Court File and Parties

OTTAWA COURT FILE NO.: FC-16-511 DATE: 2017/06/01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Pamela Ellen Casselman, Applicant – and – Jeffrey Robert Noonan, Respondent

Counsel: Peter S. Mirsky, for the Applicant Andrew McMurray, for the Respondent

HEARD: March 28, 2017 at Ottawa

DECISION ON MOTION

KERSHMAN J.

INTRODUCTION

[1] This motion was brought by the Respondent (“Father”) for access to his two children at specified times as set out in his Notice of Motion.

[2] A cross-motion was brought by the Applicant (“Mother”) for custody, access and child support.

[3] The issue of child support on the cross-motion was resolved by way of Minutes of Settlement which was entered into the Endorsement Record.

FACTUAL BACKGROUND

[4] The parties are not married. They have two children, Addison Janice Casselman-Noonan, born in 2014, (3 years of age) and Cameron Robert Casselman-Noonan, born in 2015, (18 months old).

[5] At the beginning of the court process, the Father questioned his paternity of Cameron. The Father has now agreed that he is the father of Cameron.

[6] The children reside principally with the Mother. Pursuant to the Order of Sheard J. made on consent, dated November 24, 2016, the Father was to have access twice per week for six hours per visit. One of these visits would occur every second Sunday. The other access would occur on a week day that the Father did not work.

[7] The parties were to attempt to accommodate the Respondent’s work schedule and the children’s activities. There would be no access on Saturdays. In addition, the Respondent was to provide 48 hours’ notice to the Mother by email that he wished to exercise the access. The access would continue to be supervised by supervisors as provided in the Order of Mackinnon J. dated June 24, 2016.

[8] The access was to be supervised by either the maternal grandparents or the paternal aunt, a teacher, or the paternal uncle, an Ontario Provincial Police officer.

[9] Supervised access has continued to date. The Father now seeks unsupervised access as follows:

1. To Addison as follows: a) Every second weekend commencing at 5:00 p.m. on Friday to 5:00 p.m. on Sunday evening. Should the access fall on a long weekend then access will be extended to Monday at 5:00 p.m.; b) Every Wednesday from 5:00 p.m. to 7:30 p.m.

2. To Cameron as follows: a) One hour every Tuesday, Thursday and Saturday from 6:00 p.m. to 7:00 p.m. for a period of one month; b) After that, until the child reaches the age of 18 months, every Wednesday from 5:00 p.m. to 7:30 p.m. and every Saturday and Sunday from 1:00 p.m. until 5:00 p.m.; after that time then the schedule would be the same as Addison’s.

[10] On the cross-motion, the Mother seeks an Order for sole custody, care and control of the children, and for a continuation of the supervised access by the Father for a further period of two years.

[11] The matter was originally to be argued on November 2016. It was put over to March 28, 2017, when it was argued.

ISSUES

1. Should the access to the Father be supervised or unsupervised?
2. If the access is unsupervised, how much access should be granted?
3. Should sole custody be granted to the Mother at this time?

Issue #1: Should the Access to the Father be Supervised or Unsupervised?

Father’s Position:

[12] Access to date has been supervised by one of the Father’s family members. It is the Father’s position that unsupervised access should now be provided as Addison is now 3 years of age and Cameron is almost 18 months of age.

[13] He argues that he is employed on a full-time basis and has completed his probationary period at work and is capable of performing his employment.

[14] In addition, the Father argues he is taking medication prescribed by his doctor and has been doing so for a lengthy period of time. He has provided two medical reports from his doctor, Dr. Gauthier, dated September 2, 2016 and March 21, 2017, which says that Mr. Noonan is capable of caring for his children.

[15] The Father says that he is no longer a marijuana user. He has taken three drug screens which shows negative for drugs. The dates of the screens are:

1. June 9, 2016;
2. July 18, 2016;
3. March 17, 2017.

[16] The Father says that he has room for his children while he has access to them in the home that he shares with his mother and brother.

[17] The Father relies on Montgomery v. Montgomery (1992), 42 R.F.L. (3d) 349 (Ont. C.A.) to argue that supervised access, which has been going on since June 24, 2016, is not a long-term solution.

[18] The Father states that he has completed several online courses relating to matrimonial matters. They are as follows:

• Co-Parenting through Divorce
• Positive Parenting for Ages Birth to Three Years
• Anger Management

Mother’s Position:

[19] The Mother argues that supervised access should continue for at least two years. She relies on the case of Kaplanis v. Kaplanis, 249 D.L.R. (4th) 620 (Ont. C.A.) at paras. 10-13 which sets out the various factors to be considered when changing access from supervised access to unsupervised access. The factors are as follows:

1. Length and nature of the parties’ relationship;
2. Ages of the children and their abilities to communicate their needs;
3. History of care and responsibility respecting each party including their ability to parent;
4. History of bonding of the children to a party without which would affect their ability and stability and welfare;
5. Any functional and health issues of the parties which may jeopardize the welfare of the children;
6. A parties’ support network such as family and home.

