FS-20-20606
Ashley Lou Ann Emond – applicant and Drew Ryan Emond – respondent
Both parties self represented
Motion heard in Writing
The applicant mother and the respondent father are parents of two children, namely, Alaina Elizabeth Emond born April 24, 2008 and Riley Richard Emond born March 21, 2011. Alaina is 11 years of age. Riley has just turned 9 years of age.
The applicant mother has brought an urgent motion requesting an order that she have sole custody of the children. She also requests an order allowing telephone contact between she and the children when the children are in the respondent’s care. Alternatively, she requests an order that the respondent’s access be supervised.
The applicant brought her motion during a period of time when the court suspended its regular operations as a result of the COVID 19 global pandemic. The applicant mother requested that her motion be heard as an urgent motion. I determined that the motion ought to be heard as it deals with the safety of children. I determined that the motion could be dealt with in writing, and I did not require oral submissions.
Background facts
From my review of the material, I understand that the children reside primarily with the applicant mother. The respondent father has regular access on Mondays, Thursdays and every other weekend.
The applicant mother brought her motion due to concerns over the respondent father’s alcohol use. Her evidence is that the respondent’s alcohol use increases in the nice weather, particularly during times that the respondent is playing baseball. The applicant has made numerous allegations including the following:
- the respondent takes the children to his baseball games and drinks alcohol while there;
- the respondent leaves the children with third parties on occasion so that he can attend his baseball games and drink alcohol;
- the applicant has called the police on two occasions when the respondent has, while under the influence of alcohol, contacted her and threatened suicide;
- the children have described instances where the respondent has used alcohol while outside around the pool, where there have been arguments between the respondent and his guests, and where the respondent has passed out due to alcohol abuse;
- the respondent has attended at the children’s sporting events intoxicated;
- the children have told the applicant that they are concerned about the respondent’s alcohol use when they are in his care.
- the children have told the applicant that the respondent has taken the children’s cell phones and electronic devices so that the children are unable to contact their mother when they are in his care.
The Windsor Essex Children’s Aid Society (the CAS) has been involved with this family. They were contacted by the applicant in the summer of 2019 as a result of the respondent’s alcohol use. The CAS conducted an investigation and eventually closed their file in November of 2019. A closing letter was sent to the parties dated November 8, 2019 that included the following paragraph:
“This letter is to advise of the outcome of the investigation completed with your family. After meeting with you and your children as well as the children’s father, the concern related to Drew’s alcohol use has been verified. The Society will be closing our file at this time because Drew has made a commitment to not consume alcohol prior to and during his access with the children. Your children are also aware to contact you to pick them up from their access should their father not follow this plan.”
In his responding affidavit:
- the respondent alleges that the CAS told him he could not be intoxicated while the children were in his care, but that “a few drinks is fine”;
- he said that he “had an instance one time last year with my well-being which was assessed and confirmed as the tenure of stress at that time”, presumably in response to the applicant’s allegation that she had to contact the police;
- he acknowledges having taken the children’s electronics from them on occasion as a result of bad behaviour;
- he makes allegations about the applicant’s mental health and asserts that the applicant makes negative comments about him to the children;
- he states that the children “have never been harmed” during times they’ve been in his care;
- he alleges that the applicant’s motion is an attempt to control him and the children.
In her reply, the applicant points out one occasion in December 2019 when the respondent was intoxicated, and the children called the applicant to come and get them. The children said that the respondent was being physically aggressive with them and that they were scared. When the applicant picked up the children, the respondent was verbally aggressive with her and made inappropriate comments in front of the children. The applicant expresses a concern that the children “are in harm’s way when Drew is intoxicated”. She states that she is content for the current access regime to continue “as long as Drew is able to remain sober during his visits”.
Analysis
It is clear from the material filed that the respondent’s alcohol use has been a significant issue in the past. The respondent’s evidence is inconsistent with the closing letter from the CAS. It is it improbable that the CAS confirmed in their closing letter that the respondent “has made a commitment to not consume alcohol prior to and during his access with the children” while at the same time telling the respondent that “a few drinks is fine”. I cannot accept the respondent’s evidence in that regard.
I accept the applicant’s evidence that the respondent has been intoxicated during periods of time that he has had care of the children and that she contacted the CAS as a result. I accept the applicant’s evidence that the children need to contact her during their time with their father so that she can collect them in the event he drinks alcohol. Both of these assertions are consistent with the letter from the CAS. According to the letter, the children are aware of the respondent’s alcohol use and have been told to contact their mother if he drinks.
It seems to me that the access in place is satisfactory to both parties, so long as the respondent does not consume alcohol when he has the children. It concerns me that he made such a commitment to the Society and, by his own affidavit material, does not follow that commitment. I therefore conclude that the commitment is insufficient and a court order ought to issue in accordance with the direction of the CAS.
Disposition
I decline to make a custody order at this time. I point out to the respondent that the terms of a custody and access order in the future may very well depend on his compliance with the terms of the order I make today.
I make the following order:
- The respondent father shall not consume alcohol 6 hours prior to and during his access with the children, namely Alaina Elizabeth Emond born April 24, 2008 and Riley Richard Emond born March 21, 2011.
- The applicant mother shall be entitled to contact the children and the children shall be entitled to contact the applicant mother at any time that the children are in the respondent’s care. The respondent shall provide the children with access to a telephone at all times and shall provide the applicant with a telephone number where she can reach the children at all times.
- A case conference date shall be scheduled by trial coordination.
The Honourable Madam Justice P. Hebner Ontario Superior Court of Justice March 23, 2020