APA v NA, 2019 ONSC 2688

Court File and Parties

Court File No.: FC-18-2229 Date: 2019/04/30 Superior Court of Justice - Ontario

Re: A.P.A., Applicant -and- N.A., Respondent

Before: Madam Justice Sylvia Corthorn

Counsel: Andrew Emery, for the Applicant Jillian Allen, for the Respondent

Heard: April 18, 2019

Endorsement

Introduction

1The applicant brings a motion to change a final order made by Justice Blishen, on the consent of the parties, in January 2018 (“the Order”). The Order concluded a Children’s Aid Society matter.

2The applicant seeks to change the terms with respect to the logistics for his access visits with the parties’ five-year old daughter. The individual who previously agreed to assist the parties, by facilitating both pick-up and drop-off for access visits, is no longer willing to do so.

3On an interim basis, pending the outcome of his motion to change, the applicant requests that the access visits occur weekly, for a full day (9:00 a.m. to 6:30 p.m.), and that they be unsupervised.

4The respondent’s concerns about the applicant’s use of alcohol and his parenting skills are such that she is of the view that unsupervised exchanges and lengthy periods of unsupervised access are not appropriate at this time.

5The parties have, for a number of weeks, been able to resolve access visits on an interim interim basis. Pending a decision on this interim motion, the applicant has had access visits with his daughter on the following terms:

• Two hours per week in a public place;
• Typically on Wednesdays; and
• With the respondent remaining in the general area, while the visits occur.

6By way of example, one access visit occurred at a bowling alley.

7The issue to be determined on this motion is the terms pursuant to which the applicant is to continue to have access visits with his daughter, on an interim basis, pending the outcome of the motion to change.

Background

8The parties were married in October 2012. Their only child, A.C.A., was born in […] 2014. The parties separated in March 2016.

9The Children’s Aid Society (“CAS”) was involved with the family on three occasions before the parties separated. On the third occasion, in early March 2016, A.C.A. was apprehended and placed in the care of a family friend. The parties separated shortly after the apprehension of their child.

10A.C.A. was returned to the care of her mother in June 2016 under a supervision order. The applicant had weekly visits with A.C.A., supervised by the CAS.

11In January 2018, the CAS involvement with the parties ended. The CAS application, commenced in 2016, was resolved on consent. The applicant was self-represented and the respondent had counsel. The Order includes the following terms:

• The respondent has sole custody of A.C.A.;
• The applicant began with four hours of access per week; and
• Over time, the applicant’s access was to increase to a full day (9:00 a.m. to 6:30 p.m.) as long as he was not under the influence of alcohol during any visit.

12The logistics surrounding the access visits include that the applicant is not permitted to drive with the child (para. 10 of the Order). In addition, all drop-off and pick-up for the access visits are to occur at the home of A.C.A.’s paternal aunt (para. 9 of the Order).

13The applicant has a criminal record. In May 2017, he plead guilty to assault. That charge arose from one of the pre-separation incidents that resulted in the CAS’ involvement with the parties. A conviction was also entered in late 2016 or early 2017 for breach of recognizance. Most recently, in April 2017, the applicant was convicted of either impaired driving or driving with a blood alcohol level in excess of 0.08. The circumstances for the breach and driving offence are not known. For the driving offence, the applicant received a fine and was prohibited from driving. Evidence as to the duration of that prohibition is not before the court.

14It is undisputed that pursuant to the Order, the applicant’s access time with A.C.A. increased from four hours per week (9:00 a.m. to 1:00 p.m.) to 9.5 hours per week (9:00 a.m. to 6:30 p.m.). The weekly visits of 9.5 hours commenced in April 2018.

