Court File and Parties

CITATION: W.B.B. v. L.O., 2017 ONSC 2485

COURT FILE NO.: F300/17

DATE: April 21, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: W.B.B., applicant

AND: L.O., respondent

BEFORE: MITROW J.

COUNSEL: Peter Eberlie for the applicant Michael Nyhof for the respondent

HEARD: April 20, 2017

ENDORSEMENT

[1] The main issue in the applicant father’s motion is the extent of his access with the children, and whether, as requested by the respondent, that access should be supervised and without overnight access. The respondent does not request that access be supervised if it is in the community. The respondent also seeks an order prohibiting the applicant from driving when the children are in the car.

[2] The applicant submits that there is no reason to have his access supervised or restricted as to no overnights.

[3] At the conclusion of argument, I had indicated to counsel and the parties that I would be reserving my decision for a period of time, and that I would release a very brief endorsement as to the applicant’s access on a without prejudice basis, while my decision was on reserve.

[4] Instead, however, I have elected to release my decision now.

DISCUSSION

[5] There is a needless proliferation of affidavits, and large portions of the material are not relevant to the issues on the motion.

[6] The affidavit material is in substantial conflict.

[7] The parties were married in 2009 and they separated in 2016; the applicant states the separation occurred in August, and the respondent states it was January. In my view, little turns on this disparity.

[8] There are three children of the marriage: A., age 6; B., age 4; and K., age 19 months. There is no dispute that the children are to remain in the respondent’s primary care.

[9] The main thrust of the respondent’s argument is that the applicant (who is a physician) has had some history of substance abuse, particularly alcohol and marijuana.

[10] Each party musters a number of collateral witness affidavits to support their respective positions.

[11] In relation to the alleged issue of substance abuse, looking at the evidentiary record as a whole, I am not persuaded that access restrictions should be imposed at this time to the extent sought by the respondent.

[12] The respondent’s description of the applicant’s alleged substance abuse is often historic. She refers, for example, to an incident in a restaurant in 2012; and to an incident in 2014. The affidavit of J.D. speaks of the applicant smoking “a couple of joints” in 2015 and allegedly losing consciousness. The affidavit of Mr. K. refers to Mr. K. and the applicant “on many occasions” having smoked marijuana together. No timeframe is given.

[13] The applicant agrees he has used marijuana in the past, but his evidence is that it is infrequent. Mr. K. deposed there were a “number” of occasions after the applicant had smoked marijuana that he drove with the children. The applicant denies same.

[14] The applicant agrees he consumes alcohol, but denies he has an alcohol addiction issue.

[15] I do not intend to go through all the affidavits, including collateral affidavits, to summarize all the “he said / she said” conflict.

[16] As indicated earlier, the evidentiary record as a whole does not support the substantial access restrictions sought by the respondent in relation to the issue of substance abuse.

[17] The four affidavits filed from the As and the Gs on the applicant’s behalf do lend some support to the applicant’s position as to his past positive relationship with, and care of, the children. The respondent attacks the As in her material, but I suspect that her main complaint with the As is related more to her litigation dispute with the As, who, as plaintiffs, sued the respondent and others, and in 2016, on a summary judgment motion (see reasons of Mitchell J. dated June 24, 2016) obtained judgment against the respondent and her related corporation in an amount of just under $580,000 as a result of civil fraud perpetrated by the respondent and her corporation: para. 73 of the judgment. Although the As also named the applicant as a defendant in that same action, the summary judgment motion was against only the respondent and her corporation: para. 1 of the judgment.

[18] The respondent deposes that the applicant is “very volatile”; that he goes from “pure depression to profound anger” in a matter of seconds. The applicant denies this characterization. He also filed affidavits from others, for example, the last affidavit from Ms. A. deposing to her observation of the respondent “yelling and screaming” at the applicant in the presence of the boys, A. and B., in an incident alleged to have occurred April 15, 2017.

[19] I have little doubt, given the evidentiary record on this high-conflict case, that each parent has acted inappropriately towards the other, and that at least some of the children have been exposed to such conduct.

[20] The order below imposes behaviour conditions on both parents.

[21] The respondent refers to an occurrence in early January 2017 alleging that A. told her that his father (the applicant) had punched him. The respondent filed an affidavit from a witness who deposed, about this incident, that A. told her his dad punched him in the stomach and, further, that the applicant admitted to the witness that he had done this.

[22] The applicant disputes this evidence; he states it is a lie. The respondent deposes that she reported this incident to police and Children’s Aid for investigation, and that she has “ordered” the police reports. However, the court was not referred as to the results of any third-party investigation. Accordingly, at this time, without more evidence, it is difficult to place much weight on this alleged incident.

[23] Finally, there was a disclosure in late February 2017 by B., to a teacher, that his “Daddy tickles him” and that B. does not like this. The teacher asked B. if Daddy tickles his armpits. B. said “no,” and pointed to below his waist, and said “Daddy tickles me here.” This evidence comes from the teacher’s affidavit.

