COURT FILE NO.: FC-16-2045 DATE: 2018/08/10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Daniel Moncur, Applicant -and- Stephanie Ginette Plante, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: M. Marello, for the Applicant S. Fried, for the Respondent

HEARD: July 5, 2018

ENDORSEMENT

Overview

[1] This is a motion brought by the Applicant seeking an interim parenting schedule until trial, which is scheduled to be heard in November 2018. The Respondent has brought a cross-motion, seeking an interim parenting schedule that differs from the one proposed by the Applicant, that the Applicant be required to attend with an assessor to determine whether he has an alcohol dependency problem that affects his parenting ability, and disclosure.

[2] The parties agree on the interim regular parenting schedule with the exception of the Applicant’s request for a small adjustment during the summer of 2018. The Respondent opposes the Applicant’s request largely because of her allegation that the Applicant has an alcohol dependency problem.

[3] At the hearing of the motion on July 5, 2018, I made a number of Orders, with reasons to follow, that granted the Applicant’s proposed interim parenting schedule, denied the Respondent’s request for an assessment of the Applicant, and denied the Respondent’s request for disclosure. These reasons also dispose of the Applicant’s objection to certain statements contained in the Respondent’s affidavit filed in support of her position on this motion.

The Facts

[4] The parties were married on August 25, 2007 and separated on February 9, 2015.

[5] The parties have one child from their marriage, now 7.5 years of age.

[6] After the parties separated on February 9, 2015, they continued to reside in the matrimonial home with the child until the home was sold in September 2015.

[7] In September 2015, the child began to reside in an approximately equal time sharing arrangement between the parties, as follows:

• The child is with the Applicant from Sunday at noon until Wednesday morning; and
• The child is with the Respondent from Wednesday after school until Sunday at noon.

[8] The Applicant wanted weekends to alternate between the parents. The Respondent was opposed to this, largely due to her allegations that the Applicant had an alcohol dependency problem and would drink excessively on weekends.

[9] The parties first attempted to resolve the legal issues arising from their marriage through mediation but this was not successful. This proceeding was commenced by the Applicant on September 22, 2016.

[10] On November 20, 2017, that parties attended their first Settlement Conference in this matter. On the same day, they executed Minutes of Settlement that provided for the Applicant’s time to be increased to begin on Saturday at noon, on the first Saturday of every month.

Previous Orders

[11] On December 19, 2016, Master M. Fortier made an Order, on consent, requesting the involvement of the Children’s Lawyer [1]. The Children's Lawyer consented to provide services and assigned this matter to a clinical investigator. The investigator conducted an investigation and filed a report with the court, dated June 28, 2017.

[12] On November 20, 2017, at the Settlement Conference, Justice D. Swartz made a temporary Order, pursuant to Minutes of Settlement dated the same day, for an interim without prejudice parenting schedule for the 2017 Christmas holiday period, as well as other temporary Orders that included:

1. Both parents shall not be inebriated while the child is in their care, so that each party may drive, in case of an emergency.
2. The parties may bring a motion for disclosure, custody and access following this motion.
3. The divorce shall be severed from the corollary relief and may proceed uncontested.

[13] On February 14, 2018, at a further Settlement Conference, Justice J. Mackinnon ordered the parties to exchange child support and section 7 information and endeavor to settle the historical issues. If not settled by 60 days, counsel were to contact Justice J. Mackinnon to address settlement. Justice J. Mackinnon provided that the Respondent may bring a motion for production of the Applicant’s bank statements from the date of separation forward, and that the Applicant may bring the same motion.

