COURT FILE NO.: FS-18-006967
DATE: 20190731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jake Phillips
Applicant
– and –
Elysha Phillips
Respondent
Michael Weisbrot, for the Applicant
Alison Dennis, for the Respondent
HEARD: July 30, 2019
C. gilmore, J.
decision on Motion
overview
[1] This is the applicant father’s motion for increased access to the parties’ child D.P. born March 16, 2017.
[2] The parties separated in August 2018 after a two-year marriage. They agreed to a form of nesting arrangement between August and December 2018 whereby they each cared for the child in alternating weeks.
[3] In December 2018 the respondent left the matrimonial home with the child. The father submits this was unilateral move on the part of the mother meant to limit and control his parenting time. The mother submits she had no choice but to leave the home due to the father’s alcoholic and abusive behaviour.
[4] The father issued his application on December 13, 2018. There have been two motions since then. The matter is high conflict and the allegations made by the parties are serious and contentious.
[5] After the mother left the home with D.P. in December 2018 she restricted the father’s time with the child and refused to allow overnights. She permitted the father to see the child each Tuesday and Thursday from 4:30 to 7:30 p.m. and alternate weekends from 9:00 a.m. to 7:30 p.m. on Saturday and Sunday.
[6] Despite repeated requests from the father, the mother refused to expand access time or allow overnight access. The father brought a motion for increased access on March 14, 2019. On the day of the motion, the parties agreed to the current temporary access schedule which commenced on March 16, 2019 as follows:
a. Alternate weekends from Saturday at 9:00 a.m. to Monday morning drop off at daycare.
b. If Monday is a holiday, the father’s access is extended to Tuesday morning drop off at daycare.
c. Each Tuesday from pick up at daycare to drop off on Wednesday morning at daycare.
d. Each Thursday from 4:30 p.m. to 7:30 p.m.
e. Such further and other access as the parties may agree.
[7] The father seeks to add four additional overnights per month to the access schedule as follows:
a. Alternate weekends from Friday pick up at daycare to Monday morning drop off at daycare.
b. The Tuesday access would remain the same.
c. Thursday access would increase from a dinner visit to an overnight to Friday morning.
[8] The mother seeks to dismiss the father’s motion. In the alternative, she is agreeable to a change in the current arrangement as follows:
a. Alternate weekends from Friday pick up at daycare to Sunday evening at 7:00 p.m.
b. In Week One, the father would have Tuesday from after to daycare to Wednesday morning drop off at daycare.
c. In Week Two, the father would have Wednesday pick up from daycare to Friday drop off at daycare.
[9] While the father agrees that the current schedule contains many transitions for D.P., he submits that the mother’s proposed changes to the access schedule do not result in any significant amount of increased time, simply a rearrangement of the current schedule.
[10] Of importance to this motion is paragraph 7 of the March 14, 2019 consent which reads as follows:
- The Applicant’s access schedule in paragraph (1) shall continue until the report from the OCL or the Assessment is completed as well as the requirement that the Applicant shall not consume alcohol 12 hours prior to or during access pursuant to paragraph (2). The requirement that the Applicant shall attend for urine tests following his overnight access pursuant to paragraph (3) shall terminate following the test on June 19, 2019 provided all alcohol urine test results for tests taken up to and including June 19, 2019 are negative.
[11] The father’s urine test results were all negative for the prescribed time and the parties have agreed that the testing is no longer required.
[12] The OCL declined involvement in this matter. The parties subsequently agreed that Dr. Shely Polak would conduct a s.30 assessment. The assessment is to commence on August 3, 2019. Dr. Polak estimates that the assessment will take four to six months to complete. The Parenting Assessment Agreement provides that no court proceedings can be commenced during the time the assessment is ongoing. The father sought to schedule his motion for this week to ensure he was in compliance with that agreement.
[13] Both parties blame the other for a delay in the commencement of the assessment. A detailed review of that disagreement is not necessary as the parties have now agreed upon an assessor who has agreed to undertake the work.