[20] The Mother has the following concerns:

1. The children are too young to express whether they have concerns about their access time with the Father.
2. There is no evidence as to how long Mr. Noonan will be on medication for. She is concerned that he could stop taking his medication.
3. She is also concerned with his housing arrangements and lack of safety thereof.
4. She is also concerned about Mr. Noonan’s mother’s medical condition, as she suffers from depression and anxiety.
5. She is also concerned about Mr. Noonan’s brother who lives with Mr. Noonan and his mother, as he is on long-term disability suffering from a social disorder. She argues that there is a safety issue vis-à-vis her children with respect to Mr. Noonan’s brother.

Analysis:

[21] The Court has reviewed the Kaplanis case analysis at paragraphs 10-13. The Court notes that this analysis deals with the issue of joint custody as opposed to whether access should be supervised or unsupervised. The supervised versus unsupervised access is the issue before the Court today.

[22] While the Court agrees that the children may be too young to express their concerns about access time with the Father, this should not be a barrier to unsupervised access.

[23] Many parties have access to the children, who are young and who are not able to express their concerns about access. In those circumstances, access appears to go fine.

[24] The Court does not see any major issues in relation to the supervised access. There may have been some minor incidents, but there do not appear to be any major red flags.

[25] As to the Mother’s concern as to how long the Father will be on medication for, no one can necessarily determine that with certainty. The Court does not see this as a barrier to unsupervised access.

[26] As to the housing arrangements for the children for overnight access, the Court has reviewed the evidence and is satisfied that the children’s accommodations are adequate.

[27] As to the other concerns raised by the Mother, they will be addressed later on in this decision.

Issue #2: If the Access is Unsupervised, How Much Access Should be Granted?

Father’s Position:

[28] The Father argues that he should have unsupervised access to Addison overnight as set out above. He argues that due to Cameron’s age, the unsupervised access should be daily only for a further period of two months and then overnight access shall occur.

Mother’s Position:

[29] The Mother argues that all access should be supervised for another two years and that the terms of the access should not be expanded for the reasons set out previously. The reason for the two years’ supervised access provision is to allow the children to be old enough to express any concerns that they have about the Father’s behaviour during access. The Mother relies once again on the case of Kaplanis v. Kaplanis, at paras 9-13.

Analysis:

[30] Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 reads as follows:

24(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2 .

[31] The Court has to view what is in the best interests of the child, not the Father or the Mother. The “maximum contact” principle, as it is called, is mandatory, but not absolute. The maximum contact principle, applicable to children whose parents were married or unmarried (see Hatcher v. Golding, 2017 ONSC 785, at para. 153) only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

[32] The Father’s medical condition has been put in issue by the Mother, as well as medical condition of the Father’s mother and his brother.

[33] The Court has reviewed the medical information and accepts that the Father is suffering from depression. He is on medication for this depression and which appears to be under control. There is no evidence that the Father is not taking his medication. Furthermore, there is no evidence that his depression is not under control.

[34] In the Court’s view there is no medical evidence that people who are depressed and who are taking medication to deal with that depression cannot have access to, deal with, or raise children. There are many people who successfully raise children full-time who suffer from depression.

[35] As to the argument that the Father’s mother suffers from depression and that this could somehow place the children’s safety at risk, the Court does not find any evidence that Mrs. Noonan’s depression is a safety risk to the children. There are suggestions and innuendos, but no evidence to support the arguments put forward by the Mother dealing with the safety of the children. Therefore the Court does not find Mrs. Noonan’s depression to be a barrier to Mr. Noonan’s unsupervised access.

[36] In relation to the Father’s brother, the fact that he may suffer a social disorder and may be on long-term disability, does not mean that there is any concern about the safety of the children. No factual evidence was provided by the Mother that there was a safety concern.

[37] Unfortunately, people do have behavioural disorders which do not allow them to work. That does not mean that they are not able to behave properly when around adults and/or children. No evidence has been provided that there is any safety issue in relation to either the Father’s mother or brother with respect to the children. There are only suggestions and innuendo.

[38] The Father is now four and a half to five months into his job and is past his probationary period. The Court finds that his work situation is stable for the purpose of dealing with the issue of unsupervised access.

[39] The Mother’s evidence is that she and the Father do not get along and they fought constantly. She says that when she sees the Father, she starts to shake and cannot talk to him directly. She says that his actions have caused her financial stress and she fears for her financial well-being.

[40] While these parents may not be able to communicate effectively, the concerns that the Mother have may, very well be subjective in nature and have no bearing in relation to the Father’s ability to parent these children during access time.

[41] Many people who do not have their children full-time certainly have the ability to have unsupervised access to them and both the children and the access parent thrive accordingly.

[42] The Court does not see why unsupervised access should not be granted and accordingly grants unsupervised access, which shall be achieved on a gradual basis for each child.

[43] In terms of how this unsupervised access is to be achieved, the Court will set out later on in these reasons how it should occur. The Court is satisfied that in accordance with the previous arrangements, the Father will do all of the pick-ups and drop-offs.

[44] The Father resides in Perth and the Mother resides in Barrhaven. The Court agrees that the drive to pick up the children is approximately one hour.

