Court File and Parties
COURT FILE NO.: FS-15-406360
DATE: 20190724
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELINE MANABAT
Applicant
– and –
PAUL JOSEPH SMITH
Respondent
No one appearing for the Applicant
Respondent, self-represented
HEARD: July 23, 2019
M. D. FAIETA J.
REASONS FOR DECISION
[1] The Respondent father seeks to vary the terms of access to his daughter. He has not served this motion on the Applicant mother nor has a case conference been held as required by the Family Law Rules.
[2] The Respondent father provides the following explanation on the Form 14C: Confirmation of Motion:
This is an urgent notice, have not seen the child in one month and there is no suggestion by mom to see her until September.
[3] The parties agreed to the terms of a Final Order that was issued on January 2, 2019. It provides that the parties have joint access over their 2 ½ year old daughter, Maya. Paragraphs 5-10 include a shared parenting schedule.
[4] On June 17, 2019, the Respondent father travelled to British Columbia with Maya. He was pulled over by police while driving a rented automobile. Maya was in the automobile. She was not in a child seat. Instead, the Respondent father states that Maya was sitting in the automobile with her body secured by a seat belt. The Respondent states that his drivers’ license was suspended for 90 days on suspicion that he was driving under the influence of alcohol. The Children’s Aid Society of Toronto (“CAST”) was notified of his arrest and the Applicant mother flew to Vancouver and escorted Maya back to Toronto.
[5] The Respondent father’s affidavit states “I was pulled over after committing a minor traffic violation. … I have no criminal charges pending, I have no court dates in BC to attend as I was not charged with impaired driving”. Contrary to the letter from CAST referenced below, the Respondent father denies that he was arrested by police for impaired driving and it does not mention that he was charged with failing to have Maya properly secured in his automobile.
[6] The Respondent father states that he is deeply ashamed, committed to addressing his alcoholism and is putting together a treatment plan. The Respondent father states:
… the events of this day was the best thing that could have happened, as hard as it was, as it has allowed me to see the issues with Alcohol Disease. I am proactively addressing this currently and getting treatment for it.
[7] The Respondent father states that he has been sober since his arrest.
[8] Immediately after his arrest, the Respondent signed a consent to a without prejudice temporary order that provides the Applicant mother with the care and control of the child and suspends regular access. The Consent states:
The parties hereto consent to the following temporary and without prejudice Order:
Maya shall be temporarily placed in the care and control of the Appellant Micheline Manabat pending further Court Order or written agreement between the parties; and
The parenting arrangements between the Respondent Paul Joseph Smith and the child [Maya] pursuant to paragraphs 5-10 of the Order of Justice Paisley dated January 2, 2019 (“Order”) are temporarily suspended pending further Court Order or written Agreement between the parties. For greater clarity, telephone, email or internet contact between the Respondent father and Maya shall continue to occur as set out at paragraph 11 of the Order.
[9] The above Consent has not been filed with the Court and accordingly no Order has been issued to give effect to it.
[10] The Respondent father states that the Applicant mother has not positively responded to his requests in late June, 2019 for his daytime access to be supervised by the CAST,
[11] The Respondent father states that he hopes to develop a safety plan with the CAST so that he can resume access.
[12] A letter dated July 8, 2019 from CAST to both parties states:
As per your request I am writing this letter to update you both on the recent referral the society received from the Ministry of Children and Family Development, dated June 15, 2019. As you are aware the referral source reported that Mr. Smith was arrested for impaired driving and not having Maya properly secured in his vehicle.
As part of my assessment I met with you both individually to discuss the concerns brought to our attention. Mr. Smith, during our meeting you expressed remorse for your actions and demonstrated insight into the harm that could have been caused to Maya due to your alcohol consumption. You confirmed that you intend to see a therapist in British Columbia for support related to your alcohol use and to address relapse prevention. The society will continue to support you in this area.
