Superior Court of Justice - Ontario

COURT FILE NO.: 43385/20

DATE: 2020-12-04

RE: Kristen Heather (Cameron) Robinson, Applicant

AND:

Cameron James Robinson, Respondent

BEFORE: Kurz J.

COUNSEL: Michael Jagtoo, for the Applicant

Jerald MacKenzie, for the Respondent

HEARD: November 4, 2020

ENDORSEMENT

[1] Each party moves for relief. The Applicant (“the mother”) seeks temporary sole custody of the parties’ two children, supervised access for the Respondent (“the father”), and exclusive possession of the parties’ matrimonial home. The Respondent (“the father”), resists the mother’s motion and seeks an order of temporary joint and equally shared custody of the parties’ two children. While he brought his motion first, the mother first tried to obtain leave of the court to bring this matter forward on an urgent basis.

[2] The key issue in this motion is whether the father’s alcohol consumption is so significant that it affects his ability to safely parent the parties’ two young children. The mother portrays the father as a serious alcoholic who is often intoxicated, even in the presence of the children. The father strongly objects to that characterization, citing the evidence of his sister and his nephew. On the other hand, the mother also cites evidence from the father’s sister. But that evidence consists of contemporaneous texts, which appear to confirm the mother’s narrative. She also looks to the father’s purchases on their joint account, which document his significant alcohol purchases.

[3] A secondary issue in this motion is the father’s historical parenting role. He claims to have been the primary caregiver of the children even though the mother has always been a stay-at-home mother. She suffers from a malady that appears to make her unable to work. However, for reasons that are not entirely clear, the father has not worked for years either. He claims to have assumed the primary caregiving role for the children. However at the beginning of this year, he moved out of the home for six months.

[4] The acute circumstances that led to this motion arose when the father unilaterally chose to move home again, despite the mother’s objections. He then refused to leave, despite the tensions that arose from his unwelcomed return. The mother then chose to leave the home with the children, first to stay with her sister and then to a family cottage some 2 – 2 ½ hours away. She wishes to return to the matrimonial home to primarily parent the children, but absent the father.

[5] For the reasons that follow, I grant the mother primary care of the children and exclusive possession of the matrimonial home. However I grant the father day access to the children as set out below, with supervision as agreed or to be determined by the court.

Preliminary Issues

[6] The parties raised two preliminary issues that required my resolution at the time that these motions were argued. First, the court had erroneously issued an “order” of Coats J., dated September 28, 2020. The terms of that “order” are exactly the terms of the father’s prayer for relief in this motion, including alternative remedies. The father’s counsel agrees that the terms of the “order” were not actually granted on September 28, 2020. It is clear that the “order” was, for some reason, issued in error. I set that order aside under r. 25(19)(b) and find that it is null and void ab initio.

[7] Second, the Respondent seeks to file, as essentially sur-reply, an affidavit containing the unsigned clinical notes of his family medical clinic. The printed-out version of the clinic’s electronic notes do not say who made the notes. The Respondent relies on those notes to argue against the Applicant’s claims that he is an alcoholic.

[8] The notes refer to the father’s seven attendances at the clinic in April and May 2019 and one telephone appointment on October 16, 2020. The notes of the April and May 2019 attendances make no reference to the issue of alcohol. They refer instead to an unrelated malady arising out of a cyst found on the Respondent.

[9] The October 16, 2020 attendance appears to be a self-serving telephone office attendance that occurred while this motion was pending. At that time, the father spoke to a doctor, whom he identifies in his affidavit as “Dr. Baeshu”. During his call to the doctor, the father set out his view of this litigation. Dr. Baeshu wrote in his/her notes, after reviewing the file (whose contents are summarized above): “Quick review of his medical chart - shows no history suggestive of alcoholism.”

[10] As the Ontario Court of Appeal set out in Westerhoff v. Gee Estate, 2015 ONCA 206, there are different types of experts who are able to offer opinion evidence. They include litigation experts, participation experts and third-party experts. Third-party experts are irrelevant to my consideration in this case.

[11] Litigation experts are, as Simmons J.A. wrote for the court, "engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding" (para. 6). They are required to certify their obligations to the court with a Form 20.1 certificate. Participation experts are what Simmons J.A. described at para. 6 as “witnesses with special expertise who give opinion evidence …who form opinions based on their participation in the underlying events.” That group includes treating physicians. That group does not have to sign a Form 20.1 certificate.