[14] The father seeks to increase access to D.P. for the following reasons:
a. At the time of signing the consent, the parties anticipated that the assessment or OCL report would be done by the end of August. It is now possible that it will not be done until the end of February 2020. This delay amounts to a material change sufficient to affect the child’s best interests.
b. Any concerns about the father’s alcohol use have been addressed. There is no evidence that he consumes alcohol during his parenting time and in any event, he is bound by the remaining restrictions in the consent order.
c. D.P. is thriving and there is no reason not to expand access before the assessment commences.
[15] The mother resists any changes to the current schedule. She refers to the very specific terms of paragraph 7 of the consent order which dictate that the current access schedule is to remain in place until either the OCL report or assessment results are available. She reminds the court that the parties agreed that this arrangement was in D.P.’s best interests in March 2019. Nothing has changed since then.
THE CONCERNS OF THE PARTIES
[16] The father has specific concerns about the mother’s motivation in refusing to expand access. He claims she has become increasingly erratic and uncooperative. His attempts to co-parent with the mother are met with aggressive reactions and false narratives implying he is a bad parent.
[17] The mother implies that the father is an alcoholic and that he cannot be trusted to care for the child for expanded access. This allegation is made in the face of the father’s continued negative urine screens, his voluntary breathalyzer results and no evidence that he has not complied with the order that he not consume alcohol 12 hours before or during access. Further, he has taken therapy and counseling with professionals who have not identified any alcohol related concerns.
[18] The mother alleges that the father has anger issues and that he has inappropriately disciplined the child. However, the father points out that notwithstanding these serious allegations the mother agreed to the access schedule in March 2019 and has not brought a cross-motion to reduce access.
[19] According to the father, the mother has been uncooperative in making requested changes to the access for legitimate reasons, refused the father’s summer vacation request and been inflexible with respect to registering the child in extra-curricular activities.
[20] The mother complains that the father is being unreasonable and has brought an unnecessary motion. He is well aware of the terms of the consent yet has persisted in bringing this premature and ill-founded motion.
[21] The mother raises concerns about the father’s mental health issues. She acknowledges that he has abstained from the consumption of alcohol since the consent order but does not believe the problem has been fully resolved. The counselling notes and records provided by the father are inadequate and do not prove that that alcohol problem has disappeared.
[22] The mother reminds the court that the father’s own evidence is that he continues to drink while the child is not in his care. She insists that he has sworn a false affidavit in relation to his alcohol consumption prior to the signing of the Consent.
[23] The mother relies on the affidavit of the parties’ former nanny, Hailey McCron, sworn January 22, 2019 with respect to the father’s aggressive parenting strategies, his lack of patience and inappropriate physical force while disciplining the child.
[24] The mother complains she has difficulty co-parenting with the father because of his need to be right and to advance his own agenda. He refuses to listen to the mother about important issues such as the overscheduling of the child during the summer and how to introduce him to new romantic partners.
ANALYSIS AND THE LAW
[25] The father is aware of the court’s general hesitation to vary temporary orders without a material change. He relies on Ceho v. Ceho, 2015 ONSC 5285, for the proposition that a material change is not necessary where the variation is in the child’s best interests. In particular, he relies on Ceho with respect to the fact that requiring proof of a material change in all circumstances would not promote the primary objective in the Family Law Rules (see para 85).
[26] The father also relies on Musheyev v. Gilkarat, 2016 ONSC 4120 in which the court held that a court cannot draw an adverse inference against a party for having agreed to something on a without prejudice basis and that requiring proof of a material change may be such an adverse inference (see paras 19 and 20).
[27] If the court insists that a material change is required in this case, the father argues that such a change has occurred because the alcohol issues have been resolved. The mother does not deny that the father has not consumed alcohol while caring for the child since the consent order was made. Further, the mother’s allegations regarding the father’s parenting and his violence towards her and the child are unsubstantiated and were never reported to either police or child protection authorities.
