COURT FILE NO.: FS-20-17938

DATE: 20200911

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Oleksiy Klymenko, Applicant

AND:

Dasha Klymenko, Respondent

BEFORE: Nishikawa J.

COUNSEL: Bobbi Olsen, for the Applicant/Moving Party

Glenda Perry, for the Respondent Party

HEARD: September 8, 2020 by videoconference

ENDORSEMENT

Overview

[1] The parties were married from September 2005 to January 2016. They have three daughters aged 12, 9 and 8 years old. In their Separation Agreement dated January 7, 2016 (the “Agreement”), the parties agreed that each parent would have the care of the children on alternating weeks.

[2] On June 8, 2020, the Respondent mother, Dasha Klymenko, refused to return the children to the Applicant father, Oleksiy Klymenko, for his parenting time. He has not seen them since May 2020.

[3] The Applicant brings an urgent motion for an order returning the children to his care to resume his parenting time and for make-up parenting time.

[4] Pursuant to the Endorsement of Shore J. dated August 10, 2020, the matter was deemed presumptively urgent, and the matter was scheduled to be heard by me on September 8, 2020. A case conference was held before Nakonechny J. on August 17, 2020, but the parties were not able to reach a resolution.

Preliminary Matters

[5] At the hearing, the Respondent objected to the admissibility of the Applicant’s reply affidavit, on the basis that it was served late and did not constitute proper reply, and sought a brief adjournment to respond.

[6] I declined to adjourn the motion to a later date. The motion was scheduled on an urgent basis because the children, who were seeing their father every other week, have not seen him since May.

[7] However, the Respondent makes serious allegations of alcoholism, alienation and misconduct by the Applicant. The Respondent also advised that she wishes to bring a cross-motion to set aside the Agreement. In addition, at the case conference, the parties agreed to obtain a voice of the child report, which will not be completed until October 2020.

[8] In view of the seriousness of the matters raised, it would be preferable for the parties and the court to have the voice of the child report before a final determination on the motion is made. I therefore decided to hear the Respondent’s motion as a motion for interim relief until the hearing of the motion and cross-motion on a more complete record.

[9] In addition, the Applicant’s reply affidavit was admitted as evidence on the motion. Both parties relied on the content of the attached police records in their submissions, notwithstanding the Respondent’s concerns about their completeness.

Factual Background

[10] Under the Agreement, each parent had the care of the children during alternating weeks. No court order was made at the time. The parties adhered to the alternating week schedule until June 2020.

[11] The parties appear not to have had any disputes until March to April 2019. At that time, the Respondent contacted the police on at least two occasions to request that they check on the Applicant and the children. The Respondent was concerned about their safety and well-being based on her belief that the Applicant was consuming alcohol excessively while the children were in his care.

[12] The current dispute appears to have been precipitated by an incident between the Applicant and his subsequent spouse, Inna Biiun. On May 9, 2020, the Applicant and Ms. Biiun had a disagreement about her cell phone. Both the Respondent and Ms. Biiun depose that the Applicant smashed the cell phone with a hammer while he was drunk. Ms. Biiun left the home to stay with a family member. Ms. Biiun subsequently moved in with the Respondent.

[13] On May 20, 2020, the Applicant was charged with Assault and Mischief under $5,000. The Applicant speculates that the Respondent encouraged Ms. Biiun to report him to the police.

[14] In June 2020, the Durham Children’s Aid Society (CAS) opened an investigation.

[15] The children were to be returned to the Applicant’s care on June 8, 2020, however, the Respondent kept the children with her. On June 9, 2020, the Respondent’s counsel sent a letter to the Applicant advising him of the CAS investigation and stating that she would not release the children to his care until the investigation was complete and the concerns outlined in the letter were addressed.

Analysis

The Parties’ Positions

[16] The Applicant seeks to enforce the terms of the Agreement and return to the alternating week schedule. He submits that the Respondent bears the onus of demonstrating that the status quo should be altered and that, in the absence of compelling reasons, the status quo should be maintained. The Applicant further submits that the Respondent improperly engaged in self-help by withholding the children from him. In his notice of motion, the Applicant did not seek any relief in the alternative, such as more limited access or access under certain terms. However, at the hearing, the Applicant indicated that he would be agreeable to certain terms, which will be addressed further below.

