COURT FILE NO.: FC-14-47285-00
DATE: 20151113
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Inna Rotar, Applicant
AND:
Dmitri Kulangiev, Respondent
BEFORE: Mr. Justice Robert E. Charney
COUNSEL: Ali K. Manavi, for the Applicant
Alexandra Abramian, for the Respondent
HEARD: November 9, 2015
ENDORSEMENT
[1] This motion is brought by the respondent father for the progressive expansion of the current access schedule to permit unsupervised access and overnight access. The applicant mother agrees in principle to the expansion of access, but requests that the progression be at a slower rate than that proposed by the father and seeks assurances that access will be exercised safely and consistently.
Background Facts
[2] The parties commenced cohabitation in May 2012 and were never married. They have one child, Ethan, born March 2, 2013. They separated in July 2014. There were allegations that the father assaulted the mother at that time, and he was charged with assault.
[3] Access by the father to the child has already been the subject of several temporary court orders. On March 27, 2015, the parties consented to an order that the father have access visits with the child under the supervision of the York Region Children’s Aid Society (CAS) as scheduled by the CAS.
[4] On April 27, the CAS closed its file with respect to the family, but noted concerns arising out of the child’s exposure to adult conflict, the father’s substance misuse and his limited caregiver skills. The CAS recommended that the father complete a parenting course and continue to engage with services with respect to his history of substance misuse.
[5] On April 27, 2015, the March 27 order was amended on consent to provide the father with supervised access at the Social Enterprise for Canada (SEC) once per week on Sundays for three hours, as soon as space became available at the SEC. Until space became available at the SEC, access would be supervised by Brayden Supervision Services in their access centre. Supervised access commenced on May, 2015.
[6] While the July 2014 criminal charges were pending, the father was charged with operating a motor vehicle with a blood alcohol level over 80 and dangerous operation of a motor vehicle. Pursuant to the terms of his recognizance he was required to be in the direct presence of his surety, his sister, at all times. As a result of this condition, his sister was required to stay with him during his access visits. She was not always available to attend with him and so he missed several scheduled access visits. Between May 3, 2015 and July 26, 2015, the father cancelled five of the twelve scheduled access visits. The notes provided by the supervisor indicate that the visits that did proceed went well.
[7] On August 18, 2015, the parties attended a settlement conference, and consented to an order that commencing the week of August 24, 2015, the father’s access visits would continue to be supervised by Brayden Supervision Services once per week on Sundays for three hours, but take place in the community under Brayden supervision. The father also agreed to take a parenting course. The father did enrol in a four week parenting class which began on October 19, 2015. The parties also agreed to schedule a further motion to deal with the issue of ongoing access. That motion was the one that came before me on November 9, 2015.
[8] Following that August 18, 2015 order, the father attended approximately five or six supervised access visits with Ethan at an indoor playground. The notes from the supervisor indicate that Ethan is happy and comfortable with his father.
[9] Both parties understand that supervised access is not a permanent solution and assuming the supervised access is successful, it should progress to unsupervised access. The father takes the position that he has had supervised access with Ethan for over six months and that it is time to proceed to unsupervised access. He proposes the following progression:
(a) Access every Wednesday from 4:00 p.m.to 8:00 p.m.;
(b) Commencing Sunday November 15, access each Sunday from 10:00 a.m. to 6:00 p.m.;
(c) Commencing Saturday December 12, and alternating weekends, access from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.;
(d) Commencing Friday January 15, and alternating weekends, access from Friday at 4:00 p.m. to Monday at 9:00 a.m.; and,
(e) All of the above would be without supervision.
