Citation: Whaling v. Whaling, 2017 ONSC 877

NEWMARKET COURT FILE NO: FC-16-52545-00

DATE: 20170207

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Marnie Brooke Whaling, Applicant AND Michael David Whaling, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: S. Codas/C. Palmer, Counsel for the Applicant S. Giannandrea/Ms. L. Burke, Counsel for the Respondent

HEARD: February 1, 2017

Endorsement

[1] The applicant moves for a multitude of relief set out in her Notice of Motion originally returnable on December 29, 2016. In responding material, the respondent contests virtually all of the requested relief.

[2] I would be remiss in not expressing my frustration in reviewing the filed material in advance for this motion scheduled for one hour. No less than 15 affidavits were filed with the court. As a rule it is difficult for a court to make credibility findings on material that has not been subjected to cross-examination. Inundating the court with competing affidavits from extended family members and friends does not increase the likelihood that credibility findings will be easier to make. Further, expecting the court to expend time in preparation in a manner disproportionate to what would be expected for a one hour motion offends the primary objectives of the Family Law Rules which requires the court to expend its resources on a case while taking into consideration other cases trying to access the courtroom.

[3] The court acknowledges the apology from counsel with respect to the breadth of material filed for this one-hour motion. While the allegations raise serious concerns regarding parenting issues, the numerous affidavits filed by the parties (and their respective support networks) do not make the task of the court any easier.

Background

[4] The parties were married on February 18, 2012. The applicant maintains a date of separation of mid-November, 2016 coinciding with the respondent moving his clothing and possessions into the guest bedroom. The respondent maintains a date of separation of December 28, 2016 coinciding with the applicant leaving the matrimonial home with the child. The child Dexter is three years of age having been born on November 18, 2013.

[5] Due to alleged urgent child-related matters the matter proceeded by emergency motion on December 29, 2016; the respondent having been given notice of same the day prior. Justice Gilmore granted a temporary Order allowing the applicant to travel to Florida with the child until January 8, 2017 and dispensed with the respondent’s consent (a consent that had been previously provided but rescinded upon the respondent ascertaining the applicant’s intention to separate). While in Florida the applicant was to facilitate daily FaceTime calls between the respondent and his son. Upon her return she was allowed to reside at her sister’s residence in close proximity to the matrimonial home.

[6] The matter proceeded to an early Case Conference before Justice Nelson on January 10, 2017 and the parties entered into temporary without prejudice Minutes of Settlement to enable supervised access between the respondent and his son to begin. The court also ordered that the issues of interim access and an assessment would proceed on the return of the motion. Notwithstanding that Order, the applicant’s Confirmation also asked the court to consider the issue of exclusive possession of the matrimonial home if time permitted. It did not.

[7] Pursuant to the Minutes of Settlement, the respondent was granted access each Tuesday and Thursday from 3:45 p.m. until 6:00 p.m. (with the respondent responsible for providing dinner to the child) and each Saturday from 8:00 a.m. until 12:00 p.m. The visits were to occur within the matrimonial home with the paternal grandmother present. The maternal aunt assumed responsibility for transportation and was to be present during the access but remain in the kitchen of the matrimonial home.

[8] At the commencement of the motion, the court received Minutes of Settlement regarding the sale of the matrimonial home which provided for a listing date of February 15, 2017 together with other ancillary issues pertaining to the sale. The document also permitted each party to relocate to a new residence within a 15 minute drive of the child’s school in Aurora, this being subject to a further court order or written agreement.

[9] In addition, the court received further Minutes of Settlement in which the parties consented to an assessment pursuant to section 30 of the Children’s Law Reform Act with an expected completion date of 120 days from the assessor confirming his/her ability and willingness to act (subject to extension by 14B). The costs of the assessment including preparation of the report are to be shared equally by the parties subject to possible reapportionment by the court.

[10] In addition, the parties consented to the following temporary without prejudice Orders as requested in the Notice of Motion:

(1) The respondent was not to consume alcohol during his access or for at least 24 hours before any access is to be exercised.

(2) The respondent would undergo regular testing for alcohol using the Remote Alcohol Monitoring Program (“RAMP”) with the results to be delivered to the parties and their counsel and costs to be shared equally subject to reapportionment.

(3) The respondent would submit to monthly Broad Spectrum Toxicology drug testing at his sole expense until the Settlement Conference subject to there being no overnight access pending the first result being received reflecting a clean result.