[17] The Respondent’s position is that she signed the Agreement under duress because the Applicant threatened to take the children away from her if she did not sign. She further alleges that she had no interpreter to explain the Agreement to her. The Respondent submits that she decided to keep the children from him because of serious concerns about their safety and well-being. The Respondent alleges that the Applicant has engaged in the following conduct:

• He consumes alcohol excessively throughout the day and becomes intoxicated around the children;

• He becomes violent when intoxicated and has driven the children in the car while drunk;

• He requires that the eldest daughter, P, cook and perform household tasks, and leaves the younger two children in her care;

• He does not have food in the house for the children to eat;

• He has previously had sex with a minor and has made inappropriate sexual comments regarding P;

• He engages in online gambling and watches inappropriate and frightening videos online in the children’s presence;

• He has physically and verbally abused both the Respondent and Ms. Biiun; and

• He makes disparaging remarks about the Respondent to the children in an attempt to alienate them from her.

The Applicable Principles

[18] Under s. 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), the court may make an interim order respecting the custody of or access to a child of the marriage pending the determination of the application. In making an order for custody or access, the court shall take into consideration “only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child”: Divorce Act, s. 16(8).

[19] The Divorce Act stipulates that the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact: Divorce Act, s. 16(10).

[20] Subsection 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), articulates the factors relevant to determining the best interests of the child, which include the following:

(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.

[21] In making an order for custody or access, s. 16(9) of the Divorce Act precludes the court from taking into consideration the past conduct of any person the conduct is relevant to the ability of the person to act as a parent of the child. See also, CLRA, s. 24(3). Subsection 24(4) of the CLRA requires that in assessing a person’s ability to act as a parent, the court consider whether the person has committed violence or abuse against any child, a spouse, the parent of the child to whom the application relates, or a member of the person’s household.

Is a Return to the Parenting Schedule in the Agreement in the Children’s Best Interests?

[22] In resolving disputes over access, emphasis must be placed on the critical importance of bonding, attachment, and stability in the lives of young children: Young v. Hanson, at para. 32. The best interests of the child are generally met by having a loving relationship with both parents, and such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being: Hameed v. Hameed, 2006 ONCJ 274, [2006] CarswellOnt 4653 (O.C.J.), at para. 22. Moreover, the child has a right to have contact with both parents.

[23] Generally speaking, the court is reluctant to “reward” a party for engaging in self help and altering the status quo. In addition, to the extent that the Respondent argues that any access must be supervised by a third party professional, she bears the burden of demonstrating that supervision is justified: Young v. Hanson, 2019 ONSC 1245, at para. 32.

[24] The Applicant argues that the Respondent has unilaterally altered the status quo and that the children should be returned to him to resume the alternating week parenting schedule provided for in their Agreement. The Respondent challenges the validity of the Agreement on the basis that she did not understand its contents and signed it under duress. The Applicant states that it was a paralegal retained by the Respondent who drafted the Agreement.

[25] At this stage, I am not prepared to find the Agreement invalid. In any event, the Agreement has been in force for almost five years and the Respondent did not at any time before this motion attempt to set aside or vary the Agreement. For over four years, both parties adhered to the parenting schedule in the Agreement. Indeed, the parties appear not to have had any significant conflict regarding parenting until 2019. It appears that the Respondent was no longer comfortable having the children stay with the Applicant after Ms. Biiun left in May 2020.

[26] The question is whether the status quo, that is, the alternating week schedule in the Agreement, ought to be restored or whether there are compelling reasons to support a need to change the arrangements to meet the children’s best interests: McPhail v. McPhail, 2018 ONSC xx, at paras. 15 and 17.

[27] The Applicant and the Respondent give vastly differing accounts of the Applicant’s relationship with the children. The Applicant’s evidence is that he has a close relationship with the children and that they do many activities together, including school work, going to movies, going to the pool or lake, and playing the piano.

[28] The Respondent’s evidence is that even when the Applicant had the children on alternating weeks, he often left the children with his parents for extended periods of time or had Ms. Biiun, who lived with the Applicant since 2018, take care of them. The Respondent states that the Applicant became intoxicated and behaved irresponsibly on various occasions when the children were in his care. The Respondent alleges that the Applicant behaved violently toward her, including, smashing her laptop, stabbing a knife into a counter, and “pouring kettle water” on her.