The Society is aware that there is currently a family court order with respect to access. During my conversation with you Mr. Smith it is my assessment that you understand the potential impact on your daughter and have indicated a commitment to seek treatment. You have also advised that on an interim basis you thought that it would make sense for the safety of your daughter that you only have day visits until you are able get further help with your substance abuse issues.
The Society encourages you both to work together at this time to support your daughter in establishing an access plan that would mitigate any potential concerns for future harm.
[13] The Respondent father states that he has written to the Applicant mother on numerous occasions over the last month seeking to reinstate access on the basis that “he is ready to resume overnights based upon my confidence to not relapse”.
[14] The Respondent states that he has not seen Maya since that time.
[15] On July 18, 2019, the Respondent father brought this motion for the following order:
- To change the temporary order of Justice x dated x to allow access between the child, Maya Sophie Manabat Smith, born October 27, 2016, and the Respondent father to the following:
- Week 1: Friday, Saturday and Sunday from 12 pm to 6 pm;
- Week 2: Friday, Saturday and Sunday from 12 pm to 6 pm; and
- Week 3: Resuming regular schedule of the Final Order without overnights until CAS revises the current safety plan in place.
- The Respondent father shall allow for monitoring of his sobriety during access to the satisfaction of the Applicant mother using the Soberlink device attached to his telephone;
- In the alternative, supervised access for pick up and drop off with Brayden supervision per the same time schedule above per number one (1) with one hour of supervision during the middle of the visit from 2-3 pm; and
- The Respondent father shall not operative with the child present in the vehicle.
[16] The Respondent father has not demonstrated that there is urgency to his motion. He could have easily served the Applicant mother with this motion given that it was filed on July 18, 2019, however it appears that he preferred to avoid having her participate in an important decision affecting the safety of their daughter. However, I will not dismiss the motion on that basis.
[17] I prefer to deal with this motion on its merits given that the Consent has not been implemented by an Order. The Respondent father is desperate to resume normal access with Maya. However, he has an admitted alcohol abuse problem. Slightly more than one month ago, the Respondent father drove an automobile, apparently under the influence of alcohol, while Maya was sitting in the car secured, if at all, by a seat belt. His decision to operate an automobile while apparently under the influence of alcohol put her safety at risk. His decision to forego the use of a car seat for his daughter also put her safety at risk. While little time has passed since this incident, the Respondent father is confident that his recent sobriety will be lasting. There are no particulars of his treatment plan nor is there an affidavit from a treatment counsellor that supports his self-confidence. There is no evidence of a CAS approved safety plan. Instead, the Respondent father asks this court, without notice to the Applicant mother, to rely upon a Soberlink device, or alternatively someone named Brayden, to monitor his sobriety during access visits. Finally, I also note that the Respondent father has a history of “taking matters into his own hands” rather than complying with the law. In this regard, see the Endorsements of Justice Kiteley dated June 28, 2018 and July 5, 2018. Unfortunately, because the Respondent father has demonstrated so little good judgment, it is in Maya’s best interests to adopt the terms of the Consent described in paragraph 8 above.
[18] Order to go, on a temporary basis, in accordance with the terms described in paragraphs 1 and 2 of the Consent dated June 19, 2019 shown above and which is marked as Exhibit “B” to the Respondent father’s affidavit sworn July 18, 2019. This will provide the Respondent father with electronic access to Maya. I also order that the Respondent father deliver: (1) a copy of these Reasons for Decision to the Applicant mother and the CAST, forthwith; and (2) any Information(s) and ticket(s) that show the charges that were laid against him in relation to the driving incident in June, 2019, to the Applicant mother and CAST within 30 days or
three days before any further case conference or motion initiated by the Respondent father is heard, whichever occurs first.
Mr. Justice M. D. Faieta
Released: July 24, 2019
COURT FILE NO.: FS-15-406360
DATE: 20190724
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHELINE MANABAT
Applicant
– and –
PAUL JOSEPH SMITH
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: July 24, 2019