[12] In the note offered to the court, Dr. Baeshu makes no reference to expertise in alcohol or substance abuse. S/he makes no reference to even having previously treated the father. The entirety of the opinion s/he offers, arises from a review of the previous notes, which make no reference to alcohol at all. Dr. Baeshu simply states what the records themselves say: that the issue was not raised in the limited attendances that had occurred about 1 ½ years ago.

[13] To the extent that the medical clinic’s notes offer any purported opinion regarding the father‘s alleged alcoholism, Dr. Baeshu provides no reason to believe that s/he is entitled to do so. In fact, there is no evidence that s/he even previously treated the Respondent. Dr. Baeshu’s note of the October 16, 2020 consultation describes it as a 22-minute telephone “meet and greet”. There is no evidence that Dr. Baeshu made an independent investigation of the Respondent’s alcohol use or abuse other than a “[q]uick review of his medical chart”.

[14] Dr. Baeshu is clearly neither a litigation nor a participation expert.

[15] Accordingly, the clinic records are only admissible for the very limited factual point that in seven attendances in April and May 2019, the Respondent did not raise the issue of his alcohol consumption with this family doctor. However, nothing in the records show that the issue even arose, so even that evidence is of the most limited evidentiary value. It is not admissible as expert opinion evidence in any way.

Background

[16] The parties married on August 22, 2009. They do not appear to have agreed on when in 2020 they separated, whether it was when the father first moved out of the home on January 24, 2020 or whether it was when the mother and children left on August 11, 2020. I do not have to decide that issue at this time.

[17] The parties have two children, E, aged 8, and L, aged 6. The parties cannot agree on who has been the historical primary caregiver of the children, although they have been in the mother’s exclusive care since August 11, 2020.

[18] The mother and children have each been diagnosed with a genetic neurological disease known as Charcot Marie Tooth Disorder Type 1A (“CMT”). CMT is a slowly progressive malady, causing loss of normal function and/or sensation in the feet/legs and hands/arms. It is currently incurable and can be severely disabling.

[19] Because patients with CMT develop deformities of the feet and hands as a result of a weakening of the muscles around the relevant joints, patients with CMT experience difficulty walking. Both children have exhibited some symptoms of this malady: L has flat feet. He constantly trips and falls. E primarily twists her ankles. Patients with CMT have a high pain threshold, which results on their being unaware of injuries to their hands and feet that would cause great pain in non-CMT sufferer.

[20] The Mother says that the children’s susceptibility to injury without pain means that they must be closely watched and that rough play must be avoided. She says that the father dangerously roughhouses with the children. The mother points to one bruise that L suffered while wrestling with the father. The father says that the children enjoy the play and that he is very careful with them. The bruise was a small one that could have occurred at any time in a child like L.

[21] The mother also points to an incident on July 12, 2020, when the father, allegedly intoxicated, hurt a friend’s child in an unspecified manner while pushing him on a swing. She alleges that he refused to stop, even in the face of the child’s entreaties. She implies that his intoxication affected his judgment. The father denies that he did anything wrong that day. No other witness has provided evidence of the events of the day.

[22] The mother also points to a brief video, which she claims that 8-year-old E spontaneously recorded. In the video, the child says that she is afraid to be left alone with her father. The video raises concerns, but not for the reasons that the mother asserts. I am deeply suspicious of the claim that an 8-year-old child will spontaneously make a video expressing her fear of her father; particularly when that video fits perfectly into the mother’s narrative.

[23] The main concern that the video raises is whether the mother is attempting to influence the children against their father. Had I not been even more immediately concerned with the issue of the father’s alcohol consumption, I would have placed greater emphasis on this video. However, this is an issue that must be monitored in the future in the litigation between the parties. As set out below, I order the parties to refrain from discussing this litigation with the children or derogating the other parent to them. Some form of clinical investigation will be needed to see whether the concerns that the video raises are representative of only a one-time event or a more profound concern.

[24] The mother’s main concern in this motion is the father’s alcohol consumption. She claims that he is constantly intoxicated. She adds that he will drink and drive, even with the children. The father adamantly denies the mother’s claims. In fact, he says that he cut down his drinking in order to lose weight. He adds that he has lost some fifty pounds in recent months. He says that when he does drink, he takes Ubers or Lyfts to avoid driving. Of course, if that is a regular event, as the father and his nephew imply, that fact bespeaks the extent of his alcohol use.

