COURT FILE NO.: FS-20-17216
DATE: 20200909
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hermia Hemens, Applicant
AND:
Brian Hemens, Respondent
BEFORE: Kiteley J.
COUNSEL: Gary Gottlieb, counsel for the Applicant
Heng (Pandora) Du, counsel for the Respondent
HEARD: September 1, 2020
ENDORSEMENT
[1] This is a motion by the Applicant mother and by the Respondent father with respect to the temporary parenting of their child Andrew born May 31, 2017.
BACKGROUND:
[2] The parties were married on August 5, 2020. They have one child who is 39 months old. The parties separated on June 23, 2020.
[3] On July 13, 2020, the Applicant brought an urgent motion, in which, on a without prejudice, temporary basis she asked that the child be placed in her care and that the Respondent’s access be established at alternating Friday afternoon from day care until Monday morning at day care and one mid-week overnight each week.
[4] In an endorsement dated July 13, 2020, Shore J. found, on a presumptive basis, that the matter was urgent and ordered the motion to proceed on July 21, 2020. She set a schedule for the delivery and filing of motion material. The father did not file responding materials. On July 21, 2020 Kraft J. made a consent order on a “without prejudice temporary temporary basis” that the child would reside with the father on Mondays, Wednesday and Fridays from 2:30 to 4:30 p.m. with the father picking up at day care and the mother picking up at 4:30 at the former matrimonial home and Saturdays from 10 to 6:00 p.m. with the mother dropping off and picking up at the former matrimonial home. As a result of that order, the father has seen Andrew only 14 hours a week since July 21.
[5] Kraft J. established a scheduled for filing materials and adjourned the mother’s motion to August 20 or 21 subject to court availability.
[6] On August 20, 2020, the mother’s motion was before Nishikawa J. along with the father’s motion in which he asked for a parenting schedule and the mother’s supplementary motion for disclosure. On that occasion, Nishikawa J. held a case conference. She scheduled the parenting motion for September 1, 2020.
ORDERS REQUESTED
[7] At the hearing of this motion, the mother asked for an order that the child be placed in her primary care pending further order and that the father have access on alternate weekends from pick-up at daycare on Friday at 4:00 p.m. until drop-off at daycare on Monday at 8:00 a.m. plus one evening during the week from pick-up at daycare until drop-off at daycare the following morning.
[8] The father asked for a schedule by which he would have parenting time with Andrew from Wednesday after daycare to Monday morning on alternating weeks and from Wednesday after daycare to Friday morning on the other weeks (i.e. seven nights over a two-week period). In the alternative, and on an interim basis to be gradually increased, he proposed that he have Andrew from Friday after daycare to Monday morning on alternating weeks and from Wednesday after daycare to Friday morning on the other weeks (i.e. five nights over a two week period).
THE EVIDENCE
[9] The parties have filed the following affidavits:
(a) Form 14A affidavit of the mother sworn July 10, 2020;
(b) Form 35.1 affidavit of the mother sworn July 10, 2020;
(c) Form 14A affidavit of the father sworn August 4, 2020;
(d) Form 35.1 affidavit of the father sworn August 4, 2020;
(e) Form 14A affidavit of the father’s brother, Philip Hemens, sworn August 3, 2020;
(f) Form 14A affidavit of Ms. Zhang, assistant to Ms. Du sworn August 11, 2020 attached to which are two letters between counsel;
(g) Form 14A reply affidavit of the mother sworn August 10, 2020.
[10] The father’s background[^1] is relevant to the analysis of parenting issues. In March 2012, the father falsified a prescription for a narcotic in the name of a patient at the clinic where the father worked as a pharmacist and then attempted to have the prescription filled at a pharmacy to obtain the narcotics for himself. The attempt was unsuccessful and no narcotics were dispensed to him.
[11] In April 2012 the father was charged with the criminal offence of knowingly using a forged document as though it was genuine, i.e. attempting to have the falsified prescription for the narcotic filled by the pharmacy, contrary to the Criminal Code. On September 10, 2013, the father entered a guilty plea to the criminal charge. He was found guilty and discharged without conviction subject to conditions including counselling and community service.