[29] The CAS documents indicate that the CAS first became involved with the family in March to June 2019 when the Respondent expressed concerns that the Applicant would not provide the children’s passports and that they were exposed to the Applicant’s drinking. According to the documents, the matter was discontinued because the Respondent “did not see a need for investigation.”

[30] After the incident between the Applicant and Ms. Biiun, the CAS opened an investigation on June 6, 2020. The CAS found that the children were not in need of protection and closed the file on June 17, 2020. While the CAS did not find the children in need of protection, a “safety plan” was put into place, whereby in the event that the Applicant consumed alcohol, involved the children in the marital dispute, or left them home alone, P was to call the Respondent and the Respondent was to call the police to request a safety/well-being check. Moreover, the CAS found a moderate risk of emotional harm to the children on the basis of the ongoing post-separation conflict and the parentification of P by the Applicant. None of the allegations of sexually inappropriate conduct were verified.

[31] According to the CAS documents, the children made the following comments regarding their father to the CAS worker:

• The Applicant drinks alcohol every day throughout the day, and mixes it with tea in a thermos or mug so people do not know;

• While he is drunk, the Applicant swears and yells at night from the basement when they are in bed;

• They have observed large quantities of alcohol in the Applicant’s home, including boxes of vodka and many bottles;

• The Applicant drinks with a friend named “Sergey”;

• The Applicant swears and screams about the Respondent and Ms. Biiun and calls them by disparaging names in Russian. He also says that the Respondent is not their mom and refers to her as “genetic material”; and

• P makes all the meals while they are at the Applicant’s house and babysits for up to 1.5 hours when Dad goes to the store.

[32] The Applicant denies that he required P to act as a parent, including cooking and caring for her siblings. The Applicant denies that he has a problem with alcohol or that he drinks excessively around the children. The Applicant relies on the police occurrence report from March 2019 when they found the children safe at home with him, with no alcohol bottles in view. The Applicant denies the Respondent and Ms. Biiun’s allegations of abuse.

[33] The Applicant also submitted to an Accumetrics substance abuse hair test conducted by Harvey Tenenbaum on July 16, 2020, which showed a negative result for drugs and alcohol. The Respondent objects to this evidence on the basis that it has been found by courts to be unreliable. For the purposes of this motion for interim relief, I accept that the result was negative. In the absence of further evidence regarding the reliability of the Accumetrics test, however, I do not place significant reliance on the test result.

[34] The Applicant submits that the Respondent’s allegations cannot be verified or corroborated by third party evidence. However, the CAS documents support the Respondent’s concerns, as they relate to the Applicant’s alcohol use. In the face of the children’s observations, the Applicant’s evidence that he consumes only a couple of drinks while barbecuing or during dinner is untenable. While it is difficult to make conclusive findings at this early stage, the evidence raises serious concerns about the Applicant’s excessive consumption of alcohol, his behaviour when he drinks and his involvement of the children in the adults’ disputes.

[35] Moreover, the children’s accounts are remarkably consistent in respect of the Applicant’s excessive drinking and behaviour when intoxicated, parentifying of P, making disparaging remarks about the Respondent, and exposing them to the parents’ conflict. This is also generally consistent with the Respondent and Ms. Biiun’s evidence.

[36] The children expressed to the CAS investigator that they feel afraid when the Applicant drinks and yells and that they do not like it when he calls their mother names and makes disparaging remarks about her. None of the children feel afraid when they are with their mother. P expressed the view that she prefers to stay with the mother over the father. The other two children did not express a specific view.

[37] While I have significant concerns about the Applicant’s alcohol use and the resulting impact on his behaviour, I am also concerned about the sudden termination to the Applicant’s parenting time by the Respondent, especially during the current pandemic. Until June 2020, the children spent a week at a time with the Applicant, who was regularly involved in their lives. They also spent time with extended family, including their paternal grandparents. The parenting schedule was certain and routine. The termination of all access disrupted the children’s ability to continue a meaningful and close relationship with the Applicant.