(4) Not on consent the court ordered the respondent to produce travel expense receipts from employment with Honeywell and make his best efforts to produce similar receipts from his prior employment with Xtralis from 2014 on.

[11] The motion regarding exclusive possession was adjourned to March 22, 2017 at 9:30 a.m. Confirmations are to direct the court to specific affidavits being relied upon. There are to be no further affidavits other than to apprise the court on the progress of the sale of the matrimonial home.

[12] Upon the conclusion of oral argument, the court ordered that the respondent have ongoing access with the child pending release of its Ruling each Monday and Wednesday from 3:45 p.m. until 6:00 p.m. and Saturday from 8:00 a.m. until 4:30 p.m. with the paternal grandmother present but the Saturday access need not necessarily take place within the matrimonial home provided the respondent has an appropriate car seat at his disposal.

Submissions

[13] For purposes of this Ruling, I have reviewed all of the affidavits filed in the Continuing Record up to and including Volume 3, Tab 2. For purposes of this Ruling I have focused primarily on the affidavits of the parties as I am unable to distinguish between the various other affidavits in assessing credibility of the deponents. As this is a temporary Order and based on the temporary Orders made within this Ruling, whether on consent or otherwise, I will not delve into each and every allegation contained in the competing and conflicting affidavits. Suffice it to say that the implementation of the Family Law Rules in 1999 was designed to reduce if not eliminate the battle of affidavit warfare that was prevalent in family law litigation until that time.

[14] The applicant requests that access between the respondent father and child continue on a supervised basis, not for an indefinite period but subject to a review in 6-8 weeks. She asks that such access be supervised by Brayden Supervision Services. She provides information in this regard as she has completed the preliminary Intake process. If overnight access is to occur, it should not be scheduled for a period of two months and then, if the court is satisfied, from Saturday overnight to Sunday. She relies upon allegations concerning the respondent’s excessive drinking, inclination to watch excessive pornography and his stalking of her through surveillance installed throughout the matrimonial home and on her cell phone. She argues that his focus in his affidavits is to establish his involvement in the child’s daily routine prior to separation such as attendances at the doctor and dentist rather than refute the allegations of his dependence on alcohol or his receipt of therapy to deal with his addiction to alcohol and pornography. She suggests that his supporting affidavits from third parties are unreliable and contrived to support the respondent’s behaviour in handling his alleged addictions.

[15] In addition, the applicant refers to exchange of texts with the respondent in which he admits that he lied to her about the extent of his drinking and her evidence in which she frequently discovered empty alcohol bottles throughout the home.

[16] The applicant also places a focus on allegations that the respondent has attempted to control her by placing surveillance throughout the home, in her car and on her mobile telephone. She suggests that the respondent is well capable of this activity by virtue of his employment in a company that manufactures surveillance equipment. She makes allegations that the respondent would be able to ascertain the applicant’s whereabouts at any given time, that he could monitor her bank activity at any given time and that he was aware of her private consultations in choosing her legal representatives although this information was not shared with him.

[17] The respondent seeks a parenting regime that would afford him equal time with the child. He states that he is requesting a parenting schedule consistent with the status quo, whatever that may be. In the interim he asks this court to order access resembling a 5-2-2-5 sharing of time over a two week schedule with an ultimate goal of agreeing upon a 3-2-2-3 schedule with some flexibility for his work travel.

[18] The respondent’s material also brings into question allegations concerning the applicant’s mental health. He reproduces information from a blog posted by the applicant concerning her ordeals in suffering two earlier miscarriages. He asks the court to place less emphasis on the applicant’s filed material because she has failed to be candid with the court in not putting her best foot forward in her original affidavit which was filed in support of her emergency motion on December 29, 2016. He suggests that the portrayal of the respondent by the applicant that had her living in a constant state of terror is not to be believed because it is at odds with the text messages exchanged between the parties prior to separation. The respondent maintains that the texts emanating from him do not reflect an individual who is angry, belligerent or controlling but rather the exchange of texts between the parties reflect frequent communication about the child.