[25] In addition to his own word, the father relies on:

1. two documents that I describe as letters of reference from friends, which he has attached to his affidavit. Those letters are inadmissible hearsay under r. 14(18) and (19);

2. two affidavits of his sister, Julia Bonany (“Julia”), who was close with the mother until recently. She has changed her views to support her brother; and

3. one affidavit from his nephew, Jeremy Langois (“Jeremy”), Julia’s son. Jeremy has lived with the parties for a few months before the father moved out of the home and has remained in the home, now living exclusively with the father.

[26] Both sister and nephew fully support the father’s narrative. They deny his problem drinking. That being said, I have to take the word of both Julia and Jeremy with a large grain of salt. Julia has gone from being a strong supporter of the mother prior to the separation to now being her strong detractor. Where, as set out below, she praised the mother’s parenting, she now describes the mother as effectively controlling the children against their father. Where, previously she confirmed the mother’s allegations of the father’s drinking in real time, she now tries hard to explain away her previous comments as simply an attempt to support the mother. She complains that she only heard one side of the story at the time of her texts that are set out below. Yet Julia swears in her October 5, 2020 affidavit that she spends a lot of time in the father’s home. She adds that she “is acutely aware of how the household runs, along with how the family interacts with one another.” How, in light of that intimate understanding of the inner workings of the Robinson family, she can say that she was mistaken about the extent of her brother’s drinking remains a mystery, even after reviewing her two affidavits.

[27] Based on the evidence before me and absent cross-examination, I am not willing to accept that Julia’s change of heart is motivated by anything but a desire to protect her brother.

[28] With regard to Jeremy, he has an incentive to support his uncle: he lives with him in the matrimonial home, absent the mother and children. If the father loses this motion, Jeremy may be forced to seek a new home. In light of that fact and Julia‘s new-found alignment with the father, I am suspicious of Jeremy‘s motivations.

[29] Further, I note that the affidavits of both Julia and Jeremy often read as argument or speculation or simple unsupported opinion in favour of the father. A few examples will suffice. Julia offers the following bit of argument and speculation in her affidavit of October 21, 2020:

Had Kirsten in fact believed that Cam was truly abusive towards the children … [she] would have immediately contacted the police or Children’s Aid to commence an investigation. However, to my knowledge, neither of which were undertaken by the Applicant [sic].

…it became increasingly apparent that Kirsten lied or bent the truth.

[30] Jeremy opines and advocates in his affidavit of September 8, 2020:

Any alcohol purchases made by the Respondent would have included drinks for the guests, myself and wine coolers for the Applicant.

The suggestion that the Respondent ever drove under the influence or even near the legal limit with respect to blood alcohol is entirely false.

Respectfully, the only reason the Respondent denies having any problem is because there is no problem.

[Emphasis added]

[31] As I wrote in Alsawwah v. Afifi, [2020] O.J. No. 2063, at para. 108 (4) and (5):

4. Exaggeration is the enemy of credibility…

5. Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.

[32] Counsel must be careful to avoid these pitfalls in their clients’ materials as it detracts from their case.

[33] Neither Julia nor Jeremy appears to be an independent witness.

[34] There are also issues with the mother’s credibility. First, I have considered the use I may make of the mother’s contemporaneous text statements to Julia about the father’s drinking. Those statements are fully consistent with her present affidavit evidence. Ordinarily, such prior consistent statements would be inadmissible. (R. v A.S., 2020 ONCA 229 at para. 52, citing R. v. D.K., 2020 ONCA 79, at paras. 34-35; R. v. Dinardo, 2008 SCC 24, [2004] S.C.R. 788 at paras. 36-40). They have been described as “oath helping”, that is "evidence adduced solely for the purpose of proving that a witness is truthful": (R. v. Weese, 2016 ONCA 449 , citing R. v. Burns, [1994] 1 S.C.R. 656, at p. 667). However, the exception to that rule is where there is an allegation of recent fabrication (R. v. Sterling). That appears to be what both Julia and the father are accusing the mother of having done. Under that theory, I may be entitled to rely on the mother’s contemporaneous statements about the father’s drinking in her texts to Julia in considering the credibility of her present allegations.

[35] However, neither party raised the issue, so I am loathe to make that determination. Rather, I rely on the mother’s text statements to Julia as set out below, solely to place Julia’s statements to the mother into context. Whether the statements have another evidentiary value can be left to another date.

[36] Further, while I have concerns about the father’s evidence, I cannot ignore my concerns with the mother’s evidence as well. While they touch on issues of her credibility, they also speak to her judgment and motivations. I have already written of the concerns raised by the mother’s reliance on a video which she alleges that E created, purportedly to express her fear of her father. Far from assisting the mother, it makes me question her ability to separate her animosity towards the father from her consideration of the children’s best interests.