Applicant’s Motion

[14] The Applicant seeks an interim Order that provides for a parenting schedule that continues the existing regular schedule, but that provides for a small adjustment in the summer of 2018 so that the child can attend sleep away camp for one week, and each parent can have an extended period for a summer holiday. The Applicant seeks an interim Order that the summer of 2018 holiday access be as follows:

1. The child shall be in the Applicant’s care from Sunday, July 29, 2018 at 12:00 pm until Saturday, August 4, 2018 at 8:00 pm for summer holidays with the Applicant.
2. The child shall be in the Respondent‘s care from July 23 until July 28, 2018 for summer holidays with the Respondent, or at another time as can be agreed upon by the parties in writing. If the Respondent travels out of the country with the child, the Applicant shall provide his written consent to the trip within two (2) days of receiving the consent form to be signed and information about the travel plans including the flight details, accommodations and contact information.
3. The child shall be in the Respondent’s care from Saturday, August 4, 2018 at 8:00 pm in order to travel to attend a sleep-away summer camp. The child shall participate in the camp until August 10, 2018. The Respondent shall be responsible for the child during this period.

Respondent’s Cross-Motion

[15] The Respondent opposes the Applicant’s request under paragraph 1. above, and takes the position that the regular schedule should continue in the summer, with the exception of the changes under paragraph 2 and 3 above, to which she agrees, so that the child can attend a sleep away camp, and the Respondent, but not the Applicant, can have an extended period for a summer holiday. The Respondent seeks additional terms with respect to parenting, as follows:

1. An Order that the Applicant be required to attend with a property qualified assessor to determine whether the Applicant has an alcohol dependency issue such that it affects his parenting ability, with the cost to be shared equally by the parties;
2. An Order that neither party consume any alcoholic beverages during any time that the child is in his or her care or while a parent has responsibility for the child;
3. An Order that the Applicant disclose to the Respondent where he plans on having the child for his summer holiday; and
4. An Order that the Respondent be entitled to contact the child occasionally while the child is with the Applicant for a telephone call at such times as may be arranged between the parties.

[16] The Respondent also seeks disclosure of the Applicant’s personal banking records and credit card statements from January 1, 2014 to date, and the Applicant’s documentary evidence from January 2015 to date as to expenses and costs paid for on or behalf of the child.

Evidence

[17] The Applicant has filed two affidavits of his own, and three supporting affidavits, one from his brother-in-law, one from his girlfriend, and one from his father.

[18] The Applicant seeks an interim parenting schedule that includes a small adjustment for the summer of 2018 so that he can go on a family cottage holiday with the child.

[19] The Applicant states that, since separation, the Respondent has repeatedly imposed unilateral and unreasonable restrictions on his time with the child by refusing to agree to weekend access for a number of reasons, including scheduling activities and camps for the child, all of which are aimed at controlling his time with the child and due to the Respondent’s belief that the child is not safe in his care if he has weekend access.

[20] The Applicant’s deposes that, prior to separation, he cared for the child, and assumed the role of the child’s primary caregiver, during extended periods. He states he frequently cared for the child while the Respondent was away, for periods of one to five weeks at a time.

[21] The Applicant admits that prior to May 2014, when the family resided in Geneva, he was unhappy with his life in general, and particularly his work and marriage, and consumed alcohol in the evenings. He believes that his consumption of alcohol during this period (prior to May 2014) was caused by his marriage troubles.

[22] The Applicant denies, however, having any addiction issues. He states that he currently consumes alcohol on an occasional basis. He expressly denies that his consumption of alcohol affects his parenting responsibilities.

[23] The Applicant has attempted to address the Respondent’s concerns regarding his parenting by having a psychological assessment prepared by Dr. Augustine Meier, and a substance abuse assessment by Mr. Ronald Kellestine.

[24] The Applicant has produced a letter from Dr. Meier, dated December 8, 2016, attached as an exhibit to his affidavit. Dr. Meier conducted psychological testing on the Applicant. Dr. Meier concludes that this testing does not indicate any psychiatric and behaviour disorders, but does paint a picture of a person who is anxious, depressed and angry, likely because of the current custody arrangement that does not allow the Applicant to have quality time with the child over the weekend.

[25] The Applicant has also produced a letter from Mr. Kellestine, dated January 25, 2017, also attached as an exhibit to his affidavit. Mr. Kellestine conducted a substance abuse assessment of the Applicant. Mr. Kellestine concludes that the Applicant is not an alcoholic displaying signs of potential alcoholic behaviour.