[19] The respondent also downplays the applicant’s allegations regarding the extensive surveillance, relying upon texts that suggest an awareness and appreciation of the cameras within the matrimonial home. He also makes a valid argument that in her affidavit, the applicant comments that the child encountered difficulty in FaceTiming with his father while in Florida, in that the child was not used to seeing his father so frequently as being in conflict with her texts from August 2016 that she feared the child would suffer from separation anxiety and that the child had been asking for his father.

[20] The respondent maintains that he is not an alcoholic but rather that he developed an unhealthy dependency upon alcohol and took steps to remedy it. He relies upon affidavits from friends to establish that he had alerted them as to his problem as far back as March 2016 so that when they went out to dinner they would not present him with alcohol. He notes that the applicant comments upon his reluctance to provide notes from his therapy sessions with Dr. Vitale Rosen, an addictions and couples counselling specialist but that she fails to mention that although she was the one to locate Dr. Rosen, following couples counselling, the respondent attended for individual counselling on his own. He frequently denies being an alcoholic but acknowledges that he developed an unhealthy dependence on alcohol that is now under control. He concedes that he drank heavily, at night, when the child was asleep and the applicant at home but that he attempted to remedy this behaviour through insight and by submitting the results of a home-based breathalyzer machine to the applicant to support his efforts to overcome his dependency.

[21] The respondent asks the court to find that the applicant has exaggerated his reliance on alcohol to an extreme and that he has been open about his problem and has taken steps to address it. He compares their competing affidavits to support his position that notwithstanding the applicant’s alleged concerns about his usage of alcohol, she left him alone with the child for frequent intervals of time including the weekend of November 5-7, 2016 although she was aware of and had complained about finding numerous empty bottles of alcohol around the home.

[22] In summary, the respondent submits that if the court is not satisfied that supervised access is required that the maximum contact principle apply.

Analysis and Conclusion

[23] To commence with the respondent’s concluding summary, the maximum contact principle reflected in the legislation requires the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Under the same legislation, the court shall take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child.

[24] Based on the filed material which has not been subjected to cross-examination, the court is unable to make any major findings on credibility as between the parties. They are to be commended for consenting to the various relief set out in this Ruling on a consensual basis. The chosen assessor will be requesting and receiving relevant disclosure to properly assess allegations of alcoholism, addiction to pornography and mental health concerns and report to the court on his/her findings. At this stage of the proceeding, the court makes no finding as to whether or not the respondent has an addiction to pornography and, if so, to what extent and, if so, how it may impact his relationship with his son. It also makes no finding as to whether or not the applicant has exhibited mental health concerns or a preoccupation about the well-being of her son’s health. The court does note that if the respondent had real concerns in this regard that there would exist a more meaningful paper trail of his concerns or attempt to assist the applicant in this regard, prior to separation (which ever date is determined to be more accurate) if he believed there to be a problem.

[25] The evidence the court does accept, at this juncture is that the applicant was the primary caregiver of the child if, for no other reason, than by virtue of the manner in which the parties, during cohabitation, organized their child caring responsibilities. The respondent, by his own admission, travelled between 8-10 days per month for work. He may well have been an involved parent when not working but given the age of the child, it is more than likely, that the applicant bore more responsibility for the care of the child than the respondent.

[26] In addition, the court accepts that the respondent had developed a dependency on alcohol to an extent greater than he is prepared to concede. To his credit, he has apparently taken steps, perhaps prior to separation, to try to remedy this problem. He need not be labelled an alcoholic to have a drinking problem. It may not be so extensive as to impair his ability to carry out his work related activities (noting that he frequently works from home) but at this stage the court has concerns about his ability to care for the child for an extended period of time. Steps have been agreed upon that will hopefully alleviate any concerns the court has in this regard. The court accepts the fact that the child has spent time alone with the respondent even when the applicant had apparently discovered his dependence on alcohol and the exchange of texts support the suggestion that when not in frequent contact with his father, the child has expressed concerns of his own.

[27] It is well-established law that the right of access belongs to the child. Starting from that premise, it has been established that access is a privilege to be granted to a parent consistent with the best interests of the child. It is acknowledged that supervised access is not a long-term solution but rather a safeguard to ensure that access is exercised in a manner consistent with the child’s best interests especially when there is some evidence of a dependency that could negatively impact a child if left unchecked. Such safeguards, when no longer needed, may be removed when the court has been satisfied of the remedial steps that have been taken. Although the respondent should be recognized for his apparent attempts to control his dependency, nevertheless, the court is obliged to err on the side of caution in the short term. To the extent that the respondent asks this court to restore the status quo, this court reiterates that upon the evidence received, it is unable to determine that a status quo existed that would favour one party more than the other as otherwise stated herein. However, the allegations raise sufficient concerns of potential risk to the child that must be considered at this stage of the proceeding. The following terms regarding access do not suggest that the allegations of the respondent’s behaviour prior to separation have been accepted as having been proven but merely, that the allegations together with the admissions by the respondent raise sufficient concerns that cannot be ignored.