[37] That concern is accentuated by the mother’s constant references to the father’s affair with another woman. As I so often hear when such issues are raised, her counsel explained that this evidence is provided to offer some form of context. That context may well be the extent of anger and resentment that the mother feels towards the father and the risk that it may affect her parenting.

[38] With regard to counsel’s decision to place that evidence before the court, I again refer to Alsawwah v. Afifi, where I wrote at para. 108(3):

3. Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for "context".

[39] In sum, the evidence in this motion shows that both sides have played a role in advancing their conflict to the point where the court is required to determine their parenting arrangements. However, my concerns about the father’s alcohol consumption overcome my qualms about the mother’s role at this time.

Evidence of the Father’s Alcohol Consumption

[40] The issue of the father’s alcohol consumption is not simply a classical “he said/she said” scenario. There is strong objective evidence to support the mother’s claims. That evidence comes in three forms.

[41] First, there are Julia’s text exchanges with the mother in 2019, copies of which are reproduced as exhibits to the mother’s October 16, 2020 affidavit. In those texts, Julia clearly confirms the mother’s narrative of the father’s alcohol abuse. Among the things that Julia says are:

1. June 11, 2019 at 11:20 a.m.: “Cam’s a mess and he isn’t willing to face his demons…he’ll stay a mess until he is”;

2. June 12, 2019 at 2:18 p.m.: “You’re a wonderful momma! If you guys do end up separating, let’s plan some fun things to do together.”

3. July 11, 2019 at 6:32 p.m.: the mother texts Julia to state that the father went to a bar again. Julia responds at 6:56 p.m.: “Again?”. When the mother answers in the affirmative, Julia asks whether he had been to the bar already, to which the mother again responds in the affirmative. While this is mainly the mother’s contemporary reference to the father’s drinking, Julia does not question the narrative.

4. December 1, 2019 at 8:27 p.m.: “Is Cam drinking right now ie [sic] do you suspect he’ll be drunk by bedtime?...”

5. December 1, 2019 at 9:12 p.m., the mother texts Julie to say that the father is drunk, to which Julie responds: “Oh geez, that didn’t take long…”;

6. December 2, 2019 at 3:48 p.m.: the mother complains of Cam’s abusive behavior, to which Julie responds: “Kat, you know I love Cam! But what he is doing IS abusive and it breaks my heart. That is not the Cam I know…”

7. December 15, 2019 at 9:21 a.m. the mother texts to say that the father drank all day, presumably the previous day. Julie responds: “yeah he started with Caesars first thing”;

8. December 15, 2019 at 5:53 p.m.: The mother says: “He gets mad at me for nothing, to which Julie responds: “I’ve witnessed that “

9. December 21, 219 at 10:22 a.m.: The mother complains about the father’s constant alcohol use, how he always has to have a beer in his hand. Julie responds: “True but having others to drink with exasperates [sic] it”. The mother responds that having a beer with him is a “permanent accessory” for the father, to which Julie responds: “…I’ve noticed”;

10. December 22, 2019 at 1:06 p.m.: “Your survival and level of enjoyment will depend on your ability to think outside the box and be creative with how to work around [the father]… I’m so proud of you….Keep going! Don’t give up!”…Your joy and the kids’ joy is TOTALLY worth every ounce of effort you give!”;

[42] Second, the father admits the mother’s assertion that he attended at the LCBO seventeen times in September 2019. He does not directly respond to the mother’s statement that in September 2019 he spent $3,043.48 in alcohol-related expenses, including attendances at bars. However he describes the mother’s allegations of his excessive drinking as “false and defamatory”. His explanation, as set out below, is that he frequently entertains friends and family. For reasons set out below, that explanation is a thin straw on which to rest his denial of the meaning of his extraordinary level of liquor purchases and the implication that it is indicative of his excessive alcohol consumption.

[43] Third, the father deposes that “…following January 2020 I have drastically reduced my consumption of alcohol…” But the mother has produced bank records detailing the father’s purchases of alcohol, both at the LCBO liquor store and a variety of bars, pubs and restaurants in the Halton Region. Those records disclose a pattern of his significant alcohol purchases. If these records demonstrate a decrease in alcohol use, one may wonder what his consumption was like prior to 2020.

[44] While the bank records that the mother has produced are for a joint account with the mother, there is no allegation that she made any of the alcohol purchases recorded in the bank statements.

