Court File and Parties

COURT FILE NO.: FS-16-411766 DATE: 20201216

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lynne Atkinson Applicant – and – Darryl William Tempest Respondent

Counsel: Max B. Rubin, for the Applicant Darryl A. Willer and Felicity Sattan, for the Respondent

HEARD: December 15, 2019

Reasons for Order

M. Kraft, J.

Nature of Motion

[1] The applicant (“mother”) has brought an urgent motion, prior to a case conference, seeking, inter alia, the following relief:

a. an order requiring the respondent (“father”) to use an alcohol monitoring device/breathalyzer test prior to driving with the parties’ daughter, with the results of which to be confirmed by a mutually-agreeable third-party monitoring system;

b. an order requiring the father to arrange for the parties’ daughter to be transported by a mutually agreeable third party;

c. an order prohibiting the father from consuming alcohol when the parties’ daughter is in his care;

d. an order for leave to file an Application within 30 days; and

e. an order for costs.

[2] The urgency of the motion arises from the mother having safety concerns about the father having driven with the child while having been under the influence of alcohol on December 6, 2020. The mother deposes when the parties’ daughter, E.K.T., arrived back at her home on December 6, 2020, nearly 2.5 hours late, E.K.T. was visibly upset and shaken. According to the mother, E.K.T. told her that on the way back to Toronto the father had driven into oncoming traffic; the father had hit the curb; the father’s fiancé had yelled “watch out”; the father was swearing and angry on the drive; and the father had been drinking at dinner when they had stopped to eat at a restaurant on the way home. E.K.T. was in the car with the father, his fiancé and the fiancé’s three children.

[3] In support of the mother’s motion, she filed an affidavit, sworn on December 11, 2020 and a Form 35.1, Affidavit in Support of her Claim for Custody, sworn on December 11, 2020.

[4] The father denies all of the mother’s allegations and opposes the relief sought by her. In response to the mother’s motion, the father filed the following material:

a. His affidavit sworn on December 14, 2020;

b. The affidavit of Daniella Thomson, sworn on December 14, 2020, his fiancé who was in the vehicle with him and E.K.T. on December 6, 2020;

c. The affidavit of Kelly Spiers, sworn on December 124, 2020, the father’s neighbour with whom he spent time on December 6th, 2020 from 8:30 to 10:00 p.m.; and

d. The affidavit of Geoff Steele, sworn on December 14, 2020, the husband of Kelly Spiers, the father’s neighbours, with whom he spent time on December 6th, 2020, from 8:30 to 10:00 p.m.

Background Facts

[5] The parties were married on October 17, 2009. They separated over seven years ago, on April 1, 2013.

[6] The parties have one child namely, E.K.T., born April 21, 2012. She is 8 years old.

[7] The mother resides in Toronto. The father resides in Beamsville, Ontario. There is a one-hour drive between the parties’ homes.

[8] The parties executed a separation agreement on February 13, 2018, which provides that they have joint custody of E.K.T.; that E.K.T. is to reside primarily with the mother and reside with the father on alternate weekends from Friday, at 5:00 p.m. to Sunday at 6:00 p.m., and at such other reasonable times as agreed to by the mother.

[9] On October 1, 2019, the parties executed an Amending Agreement which specifically addressed how the parties were to share E.K.T.’s holiday time and to add a first right of refusal clause to the parenting section of their prior separation agreement.

[10] For this upcoming Christmas school break, E.K.T. is scheduled to reside with the father as follows:

a. From December 24, 2020 at noon to December 25, 2020, at noon; and

b. From December 27, at noon to January 3, 2021, at 6:00 p.m.

[11] The mother deposes that the father has had an issue with alcohol use and dependency during their marriage. The mother is concerned for E.K.T.’s safety if the father is drinking during his parenting time and, particularly, concerned about her safety if the father is driving under the influence of alcohol.

[12] After hearing this story from E.K.T., the mother deposes that she immediately called the local police in the Niagara region (near Beamsville). According to the mother, she was told that Constable Morin (Badge #9678) arrived at the father’s home at 8:15 p.m. but the father was not there. The mother deposes that at 10:00 p.m. on December 6th, 2020, Constable Morin advised her and she believed, that he had spoken with the father and the father informed him that he was not driving and was at home in his hot tub. Finally, the mother deposes that she was advised and believed that when Constable Morin requested that the father meet him on the front driveway of his home, the father failed to attend. No further inquiries were made by the police.

[13] When the mother’s counsel reached out to the father’s counsel about her concerns on December 7th, 2020, counsel for the father denied the mother’s concerns and stated that her client “has been vigilant in having no more than 1 drink at dinner prior to assuming his responsibility for transporting E.K.T. between the parties’ respective residences”.

[14] Given that the next time E.K.T. is scheduled to be with the father is over the Christmas Holidays on December 24, 2020, the mother brought the within motion on an urgent basis to ensure E.K.T.’s safety during the upcoming holiday season.