[28] On the basis of the affidavit material that the court could rely upon and upon weighing the evidence therein and on the basis of the oral arguments, the court orders as follows:

1. The respondent shall have ongoing access with the child each Monday and Wednesday from 3:45 p.m. until 6:00 p.m. and Saturday from 8:00 a.m. until 4:30 p.m. with the paternal grandmother present but the Saturday access need not necessarily take place within the matrimonial home provided the respondent has an appropriate car seat at his disposal. The maternal aunt shall continue to be responsible for transporting the child for the first two and a half weeks (commencing February 6, 2017) but shall not remain at the home.

2. Commencing with the visit on February 22, 2017 the respondent shall be responsible for transportation of the child. Where the child is in school, the respondent may attend the school to pick up the child and when not in school or upon the return of the child, the respondent shall return the child to his residence where he resides with his mother (unless otherwise agreed upon in writing by counsel). The child shall be accompanied by the respondent to the front door but the respondent shall not enter the premises unless invited to do so.

3. The weekday access shall continue until further order of this court.

4. The weekend access shall be expanded with the Saturday visit scheduled for March 4, 2017. Thereafter, for three consecutive weeks the access shall take place on the Saturday from 8:00 a.m. until 4:30 p.m. and on the Sunday from 12:00 p.m. until 6:00 p.m. with the respondent responsible for providing the child with his dinner.

5. At the conclusion of the three week period set out in the preceding paragraph, the respondent’s access shall commence Saturday at 10:00 a.m. on an overnight basis until Sunday at 4:00 p.m. This access shall continue until further order of the court. In the event the assessment report is not prepared by June 1, 2017 the parties may schedule a further motion unless they are able to agree upon an alternating schedule that will allow both parents to enjoy time with the child during the summer months.

6. Notwithstanding the preceding paragraph, the access on Mother’s Day weekend shall commence on Saturday at 8:00 a.m. and conclude the same day at 4:30 p.m. to enable the child to spend Mother’s Day with the applicant.

7. The respondent shall not consume alcohol 12 hours prior to the commencement of access and during his access time with the child.

8. The respondent shall arrange for his RAMP testing to be randomly administered. In addition, he shall schedule testing to take place one-half hour prior to commencement of any access period and within one-half hour of the conclusion of any access period. His counsel shall be responsible for submitting a copy of this Order to the administrator of the testing and to obtain written proof that the administrator can comply with the terms of this Order, proof of which shall be provided to the applicant’s counsel.

9. Overnight access is also conditional upon ongoing compliance with the testing provided for in paragraph 10 (3) herein.

10. The parties shall also arrange for FaceTime access to occur for five minutes on every day that the respondent does not see the child at a time convenient to the parties. In the event the applicant is on an outing with the child at the regularly scheduled time for FaceTime access, she shall notify the respondent, by text, that the child is unavailable and arrange a more convenient time for the same day.

11. The respondent shall be entitled to receive information about the child directly from the child’s school and health care providers (including dentist).

12. The parties may communicate with one another, in writing, solely with respect to child-related concerns or proposed changes to the access schedule not of a material nature (such as minor alteration to pick-up or return time to accommodate any special events scheduled for the child) but absent written consent to any alterations, this Order shall apply.

[29] Pursuant to Rule 24 (10) costs are to be addressed at every step. In this case, the court finds it preferable to have the determination of costs reserved to the ultimate trier of fact who shall be in a better position of determining costs in accordance with Rule 24 after all of the evidence has been considered by the court. At that stage the court will be in a preferred position to assess the reasonableness of the parties’ behaviour in the conduct of this case from its commencement to the hearing of this motion. That court will also be able to consider the reasonableness of time expended for a one hour motion in comparison to the result ultimately achieved after all evidence has been presented in an orderly fashion.

Justice R. Kaufman

Dated: February 7, 2017