[45] The mother’s counsel says that the records show that between January 2020 and September 2020, the Respondent made 63 trips to the LCBO and Harper’s Landing Bar and Grill, near the matrimonial home. The father says that he often visited that venue with the mother for a meal. But the records cited below were created after the father moved from the matrimonial home and at least arguably, they separated. They continue after the time that the mother and children moved from the home, ultimately to a location over two hours away.

[46] From my review of the bank records produced by the mother, I find that the father visited more drinking establishments than Harper’s Landing. Those locales are Turtle Jack’s, the Beertown Pub, the Red Harp Pub, Joey, and the Cactus Club. I count at least 91 trips to the LCBO or a bar/restaurant in eight months this year. The bank records also disclose purchases at establishments that may well have been drinking establishments but which I did not include in my calculation because I was not certain of their status.

[47] The father’s visits to establishments that sell liquor fell off markedly during the first months of the pandemic, when most indoor establishments closed. Further, the mother’s materials do not have the August 2020 bank statement. So for the 242 days captured by the 2020 bank statements produced by the mother, the father’s 91 attendances work out to an average of a visit every 2.7 days or so.

[48] Further, the most recent bank statement is not salutary. The September 2020 statement shows 31 visits to a liquor-selling establishment in 30 days. My review of shows the following purchases in September 2020:

Date Establishment Amount

September 3 Turtle Jack’s $151.86

The Beer Store $ 33.75

Harper’s Landing $ 30.82

Harper’s Landing $155.78

September 4 LCBO $ 66.25

Beertown Pub $135.33

September 6 The Beer Store $125.90

Joey $133.91

September 11 Harper’s Landing $ 46.61

LCBO $ 94.15

LCBO $ 17.70

September 12 Beertown Pub $115.95

September 13 Beertown Pub $241.10

Harper’s Landing $ 79.10

September 16 Harper’s Landing $ 29.66

LCBO $ 74.85

Red Harp Pub $117.51

September 17 Harper’s Landing $ 39.55

LCBO $ 35.90

Cactus Club $104.42

September 18 Harper’s Landing $ 21.26

September 19 Harper’s Landing $ 21.36

September 19 LCBO $ 70.70

September 23 Beertown Pub $108.10

September 23 LCBO $ 54.50

September 24 LCBO $ 81.30

September 26 Beertown Pub $ 81.26

September 27 Harper’s Landing $ 17.91

September 30 LCBO $ 53.05

Beertown Public $128.01

LCBO $ 83.85

Total $2,360.50

[49] The $2,360.50 that the father spent on alcohol in September 2020, the most recent figure available, works out to $78.68 per day. That figure is very concerning.

[50] The father responds with evidence that suggest that he is simply what I would describe as a “hail-fellow-well-met”. In other words, he generously buys alcohol for others. He deposes:

The Applicant and I have other couples and friends over almost every week and would ensure that our bar was fully stocked for friends and family to consume. The Applicant and I have a pool in our backyard and often have friends and family stop by to “hangout” often accompanied by a few beers.

[51] His two family members who have filed supporting affidavits agree. But he and the mother did not have any people over together since January 2020 as they were not living together. The mother was most assuredly not present in September 2020 when the father spent over $2,300 in alcohol.

[52] The bank statements show no Uber or Lyft invoices for September 2020, even though the father visited pubs at least 19 times in September, spending $1,607.64 or almost $85.00 at a time. It may be that his use of those services was paid for by a credit card. But the father has produced no invoices or credit card statements documenting that use.

[53] I also note that the father has no job and no independent source that has been brought to my attention, other than sharing in the remainder of a pool of money that was created by a substantial gift from the mother’s father. Those are the funds that are paying the expenses on the matrimonial home. Yet the father justifies his expenditure of thousands of dollars per month by stating that he is merely entertaining others, who likely have their own source of income. Julia, for example, is the executive director of a social service agency. Jeremy’s employment status is not spelled out in his affidavit.

[54] For the reasons set out above, including the father’s own admissions, I find that:

1. the father enjoys a lifestyle centred on alcohol use, and

2. the father has an ongoing alcohol abuse problem.

I will have more to say about how those findings affect the issue of the children’s best interests below.

[55] The father alleges that the mother is a less than perfect mother as well. He argues that she frequently sleeps into the afternoon. He says that he had to come in to the matrimonial home during the morning to care for the children. She also drinks alcohol and uses medical marijuana for her CMT symptoms. He says that he discovered notes that the mother wrote to herself or her lawyer that show that she planned the separation, which is not a surprise, if her allegations are to be believed. If they are notes to or for a lawyer, they are likely privileged. He says that she restricts his contact with the children and manipulates them during his virtual visits.