[24] The most helpful document in relation to this incident is the letter from the Society, dated April 17, 2017, addressed to the court, copied to both counsel, and filed separately, on consent, as Ex. #1 on the motion.

[25] This letter indicates:

(a) The teacher called the mother, who called the police.

(b) The police and Society initiated a joint investigation.

(c) A. and B., along with their mother, were interviewed at the police station on March 2, 2017. Both boys talked about playing a tickle game, but neither child reported that it included tickling their private parts.

(d) On March 15, 2017, the respondent forwarded a video clip to the Society, where B. is questioned by the respondent and stated that his father tickles his stomach and penis. Later, on March 23, 2017, the respondent provided the Society with a USB drive containing a more comprehensive video of her conversation with B.

(e) On April 13, 2017, the Society met with B. at school, where B. denied being touched inappropriately by his father; he further said his mother was lying about his father tickling his penis, but was unsure why she was lying; he said his father told him he would “never do such to him.”

[26] The applicant has denied tickling B.’s private parts.

[27] A USB drive was filed as an exhibit on behalf of the applicant, but it is unclear if this is the first or second video clip. I did view the video clip filed.

[28] It is unclear, on the evidentiary record, if any Society or police investigation is still ongoing, or whether their respective files are closed.

[29] The evidence thus far falls far short of establishing, on a balance of probabilities, that the applicant has engaged in any inappropriate conduct towards B. in relation to the “tickling incident.” At this time, I place little, if any, weight on the respondent’s questioning and recording of B. In the context of an investigative process probing a child’s disclosure, the integrity and reliability of such a process depends substantially on the expertise and impartiality of the investigator; neither of these attributes are possessed by the respondent.

[30] I place no weight on the affidavit of the respondent’s mother, who does not read English. The alleged translation by the respondent is completely unreliable. This affidavit fails to comply with r. 4.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which I rely on pursuant to r. 1(7) of the Family Law Rules, O. Reg. 114/99.

[31] In relation to the substance abuse issue, I do conclude, however, that there are some prima facie sufficient concerns that do justify, at this point, some restrictions on access. I find it is in the children’s best interests not to have overnight access at this time; conditions prohibiting the use of alcohol and non-prescription drugs before and during access are appropriate.

[32] It is noted that the applicant agreed to an order, made on April 20, 2017, to submit to random drug tests, to be arranged between counsel.

[33] Before expanding access to include overnights, it is important to have the results of any drug test, and also further information as to whether the Society and police investigations are ongoing.

[34] At this time, the children’s best interests do not require any of the other access restrictions sought by the respondent. The parties agree to separate access schedules for the boys and for K.

ORDER

[35] I order:

1. The applicant shall have interim care and control of A. and B. as follows:

a) each Tuesday and Thursday from 4:30 p.m. to 7:30 p.m.; and

b) each alternate weekend on Friday from 4:30 p.m. to 7:30 p.m., and Saturday and Sunday from 10 a.m. to 7:30 p.m.

2. The applicant shall have interim care and control of K. as follows:

a) each Tuesday and Thursday from 3 p.m. to 4:30 p.m.; and

b) each alternate Friday from 2 p.m. to 5 p.m.

3. Unless the parties agree otherwise:

a) the boys’ alternating weekends start Friday, April 28, 2017; and

b) K.’s alternating Fridays start Friday, May 5, 2017.

4. All three children shall be in the respondent’s interim care and control at all other times.

5. Notwithstanding the foregoing schedule, the boys shall be with the father on Father’s Day from 10 a.m. to 7:30 p.m. and with the mother on all of Mother’s Day; K. may spend time with the applicant on Father’s Day as agreed by the parties.

6. The applicant shall not be entitled to have K. in his care and control until such time as he has obtained a proper crib for K. and verification of same has been provided through counsel.

7. The parties shall engage in discussion to expand the access, effective July 1, 2017, to include overnight and vacation access for the boys, and some expansion of access to K., and in doing so the parties shall consider the following:

a) the results of the drug tests;

b) whether issues have arisen regarding the current access; and

c) the results of any further Society and police investigations.

8. The applicant shall not consume alcohol, and shall not use non-prescription drugs, 24 hours before, and during, any time that one or more of the children are in his care and control.

9. The applicant and respondent shall treat each other respectfully and shall not expose the children to any conflicts and arguments between the applicant and respondent.

10. If the parties are unable to agree on expansion of access, a motion may be brought before me to vary this interim order.

11. This interim order is made pursuant to the Children's Law Reform Act.

12. If the parties are unable to agree on costs of the motion, then written costs submissions may be forwarded to the trial coordinator, by the applicant within 14 days, by the respondent within 14 days thereafter and reply, if any, within 7 days thereafter; all submissions are not to exceed two typed pages, double-spaced, plus copies of any offers, bills of costs, time dockets or authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 21, 2017