[12] The College of Pharmacists issued a Notice of Hearing in 2014 and held a hearing in June 2015. The father admitted the allegations of professional misconduct, with the exception of one allegation that was withdrawn. The Panel of the Discipline Committee accepted the joint submission and made an order of reprimand, ordered that the father attend an ethics program and be suspended for a period of six months, and that he remain in Part B of the College registry until the current health inquiry and any resulting fitness to practise proceeding have been concluded.
[13] The father has not sought re-admission to the College.
[14] The father has been under the care of various professionals that will be addressed more fully below. In his letter dated July 14, 2020, Dr. Quastel said that Mr. Hemens has the mental health diagnoses of opiate use disorder (that is in early sustained remission) and Attention Deficit Disorder and that he has had previous diagnoses of Society Anxiety Disorder and Generalized Anxiety Disorder.
[15] In paragraphs 15 to 17 of his affidavit, the father said he had “stopped working in July 2019 due to health reasons”. He does not elaborate as to the nature of those “health reasons” but counsel agreed that they are as diagnosed by Dr. Quastel. The father receives Employment Insurance.
[16] The mother is a pharmacist and has worked for a large Toronto mental health institution for 9 years.
[17] Before the separation in June 2020, the father did participate in child care. He takes the position that he was an equal caregiver before the separation. The mother agrees that he has been an involved parent but disagrees on the extent to which he has been involved and whether his caregiving has been in the best interests of the child.
[18] As a result of the pandemic declared on March 11, the child’s day care closed. The mother continued to work and the father attempted to provide full time care for the child. As indicated below, that did not go well and the parents agreed that the father and the child would reside full time at the home of his parents in Gravenhurst so as to include the grandmother in the caregiving plan and the mother would spend weekends and days off in Gravenhurst. That occurred from March 27, 2020 to late June.
[19] Events occurred on June 23, 2020 that are relied on as the date of separation. The mother took the child to the home of the paternal grandparents. For reasons explained by the father, he called the police and demanded that an amber alert be issued. The Children’s Aid Society became involved. These events launched a period of crisis and turmoil that ultimately caused the mother to bring the emergency motion on July 13. Prior to the events on June 23, the parents had agreed that Andrew would be with his mother from July 9 to 15 but he was expected to be with the father starting from July 15. Because of the urgent motion, the mother did not return the child to the father on July 15. By the date of the hearing before Kraft J. on July 21, 2020, the father had not seen Andrew since July 3. As a result of the temporary without prejudice consent order made on July 21, 2020, the father has seen the child only 14 hours per week.
LETTERS FROM PARTICIPANT EXPERTS
[20] The father sees a “team of three mental health professionals”, who he describes as having “extensive experience in the care of those with both opioid-use disorder and other mental health illnesses”.
[21] In November 2018, the father began seeing a psychiatrist namely, Dr. Adam Quastel, Clinical Lead of Addiction Psychiatry of St. Michael’s Hospital. Dr. Quastel provided a letter dated July 14, 2020 that is attached as an exhibit to the father’s affidavit.
[22] Since September 2019, the father has been meeting regularly with Shontelle Prokipcak, MSW, who is a certified addiction counsellor specializing in concurrent disorders. She has provided a letter dated July 29, 2020 that is attached as an exhibit to the father’s affidavit.
[23] Since February 4, 2020, the father has been a patient of Dr. Suzanne D. Turner. She specializes in providing combined substance use disorder and primary care to women and men, particularly parents. Dr. Turner has provided a letter dated August 2, 2020 that is attached as an exhibit to the father’s affidavit.
[24] For purposes of this motion, I find that Dr. Quastel, Ms. Prokipcak and Dr. Turner are “participant experts” as defined in Family Law Rule 20.2(1). That requires that they provide expert opinion based on the exercise of skills, knowledge, training or experience while observing or participating in the events at issue. That rule contemplates “evidence” which these letters are not. For purposes of this motion, I need not address that distinction because the fact that the letters are attached as exhibits to the affidavit of the father is not in issue.