[10] The mother proposes a slower schedule. She takes the position that the father should continue to have supervised access to make up for the eight supervised access dates that he missed. She also wants a condition that the father not drink alcohol during the access visits and that his firearms be safely and securely stored away during the visits. The father has indicated that he agrees with the proposed alcohol and firearms restrictions. Her proposed schedule is as follows:
(a) Supervised access every Sunday (supervised by Brayden Supervision Services) from November 15 for three hours, in the community, for eight consecutive weeks unless the father can provide a medical note for missed visits;
(b) Supervised access every Sunday (supervised by the father’s sister) for four hours (9:00 a.m. to 1:00 p.m.) for eight consecutive weeks unless a medical note is provided;
(c) Unsupervised access every Sunday, reduced to three hours (9:00 a.m. to noon) for six consecutive visits;
(d) Following the successful progression of (a) through (c) above, overnight access on alternative weekends as set out in (c) of the father’s proposal above (Saturday to Sunday) and Wednesday evenings to 7:30 p.m.; and,
(e) Following the success of step (d) above for one month, Friday evenings will be added as proposed by the father.
[11] In addition, both parties agree that the access exchanges should take place in a public place.
Analysis
[12] In making my decision, I must be guided by the best interest of the child. It is clear to me that, despite their past difficulties, both parties have Ethan’s best interest at heart in trying to come to a resolution of the access question. The father is understandably eager to continue with, and build upon, the progress that he has made in establishing a strong bond with his son. The mother recognizes the importance of Ethan’s relationship with his father, but wants to ensure that the access visits are consistent and safe. She is worried, given the father’s past behaviour and the concerns raised by the CAS last April, that the father’s proposal is too hurried.
[13] While I understand and agree with many of the mother’s concerns, her proposed schedule appears to be unnecessarily restrictive, particularly with regard to her proposal for sixteen more supervised access visits. Supervised access does create an artificial environment and should be continued only so long as there are real safety concerns or risks to the child. I do not see any basis for such concerns in the supervisor’s notes. On the other hand, the father is only now completing the parenting course that he began on October 19, and there may be some benefit to limited supervision in the short term.
[14] Accordingly, I make the following order with respect to the father’s access:
(a) Commencing Sunday, November 15, 2015, the father will have four consecutive Sunday supervised access visits in the community from 9:00 a.m. until 1:00 p.m. (or any other four hour period agreed to by the parties). The access may be supervised by Braydon Supervision Services or the father’s sister, if she is available. If his sister agrees to supervise, she must be available and participate for the entire four-hour visit;
(b) Following the completion of these four consecutive Sundays, the father will have unsupervised access visits for four consecutive Sundays from 9:00 a.m. until 1:00 p.m.;
(c) Following the completion of (b) above, unsupervised access will expand to 10:00 a.m. to 6:00 a.m. on Sundays for eight weeks, and every Wednesday evening access from 4:00 pm. to 7:30 p.m.;
(d) Following the completion of (c) above, the father will have unsupervised access on alternating weekends from Saturdays at 10:00 a.m. to Sundays at 6:00 p.m., in addition to every Wednesday evening as above;
(e) Following three alternating weekends in (d) above, the father will have unsupervised access on alternating weekends from Fridays at 4:00 p.m. until Sundays at 6:00 p.m., in addition to every Wednesday evening as above;
(f) All access exchanges will take place at a public location agreed upon by the parties;
(g) The father will not drink alcohol during the access visit or for the twenty-four hour period prior to the access visit, or permit any other person to consume alcohol in his residence during the access visit; and,
(h) The father will ensure that any firearms in his possession are securely stored in a container or vault as required by law during any access visit.
[15] Assuming that access proceeds in accordance with the above schedule, overnight access may begin on week seventeen. Subparagraphs (a) and (b) above require consecutive visits to ensure consistency and a smooth transition for Ethan. If the father misses a visit during these eight weeks he must provide a medical note. Once the first eight weeks have been completed, I expect that the parties will be able to deal with the occasional and inevitable cancellation (whatever the cause) by agreeing to alternative dates.
[16] In the result, the parties have had divided success on this motion. If the parties are unable to agree on costs for this motion, the father may provide written submissions of no more than three pages, plus the bill of costs and any offers to settle, within thirty days of release of this endorsement, and the mother may provide responding submissions of the same length, fifteen days after receipt of the father’s submissions.
Charney J.
Date: November 13, 2015