[28] The mother relies on paragraph 7 of the consent order and insists there has been no material change. The father may not have consumed alcohol while caring for the child since March 2019, but the problem still exists. Paragraph 7 of the consent order does not equate a successful end to the urine testing with a change in access. The parties specifically agreed that the access schedule would continue until the results of the professional report was available.
[29] The mother does not disagree that the child is doing well but points to the fact that information from the daycare, his doctor and other third parties will be available as part of the s.30 assessment and that the evidence available on this motion is insufficient to justify any change.
[30] The mother relies on Lemieux v. Mercer (2013 ONSC 3233) in which the court dismissed the father’s motion for increased access pending the completion of a s.30 assessment. The motion was brought five months after the previous interim order and just as the assessment was beginning.
[31] In this motion, it is the father’s onus to prove either a material change in circumstances or that the changes he seeks are in D.P.’s best interests. He faces a further obstacle with respect to the wording of paragraph 7 of the consent order wherein he agreed to the current schedule continuing until the results of the assessment were available.
[32] I agree with the father that at the time of the consent order, his alleged alcohol issues were certainly an important consideration. He has clearly taken steps to address that issue and it is not denied that his consumption of alcohol while caring for D.P. no longer has the significance it did in March 2019 when the consent was drafted.
[33] I am not persuaded, however, that either that issue, or the mother’s alleged erratic behaviour are sufficient to prove a material change. This court is more concerned about what is best for D.P. over the next four to six months while the assessment is ongoing.
[34] Both of these parties are good parents and each has a close bond with their son. However, their communication, as evidenced by the emails filed in this proceeding, lacks maturity and collaboration. Each party believes their parenting style is best and is somewhat intolerant of the other parent’s concerns. Fortunately, their conflict to date does not appear to have affected D.P. who is thriving and healthy.
[35] Both parties agree that the current schedule has a significant number of transitions and that changeovers have, in the past, led to conflict. While I do not accept that a change in the schedule as significant as suggested by the father is reasonable given the consent order and the imminence of the commencement of the assessment, I do agree that a reduction in the number of transitions may reduce the stress on the parties and the child over the next several months. The effect of reducing transitions will result in some increased access to the father although not as much as he requested.
[36] Given all of the above, I make the following orders.
[37] The applicant’s motion is granted in part as follows:
a. The applicant shall have parenting time with the child D.P. born March 16, 2017 on a temporary basis as follows:
i. Each alternate weekend from Friday night pick up from daycare to Monday morning drop off at daycare. Where the applicant’s parenting time falls on long weekend, he may drop the child off at daycare on the Tuesday morning.
ii. The alternate weekend schedule is intended to follow the current weekend arrangement such that the new schedule will start on the applicant’s next scheduled weekend.
iii. Each Wednesday from pick up at daycare to drop off at daycare on Thursday morning.
iv. Where the child is not in daycare for any reason and the applicant is working, the respondent shall arrange to pick up or deliver the child for access at the usual daycare times.
v. If the applicant is not working during any of his parenting days, he is free to spend the day with the child subject to appropriate notice being given to the daycare.
vi. Where Dr. Polak requires that either party attend for an appointment with the child during a time when that party does not have parenting time, the other party shall permit such a change in the access schedule without exception.
b. A copy of this endorsement shall be provided to Dr. Polak.
c. Either party is free to bring a further motion following the delivery of the assessment.
COSTS
[38] Neither of the parties had complete success. Their offers mirrored their positions on the motion. The father’s position was not unreasonable given the unanticipated delay in pursuing the assessment and the resolution of the alcohol issues. The mother’s position was also not unreasonable given the wording of the consent order.
[39] No costs.
C. Gilmore, J.
Released: July 31, 2019
COURT FILE NO.: FS-18-006967
DATE: 20190731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jake Phillips
Applicant
– and –
Elysha Phillips
Respondent
REASONS FOR JUDGMENT
C. Gilmore, J.
Released: July 31, 2019