15The parties disagree as to whether access visits prior to July 31, 2018 proceeded without incident. The applicant denies that there were any issues with those visits. The respondent says there were a number of issues including, for example, A.C.A. not being fed during a visit, and A.C.A. being transported in a car without being secured in a child’s car seat. The respondent is also concerned, based on information she received from the paternal aunt, that the applicant may have been under the influence of alcohol during one or more of the access visits prior to July 31, 2018.

a) The July 31, 2018 Access Visit

16As a result of events that transpired on July 31, 2018, the respondent ended the 9.5 hour weekly visits.

17The parties had agreed that the access visit on July 31, 2018 would start at 12:30 p.m. The late start allowed the respondent to attend with her new family, including A.C.A., for family photographs to be taken. When that arrangement was made, the applicant did not request that the access visit end later than the usual 6:30 p.m.

18Without notice to the respondent, the applicant kept A.C.A. until approximately 9:30 p.m. During those additional hours, the applicant did not respond to communication from the respondent inquiring as to A.C.A.’s whereabouts and well-being. The applicant now acknowledges that he was incorrect in keeping A.C.A. with him past 6:30 p.m. without notice to and without the consent of the respondent.

19The respondent has concerns about what transpired while A.C.A. was with the applicant on July 31, 2018. Some of the concerns are based on first-hand information. Other concerns are based on second-hand information.

b) Access Facilitator Withdraws

20The respondent’s evidence is that, within a number of days of the July 31, 2018 access visit, she was informed by the paternal aunt that the latter is no longer prepared to facilitate pick-up and drop-off for the access visits. The parties agree that the paternal aunt is no longer prepared to be involved. They disagree as to why the paternal aunt came to that decision.

21The applicant says that the paternal aunt does not want to be in the middle, between the parties. The respondent says the paternal aunt extricated herself because of the applicant’s (a) lack of communication, and (b) disregard for “the rules” to which they had all agreed.

22The parties have not been able to agree upon a replacement for the paternal aunt. The one individual suggested by the applicant is unknown to the respondent. That option was rejected by the respondent. Neither of the parties proposed any other options.

c) Interim Measures

23The respondent’s initial position was to request that access visits be supervised and that they occur at the Supervised Access Centre (“SAC”). On a without prejudice basis, the parties agreed to submit an application to the SAC. That agreement is reflected in the January 30, 2019 case conference endorsement of Master Kaufman. The application to the SAC has been submitted. If the parties are accepted, it will be a number of months (possibly six or more) before the SAC will be able to facilitate access (even if only drop-off and pick-up).

24Master Kaufman’s endorsement also reflects the parties’ agreement, on a without prejudice basis, to have the applicant communicate with A.C.A. by telephone for one hour per week—from 6:00 to 7:00 p.m. on Sunday nights. From late January until mid-March, the applicant exercised the weekly telephone access, save and except on February 3, 2018. That would have been the first telephone access pursuant to the Order. The applicant chose not to exercise his telephone access on that date because of the Superbowl.

25This motion for interim relief was originally returned on March 12, 2019. The respondent’s request for an adjournment of the motion, although opposed, was granted.

26The parties were subsequently able to agree upon interim interim access, on a without prejudice basis. The applicant has had weekly access visits with A.C.A.. The visits are for two hours, occur in a public place, and are supervised by the respondent. The visits are said by the respondent to be going well. The parties have been able to manage these visits including with flexibility, when required, as to the day of the week on which they occur.

The Issue

27The sole issue to be determined is the basis upon which the applicant is to have access visits with A.C.A. on an interim basis pending the outcome of his motion to change.

Analysis

28This motion is governed by s.24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”). A.C.A.’s best interests are the paramount factor.

a) Access Visits Historically

29The applicant had no access of any kind with A.C.A. from August 1, 2018 through January 2019. His first opportunity to have any access at all was on February 3, 2019. Three days after reaching an agreement to that effect, the applicant chose to give up that opportunity. He did so because of the Superbowl.

30The applicant acknowledges that his behaviour on July 31, 2018 was inappropriate. He makes no such acknowledgement with respect to his choice about the February 3, 2019 telephone access. It is troubling that after waiting six months to return to some form of access, the applicant chose to give up the opportunity he had on February 3, 2019 to resume contact with A.C.A..

