COURT FILE NO.: FC-17-1480
DATE: 2020/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G. S.
Applicant (Responding Party)
– and –
S. B.
Respondent (Moving Party)
Self-Represented
Mary Cybulski, for the Respondent (Moving Party)
HEARD: December 9, 2020 (videoconference)
REASONS FOR DECISION
PARFETT J.
[1] The Respondent requests a temporary order varying the temporary consent order issued on May 23, 2018 permitting her to have increased, unsupervised access to the child of this relationship. In addition, she seeks a restraining order and counselling for the child.
[2] The parties agree there should be a request made to the Office of the Children’s Lawyer (OCL) to conduct a new investigation into this matter. The only issue is timing. The Respondent would like the investigation to start after she has overnight access with the child. The Applicant would like the investigation to start immediately. For reasons that are set out below, there will be an order requesting the intervention of the OCL to investigate this matter. The investigation is not to start before April 1, 2021. The parties will prepare and send the necessary forms to the OCL no later than January 15, 2021.
[3] The parties also agree that these proceedings should be initialized and an order to that effect will issue.
Evidence
[4] The parties met ten years ago and had an on again/off again relationship for several years. In 2013, the Respondent discovered she was pregnant and gave birth to the couple’s child, J. They lived together for a short time and never married.
[5] The Applicant owns and manages a nightclub in Ottawa. The Respondent is a yard supervisor at a school. She manages approximately 60 children when they are outside for recess.
[6] From J.’s birth until mid-2015, the Respondent was J.’s primary caregiver. In mid-2015, the Respondent began working at the Ottawa Hospital and the Applicant took on a greater caregiving role. Ultimately, the parties agreed to a 50/50 shared parenting schedule. The Applicant stated that in 2016-2017, the Respondent’s substance abuse started to negatively impact on her ability or desire to parent J. J. began spending more and more time with him until he was spending more than half his time with his father and the remainder of his time with his maternal grandparents.
[7] The Respondent disputes the Applicant’s characterization of her behaviour in 2016-17, but acknowledges she has a substance abuse problem that was spiralling out of control at that time. By 2018, the Respondent was consuming alcohol and drugs to the point her health had deteriorated. She attended rehabilitation in the summer of 2018 but continued consuming drugs and alcohol.
[8] In May 2018, as a consequence of her substance abuse, the Respondent consented to the Applicant having sole custody and to supervised access. The location and duration of the supervised access has changed over time. In early 2020, the Respondent was exercising her access at the Applicant’s residence. After the Respondent’s relapse in June 2020, access has been supervised at an access center.
[9] Since May 2019, the Respondent has been attending counselling sessions at the Amethyst Women’s Addiction Centre.[^1] This center has a day treatment program for women with substance abuse problems. Her counsellor noted that, ‘I have been impressed with [the Respondent’s] reported positive life changes that appear to be a result of her dedication, openness and level of insight.’[^2]
[10] The Respondent had been diagnosed previously as having Border Personality Disorder. She obtained treatment for that issue starting in July 2019. According to the psychologist’s report, the Respondent was cooperative, engaged in the therapy and demonstrated good insight.[^3] The sessions were suspended in March 2020 due to Covid-19 and have not yet resumed.
[11] In December 2019, she obtained the assistance of an addictions sponsor to help her with her addictions and in January 2020, she entered a detox program. In February 2020, the Respondent went to the Homewood Health Centre in Guelph, Ontario and completed a six-week residential treatment program.
[12] In March 2020, Covid-19 became an issue. The Respondent began to home school J. at the Applicant’s home. According to the Respondent, things went well for a while and then deteriorated. She stated that the Applicant was verbally aggressive and insistent that they resume a relationship. She indicated she was experiencing significant stress.
[13] In addition, the Respondent was experiencing severe abdominal pain and in June, she had a relapse. She went to hospital and was there for a week after being diagnosed with endometriosis. The Applicant’s perception of these events is that the Respondent lost interest in home schooling J. after a few weeks, started drinking again and was not attending at his home or seeing J. He suggested that the Respondent went to the hospital because she was consuming alcohol and was aggressive with staff and her father, Mr. C.B., while at the hospital.