[56] In making my findings about interim parenting arrangements, I am not finding that the mother is an ideal parent. I have discussed my concerns in that regard above. In particular, I am concerned the mother is unable to separate her feelings for the father from her parenting of the children. Further, the mother should have obtained a court order before removing the children from the matrimonial home or moving them to another jurisdiction. I have been presented with some evidence that the mother has been less than open with virtual and non-virtual access in the absence of a court order.

[57] Were it not for the even graver concerns that I have about the father’s alcohol use, I would have placed greater emphasis on those concerns. They merit some independent investigation. But I cannot ignore the fact that the father’s alcohol use is the metaphorical elephant in the room.

Parenting Arrangements

[58] Despite my concerns with some of the mother’s conduct, I grant her interim primary residence of the children for the reasons that follow.

[59] In M.A.C. v M.C., 2019 ONSC 6769, I reviewed the law regarding interim parenting orders as follows:

47 Under DA s. 16(8), I must make any custody or access order based upon "...the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child." However, unlike its Ontario analogue regarding custody and access decisions, the Children's Law Reform Act ("CLRA"), the DA does not define the term "best interests of the child..." Rather, as I set out below, the DA specifically points to only two specific factors that a court making a custody and/or access order must consider. They are the irrelevance of past …conduct unless the conduct is relevant to the ability to parent a child and the maximum contact principle. I will deal with those two factors in reverse order because the father has made the maximum contact principle a centrepiece of his argument.

The Maximum Contact Principle

48 As the Ontario Court of Appeal recently confirmed in Rigillio v Rigillio, 2019 ONCA 548, courts determining custody and access issues must advert to the maximum contact principle set out in s. 16(10) of the Divorce Act. That provision reads as follows:

Maximum contact

(10) In making an order under this section, 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.

[Emphasis added by Ontario Court of Appeal in Rigillio]

49 At para. 10 of Rigillio, the appellate court added that any judge who departs from the maximum contact principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child's best interests. In Rigillio, the appeal court overturned a trial decision based on a status quo that had developed as a result of a temporary without prejudice order. The trial judge had found that the child had "loving and strong emotional ties to both parents". Prior to separation, the parents raised the child "equally" and "effectively". Further the father's post-separation conduct was not enough to ignore his contributions to raising the child. Thus, the failure of the trial judge to consider the maximum contact principle was a reversible error in law.

51 Despite the court's finding on the specific facts of each of Rigillio and Ferreira, the wording of the DA s. 16(10) explicitly subordinates the maximum contact principle to the child's best interests. The principle is to be honoured only to the extent that it is "consistent" with the child's best interests. …

Past Parenting and Domestic Violence

52 As set out above, the other provision of the DA that is pertinent to this court's considerations is found in s. 16(9), regarding past parenting conduct. Under that provision, the only past parenting conduct that a court making a custody or access order may consider is conduct relevant to the ability of a person to act as a parent. The provision reads:

(9) PAST CONDUCT -- In making an Order under this section, the Court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.

53 The same point is explicitly made under s. 24 of CLRA. That provision sets out the primacy of best interests in making decisions about a child's parenting. CLRA ss. 24(2)-(4) set out factors that a court must consider when determining a child's best interests.

54 Sub-section 24(2) offers the following non-exhaustive list of considerations regarding a child's best interests:

(2) BEST INTERESTS OF CHILD -- 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.

55 Under CLRA s. 24(3), the past conduct of a parent is only relevant to the court's parenting determinations to the extent that it "...is otherwise relevant to the person's ability to act as a parent."

[60] Here, in looking to the children’s best interests, I must be concerned about their safety if left alone with their father when he is drinking. As found above, his drinking remains a significant problem.

[61] I must also consider that, based on the evidence above, the mother has been the historical primary caregiver of the children. I do not see how a person with the father’s drinking problem and who visits alcohol establishments as often as he does (sometimes up to three times per day) can be a primary caregiver of children. The mother points out that she is the one who registered the children for school, took them to the doctor and made recreational arrangements for the children.

[62] Further, the father chose to move out of the home and leave the children in the mother’s primary care. That act is not indicative of primary care. While the father alleges that he returned every morning, even if true, that is not the same as being the children’s primary caregiver. He then decided to return to live in the matrimonial home against the mother’s wishes. In doing so, he knew or should have known of the tensions that that would create. He did so anyways and refused to leave. It is hard to see how that conduct placed the interests of the children before his own.

