to non-attendance;

(o) the respondent states that the applicant is aware that she has been attending AA and Adapt, which is a centre that helps with counselling and prevention into relapse. She is never put the children in harm’s way nor at risk. The respondent states that the applicant’s allegations about her drinking are completely false, particularly since she has several community resource workers visiting her home randomly;

(p) the respondent is seeking to continue joint custody of the children as she believes that it is in the children’s best interest.

Guiding Principles

[9] Since no case conference has been held to date in this proceeding subrule 14(4) of the Family Law Rules is engaged which provides that “no notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantial issues in the case has been completed.” Subrule 14(4.2) provides that “sub rule 14(4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.”

[10] In the case of Rosen v. Rosen [2002] O.J. No 62 (S.C.J.), it was held that subrule 14(4.2) contemplates matters of urgency to be in the nature of abduction, threats of harm or dire financial circumstances and that before bringing an urgent motion prior to a case conference an inquiry should be made as to when case conference dates are available to deal with the matter and the parties should engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date.

[11] There is a well-established principle that generally an interim order will be maintained until trial in the absence of compelling reasons indicative of the necessity of change to meet the children’s best interest (see Hunt v. Hunt, 2001 CarswellOnt 4549 (Ont. S.C.J.) at para. 20).

[12] In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) the Supreme Court of Canada held, at para. 49, that a parent applying for a change in a custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the children. At para. 12, Justice McLachlin, speaking for the majority, held that change alone is not enough to establish a material change in the circumstances of the children. The change must have altered the children's needs or the ability of the parents to meet those needs in a fundamental way.

Application of the Principles

[13] It is not evident that there is been any attempt to canvass case conference dates prior to these motions being brought nor of any attempt to resolve matters until an available case conference date. Although, if one were to accept the evidence of the applicant at face value, there is cause for legitimate concern for the well-being of the children in light of the allegations respecting the respondent’s difficulties with alcohol. However, the affidavit evidence of the parties is conflicting in many important respects. The respondent, to her credit, acknowledges that she has a problem with alcohol, a factor which was recognized by Justice Campbell in making his order in October 2014, and indeed he ordered that both parties refrain from consuming alcohol before and during the times when they were caring for the children and to submit to regular urine and hair follicle testing to monitor compliance. The respondent, despite her recent relapse, states that she is committed to staying clean and sober and has demonstrated her commitment to seek and obtain help with her alcohol problem. The applicant acknowledges this and is supportive of it.

[14] On the basis of the conflicting evidence before the court, I am unable to find that there has been a material change in the circumstances of the children subsequent to the order of Justice Campbell so as to alter the children’s needs or the ability of the parents, and in particular the respondent, to meet those needs in a fundamental way. My finding in this respect is without prejudice to the applicant moving, if necessary on short notice, for a variation of the existing order should the respondent’s ability to care for the children and meet their needs deteriorates in a serious way in the future.

[15] I see no current basis for varying the order of Justice Campbell pending a case conference, except to remove the requirement for the parties to submit to hair follicle testing once per month as set forth in para. k.

[16] It is important that the parties work towards a final resolution of this proceeding, either by agreement or final court disposition, and accordingly, a case conference is to be arranged by the parties with the trial coordinator at the earliest available date.

Disposition

[17] On the basis of the foregoing it is ordered as follows:

(a) the Motion of the applicant is dismissed;

(b) the order of Justice Campbell of October 1, 2014 is hereby varied to remove the requirement at para. k for the parties to submit to hair follicle testing once per month;

(c) the children of the marriage shall be returned by the applicant to the respondent within one day of the release of this Endorsement, unless otherwise agreed by the parties in the children’s best interests, and thereafter the parenting regime of the order of Justice Campbell dated October 1, 2014 shall resume;

(d) the cross-motion of the respondent is otherwise dismissed; and

(e) the parties shall obtain a date from the trial coordinator for a case conference to be held at the earliest available date.

[18] If the parties are unable to agree on costs, they may file written submissions of no more than three pages, double-spaced, in addition to any pertinent offers and draft bills of costs, within 14 days hereof. Each party shall have seven days to submit brief reply submissions to the submissions of the other party. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within 14 days, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad

Date: September 4, 2015