[38] At this stage, the Respondent has not satisfied me that the Applicant should have no access to the children. The CAS did not find the children in need of protection as a result of the Applicant’s conduct. Moreover, the Respondent adhered to the parenting arrangement for four years before raising any concerns about the Applicant’s behaviour or ability to care for the children. In my view, the suspension of all access by the Applicant would not be in the children’s best interest. It is in the children’s best interests to have regular and extended time with their father.

[39] The Respondent’s concerns about the Applicant’s behaviour are based mainly on his alcohol consumption. These concerns can be addressed by the use of an alcohol monitoring system. The Respondent has suggested, and the Applicant has consented to, the use of Soberlink. The use of a monitoring system would ensure that the Applicant is not consuming alcohol during his parenting time.

[40] In addition, the Applicant has been cautioned by the CAS about requiring P to perform household tasks and to babysit her siblings in his absence, especially before having completed a babysitting course. This concern can also be addressed by the terms of an interim order.

[41] Similarly, exposing the children to the adult conflict is not in itself sufficient reason to prevent the Applicant from having access to the children. A broad, non-disparagement order would help to remove the children from the adults’ disputes. The Applicant has also expressed concerns that the Respondent has been alienating the children from him. The Respondent’s affidavit reflects that she has discussed the Applicant’s behaviour with the children. There should be a mutual order to prevent the parties from further involving the children in their disputes.

[42] Accordingly, on an interim basis, the Applicant shall have regular, ongoing access to the children. Because it has been over three months since the Applicant has had the care of the children, parenting time ought to be increased gradually until the alternating week schedule is restored.

[43] The Applicant indicated that he would consent to not consuming alcohol before and during access, and that, if necessary, his father would be available to supervise access. The Respondent opposes the Applicant’s parents supervising access visits, on the basis that they deny and conceal his alcohol use.

[44] In my view, supervised access, especially at a supervised access centre, is a significant intrusion and is not warranted if the Applicant undertakes not to consume alcohol before and during his parenting time and if a monitoring system is used.

Conclusion

[45] Accordingly, the following terms are ordered on an interim, without prejudice basis pending the hearing of the motion and cross-motion on October 27, 2020:

(a) The Applicant shall sign up for the Soberlink monitoring system within five days of this order;

(b) The Applicant shall provide his irrevocable consent for the Respondent to access Soberlink;

(c) Before any access commences, the Applicant shall provide three days of negative test results through Soberlink;

(d) Once the Applicant has provided three days of negative tests, he shall have weekly access to the children on Saturdays from 10 a.m. to 4 p.m.;

(e) After the Applicant has provided three clear days of tests and weekly access has taken place, commencing no earlier than Friday October 2, 2020, the Applicant shall have weekly access to the children from afterschool on Fridays to Sundays at 6 p.m.;

(f) From Sunday October 18, 2020, the parties shall return to an alternating week schedule. The Respondent will have the children during the week commencing on October 18, 2020 and the Applicant will have the children during the week commencing on October 25, 2020;

(g) The Applicant shall refrain from consuming alcohol for a period of 12 hours before all access and at all times during access;

(h) The Applicant shall provide a test one hour before access is to commence and once every three hours during his access time;

(i) Once overnight access commences, the Applicant shall provide a test at midnight and at 7 a.m. and every three hours thereafter;

(j) For further clarity, the Applicant shall not consume any alcohol before or while driving the children anywhere;

(k) The Applicant shall not permit Sergey to visit the home while he has access to the children;

(l) In the event that the Soberlink test shows that the Applicant has consumed alcohol before his access time, the Applicant shall not have access to the children;

(m) In the event that the Soberlink test shows that the Applicant has consumed alcohol during his access time, the access shall terminate. In the event that access must be terminated, the Applicant shall request that one of his parents attend at his home until the Respondent can attend to retrieve the children;

(n) Access time shall be exercised by the Applicant, meaning that the children are not to be left in the care of third parties, including the grandparents;

(o) All transfers shall take place outside of the Respondent’s residence, unless the access time commences after school, in which case the Applicant shall pick the children up from school;[^1]

(p) When they are with the Respondent, the children shall be permitted to telephone the Applicant at their request;