[25] The issue is whether, in the letters provided by the participant experts, the authors of the letter have complied with rule 20.1(2) namely to provide opinion evidence that is fair, objective and non-partisan and opinion evidence that is related only to matters that are within the expert’s area of expertise. The mother takes the position that the participant experts have not provided opinion that is fair, objective and non-partisan because the contents of the letters reflect that each has become an advocate for the father in his motion for parenting time.[^2] The mother also takes the position that each of the authors has exceeded their area of expertise and have made observations or opined about the father’s parenting capacity.
[26] I agree with those submissions and will not rely on those parts of the letters that fall into either category. The information provided by the participant experts on which I rely pursuant to rule 20.1 is as follows.
[27] Mr. Hemens has been under the care of Dr. Quastel since November 2018. He wrote that Mr. Hemens has made every effort to seek out different treatment modalities including medication, psychotherapy and peer support programs and including voluntarily attending residential treatment at Homewood Health from September 10, 2019 to October 22, 2019. He noted that Mr. Hemens has been entirely abstinent from substance misuse since September 2019. He said Mr. Hemens has continued to be cooperative with all drug tests that have been consistently negative. He wrote that he was very confident that Mr. Hemens has reliably remained free of all substance misuse over the past 9 months and that his substance use disorder will remain in remission. Dr. Quastel has maintained regular weekly meetings with Mr. Hemens (continued as video conferences since the pandemic) and he reports that Mr. Hemens consistently presents as focused, clear headed and alert. He noted that he is aware that Mr. Hemens is prescribed high doses of opiate replacement that can have minimal effects on daily living.
[28] In her letter, Ms. Prokipcak described her involvement since September 2019 which appears to coincide with his treatment at Homewood Health. She noted that Mr. Hemens participates in meetings for one-on-one psychotherapy (continued through video conferencing) and four times per week Recovery Meetings. She wrote that Mr. Hemens “is nearing remission for his opioid use disorder at 10 months of recovery” and that he is “highly committed to continuing his success and focused on maintaining a lifestyle committed to his health and family”. She wrote that Mr. Hemens is voluntarily submitting to randomized drug screens. She also noted that as health care provider she has a duty to report suspected child abuse or neglect. She said that Andrew had been in the room for parts of two of her remote meetings with Mr. Hemens.
[29] In her letter, Dr. Turner indicated that Dr. Quastel had referred Mr. Hemens to her for her expertise with opiate agonist therapy (OAT) as Mr. Hemens had persistently low mood in the context of methadone maintenance therapy. Opiate agonist treatment (methadone, buprenorphine, slow release oral morphine [SROM]) is strongly recommended by national and international guidelines. She said that the literature is clear that persons with opioid use disorder on an appropriate dose of OAT long term are more likely to continue in treatment and less likely to use substances, and less likely to become involved with the criminal justice system and substantially less likely to die. She had started treating Mr. Hemens in February 2020 which appears to coincide with the end of his treatment at Homewood Health. In order to help assess his progress, Mr. Hemens has had urine drug screens (on a weekly basis) that have been negative for non-prescribed substances and substances of abuse. Mr. Hemens has been compliant and adherent with all treatment recommendations. This includes the recommendation to remain on OAT (as outcomes are best with at least 6 months to 12 months of opioid-agonist treatment before considering tapering). His voluntary urine drug screens and clinical examinations have been consistent with sustained remission from the use of non-prescribed medications and/or substances of abuse. She said that Mr. Hemens’ prognosis is excellent with respect to his opioid use disorder and she anticipated, that, based on his current treatment trajectory that he will remain in sustained remission. She too noted that she has a duty to report suspected child abuse or neglect.
ANALYSIS
A. [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html) or Children’s Law Reform Act?
[30] The Application has not yet been filed so it is not known whether the claims are pursuant to the Divorce Act or the Children’s Law Reform Act. In their facta, each counsel refers to sections of those Acts and to jurisprudence relevant to both. For purposes of this motion, I need not review in detail the legislation or the jurisprudence. The court must ascertain the best interests of the child and make orders accordingly.