[26] Although the Applicant disagrees that any further alcohol assessment is required, he is agreeable to participating in a second assessment with Mr. Bruce Johnston, who is identified as a Canadian Certified Addictions Counsellor, with the cost to be shared equally by the parties given that the Applicant has already paid for the cost of the initial assessment on his own. The Applicant proposed this assessor by letter from his counsel dated June 5, 2018.

[27] The Respondent advised by letter from her counsel on June 12, 2018 that she preferred an alternate assessor, and proposed Dr. Christopher Cardoso or Dr. Aleks Milosevic, and that she agreed to share equally the cost.

[28] By letter dated June 19, 2018, the Applicant’s counsel advised that neither of the Respondent’s proposed assessors would accept a retainer that involved court proceedings. This left the parties with the assessor proposed by the Applicant.

[29] At the hearing of the motion on July 5, 2018, the Respondent advised that she was still in the process of checking Mr. Johnston’s credentials.

[30] With respect to the disclosure issues, the Applicant states that the Respondent is simply on a fishing expedition to try to show that by buying alcohol, he has an alcohol addiction, but that the Respondent has no evidence to support this is the case. With respect to the Respondent’s claim that this disclosure is also relevant to the child support issues, the Applicant states that he has complied with the Order made at the Settlement Conference on February 14, 2018 to disclose child support and section 7 information, and no further disclosure is required in order to determine the child support issues.

[31] The Applicant’s brother-in-law deposed that he had spent time with the Applicant’s family at the cottage, that he had not observed the Applicant, or other members of his family, to be visibly intoxicated, and did not have any concerns about leaving his own child, age six, in the care of the Applicant’s family, at the cottage.

[32] The Applicant’s girlfriend deposed that she has been in a relationship with the Applicant since 2015, that the Applicant is a good parent, and that the Applicant does not normally consume alcohol around the child but on occasion may have a drink with dinner if they are out for dinner or at her parent’s house.

[33] The Applicant’s father deposed that the Respondent’s allegations with respect to the incident in 2009 (referred to below) are untrue, that he has never seen the Applicant intoxicated while the child is in his care, that the Applicant is a good parent, and that he and his family, while they consume alcohol on a social basis, do not abuse alcohol nor have any dependency on alcohol, and that the Respondent has asked him and his spouse to care for the child overnight on more than one occasion.

[34] The report of the Children's Lawyer does not support the Respondent’s concerns that the Applicant is an alcoholic. The report recommends that the parties have joint custody, with an equal parenting schedule on a two, two, three schedule that provides for full weekends (from Friday to Sunday) to alternate between the parties, with each party having one week of extended access during the summer. The Respondent has not filed a dispute to the Children’s Lawyer’s report, in accordance with Rule 21(e) of the Family Law Rules.

[35] The Respondent relies on her own affidavit. Her main concern is the Applicant’s alleged alcohol dependency. She states that Mr. Kellestine’ opinion is flawed and cannot be relied upon as evidence that the Applicant does not have an alcohol problem. The Respondent states Mr. Kellestine is not qualified as he is not a member of the College of Psychologists and that she has made a complaint to the College of Psychotherapists [2]. She states that the Children’s Lawyer’s report is also flawed because it relied, in part, on Mr. Kellestine’s opinion.

[36] The Respondent has attached, as an exhibit to her affidavit, a letter from Dr. Tom Horvath, dated January 25, 2017. Dr. Horvath is a registered Californian Psychologist. Dr. Horvath raises a number of concerns and questions about Mr. Kellestine’s letter but does not provide any conclusions or an opinion with respect to the issue of the Applicant’s alleged drinking problem nor Mr. Kellestine’s conclusion. Dr. Horvath did not examine the Respondent. His report is essentially a critique report. I do not give any weight to Dr. Horvath’s letter.