31It is also troubling that the applicant failed to see the problem with attending for an access visit smelling of alcohol. He acknowledges that on the night before an access visit in April 2017 he had been drinking and, as a result, smelled of alcohol when he attended for an access visit the next day.

32These troubling events occurred approximately three months and two years ago respectively.

33The events of July 31, 2018 are also troubling. On that date, the applicant demonstrated a lack of (a) consideration for the respondent’s understandable concern for A.C.A.’s safety and well-being, (b) appreciation for common courtesy, at a minimum, and (c) the importance of adhering to the Order, unless otherwise agreed, at a maximum.

b) Material Change not Addressed Pro-actively

34The applicant did not have to wait until after the situation arose in the late summer of 2018 to bring a motion to change. Paragraph 13 of the Order highlights that a “material change” would occur in June 2018. It provides as follows:

The terms of access including access to information related to the child and the parental access schedule will be subject to review in June 2018 as there will be deemed to be a material change of circumstance as of that date. If the parties are unable to reach an agreement on these issues, they will be determined by a Court of competent jurisdiction.

35The material change contemplated was that A.C.A. would be four years old and beginning school in the fall of 2018. The applicant’s weekly access on Tuesdays would have to be changed because A.C.A. would be at school as of September 2018. Neither party was pro-active in addressing that material change.

36The Order is a final order made in the context of a child protection proceeding instituted by the CAS. The terms of the Order reflect concerns the CAS had as a result of events that transpired from 2016 to 2018, while the CAS file remained open.

37In his February 7, 2019 affidavit, the applicant acknowledges that he knew that the paternal aunt (the applicant’s sister-in-law) “would not want to be an access exchange location forever.” Knowing that, the applicant failed to be proactive. When necessary, he proposed only one individual as an alternative to the paternal aunt. The applicant also acknowledges that this individual is a stranger to the respondent; yet the applicant is critical of the respondent rejecting that individual solely on that basis.

c) Schedule for the Continuation of Access Visits

38The applicant seeks to return immediately to full-day access—from 9:00 a.m. to 6:30 p.m.—every Sunday until the academic year is over. For the summer months he would like the weekly, full-day visits, to occur on Wednesday instead of Sunday. The applicant does not agree that access should be supervised in any way. The applicant’s position is that he only agreed to apply to the SAC so as to gain access to the centre as a location for exchange should it be necessary in the longer term.

39The parties, by their conduct in recent weeks, clearly recognize and agree that it is in A.C.A.’s best interests that she resume the access visits with the applicant. The parties are, however, unable to agree upon how the access visits are to be facilitated pending the outcome of the motion to change.

40I commend the respondent for taking two hours of her time every week to facilitate access visits for A.C.A. with her father. That commendation does, however, not in any way overlook the shortcomings in the respondent’s behaviour or attitude between July 2018 and mid-March 2019. In that period, she failed to co-operate with the applicant to facilitate the resumption of access visits.

41From the respondent’s perspective, there are a number of purposes served by having a third party facilitate the drop-off and pick-up. One of those purposes is the opportunity to assess the applicant’s condition, including whether he appears to have consumed alcohol in the hours or day immediately preceding the access visit. In the absence of an agreed-upon third party to facilitate drop-off and pick-up, the respondent is willing to fulfill that role. By doing so, she will personally be able to assess the applicant’s condition.

42I find that it is not in A.C.A.’s best interests to resume full-day access with her father immediately. The graduated approach taken by the parties when they agreed to the terms of the Order is once again reasonable. That approach will provide A.C.A. with the opportunity to adjust to the resumption of longer access visits. That approach will also provide the parties to assess how the access visits are going before the duration of the visits is increased.

43Given that the access visits must occur in a public place (discussed below), it is also reasonable to take a gradual approach to the increase in the duration of the access visits.