[15] The father deposes that the mother misled the Court about the events that took place on December 6, 2020. In particular, he deposes as follows:

a. E.K.T. had requested to stay over at the father’s house for an additional evening on December 6, 2020 and the father called the mother to canvass this possibility with her, which request was denied;

b. The father had advised the mother that they were running late and would not be home by 6:00 p.m.;

c. The father, E.K.T., his fiancé and his fiancé’s three children stopped for dinner on the drive taking E.K.T. back to the mother’s home in Beamsville. At dinner, the father had one glass of white wine. He was not intoxicated and was not impaired in any way;

d. One the way to Toronto, E.K.T. fell asleep and while on the highway, a truck had moved into his lane. The father avoided the truck, swerved onto the shoulder and while he and his fiancé were shaken by this, the drive continued to Toronto without issue. E.K.T. was woken by the truck;

e. E.K.T. was dropped off at the mother’s home just after 7:00 p.m;

f. On the way back to Beamsville, the father received a telephone call from someone who identified himself as a police officer. The person did not mention a badge number and the call came from a private number. The father did not believe that the police were attempting to contact him; and

g. Following this phone call, the father’s fiancé called their neighbours who advised her that there was an unknown vehicle parked on the driveway. The neighbours invited the father and his fiancé to their home, where they attended from 8:30 to 10:00 p.m.

[16] The affidavit filed by the father’s fiancé corroborates the father’s version of events namely, that he consumed one glass of wine at dinner and that a truck had swerved into their lane while on the highway.

[17] The two affidavits filed by the father’s neighbours confirm that the father and his fiancé were at their home from 8:30 to 10:00 p.m. and that the father did not seem intoxicated while he was there.

[18] In short, the father denies having any alcohol use or alcohol dependence issues. He acknowledges that he never has more than one glass of wine with a meal. He denies drinking and driving. He deposes that he has no prior record of driving under the influence of alcohol. He deposes that he has never required rehabilitation or alcoholism.

[19] The mother has not produced any corroborating evidence of the father’s past history with alcohol use or dependence as she alleges.

[20] The mother filed a reply affidavit sworn on December 14, 2020. Attached to her affidavit as Exhibit “A” is a letter from her counsel, Max Rubin, dated October 16, 2017, at the time the parties were negotiating the terms of the separation agreement. It is clear from this correspondence, that the mother had concerns about the father’s drinking at that time. In this letter, Mr. Rubin writes, “If your client wishes for this term to be included, please be aware that my client will also withhold access when doing so is in E.K.T.’s best interests (i.e. Mr. Tempest is intoxicated or has plans that may include his becoming intoxicated which has occurred in the past).”

[21] While this letter is proof that the mother had a concern in the fall of 2017 about the father’s intoxication, it does not follow that she has had these concerns for the past three years, when there has not been a single incident raised between this letter and the date of this motion. If the mother had ongoing safety concerns regarding the father transporting E.K.T. while under the influence of alcohol, she surely would have raised these concerns in the separation agreement executed in February 2018, or in October 2019, when the parties negotiated and executed an amending parenting agreement.

[22] The fact is the parties have been separated since 2013. The father has been the parent driving E.K.T. to and from Toronto from Beamsville without incident for years. There are no alcohol concerns raised in either the separation agreement or in the amending agreement negotiated just over a year ago on October 1, 2019.

[23] The mother is not seeking to limit or reduce the time E.K.T. is scheduled to spend with the father. However, she is seeking an order that a mutually agreeable third-party transport E.K.T. between her home and the father’s home. Further, she seeks an order that the father be required to use an alcohol monitoring device through a third-party monitoring system, such as soberlink or accumetrics pending the opportunity for a full case conference.

[24] The father has deposed that despite the fact that he believes the mother’s allegations are false and/or taken out of context based on E.K.T.’s comments, he is agreeable and will undertake not to consume alcohol within 12 hours of any access exchange.

[25] On the record before me, the issue of the father’s alcohol consumption while transporting E.K.T. is a “he said/she said” matter. There is no objective third-party evidence to support the mother’s concerns, such as a bill from the restaurant evidencing the father’s alcohol consumption. On the record before me, there is not sufficient evidence to make a finding that the father has an alcohol addiction issue or alcohol use disorder nor is there sufficient evidence to warrant an order requiring the father to use an alcohol monitoring device before and/or during his parenting time with E.K.T.

[26] The mother asserts that the father ought to be able to undertake not to drink at all when he is scheduled to drive with E.K.T. The mother further asserts that the father ought not to resist submitting to a breathalyzer if he has no issues with alcohol dependence. She maintains that the father’s denials of having an alcohol issue is “symptomatic of the disease from which he suffers”. I do not agree. There is no evidence on the record before me that demonstrates the father has an alcohol addiction, disease, or alcohol use disorder. He has not been diagnosed with such an alcohol issue. He has no alcohol related criminal charges. The mother has been content to allow the father to transport E.K.T. for 7 years since the parties have been separated. The mother wants the father to undertake not to drink when he has to drive E.K.T. to her home and he is agreeable to this.

[27] Given the mother’s concerns about E.K.T.’s safety when driving with the father, the father’s undertaking not to consume alcohol within 12 hours of any access exchange can form part of a court order and allay her concerns that the father may drink and drive.

[28] Accordingly, this court makes the following temporary-temporary “without prejudice” order:

a. The respondent father shall not consume alcohol for 12 hours in advance of any access exchange, pending further agreement of the parties or court order;

b. The applicant shall file an Application by January 15, 2021. Service shall be by email;

c. There shall be a case conference on March 31, 2021 at 2:00 p.m.; and

d. There shall be no costs of today’s motion.

M. Kraft, J.

Released: December 16, 2020