[45] The following is to be the unsupervised access schedule for Addison:

1. Every other weekend Sunday 10:00 a.m. – 6:00 p.m. This shall occur for a period of six visits. Thereafter, overnight access begins every other Saturday from 10:00 a.m. to Sunday at 5:00 p.m.
2. On the opposite week as the week-end access visits, every other Wednesday from 5:00 p.m. – 7:30 p.m. This access shall continue even when there is overnight weekend access in the previous week, as above.

[46] The following is to be the unsupervised access schedule for Cameron:

1. Starting around the middle of June 2017 where the Father has Addison for a Wednesday evening, he will have unsupervised access with Cameron from 5:00 p.m. to 7:30 p.m. for a period of eight weeks.
2. Thereafter every other Wednesday from 5:00 p.m. to 7:30 p.m. together with every other Sunday from 10:00 a.m. to 5:00 p.m. for a further period of eight weeks. Thereafter the Father shall have overnight access to Cameron every other Saturday from 10:00 a.m. to Sunday at 5:00 p.m. The overnight access shall take place in the same week as Addison’s overnight access.

[47] If there are any issues as to when this access is to start, the parties shall write to Kershman J. by Wednesday June 6th 2017.

[48] The following conditions shall apply in relation to access:

1. Overnight access will occur at the Father’s mother’s home located at 111 Beckwith Street East, Perth, Ontario.
2. The Father shall not consume non-prescribed drugs and/or alcohol at least 12 hours before exercising any access or during access to the child or children;
3. The Father will have to confirm access by email at least 48 hours in advance of the exercise of the access, failing which access will not be granted. The Court notes that this 48-hour confirmation is not intended to become a battleground for the parties. As long as the Father provides 48 hours’ notice, whether the Mother responds in time or not, access will occur.
4. The Father is required to take all medication as prescribed by any of his doctors, as and when prescribed, and shall not stop taking such medication until authorized in writing to do so by his doctor.

[49] This Court orders that the matter be set for a Settlement Conference on August 18th, 2017 for one hour. If the date and time are problematic, counsel are to advise Kershman J. within 10 days and a new date can be set. Trial dates will be set at the Settlement Conference, provided that the Trial Scheduling forms are completed by counsel prior to the Settlement Conference.

[50] In addition to any other conditions set out herein, the Father shall submit to further drug and alcohol tests, at his own expense, every three weeks between now and the Settlement Conference.

[51] In the event that any of the screens are not clear, the parties shall write to Kershman J. and he will convene a Case Conference to determine how to deal with the issue of access only.

[52] The Court orders that:

1. Neither party will make negative or derogatory comments about the other party whether to each other or to third parties by any means, including voice, email, text or otherwise.
2. The parties shall be civil when in each other’s presence or in the presence of the children.

Issue #3: Should sole custody be granted to the Mother at this time?

Mother’s Position:

[53] The Mother argues that she should be granted sole custody of the children until such time as there is a trial in this matter. She argues that the children have primarily been living with her and that sole custody to her would be appropriate.

Father’s Position:

[54] The Father argues that he is seeking joint custody in this matter and that by granting interim sole custody to the Mother at this time, it will have the potential effect of sole custody being granted to the Mother at the trial of the matter without the merits actually being determined.

[55] The Father argues that the status quo should remain until the trial of the matter and allow the trial judge to determine the issue of custody.

Analysis:

[56] The Court accepts that this matter may go to trial and further realizes that if the Court grants interim sole custody to the Mother at this time while there is an issue of joint custody still to be decided that the default position at trial may continue sole custody to the Mother.

[57] This Court wants to ensure that this case is not pre-judged in terms of the issue of custody.

[58] Therefore, the Court declines to grant interim sole custody to the Mother and will allow the trial judge to determine the matter. Until such time as trial the status quo of where the children live and their access to the Father shall continue, including the access set out in this Order.

COSTS:

[59] The Father was successful on his Motion for unsupervised access.

[60] The Mother was not successful on her Motion for custody or supervised access.

[61] Costs outlines have been provided by each party. The costs outlines submitted by the Father was for $12,997 for this Motion inclusive of disbursements and HST. The costs outline provided by the Mother was for $8,249 for this Motion inclusive of disbursements and HST. The Costs Outlines claim costs on full-indemnity basis.

[62] The Court notes that the Minutes of Settlement state that the issue of costs in relation to the child support are to be left to the trial judge.

[63] Accordingly, only the costs in relation to the issue of access and custody will be dealt with in this Motion.

[64] The issue before the Court was important to both parties. The issues were not particularly complex or difficult. The parties have acted reasonably. The Court finds that costs should not be awarded on either in a full or substantial indemnity basis.

[65] In relation to what a losing party could expect to pay, the Court finds that the losing party would reasonably expect to pay $3,000 for the costs of this Motion, inclusive of HST + disbursements of no more than $500 inclusive of HST.

[66] For the aforesaid reasons, the Court fixes the costs of the motion and the cross-motion payable by the Mother to the Father at the sum of $3,500. These amounts shall be paid within the next 30 days. None of these costs relate to the issue of child support.

[67] Order accordingly.

Mr. Justice Stanley Kershman

Released: June 1, 2017