B. Primary caregiver
[31] The father insists the he has been equally involved in childcare since the birth of Andrew. In her evidence, the mother agrees that the father has been involved with caregiving but she disputes the extent to which he has done so. I accept the mother’s evidence that she has been the primary caregiver. As the letters from the participant experts indicate, at least since November 2018, the father has increased the resources to assist him in recovery which means devoting time and attention to meeting professionals, following treatment regimes, attending frequent urine testing and almost six weeks of inpatient care at Homewood Health ending October 22, 2019. Furthermore, for inpatient care to have been required in September and October 2019, he must have been experiencing significant challenges. It is common sense that for some period before November 2018 and since then, that the father has not been functioning in an equal parenting capacity.
[32] The child has returned to day care. Because the father has recently engaged police, asking that an Amber Alert be issued and telling the mother that he was providing vehicle information and description so that she would be arrested, the court should establish primary care on a temporary basis so that authorities such as the police, the CAS and the day care have the information.
[33] S. 20(1) of the Children’s Law Reform Act provides that the parents are equally entitled to custody. However, where there have been challenges to the authority of one of the parents that has engaged the police, it is in the best interests of the child that the court identify at least on a temporary basis which parent is in a position to make decisions. On the record before me, it is the mother.
C. Parenting schedule
[34] The parents agree that the court should make an order establishing a schedule that provides the child to continue his relationship with his father. The Mother agrees that the father and the child have an important relationship that is in the best interests of the child to maintain.
[35] What separates the parents in establishing the schedule is the risk associated with the father having extended periods of time with the child. Based on her evidence, the mother argues that the father cannot parent Andrew for any length of time without outside help. She argues that the risk to Andrew is real and can be managed by the schedule she proposes. The father denies or dismisses that evidence and argues that he is capable of looking after the child for prolonged periods. He continues under the care of three professionals, two of whom have mentioned their obligation to report child abuse or neglect. In other words, he says that these professionals will look out for Andrew’s interests.
[36] In a case where the father acknowledges his mental health challenges and where his three key mental health professionals express optimism about his continued recovery, the court must take care not to be unduly critical of the parenting capacity of the parent so as to retard recovery or contribute to remission. However, the paramount concern is the best interests of the child.
[37] On the surface, the father is open about his challenges and is confident that he has his opioid addiction under control. However, the mother has provided reliable evidence that the father’s mental health challenges undermine his ability to care for the child for an extended period of time.
[38] In her affidavit sworn August 10, 2020 the mother attached text messages from March of 2020 that are revealing as to the challenges the father had in caring for Andrew once the day care closed. For example:
Wednesday March 18, 2020 2:57 p.m.: he’s not napping. Can you leave earlier today please. He’s being a little shit.
Friday March 20, 2020 2:25 p.m.: Didn’t get any of this. He’s been a massive shit today. Took an hour to get 3 spoonfuls of vegetable soup down his throat. . .
(date not indicated) 3:17 p.m.: he’s behaving like a little shit from hell. Absolutely no cooperation. Battle of Waterloo to change a friggin diaper full of shit. Won’t put on pants, shirt, whatever to leave the house. Wants chips, etc. I think we’ll have to go back to Gravenhurst tomorrow.
Thursday March 26, 2020 at 2:25 p.m.: . . . Has it occurred to you to ask if I need help, maybe on a daily basis? Do I need to limp and squint and carry a blind poking stick and cry out in pain every 15 minutes for you to believe I am home due to a severe disability? I can’t help but think you’d be more understanding if I had “cancer” or a more “sympathy inducing’” diagnosis.
Monday March 30, 2020 at 8:01 p.m.: Well the stress of caring for Andrew is pushing me towards relapse city so any help should be accepted.
[39] During the dates just mentioned, the father was in Toronto with the child out of day care, or in Gravenhurst with his parents. Over a 12 day period when the spousal relationship was intact and he was not impacted by the conflict that erupted on June 23, the father sent text messages which demonstrate that he was unable to care for the child and needed help either from the mother or from his parents in Gravenhurst.