[37] The Applicant states that she has personal knowledge of the Applicant’s and his family’s history relating to alcohol abuse. She attaches a decision from Ontario Court of Appeal and a decision from the Ontario Human Rights Tribunal which she states relate to an incident, apparently from 2009, in which the Applicant’s parents were intoxicated. These decisions, however, while reflecting that the Applicant’s parents were engage in a legal dispute, do not state that any alleged improper conduct on their part related to alcohol use.

[38] The Applicant believes that the Applicant and his family consume significant amounts of alcohol at the cottage and this raises concerns for the child’s safety. She has conducted her own research from a number of sources, and concludes that the Applicant is an alcoholic.

[39] The Respondent denies that the Applicant was as involved as he states he was in the care of their child prior to separating. Although she does not dispute being away from the Applicant and child for extended periods at times, she states that the Applicant had the assistance of caregivers during these periods and the caregivers assume the role of primary caregiver, not the Applicant. The Respondent believes that the Applicant’s drinking, which she states was excessive in the past, has continued unabated including when the child is in his care. At the hearing of the motion, the Respondent’s counsel admitted that the Respondent is not alleging that there have been any incidents in which the Applicant has been unable to care for the child since separation, but argues that this is only because the Applicant has been on his best behaviour.

[40] The Respondent states that she seeks the Applicant’s bank and credit card statements because of her belief that the records are relevant to the issue of whether the Applicant has an alcohol dependency, although she does not go further to explain how this is the case. The Respondent take the position that if the Applicant does not have an alcohol problem, he should not have any objection to providing his bank and credit card statements.

[41] The Respondent also states that the Applicant’s bank and credit card statements are relevant to the issue of child support to explain what expenses the Applicant has incurred for the child. The Respondent does not provide any evidence that explains why the information already provided by the Applicant with respect to the child’s expenses is not sufficient to address the child support issues.

Analysis and Disposition

a) Objections to Portions of the Respondent’s Affidavit

[42] At the outset of the motion, the Applicant’s counsel took issue with three parts of the Respondent’s affidavit, sworn June 27, 2018. One paragraph includes a reference to a discussion that took place at a Settlement Conference. One paragraph used the term “we” but did not state to whom this referred. The third paragraph includes a reference to a position taken at closed mediation. I agree with the Applicant’s objections and order that the sentences containing these references be struck from the Respondent’s affidavit.

b) Summer Access

[43] Under the regular schedule, the child would be in the Applicant’s care from Sunday, July 29, 2018 at noon until the morning of Wednesday, August 1, 2018. The Applicant is requesting that the child be in his care for the rest of the day on Wednesday, August 1, 2018 through to the evening of Saturday, August 4, 2018 at 8 p.m. As Saturday, August 4, 2018 is the first Saturday in the month, the child would normally be in the Applicant’s care from Saturday at noon through to the following Wednesday morning. The Applicant has agreed to return the child earlier (on Saturday evening at 8 p.m.) so that the child can attend a sleep away camp the following week. The Applicant is also agreeable to the Respondent having the child for a similar extended period in the summer.

[44] The effect of the Applicant’s request for summer access is that he has three additional days with the child in his care during the week in question (being Wednesday, Thursday and Friday), although he also loses time with the child the following week when the child is in camp and also when the Respondent has extended time for her summer holiday, if she wishes to take one. The net effect of the Applicant’s proposal, in totality, is that he would not have any extra time with the child, but simply adjusts the schedule so that the child can attend sleep away camp for one week, and each parent can have an extended period for a summer holiday.

[45] The Respondent's primary objection to the Applicant’s request is her concern that the Applicant has an alcohol dependency problem. She is particularly concerned that the Applicant drinks excessively on weekends, and that the Applicant intends to spend this time at a cottage, with his family, who she also alleges would be drinking excessively such that the child would be at risk in the Applicant’s care.

[46] While the Respondent takes issue with the evidence put forward by the Applicant that he does not have an alcohol problem, she has not provided any evidence of her own, aside from her own statements, in support of her allegation that the Applicant does have an alcohol problem. The Respondent’s own evidence is effectively that the Applicant used to drink too much, she believes he still does, and based on her own research, she believes he is an alcoholic.

