Court File and Parties
COURT FILE NO.: FC-20-1215 DATE: 2020/09/10
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jonathan Russell Sullivan, Applicant AND Kelsey C. Boucher, Respondent
BEFORE: Justice M. O’Bonsawin
COUNSEL: Mr. Danielson for the Applicant Self-represented Respondent
HEARD: September 4, 2020
Decision
Overview
[1] On August 17, 2020, the Applicant filed an urgent Motion seeking the temporary custody of EAB born on September 8, 2016.
[2] The motion was heard by Audet J. on August 19, 2020. She made the following Orders:
The father [Applicant] shall serve and file his Application, affidavit sworn August 17, 2020 and Form 35.1 (Affidavit in support of claim for custody or access) to the mother forthwith…
On or before Friday, August 21, 2020 at 5 p.m., the father shall serve the mother (as per paras. 1b) and c) above) a proper notice of motion and supplementary affidavit which addresses the issues set out in paragraph b) above (major problems in his evidence). The father’s notice of motion and supplementary affidavit shall be filed with the court as soon as possible after being served.
The mother shall have until Friday August 28, 2020 at 4 p.m. to serve and file her responding materials.
[3] The Applicant properly followed the Orders as directed by Audet J. His Supplementary Affidavit is dated August 19, 2020 and provides the details that were lacking in his Affidavit dated August 17, 2020.
[4] At the hearing, the Respondent advised she had received the Applicant’s material but that she did not have the opportunity to retain counsel and did not file a reply.
Facts
[5] The parties were in a relationship for approximately three years on and off commencing in early winter 2015. Their child EAB was born on September 8, 2016. The parties separated in Spring 2018.
[6] During the relationship, the Applicant was a very involved father. Due to the Respondent’s substance abuse issues, the Applicant takes the position that he provided care to EAB and to the Respondent’s other children on many occasions. This occurred during and even after their separation.
[7] Initially, the parties agreed that EAB would live with the Respondent during the days of the week the Applicant was working. He had EAB with him on his days off once he established his own residence in Aylmer, Quebec. Although a written agreement was not made between the parties or a court Order received, this arrangement continued until he began cohabitating with his new partner, Ms. Dagley who has three children of her own. They then began the arrangement of a week on a week off. The Applicant currently resides in Ottawa, Ontario.
[8] Typically, EAB is with the Applicant from Friday to Friday. The Applicant and the Respondent also share holidays.
[9] The Applicant is currently in the process of enrolling EAB to attend full-day kindergarten at Knoxdale Elementary School and will start an early French immersion program. EAB is also enrolled in Ms. Dagley’s private health coverage.
[10] The Applicant is employed and has been working 35-40 hours bi-weekly since May 9, 2019.
[11] The Respondent still resides in Aylmer.
[12] In the fall of 2019, issues started to develop. The Applicant contacted the DPG in September 2019 to report the Respondent’s suspected alcohol abuse and was concerned for EAB’s wellbeing. The Applicant stopped the Respondent’s access to EAB when the DPG investigated the claim. The Applicant was about to start an Application when things went back to normal.
[13] In the summer of 2020, issues started to develop again, and the Applicant had concerns about EAB’s wellbeing when she was in the Respondent’s care.
[14] On Monday, August 17, 2020, the Respondent’s mother picked up EAB from the Applicant’s residence for a day out with her and the maternal siblings. The Applicant attempted to contact the Respondent’s mother without success. The Respondent notified the Applicant via text message that her mother would not return EAB to his care until the Applicant had completed alcohol rehabilitation.
[15] The Applicant and Ms. Dagley drove to the maternal grandmother’s home in Aylmer on the evening of August 17, 2020. He requested the return of EAB, and the grandmother and her spouse became confrontational. Ms. Dagley called 911 and when the police arrived, the Applicant showed the court documents he had filed earlier that day. The police were unable to force the grandmother to return EAB to the Applicant because a court Order was not in place or proof of paternity for EAB. It is noteworthy that at the beginning of the hearing, I asked the Respondent if she contested that the Applicant was EAB’s biological father and she responded that she did not. The Applicant is EAB’s biological father.
[16] At the hearing, the Respondent advised me that she had completed seven days of the one-month alcohol rehabilitation program at Jellinek in Hull, Quebec. She could not complete the full program since she does not speak French. She attended the program from August 11 to 18, 2020. The Applicant cannot afford to attend another alcohol rehabilitation program. The Applicant further advised that she is an emotional drinker and is not dependant on alcohol. She never drinks in front of her children and has been attending AA meetings since August. The Applicant is also waiting to see a therapist from the CLSC.
[17] The Respondent agrees that the status quo was a week on a week off prior to her attending the rehabilitation program.
[18] Currently, the Respondent resides with her boyfriend who does not drink alcohol. She has a daughter and a son from another relationship. Her son resides with her half of the time and her daughter resides with her father.
[19] With regards to school, the Respondent does not want EAB enrolled in Ontario. She wants her enrolled in school in September 2021 with her brother in Quebec.
Issues
[20] The issues in this matter are as follows:
• Should this court determine the paternity of EAB?
• Should the Applicant receive custody of EAB in the interim?
Analysis
Should this court determine the paternity of EAB?
[21] It is appropriate in the circumstances for this court to make a determination of the paternity of EAB. The Respondent agreed on the record that the Applicant is EAB’s biological father. Consequently, I find that the Applicant is EAB’s biological father.
Should the Applicant receive custody of EAB in the interim?
[22] Section 19 of the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”) sets out the purposes of the custody, access and guardianship provisions. One of the purposes is to ensure that applications to the courts in respect of custody, incidents of custody, access to and guardianship for children will be determined based on the best interests of the children.
[23] Section 20(1) of the CLRA provides that the mother and the father of a child are equally entitled to custody of that child.
[24] The CLRA, at s. 24(1), require the court to consider the best interests of the child as the sole criterion in matters of custody and access. Section 24 of the CLRA states that when considering what is in a child’s best interests:
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii)other members of the child’s family who reside with the child, and
(iii)persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[25] I find it concerning that the Respondent left the Jellinek alcohol rehabilitation program prior to completing it. I also find it concerning that she does not believe she is dependant on alcohol. Evidently, the Applicant thought the Respondent has dependency issues since she enrolled in and attended Jellinek’s program.
[26] The Respondent did not file a reply for this motion. She provided very limited information when I questioned her. Contrarily, the Applicant provided sufficient details in his Supplemental Affidavit for me to find that it is in the best interest for EAB to reside full-time with the Applicant on an interim basis. I hope that in the meantime, the Respondent will seek further treatment for her alcohol dependence. Her attendance at AA meetings is a first step in the right direction.
Costs
[27] The Applicant is the successful party on this motion. If the parties cannot agree as to costs, they may provide brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. The Applicant will have 10 days from the date of this Decision to provide his submissions and the Respondent will have 10 days thereafter to do the same. The Applicant will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next 5 days.
Justice M. O’Bonsawin
Date: September 10, 2020
COURT FILE NO.: FC-20-1215
DATE: 2020/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Jonathan Russell Sullivan, Applicant
AND
Kelsey C. Boucher, Respondent
BEFORE: Justice M. O’Bonsawin
COUNSEL: Mr. Danielson for the Applicant
Self-represented Respondent
decision
Justice M. O’Bonsawin
Released: September 10, 2020