Court File and Parties

Court File No.: FS-0066 Date: 2020-10-14 Superior Court of Justice - Ontario

Re: S. J., Applicant And: M. C., Respondent

Before: M.G. Ellies R.S.J.

Counsel: S. Sikora, for the Applicant R. Leckie, for the Respondent

Heard: October 1, 2020

Endorsement

[1] S.J. moves for week-about access to her children, E.C. and G.C. E.C. is a 13-year-old girl. G.C. is a 10-year-old boy, who will soon be 11. The respondent, M.C., is the natural father of both children. I will refer to S.J. as “the mother” and M.C. as “the father” in this endorsement.

[2] The mother and father began cohabiting in 2003. They were married in October 2015 and separated in January 2016, when E.C. and G.C. were eight and six years old, respectively. The children have been living with the father since the parties separated.

[3] The mother deposes that the father has been withholding access unnecessarily.

[4] The issues are: (1) Should there be a change in the present arrangements? (2) If so, what should the new arrangements be?

Should there be a change in the present arrangements?

[5] The parties disagree as to whether there is a status quo such that the mother must show a material change in circumstances before a change will be considered: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27; Brown v. Lloyd, 2015 ONCA 46, at paras. 6-7; Al Tamimi v. Ramnarine, 2020 ONSC 4558, at para. 37. The evidence about this is conflicting.

[6] The mother admits that she was suffering from mental health and substance abuse issues at the time of separation. While the parties were living together, the Children’s Aid Society of the Districts of Nipissing and Parry Sound (the “CAS”) became involved with the family. The CAS remained involved after they separated.

[7] The father deposes that, following the separation in 2016, the mother had access to the children, which he supervised. In January 2019, the father received a letter from the CAS advising him that the mother had relapsed and had been drinking while exercising access to the children. In April 2019, two people with whom the mother was living were arrested and charged with weapons offences, among other things. In May 2019, the mother’s apartment was raided by the police, who were searching for drugs. Later that month, the parties signed an agreement with the CAS called a “Safety Plan”. The plan provides that the father will not leave the children in the mother’s care if he suspects that she is “under the influence”.

[8] The father deposes that in February 2020, he and the mother agreed that, while he is away working, the children will be with the mother for three days, then with the paternal grandmother for three days, then with the mother for five days, and then with the father’s new partner for three days.

[9] The mother deposes that she recently had G.C. “in a shared regime”. She says that she had him for the entire month of September, except of the first week or week and a-half of school. The father denies this. He deposes that the mother has had the children for no more than five consecutive days since the parties separated.

[10] While it is often difficult to make credibility findings on a paper record, the record in this case makes it easier, for two reasons.

[11] The first is that each party filed two affidavits, one sworn when the mother began her application in May 2020, the other sworn in September, after this motion was scheduled for argument. Some of the allegations made by the parties in their May affidavits have gone uncontradicted in the other party’s September affidavit. For example, in his May affidavit, the father deposed that, as he and the children were waiting to be buzzed into the mother’s apartment for a Christmas visit in 2019, an alcohol delivery person arrived and also sought to be buzzed up to the mother’s apartment. This was not contradicted by the mother in her September affidavit.

[12] Likewise, the mother deposed in her May affidavit that the father had withheld access for four months beginning in November 2019. This is not denied by the father in either of his affidavits. However, it may be explained by the evidence about the alcohol delivery person.

[13] The second is that some of the father’s statements about the mother’s behaviour are supported by evidence that has come from the mother herself. In his May affidavit, the father deposed that the children had seen alcohol in bottles in the mother’s home. He attached copies of text messages sent to him by the mother at 3:41 a.m. in which she admits not only that there were alcohol bottles in her home, but that they had something in them that she felt should be dumped out.

[14] As well, the mother deposed in her May affidavit that she was receiving (i.e. present tense) support from the Community Counselling Centre of Nipissing. However, a copy of a letter attached to her September affidavit from the centre says that the mother started her sessions only in June.

[15] Because of the support in the record for the father’s evidence, where it contradicts that of the mother, I accept the evidence of the father.

[16] In his September affidavit, the father deposes that E.C. attempted to stay overnight with the mother but came home because of the mother’s drinking and late-night erratic behaviour. He deposes that the daughter now refuses to spend the night at her mother’s home. The mother admits that E.C. does not want to spend much access time with her.

[17] With respect to G.C., the father deposes that the mother had him for four consecutive days in September. He deposes that G.C. missed the school bus on the first day and was, therefore, late for school. G.C. missed the third day of school entirely. In addition, the father deposes, the mother will wake the child up in the middle of the night just to talk with him, which makes it difficult for him to concentrate at school the next day.

[18] On this evidence, it is hard to determine exactly what the present arrangements are. I am not sure whether the access that was agreed upon while the father is at work is still in place, for example. However, I do not believe it is necessary to determine exactly what the present arrangements are. The parties agree that the children need structure. The present situation clearly lacks that. For this reason, I believe that there should be a change.

What should the new arrangements be?

[19] While the mother is making commendable efforts to stabilize herself, she is not there yet. Her behaviour is still having a negative impact on the children at times. The children and the mother are getting counselling, which I hope will help make E.C. more comfortable spending time with her mother and put both children at less risk when they do. Until then, however, I do not believe that week-about access is in either child’s best interests.

[20] Instead, I believe that a weekend access regime should be put in place. This is what the mother suggested in her most recent affidavit should happen with respect to access to E.C. I think it makes sense to do the same with both children. This will ensure that they spend time with each other, as well as each parent. It will also ensure that G.C. gets to school and is ready to learn when he gets there.

[21] Of course, given her age, E.C. should not be forced to attend at the mother’s residence, although she should be encouraged to do so. It probably also goes without saying that the father should not permit access if the mother is under the influence, quite apart from his commitment to the CAS.

[22] During argument, counsel for the mother submitted that access every second weekend would be a reduction in access as far as G.C. is concerned. If the father’s work access regime is still in place, this is true. However, the parties are free to agree on more access. Based solely on the mother’s evidence, the father has been doing his best to maximize contact between the mother and the children. I believe he will continue to do this. My order is intended to provide a predictable foundation for access which the parties are free to build upon.

[23] For these reasons, a temporary order shall issue that the mother shall have access to the children as follows:

(1) Every second weekend from Friday after school until Sunday at 7:30 p.m., commencing Friday, October 16, 2020;

(2) Every second Thursday, from after school until school begins the next day, commencing Thursday, October 22, 2020;

(3) On such other days and at such other times as the parties may agree upon in writing.

[24] The father simply wanted to maintain the present arrangement. Given the mixed success, I am not inclined to award costs to either party. However, if either party wishes to seek costs, he or she may deliver written submissions limited to five typewritten pages, as follows:

(1) By the father, within 20 days;

(2) By the mother, within 10 days of receipt of the father's submissions.

M.G. Ellies R.S.J.

Date: October 14, 2020