[47] I have given little weight to the letters of Dr. Meier and Mr. Kellestine, as neither provided evidence by affidavit. The report of the Children's Lawyer has not been tested by cross-examination, and the affidavits in support of the Applicant are from close family or friends who obviously have an interest in supporting his position. The totality of the evidence, however, does not support the Respondent's allegation that the Applicant has an existing alcohol dependency problem that places the child at risk in his care that warrants either a restriction on a reasonable request for a summer holiday schedule or a more restrictive clause regarding alcohol consumption.

[48] I find that the Applicant's request for an interim parenting schedule that provides for a small adjustment during the summer of 2018, so that the child can attend sleep away camp for one week, and each parent can have an extended period for a summer holiday, is reasonable and in the child’s best interests. In making these findings, I am not implementing the report of the Children's Lawyer in advance of trial but rather granting a reasonable request for a small adjustment to the regular schedule during the summer, which is in keeping with the status quo parenting arrangement, which has included adjustments for other holidays such as Christmas. In particular, I have considered the following:

• The child has been in the Applicant’s care for extended periods prior to separation;
• The child has been in an approximately equal timesharing arrangement since September of 2015;
• The child’s time with the Applicant has, since separation, included time with the Applicant at a cottage with his family;
• Since December of 2017, the child has been in the care of the Applicant on weekends, once per month;
• There are no allegations that there have been any incidents in which the Applicant has been unable to care for the child since separation; and
• On the consent of the parties, there is already an Order in place that provides that “Both parents shall not be inebriated while the child is in their care, so that each party may drive, in case of an emergency. [3]”

[49] The Respondent seeks an Order requiring the Applicant to advise where he will be during his vacation with the child. The Applicant has already advised that he intends to go to a cottage in the Muskoka, Ontario area. The Applicant consents to an Order requiring him to advise the Respondent of the address of the cottage.

[50] The Respondent also seeks to have telephone contact with the child when he is in the Applicant's care. I decline to make this Order, as there is no evidence before me that supports the need for such an Order at this time. The parties can address this issue, if they wish, at trial.

[51] This should not, however, be taken as an endorsement that reasonable contact between a parent and the child should not be permitted while the child is in the other parent’s care. Reasonable contact should be permitted and encouraged, but it should not unduly interfere with the other parent’s parenting time with the child, nor create restrictions on the child’s activities and schedule.

[52] On an interim basis, I do Order that the child be allowed to contact either parent when he wishes and that both parties should facilitate the child’s access to telephone, email and/or text in order to do so. Both parents should be respectful of the other party's parenting time with the child. Contact with the child, while in the other parent’s care, should not unduly interfere with this.

c) Alcohol Assessment

[53] The Respondent seeks an Order that the Applicant be required to attend with a property qualified assessor for an alcohol assessment with the cost to be shared equally by the parties.

[54] Where the physical or mental condition of a party to a proceeding is in question, the court may order a party to undergo a physical or mental examination by a health practitioner [4]. Where the physical or mental condition is first raised by another party, such an order shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation [5].

[55] The onus is on the Respondent to satisfy the court that there is good reason to believe that there is substance to her allegation that the Applicant has an alcohol dependency problem. She has not done so. I am not prepared to make an Order at this time requiring the Applicant to attend a further alcohol assessment.

d) Disclosure

[56] The Respondent seeks disclosure of the Applicant’s personal banking records and credit card statements from January 1, 2014 to date, and the Applicant’s documentary evidence from January 2015 to date as to expenses and costs paid for or on behalf of the child.

[57] As Justice Perell stated in Boyd v. Fields, 2006 CarswellOnt 8675 (Ont. S.C.J.), at para. 12:

"Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense and fairness built into these rules. A party's understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors.”

The onus is on the Respondent to satisfy the court that these records are relevant and proportional to the issues in the case. She has not done so. The Respondent has not provided an evidentiary foundation to justify the production of these records on the basis that they are relevant to her allegation that the Applicant has an alcohol dependency problem. The Respondent has also not provided an evidentiary foundation that shows these records are necessary to determine the child support issues.

