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COURT FILE NO.: FS 68/16
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DATE: 2019/03/20
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## ONTARIO
# SUPERIOR COURT OF JUSTICE
B E T W E E N:
M.B.
Self-represented
Applicant
(Responding Party)
- and -
S.K.(K.)B.
Nathalie G. Fortier,
for the Respondent/Moving Party
Respondent
(Moving Party)
HEARD at Welland, Ontario:
January 31, 2019
The Honourable Justice T. Maddalena
DECISION ON SUMMARY JUDGMENT MOTION
The Issues
[1] This is a summary judgment motion heard at Welland, Ontario on January 31, 2019. This motion is brought by the respondent mother seeking sole custody of the two children of the marriage, child support, and other ancillary relief.
[2] The applicant father, the responding party to the summary motion, also seeks sole custody of the two children of the marriage to him together with various other ancillary relief.
Background
[3] The applicant and respondent met while both were attending a drug rehabilitation treatment program. They were married March 14, 2009 and separated May 5, 2015. There are two children of their marriage, namely: C.V.B., born […], 2009 and M.T.B., born […], 2010.
[4] The applicant and respondent entered into a separation agreement dated May 21, 2015. The agreement provided that the applicant and respondent share joint custody of the children with primary residence of the children to be with the respondent mother. The agreement further provided that the father shall pay child support to the mother for the two children in the amount of $1,186 monthly, based on an annual income of $83,700.
[5] The applicant father commenced an application in Ontario on August 26, 2016 seeking to vary the existing separation agreement and further seeking sole custody of the children.
[6] In her answer, the respondent mother requested sole custody of the children to her and further requested supervised access to the children by their father.
[7] These parties originally resided in Nova Scotia and then moved to Newfoundland and Labrador. The Newfoundland and Labrador Department of Child, Youth and Family Services was involved with the family.
[8] The respondent mother alleges a history of domestic violence throughout the marriage. The applicant father denies this.
[9] Following the separation, the respondent mother received permission and moved to Ontario with the two children.
[10] On July 15, 2016, the respondent mother was charged with, and eventually convicted of, impaired driving.
[11] Family and Children’s Services Niagara (FACS) placed the two children with the respondent mother’s mother and step-father, i.e. the children’s maternal grandmother and step-grandfather, Mr. and Mrs. H.. FACS returned the children to the respondent mother once she had demonstrated an extended period of sobriety and completion of treatment at drug rehabilitation centres.
[12] According to the evidence at the summary judgment motion, the respondent mother had fully and successfully completed the drug rehabilitation treatment recommended for her. Her probation will be completed by September 2019. The respondent mother has gone back to school to retrain and now has her own aesthetics business. The evidence at the summary judgment motion was that the respondent mother has also obtained a medical aesthetician licence.
[13] On an access visit on August 22, 2016, the applicant father, who resided in Nova Scotia at the time, refused to return the children to the care of Mr. and Mrs. H.. This occurred during the time that FACS had placed the children on a kinship agreement with Mr. and Mrs. H.. He preferred to have the children with him instead of the maternal grandmother and step-grandfather placement through FACS.
[14] As the children had been in Ontario since approximately 2015, in or around September 2016, the Ontario Superior Court of Justice ordered the return of the children to Ontario.
[15] In early 2017, the applicant father also moved to Ontario. On March 22, 2017 an order was made by the court permitting the applicant father to have access to the children supervised by the applicant father’s sister from Saturday at 9:00 a.m. until Sunday at 6:00 p.m.
[16] According to the respondent mother, the plan was that access was later to occur at the applicant’s residence, but still supervised by family members.
[17] During this time, according to the respondent mother, the applicant father was to provide urine screen tests from the methadone clinic for the following six months. The intent was that following six months of sobriety, unsupervised access could commence. According to the respondent mother, the applicant father was also to undergo six months of drug treatment at Community Addiction Services of Niagara (CASON). According to the mother’s evidence, this did not occur. The father admitted that he suffered a serious relapse of drug use. His family refused to supervise visits as he became unmanageable.
[18] In January 2018, according to the evidence of the mother, the applicant’s sister Ms. S. asked that supervised access in her home be placed on hold and that the applicant attend a drug treatment facility.
[19] According to the evidence of the respondent, the applicant tested positive for drugs including fentanyl, cocaine, and methamphetamine during some of the times of the supervised visits.
[20] The last supervised visit occurred in December 2017. Also, it is undisputed in the evidence that by July 2018 the applicant father’s driver’s licence was suspended by the Family Responsibility Office (FRO) for nonpayment of support. By this time the father had left Ontario and returned to Nova Scotia.
[21] On June 1, 2018, the Superior Court of Justice made an order for supervised visits through the Pathstone SVEN program for the father. The applicant father did not follow through with this. Instead, without telling anyone, the applicant moved back to Nova Scotia around July 2018 and did not return to court in Ontario for a trial scheduling conference which had been set for October 1, 2018. At that time, the matter was also placed on the trial list for the sittings commencing April 1, 2019.
[22] Once served with the summary judgment motion of the respondent, the applicant returned to Ontario admitting that he had relapsed into drug use, and stating that he had received some drug treatment in Nova Scotia and was seeking sole custody. He presented some evidence of drug screening from Nova Scotia at the summary judgment motion. The applicant father stated at the motion that he had undergone counseling and was working with a counselor on a relapse prevention program.
[23] There are problems noted with the father’s drug screening test attached to the father’s affidavit presented at the summary judgment motion, which is sworn 28<sup>th</sup> of January 2019. For example, the records from the Nova Scotia Health Authority, Cape Breton, have disclaimers attached. The disclaimers include the following:
“This opiate screening method has poor cross reactivity with hydromorphone and oxymorphone and does not detect methadone/EDDP and synthetic opioids (i.e. fentanyl, buprenorphine, meperidine, etc. …”[^1]
[24] There are also unanswered questions
minicounsel