[40] The father urges the court to rely on the evidence of his brother to conclude that he is capable of caring for Andrew. The affidavit of Phillip is sworn August 3. He deposed that he lives and works in Bracebridge with his wife and 3-month-old child. At the time of his affidavit, he was on parental leave. He described the relationship between him and his wife and the mother and the father. He said that between March and June 2020 when the father stayed at the home of the grandparents in Gravenhurst, he observed his parents interacting with Andrew “on many occasions” but he did not say how many visits he had had in that period. Based on his observations, he said that the father deeply loves and cares for his son, and that he had personally observed the father care for Andrew from birth until July 2020 including meal preparation, dressing, changing diapers, toilet training, etc. He had observed his brother perform such activities at his residence, at Phillip’s residence and at the grandparents’ home. He said he had never observed or been made aware of any inappropriate, harmful, or concerning conduct by his brother towards Andrew. He also said the following:
During the period that Brian and Andrew stayed at my parents’ residence [March to June 2020], I observed my parents’ interacting with Andrew on many occasions. While my parents would often ask Brian or simply proceed to engage with Andrew (both alone and with Brian) Brian clearly remained the adult responsible for Andrew’s care. On the occasions where my parents would offer assistance in the care of Andrew, their involvement in caring for Andrew did not go beyond what would customarily be expected in a grandparent-grandchild relationship where all parties were cohabitating during a pandemic.
As one of Brian’s closest friends and his younger brother, Brian has shared his struggle to recover from his opioid-use disorder with me. While I am proud of Brian’s success in his recovery, I did not see his illness interfering with the care of Andrew, either before or after recovery. . . .
Based on my direct observations and interactions with Brian and his son, I believe Brian is a loving and caring father, able to provide for all of Andrew’s needs. I would trust him to provide for my infant son should the need ever arise.
[41] On a closer look, that evidence is not compelling. First, Phillip provided no evidence as to the opportunity to observe during the period of late March to late June. His child was born on May 22 from which I infer that he was likely focused on pre-natal issues in April and May and likely focused on infant care in late May and in June. I infer that his opportunities to observe were not likely to have been frequent. Second, the mother deposed in her affidavit that there was so much conflict between the father and his mother over the care of Andrew after they moved there in late March, that the grand-mother had to set a schedule of times when the father would be responsible so that she could take a break. The father did not dispute that evidence.
[42] Based on the evidence in the period of March 18 to June 23, 2020, the father was reliant on others to assist in Andrew’s care. He was begging the mother to come home early. He left Toronto to return to Gravenhurst so that his mother could help him. He did not have sufficient parental control to have the child eat or dress properly. He spoke in disparaging and disrespectful terms of a three year old child.
[43] For the period between the end of March and the end of June, the grandmother was a key participant in Andrew’s care. In paragraph 19 of her July 13 affidavit, the mother deposed as follows:
The Respondent has also told me that I cannot have Andrew in my care if I intend to take him to his parents home in Gravenhurst. He does not want me taking Andrew to Gravenhurst as he no longer gets along with his parents. He is trying to cut them off. I have a good relationship with his parents whereas he does not.
[44] The father did not deny or even respond to that evidence in his August 4 affidavit from which I infer it is true. I accept the evidence as to the importance of Andrew’s grandparents in his life and his care in the late March to late June period. The fact that the father has cut them off means that an important support is not available to him.
[45] The father could not and did not deny or dismiss the increasingly threatening and out-of-control text messages that he sent to the mother in July as indicated in paragraphs 16 to 27 of the mother’s July 10 affidavit.
[46] I am mindful that the father has been unemployed since July 2019 because of the health issues diagnosed by Dr. Quastel. If he is not well enough to obtain and maintain employment, I infer that it is reasonable to conclude that he is not well enough to look after his three year old child for a prolonged period of time without assistance. He described his situation as being a “severe disability”.
[47] On paper, the controversy between the parents is one overnight in a two week period. However, it is more complicated than that.
[48] The order proposed by the mother provides three consecutive overnights but only two full days with the child because Friday after day-care and Monday morning return to day care are shorter periods. Those 3 overnights and 2 full days are on weekends during periods when the mother either does not work, or, if scheduled for on-call, she has the ability to manage so as to be readily available to respond to requests by the father for her assistance. Those 3 overnights and 2 full days might be short enough that he can reduce the risk to himself of “relapse city”.
[49] In paragraph 53 of his affidavit, the father said that he would consult with his medical health professionals if he has questions or concerns about his ability to care for Andrew. His brother Phillip will check on him “from time to time” and is agreeable to provide temporary care to Andrew if he is unavailable. If he is not available to pick up or to drop off Andrew at the daycare, he says he has the assistance of mutual friends Dr. S.B and her husband R.P.