[14] The Respondent’s step-mother, Mrs. M.B., filed a reply affidavit in response to the Applicant. She indicated that while the Respondent did have a relapse in June, she was admitted to hospital as a result of severe abdominal pain. Mrs. M.B. stated that she took the Respondent to hospital not Mr. C.B. and that the Respondent was not drunk or aggressive with her or with staff.[^4]
[15] Starting in July 2020, she has been undergoing random drug screens and she has consistently tested negative.[^5]
[16] While the Respondent was in hospital, the staff contacted the Children’s Aid Society. According to the Respondent, they were concerned about the Applicant’s behaviour towards her. The Children’s Aid Society recommended supervised access at a supervised access center.[^6]
[17] Between July 2020 and September 2020, the Respondent did not have any access visits with J. According to the Respondent, this was because there were delays setting up the supervised access at the center, some of which were caused by the center; some of which were caused by the Applicant. The Applicant indicated the lack of access was the Respondent’s choice and that she refused his offers of access.
[18] The Applicant has some significant health issues. He is diabetic and has high blood pressure and is considered at high risk of complications from Covid. The Applicant indicated that he needs to be cautious about his contacts in order to reduce any risk of contracting the virus. The Respondent pointed out in her evidence that the Applicant has not been consistent in his behaviour. She noted that he had attended large family gatherings in Montreal in the summer and has had friends over at his house.
[19] Both parties agree that the other is a good parent and that their son loves them both. The Applicant states that J. is an active and social child. He has good relationships with his extended family and the maternal grandparents have been very much a part of J.’s life.
[20] J. is presently attending school in person and the Applicant indicated that in his view, this decision was good for J.
[21] Both parties accused the other of either being inconsistent about the access schedule or deliberately sabotaging the other’s efforts to facilitate access.
[22] The parties both testified to a long history of a dysfunctional relationship. Each blames the other for the dysfunctional nature of the relationship. Both parties filed extensive text message exchanges. Some of the Applicant’s texts are aggressive in tone. Certainly, the quantity of text messages sent by the Applicant is excessive.[^7] In addition, the original OCL report noted that the Applicant has trouble controlling his temper and can become threatening.[^8] Based on those messages, the Respondent is asking for a restraining order. There is already an order in place limiting contact between the parties, but it has not been consistently followed.
[23] Both parties agree the Office of the Children’s Lawyer should be involved. The Applicant would like the investigation to start immediately. The Respondent would like to delay the start of the investigation until she has started having overnight access with J. She believes that her relationship with her son needs to stabilize before the OCL investigates. According to the schedule of increased access proposed by the Respondent that would be in January 2021.
[24] Furthermore, the Respondent would like the court to order counselling for the child. The Applicant does not agree that it is necessary. However, the CAS recommended counselling after verifying that J. was at risk as a result of exposure to adult conflict. The program suggested by the Respondent is one where the child can speak to an adult without any risk that what is said could be used in court.
Analysis
[25] Section 29 of the Children’s Law Reform Act[^9] (CLRA) indicates that,
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[26] Section 24(2) of the CLRA sets out factors to be assessed in determining the best interests of the child. The relevant factors are as follows,
• The love, affection and emotional ties between the child and, each person including a parent or grandparent entitled to or claiming custody of or access to the child;
• The plan proposed by each person applying for … access to the child for the child’s care and upbringing;
• The ability of each person applying for …access to the child to act as a parent;
• Any familial relationship between the child and each person who is a party to the application.
[27] The Applicant asserts that the Respondent’s past behaviour, in particular an incident where he alleges she threatened to have someone kill him, is relevant to the present assessment of her ability to parent J.
[28] Accordingly, sections 24(3) and (4) are relevant. They state,
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
[29] As noted in Tipping v. McNutt, a parent’s past conduct has little relevance to the best interests evaluation, which should focus on the parent’s current ability to meet the needs of her child.[^10]
[30] The principle of maximum contact is specifically articulated in the Divorce Act,[^11] but it has been held to apply to access disputes under the CLRA. As noted earlier, s. 24(2) of that Act requires the court to consider familial relationships and the emotional ties between a parent and child.[^12]
[31] The appropriate procedure to follow where a party is asking to vary an existing order is to determine, first, if there has been a material change in circumstances. The last order is presumed to be correct. Second, if there has been a material change in circumstances, then there must be an inquiry into the best interests of the child. Both parents bear the onus of demonstrating where the child’s best interests lie.[^13]
[32] In Abrego v. Moniz, the court noted that generally, the status quo should be maintained pending trial. However, where there has been a material change in circumstances and the best interests of the child require a change, the court should do so.[^14]
[33] In the present case, there has been a material change in circumstances. In May 2018 when the present order was signed, the Respondent was abusing alcohol and drugs. However, the Respondent has now committed to an alcohol and drug-free lifestyle and, but for a single relapse, she has been sober for a year.
