Elias v. Elias, CITATION: 2016 ONSC 8057

COURT FILE NO.: D25224/15

DATE: 2016-12-21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Mario Elias, Applicant

AND: Sarah Elias, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Angelo Fazari for the Applicant; Bernadette McCartney for the Respondent

HEARD: December 21, 2016

ENDORSEMENT

[1] On December 11, 2015 I made a temporary order giving custody of the parties’ two-year-old son to the Respondent mother and access to the Applicant father Mondays, Wednesdays, Fridays and alternate Saturdays from 9 am to noon. The Applicant moves for more access to the child, who is now three years old.

[2] Since December 2015 the parties have settled their property issues. They are not in legal conflict with respect to the older children at the moment.

[3] Also since December 2015 the Office of the Children’s Lawyer has commissioned an investigation. The clinical investigator gave a written report on May 3, 2016. She noted serious concerns about the Applicant’s treatment of the older children. These concerns were not simply the product of allegations of the Respondent. They were supported by those children, who were then aged 20 and 14.

[4] The investigator was also concerned that the parties did not share a common vision as to the future of the relationship. The Applicant thought that there was some prospect of reconciliation. The Respondent did not.

[5] Finally, the Respondent has concerns about the Applicant’s use of pain medication. According to her, the pattern was that either he did not take enough and was irritable or he took too much and was sleepy. The Applicant suffers from a degenerating disc condition. Dr Holdway, the Applicant’s doctor, reported to the investigator that he has no concerns about the Applicant’s management of pain medication. He administers regular urine tests which show no abuse of medication. Dr Holdway referred the Applicant to a rheumatologist who prescribed fortnightly injections of an anti-inflammatory. The anti-inflammatory may reduce pain by reducing inflammation, but it is not a pain medicine with which negative side effects are associated.

[6] The investigator recommended as follows:

[The Applicant] should, with additional support (outlined below), gradually increase his access with Niko according to the following schedule:

Monday Wednesday, Friday and alternate Saturdays from 9 am to 3 pm for three months;

From 9 am to 7 pm on one of the weekdays, with Niko having been fed dinner and ready for bedtime for three months;

Adding an overnight on the Friday of the weekends Niko is with Mr Elias.

[The parties] should work out further extensions on their own. If they are unable to agree on a plan for Niko, they may request an updated report from the Office of the Children’s Lawyer after one year.

[The Applicant] should continue working with Dr. Holdway and a rheumatologists to explore best options for pain management and to continue regular and random testing.

[The Applicant] should engage in counselling and support services to promote effective parenting including: Caring Dads offered by the Family Counselling Centre, 1-2-3 Magic workshop at Pathstone Mental Health, Just Dad and I at Port Cares and programmes at the Boys and Girls Clubs of Niagara and Early Years Centres, as well as other structured activities he chooses.

[The parties] are encouraged to continue with their respective personal counselling. Moreover, it is recommended that they get on the same page with respect to the future of their relationship.

[The parties] should participate in the Parenting through Divorce workshop at Pathstone Mental Health.

[7] The Applicant has attended the Caring Dads, 1-2-3 Magic and New Beginnings programmes. He has repeatedly asked, through counsel, to increase his access. He has consistently been refused.

[8] The Respondent points out that he missed access twice. These were a result of legitimate religious obligations. I think that with more flexibility from the Respondent, they could have been worked around.

[9] The Respondent’s main concern continues to be the Applicant’s use of prescription medicine. She thinks he is abusing his medicine, and perhaps even selling some of it. The urine testing is not random, so he can manipulate it. I do not think that these concerns can stand with the objective evidence contained in the clinical investigation and the doctors’ reports. There is no reason to delay further the implementation of the investigator’s recommendations. The child’s best interests should not be subordinated to the Respondent’s unfounded concerns. I shall make the terms somewhat simpler than the recommendation given the fact that Niko is now 3.

[10] My order of December 11, 2015 is varied by replacing paragraph 6 with the following:

6. The Applicant shall have access to Niko every Monday, Wednesday and Friday morning from 9 am to 3 pm.

6.1 On alternate Fridays the Applicant shall have Niko from 9 am to 12 noon the next day.

6.2 The Applicant shall refrain from communicating with the Respondent on the subject of spousal reconciliation.

6.3 The Applicant is responsible for picking Niko up at his home and returning him.

[11] The parties may make written submissions to costs, the Applicant by January 4, 2017 and the Respondent by January 11.

J.A. Ramsay J.

Date: 2016-12-21