[63] The father could have negotiated with the mother, offered her mediation or gone to court to attempt to work out a satisfactory parenting and housing arrangement rather. Instead, he simply moved back home when it suited him. He did so after a six-month absence and contrary to the mother’s wishes. He knew or should have known of the tension that would create in the home and the deleterious effect that would necessarily have on the children.

[64] This is not a case for joint custody. The parties are unable to communicate or separate their feelings for the other from their parenting. There is no reason to believe that a joint custody order would improve that state of affairs. (Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.)).

[65] With regard to the father’s parenting time, I would like him to have regular contact with the children. I am concerned that the mother may be less than forthcoming in that regard without a court order. However, I am not sanguine with the idea of unsupervised access. Nor do I feel that access at a supervised access centre would be ideal for these children. It would severely restrict their access time, particularly at a time of COVID-19.

[66] I believe that some form of supervised access in the presence of an acceptable third party would be an ideal arrangement at this time. Neither parent nor their counsel was able to offer a concrete suggestion of an appropriate supervisor. I would normally be open to the idea of Julia supervising the access as she seems to have an ongoing relationship with and concern for the children. However I am concerned by the manner in which she has taken sides in this dispute. I am not certain whether she would be an honest broker.

[67] Neither parent works, so there is some real flexibility as to dates for day access. At this time, the access will be one full weekend day, from 10 a.m. – 6 p.m., and one evening for dinner, from 4-7 p.m. If they cannot agree otherwise, the weekend date will be Saturday and the mid-week day shall be Wednesday. I leave it to the parties to see whether they can make the appropriate arrangements and/or change the ones set out above if they do not suit both parties’ schedules. If they are unable to do so, their counsel may arrange a time to appear before me one morning at 9:00 a.m., for a determination. However I warn that the parties’ conduct with regard to making those arrangements will be a factor in my consideration of costs of this motion under subrules 24(4), (5), and (12)(a).

[68] With regard to a supervisor, I am willing to consider Julia if I receive from her a written undertaking to supervise the access on behalf of only the children and the court, with an obligation to accurately report on the access to the court. If she is proposed and not accepted, I will require her to attend at the next hearing. At this time, I am not open to having Jeremy supervise the access.

[69] The father may not consume alcohol for 12 hours in advance and during any access visit. If there are any signs of alcohol use at all, the access shall be immediately terminated, and the supervisor shall inform both counsel.

[70] The father and any supervisor shall observe all relevant COVID-19 protocols, including masking and indoor restaurant dining.

[71] I strongly suggest to the father that he consider alcohol treatment. I also strongly suggest that he and his counsel investigate a portable breathalyzer system that can deliver the immediate results to the other side. Those may be matters for a further court attendance.

Exclusive Possession

[72] Under s. 19 of the Family Law Act ("FLA"), "[b]oth spouses have an equal right to possession of a matrimonial home." However under s. 24(1), the court can grant one of the spouses exclusive possession of that home. The relevant provisions state:

Order for possession of matrimonial home

24(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse's right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the home for the use of a spouse or child;

[73] Under s. 24(2), the court can make any of the s. 24(1) orders set out above on an interim basis.

[74] The criteria for making that order are found in s. 24(3), as follows:

Order for exclusive possession: criteria

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

[75] Factors (b) and (d) are irrelevant to the determination of this motion as there are no existing orders or written agreements between the parties. Those two factors will not be further considered in this decision.

[76] In determining the best interests of a child, s. 24(4) requires the court to consider:

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child's views and preferences, if they can reasonably be ascertained.

These two factors are child-centric in that they look at the effect of the order from a child's point of view. However they are not the only best interests factors that a court may consider.

[77] Here, I have already found that it is in the children’s best interests to primarily reside with the mother. It would not be in their best interests to reside with the father in the same home as well. The previous period in which the parties shared the same home, after the father moved back into the home, created great tension in the home, which necessarily adversely affected the children.

[78] The children’s lives have been disrupted by a move to the cottage. They should be allowed to return to their home and their home school. At this point, I do not find that I have credible evidence of the children’s views and preferences. I also note that they are eight and six years old. I ignore E’s video for reasons that I have already described. If some form of independent investigation or assessment takes place, that process would allow the court to consider the children’s views and preferences in making any further decisions.

[79] With regard to the financial position of the parties, neither party is working. The matrimonial home is a rental. The rent and other expenses are paid out of a joint bank account which is refreshed by the mother from funds gifted to her from her father. The father does not appear to contribute to home expenses. Yet since July 2020 he has lived at the home exclusively, with the mother paying the expenses of him doing so. She does so even though she is not living in that home. Counsel have even advised me that Jeremy pays $600 per month in rent directly to the father. I am not advised that he uses those funds to defray home expenses.