(q) P shall have access to her cell phone at all times and be permitted to telephone the Respondent when the children are with the Applicant;

(r) The Applicant shall look into appropriate counselling as recommended by the CAS;

(s) The Applicant shall not require P to cook meals or perform household tasks beyond chores that would be expected from a child of her age;

(t) The Applicant shall not require P to care for her siblings in his absence;

(u) The parties shall refrain from any subtle or open disparagement of the other parent and/or members of the extended family in any communication with the children or in their presence or in any place where the children might hear;

(v) The parties shall not speak to or in front of the children in a critical or disparaging way about the other parent;

(w) The parties shall not discuss the litigation with the children, or in their presence;

(x) The parties shall actively and on a timely basis advise their friends and family to maintain the same standard and to refrain from criticizing the other parent in front of the children, or discussing the litigation in any way;

(y) The parties shall not ask the children to relay information from parent to parent; and

(z) The parties shall respect each other's privacy, and as such refrain from engaging the children in any discussion or questioning about the other parent's personal life or activities. The parties shall refrain from any form of interference, direct or indirect, open or subtle, into the life, activities, or routines of the other parent.

[46] The motion has been scheduled to return before me on October 27, 2020 at 1:00 p.m. The following timetable is ordered:

(i) The Applicant shall serve any supplementary motion materials by September 30, 2020;

(ii) The Respondent shall serve her notice of cross-motion and any supplementary affidavits by September 30, 2020:

(iii) The Applicant and Respondent shall serve their respective responding motion materials by October 9, 2020;

(iv) The Applicant’s factum on his motion and the Respondent’s factum on her cross-motion shall be served by October 16, 2020;

(v) The Respondent’s responding factum on the Applicant’s motion and the Applicant’s responding factum on the cross-motion shall be served by October 23, 2020;

(vi) No further materials may be filed without leave;

(vii) The parties shall avoid duplication and the inclusion of irrelevant or extraneous information in their material; and

(viii) The parties may amend the above timetable on consent. However, no factum may be filed less than two days before the hearing.

[47] In the event that, after receiving the voice of the child report, the parties wish to convene a case conference rather than proceed with the motions, they may contact the Family Scheduling Office. If for any reason the voice of the child report will be delayed, the parties shall advise the court in a timely manner.

Costs

[48] At the conclusion of the hearing, I directed counsel to file their bills of costs and any relevant offers to settle with the court, which I would not access until reaching a decision on the motion. After reaching my decision, I reviewed the bills of costs and offer to settle made by the Applicant.

[49] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at para. 24. There is a presumption that the successful party will be entitled to costs: r. 24(1), Family Law Rules, O. Reg. 114/99.

[50] The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

[51] In assessing the success of a party, the court looks to the positions taken by the parties at trial, Berta v. Berta, 2015 ONCA 918, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (Sup. Ct.).

[52] Other than as provided in rr. 24(8) or 18(14) there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.

[53] In the result, neither party was completely successful. The Applicant did not obtain an unconditional return to the alternating week schedule. The Respondent was not successful in suspending the Applicant’s access or in requiring that access be supervised. The motion was necessitated by the Respondent’s unilateral suspension of the Applicant’s parenting time. This type of self-help is to be discouraged. Despite her concerns, the Respondent did not seek the assistance of the court. The Applicant had to bring the motion to have any parenting time and was successful in this respect.

[54] The Applicant’s offer to settle dated August 11, 2020 proposed a return to the alternating week schedule on August 17, 2020. The result was not more favourable than his offer to settle. There is no basis for full indemnity costs.

[55] Based on the foregoing considerations, I fix costs of the motion at $3,000 to be paid by the Respondent to the Applicant.

[56] The outcome of any motion is an order of the court enforceable by law from the moment it is released. Counsel may also forward a draft order consistent with the terms of this Endorsement to me through the Family Scheduling Office.

Nishikawa J.

Date: September 11, 2020

[^1]: The Applicant lives in Ajax and the Respondent lives in Toronto. The children attend school in Toronto. Both parties appear to be working from home at present. They have not provided me with information regarding the logistics of transferring the children. The terms regarding transfers in para. (o) and retrieval of the children in para. (m) may be varied on consent of the parties.