44There is no evidence from the applicant about his living arrangements. The respondent’s uncontradicted evidence, based on information from the applicant’s brother and sister-in-law (the paternal aunt), is that the applicant lives in shared accommodation with at least one roommate. The accommodation is said to be a “rooming house”.

45The applicant has not provided the court with any evidence upon which a finding could be based that it is in A.C.A.’s best interests that the applicant be permitted to drive with A.C.A. in the car. There is no evidence as to whether the driving prohibition imposed because of the 2017 conviction on the driving offence is at an end. I also note the respondent’s uncontradicted evidence that she was not aware of that conviction and the related sentence until reference to it was made in the Motion to Change.

46Reliability, responsibility, and consistency are three of the many qualities required of a parent. I am not convinced that the applicant has demonstrated these qualities to the requisite degree required, both on or after July 31, 2018, to support an immediate return to full-day access visits. Access visits will resume on a graduated basis, with the gradual increase in keeping with the terms of the Order.

Disposition

47I order as follows:

1. Commencing on Sunday, May 5, 2019, the applicant shall have access visits with A.C.A. (DOB: […], 2014 and “the Child”) every Sunday from 9:00 a.m. to 1:00 p.m. for four Sundays as follows: May 5, 19 and 26, and June 2, 2019.
2. Sunday, May 12, 2019 is Mother’s Day, as a result of which there shall be no access visit on that Sunday. The access visit for that week shall occur on Saturday, May 11, 2019 from 9:00 a.m. to 1:00 p.m., unless the parties agree otherwise.
3. Provided that the applicant attends all access visits and provided further that the applicant is not under the influence of alcohol at any access visits, the access times shall on Sunday, June 9, 2019 be increased from 9:00 a.m. to 3:00 p.m. and continue at that duration on each of the next three Sundays (June 16, 23, and 30, 2019).
4. Provided that the applicant attends all access visits from June 9 to and including June 30, 2019, and provided further that the applicant is not under the influence of alcohol at any access visit, the access times will be increased to 9:00 a.m. to 6:30 p.m.
5. Assuming the access times are increased to 9:00 a.m. to 6:30 p.m., the first such visit shall occur on Sunday, July 7, 2019 and shall continue each Sunday thereafter throughout the months of July and August, 2019 unless the parties otherwise agree to change the day of the week on which the regular, weekly access visits are to take place for the months of July and August, 2019.
6. As Sunday, September 1, 2019 falls on the Labour Day Weekend the parties shall determine whether the Child’s weekly access visit with the applicant will occur on that date or on a day prior to September 1, 2019 and to be agreed upon by the parties.
7. Effective Sunday, September, 8, 2019, the access visits shall once again occur on Sundays from 9:00 a.m. to 6:30 p.m.
8. All drop-offs and pick-ups shall occur as follows: a) They shall occur in a public location to be agreed upon by the parties; b) The respondent shall bring the Child to the drop-off location and shall remain for 30 minutes; c) If, after 30 minutes, the respondent is satisfied that the applicant is not under the influence of alcohol, the access visit shall continue unsupervised; and d) If, after 30 minutes, the respondent is concerned, on reasonable grounds, that the applicant is under the influence of alcohol, the access visit shall be terminated.
9. The applicant shall not drive with the Child.
10. All access visits shall occur in a public place. The applicant shall not bring the Child to his home.

Costs

48There was divided success on the interim motion. The applicant’s access visits are scheduled to resume on gradually increasing approach—not to 9.5 hours immediately as he requested. The respondent refused to permit the applicant to resume access in an unsupervised setting. Ultimately, she is facilitating drop-off and pick-up and the access visits will, other than for the first 30 minutes, be unsupervised.

49The Child is still very young. The parties have many years ahead of them during which they must work co-operatively towards the Child’s best interests. Perhaps the events of the past year have demonstrated to the parties that it is the Child who stands to lose the most when they are unable to resolve their disputes without resort to litigation.

50There shall be no costs on the interim motion.