Orders

[58] Given the above, on July 5, 2018, I made the following interim Orders:

1. On consent, the regular parenting schedule for the child shall continue until trial scheduled in this matter in November, 2018 as follows: a. The child shall be in the Applicant father’s care from every Sunday at 12:00 pm until Wednesday when Ian is to be returned to school, daycare or summer camp; b. The child shall be in the Respondent mother’s care from Wednesday after school/daycare or summer camp until Sunday at 12:00 pm; and, c. The child shall be in the Applicant father’s care every first weekend of the month from Saturday at 12:00 pm (and not Sunday at 12:00 pm) until his return to the Respondent mother’s care on the following Wednesday.
2. Paragraphs b. and c. below are on consent; paragraph a. is not on consent. The 2018 summer holiday access schedule, which overrides the regular schedule set out at paragraph 1 above, shall be as follows: a. The child shall be in the Applicant father’s care from Sunday, July 29, 2018 at 12:00 pm until Saturday, August 4th, 2018 at 8:00 pm for summer holidays with the father; b. During the summer of 2018 (being the months of July or August, 2018), if she wishes, the Respondent mother may have a similar period of time with the child as the Applicant father has under to paragraph 2 a. above, for the purpose of a family holiday, such dates to be agreed upon between the parties. Both parties shall act reasonably in making or responding to requests for a similar period of time. c. The child shall be in the Respondent mother’s care from Saturday, August 4th, 2018 at 8:00 pm in order to travel to attend a sleep-away summer camp. The child shall participate in the camp until August 10th, 2018. The Respondent mother shall be responsible for Ian during this period.
3. On consent, the Applicant shall provide the Respondent with the address for the cottage in the Muskoka area at which he and the child will be visiting during the period from July 29, 2018 to August 4, 2018. The Applicant shall provide this information to the Respondent prior to July 25, 2018.
4. The child shall be allowed to contact either parent by telephone, email, or text while in the other parent’s care, and each party shall facilitate the child’s access to a telephone, email and/or text for this purpose. While the child should be allowed and facilitated to contact the other parent when he wishes to do so, such contact should not unduly interfere with the other parent’s parenting time with the child and should generally be kept to a short exchange of a few minutes.
5. The Respondent has withdrawn her motion seeking a divorce, on consent of the Applicant, noting that Justice Swartz’s Order dated November 20, 2017 provides that the divorce is severed from the corollary relief and may proceed uncontested. The parties will cooperate in proceeding to file the requisite material to obtain a divorce.
6. The remainder of the Respondent’s motion is dismissed.

[59] The Court also makes the following additional Orders:

7. The first sentence of paragraph 11 of the Respondent’s Affidavit, sworn June 27, 2018, is hereby struck on the basis that it contains a reference to discussions at a settlement conference.
8. The last sentence of paragraph 12 of the Respondent’s Affidavit, sworn June 27, 2018, is hereby struck on the basis that it refers to “we” (“We are also concerned…”) without identifying to whom she is referring.
9. The third sentence of paragraph 42 of the Respondent’s Affidavit, sworn June 27, 2018, is hereby struck on the basis that it refers to the Applicant’s settlement position at mediation.

[60] At the end of the hearing on July 5, 2018, the parties were invited to make submissions on costs and have done so. The cost endorsement will be released shortly.

Justice P. MacEachern Date: August 10, 2018

Footnotes:

[1] Courts of Justice Act, R.S.O. 1990, c.C.43, s.105(2), ss.89 (3.1) and 112 [2] The Applicant does not explain the differences in these terms – she refers to the College of Psychologists, the College of Psychotherapists, and the College of Registered Psychotherapists [3] Order of Justice D. Swartz, dated November 20, 2017 [4] Courts of Justice Act, R.S.O. 1990, c.C.43, s.105(2) [5] Courts of Justice Act, R.S.O. 1990, c.C.43, s.105(3)