[34] The primary issue in this case is the assessment of the best interests of the child.
[35] The Applicant argues that the Respondent has not demonstrated any commitment to their child. He asserts that she has previously chosen drugs and alcohol over their child and most recently, refused access until the supervised access center was able to accommodate them. He doubts her commitment to her present lifestyle. He has expressed concerns with her supports, even though he previously found them to be suitable supervisors. In addition, until recently the maternal grandparents – who are two of the Respondent’s three main family support persons – were seeing J. very regularly. The Applicant is fearful that if the Respondent starts abusing drugs and alcohol again that both he and their son are at risk.
[36] The Applicant spent considerable time in his submissions on an incident in 2018 where it is alleged the Respondent threatened to have the Applicant killed. The Respondent acknowledges she made such a threat but points out that this threat was made at the low point in her life and that she never had any intention to, nor did she, ever do anything to carry out her threat. The matter was not investigated by the police and the Respondent was never charged with any criminal offence as a result of the threat. In my view, the Applicant’s suggestion that this incident is evidence of the considerable risk to himself and the child that the Respondent represents is untenable.
[37] The Respondent does not deny her past nor does she minimize it. However, she points to the efforts she has made towards sobriety, the support system she has in place and the lengths to which she is prepared to go, such as random drug and alcohol testing, as proof of her commitment to her child.
[38] I share some of the concerns expressed by the Applicant. The Respondent’s sobriety is both new and fragile as demonstrated by her relapse in June. There is some evidence that the members of her support system do not always abide by public health recommendations.[^15]
[39] However, there is also evidence that the Applicant went to Montreal and attended large family gatherings. This despite the fact he has significant health issues that make exposure to Covid particularly risky.
[40] Much of the evidence that the Applicant pointed to justify the restrictions on the Respondent’s access is several years old. The evidence from both parties indicated that J. loves both his parents and enjoys time spent with them. The CAS did not recommend supervised access for an indefinite period.[^16] Moreover, the access reports from the supervision center are all positive and indicate that J. loves spending time with his mother.[^17] The reports note that the Respondent has activities and snacks planned. She engages with J. and is good at redirecting him if he says or does something inappropriate.
[41] The Respondent has established a considerable network of support persons including family members, who uniformly laud her commitment to her son and her parenting skills.[^18]
[42] The Respondent’s efforts to recover from alcohol and drug abuse have hit bumps along the way. That is normal.
[43] In my view, it is time to increase access to J. and to remove the need for supervision. The risks that I have noted can be managed with conditions. The increase in access should be gradual. I agree with the Respondent’s counsel that a consistent parenting schedule is needed in this case.
Conclusion
[44] Consequently, I will order a variation in the present parenting schedule as follows:
• Starting immediately, every second Saturday starting December 19 from 10am to 7:30pm and every Wednesday after school (or 3:30pm if school is not in session) until 7:30pm. One of the three support persons set out below should facilitate drop off and pick up;
• Christmas access will be at the Respondent’s home (or at the maternal grandparent’s home) from Christmas Day at noon until 7:30pm and New Year’s Eve at the maternal grandparent’s home in Carleton Place from 10am to 7:30pm.
• Starting in February 2021, the Wednesday access will be after school (or 3:30pm if school is not in session) until drop off at school the next morning (or 9am if school is not in session).
• Starting in March 2021, the weekend access will be every second weekend from Saturday at 10am to Sunday at 6pm.
[45] Exchanges will occur at the school or at the home of the Applicant, if school is not in session or it is a weekend. One of the Respondent’s support persons should be present for the exchanges.
[46] The Respondent can designate one of the following people to assist her with transporting the child from and to parenting time: C.B., M.B. or M.M.