[50] If he is facing challenges while caring for Andrew, as he demonstrated through the texts in March 2020, those supports would not be of assistance. His brother lives in Bracebridge and the father intends to live in Toronto. He is trying to cut off his parents who live in Gravenhurst. He has not provided confirmation that either of the mutual friends would assist.
[51] The mother’s proposal establishes short but quality time so that Andrew’s progress and emotional stability can be monitored. I accept that her proposed schedule is appropriate to maintain the father’s strong and loving relationship with Andrew and is in Andrew’s best interests.
D. Communications between parents
[52] In her notice of motion, the mother asked for an order that the father not harass or annoy her. In the draft order submitted for the motion, the mother added a request for an order that any communications by the father should be through her counsel only, on a without prejudice basis, pending further order.
[53] In his notice of motion, the father asked for an order prohibiting the parties from speaking disrespectfully or unkindly about the other party.
[54] In other words, both have asked that limitations be imposed on communications. The focus of this motion was the parenting schedule. I did not hear submissions on this issue but I am confident that the lawyers can assist the parties in arriving at a resolution to the method, content and frequency of their communications.
E. Geographical restriction
[55] In his notice of motion and factum, the father asks for an order that the parties be prohibited from removing the child “outside of the Greater Toronto Area” without the consent of the other parent. I did not hear submissions on this issue. I observe however that such an order would prevent the father from taking the child to see Phillip and prevent the mother from taking the child to see his paternal grandparents. I make no order.
E. Police enforcement
[56] In her notice of motion and factum, the mother asks for an order for police enforcement. I did not hear submissions. If the request is pursuant to s. 37 of the Children’s Law Reform Act, it is premature. I make no order.
NEXT STEPS
[57] As indicated below, the requests to bring the motions in advance of the mandatory information program and delivery of pleadings and a case conference is granted. But the parties must address all of those issues.
[58] As indicated above, the mother had brought a notice of motion for disclosure. That was not before me and I did not hear submissions. I am optimistic that the parties can resolve the issues partly by serving requests for information and, if necessary to obtain disclosure from third parties who are entitled to notice, by bringing a motion. As indicated below, at this stage, I direct that to be done by in-writing motions.
TEMPORARY ORDER TO GO AS FOLLOWS:
[59] The mother shall have primary care of Andrew Hemens born May 31, 2017 pending further order.
[60] Commencing Friday September 11, 2020, and on alternate weekends thereafter, the father shall have temporary parenting time with Andrew Hemens born May 31, 2017 from pick-up at daycare on Friday at 4:00 p.m. until drop-off at daycare on Monday at 8:00 a.m.
[61] Commencing the week of September 14, 2020, on an evening agreed upon, the father shall have parenting time with Andrew one evening during the week from pick-up at daycare at 4:00 p.m. until drop-off at daycare at 8:00 a.m. the following morning.
[62] Leave is granted to bring these urgent motions without filing the Application or attending a mandatory information program or having a case conference.
[63] The mother will immediately serve and file an Application.
[64] Assuming that the father files an Answer, immediately upon filing a Reply, the parties shall attend a case conference on all issues before one of Justice Kraft or Justice Nishikawa if available.
[65] After delivery of the Application, Answer and Reply (if any) either party may serve a Form 14B motion for disclosure in writing which shall be brought to my attention, if I am available.
[66] If by September 18, 2020 the parties do not agree on costs of these motions, they shall make written submissions of no more than three pages plus costs outline and offer(s) to settle on this schedule:
(a) the Applicant by September 25, 2020;
(b) the Respondent by October 1, 2020;
(c) reply by the Applicant, if any, by October 8, 2020.
[67] This order is effective from the date it was made and enforceable as an order of the court without the need for an order to be issued by the court.
[68] Either counsel may forward approved draft order to my attention for signing.
Kiteley J.
Date: September 9, 2020
[^1]: Taken from the decision of the Discipline Committee of the Ontario College of Pharmacists Ontario (College of Pharmacists) v. Hemens, 2015 ONCPDC 18 at paragraphs 5 to 13 and 24.
[^2]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 49 and 53