[80] From January to July 2020, the father lived in the home of his parents. He vaguely states that he cannot return there because another family, from Cameroon, is residing there. I do not have any clear evidence from him when they moved in and how long they will stay or why he can no longer live there as well.

[81] On the other hand, the matrimonial home is in the district in which the mother originally enrolled E and L in school. That is the home in which they have been growing up. If their parents cannot live together, I have to look to what arrangement is in the children’s best interests.

[82] The mother speaks to the father’s alleged abusiveness, particularly when intoxicated. Domestic violence, for the purposes of s. 24(3)(f) is broadly understood to include verbal abuse, threats, and intimidation and is a relevant factor in the determination of exclusive possession (Menchella v. Menchella, 2012 ONSC 6304 at para. 27). However, the mother’s allegations of abuse are vague and unparticularized. She does not point to any particular harm other than in the context of a highly conflictual and unsettling home situation when the parties were residing together in the matrimonial home. The father’s drinking accentuated that tension. The mother and children should not have to be exposed to that level of alcohol consumption.

[83] In the mix of factors relevant to the determination of an order for exclusive possession, the child's best interests are the paramount consideration (Menchella at para. 33). Yet the court must also consider that an order for exclusive possession can be highly prejudicial to a dispossessed spouse (at para. 29).

[84] Here, I recognize the prejudice to the father of having to move out of the matrimonial home. But I also recognize the prejudice of not allowing the mother and children to return to the home. I must prefer the interests of the children to those of the father.

[85] The father points out that Jeremy resides in the home as well. He is an adult. He can presumably return to live with his mother. In the absence of evidence, I am not certain whether he would be considered a tenant or a licensee in the home. But I suspect that it is the latter. The key issue in that regard may depend on whether he occupies a self-contained unit. I note that he claims to have spent a great deal of time observing the parties’ parenting, which is not necessarily consistent with residing in a self-contained unit.

[86] Inasmuch as I have no evidence that the space that Jeremy occupies is a self- contained unit, I presume that my order for exclusive possession of the matrimonial home will include him. However, he is not a party to this proceeding. If he is residing in a self-contained unit, he has rights under the Residential Tenancies Act, 2006. That will be an issue between him and the mother, who will have the right under that statute to evict him in order to take over the space for her own use. It would make the most sense for the parties to resolve that issue without litigation in order to allow the mother and children to exclusively reside in the home.

Conclusion

[87] In conclusion I order as follows:

1. The mother shall have primary care of the children;

2. The father shall have parenting time with the children one full weekend day, from 10 a.m. – 6 p.m., and one evening for dinner, from 4-7 p.m. If they cannot agree otherwise, the weekend date will be Saturday and the mid-week day shall be Wednesday. The father shall also have additional supervised day-parenting time over the Christmas holiday period of at least two additional days (from 10 a.m. – 6 p.m.) during the holiday period. I leave it to the parties to see whether they can make the appropriate arrangements and/or change the ones set out above if they do not suit both parties’ schedules. If they are unable to do so, their counsel may arrange a time to appear before me one morning at 9:00 a.m., for a determination.

3. The father’s in-person parenting time shall be in the presence of a third party acceptable to both parties, or if they are unable to agree, to the court.

4. I have received no submissions as to the form of virtual access that should take place between the father and the children. However I note that some such access is already taking place. The mother shall not be present in the same room as the children during the virtual access time, other than to assist the children to receive the father’s call at the beginning and to terminate it at the end.

5. If the parties are unable to work out any details of the father’s parenting time other than as set out above, they may arrange a time to appear before me one day at 9:00 a.m. for a determination. In order to do so, counsel (only) may email my judicial secretary at fiona.kelly@ontario.ca. Until then, at a minimum, the form of access that has been allowed by the mother shall continue.

6. Each parent shall refrain from discussing this litigation with the children or derogating the other parent to them.

7. The parties shall discuss what form of clinical investigation will be appropriate, whether through the Office of the Children’s Lawyer or a private s. 30 assessment. That issue shall be discussed upon the return of this matter.

8. The mother shall have exclusive possession of the matrimonial home commencing noon on December 1, 2020.

9. The parties will arrange to appear before me at a case conference in the new year to review the progress of the arrangements set out in this endorsement.

[88] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit her costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: December 4, 2020