[47] C.B., M.B., and M.M. are designated as persons who can assist the Respondent in caring for J. They can be present in her home or at events where the Respondent is also with J. These persons will wear a mask if they are inside or in an enclosed space, such as a car, with the child until such time as masks are no longer recommended by public health authorities in Ontario or pursuant to a court order.
[48] The Applicant will facilitate telephone access between the Respondent and the child every Monday and Thursday at 7pm. He will allow the call to take place in J.’s bedroom, in private and he will not interfere with or interrupt the call.
[49] The Applicant will unblock the Respondent from J.’s phone such that she and J. can send text messages and voice memos.
[50] If the Respondent or her three support persons as noted above travel outside the National Capital Region, the person or persons who travelled will not have contact with J. for 7 days following their return to this area. This provision will remain in place until public health authorities in Ontario declare there is no longer any significant risk of contracting Covid-19 or the parties consent or there is a court order.
[51] The Respondent is not to consume alcohol or non-prescription drugs in the 12 hours preceding her parenting time with J. and not during her parenting time.
[52] The Respondent will continue with the random drug and alcohol testing and will provide the Applicant with the results of the tests on a monthly basis. If any test should return positive, the parenting schedule as set out in this order will be suspended until the Respondent can demonstrate she has had two consecutive negative drug and alcohol tests that are taken a minimum of a week apart. While the order is suspended, the Respondent can continue to see the child twice a week (Wednesday and Saturday) at her home from 3:30pm to 7:30pm, supervised by one of her three support persons.
[53] In addition to this new parenting plan, there will also be the following orders:
• An order that the Applicant is restrained from contacting the Respondent except via Our Family Wizard and to facilitate the telephone calls with J. For further clarity, the Applicant is prohibited from texting, emailing or otherwise contacting the Respondent. In addition, he is not to attend within 100m of her place of residence, employment or any other place she may be, except for court ordered schedule exchanges, and school events provided that the Applicant does not approach or attempt to interact with the Respondent;
• An order for the appointment for the OCL to conduct a new investigation into this matter. This investigation can start after April 1, 2021;
• An order that neither party can remove the child from the jurisdiction without the written authorization of the other party, consent not to be unreasonably withheld. The party travelling with the child must provide the other party with proof of return tickets, itinerary and contact information.
[54] The Respondent has asked the court to order counselling for J. I do not believe there is any compelling evidence at this time that counselling would be beneficial to J. at this time.
Costs
[55] The parties should attempt to resolve the issue of costs for themselves. If they are unable to do so, they may file written submissions on the issue within 30 days of the issuance of this decision. The written submissions are to be no more than two pages in length with attachments. There will be a right of reply within 15 days of receipt of the submissions.
The Honourable Madam Justice Julianne Parfett
Released: December 17, 2020
COURT FILE NO.: FC-17-1480
DATE: 2020/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
G. S.
Applicant (Responding Party)
– and –
S. B.
Respondent (Moving Party)
REASONS FOR decision
Parfett J.
Released: December 17, 2020
[^1]: Exhibit #CC of Respondent’s affidavit of October 19, 2020.
[^2]: At p. 1, para. 5 of Exhibit #CC
[^3]: Exhibit #BB of Respondent’s affidavit of October 19, 2020.
[^4]: Exhibit #F to Respondent’s reply affidavit.
[^5]: Exhibit #W to Respondent’s affidavit of October 19, 2020.
[^6]: Exhibit #D to Respondent’s affidavit of October 19, 2020
[^7]: Exhibit #C to Respondent’s affidavit. There are over 70 texts sent between July 6, 2020 and September 13, 2020.
[^8]: Exhibit #L to Respondent’s affidavit of October 19, 2020
[^9]: R.S.O. 1990, c. C.12, as amended.
[^10]: [2009] ONCJ 475.
[^11]: R.S.C. 1985, c.3 (2nd Supp.) at s.16(10).
[^12]: Lemon v. Lemon, 2018 ONCA 684 at paras. 34-35.
[^13]: Bubis v. Jones, 2000 22571 (ON SC), [2000] O.J. No. 1310 (Ont. SCJ)
[^14]: 2006 ONCJ 500.
[^15]: Exhibit #C of the Applicant’s affidavit
[^16]: Exhibit #U of Respondent’s affidavit of October 19, 2020
[^17]: Exhibit #A of Respondent’s reply affidavit.
[^18]: See affidavits from C.B., M.B., and M.M.