Court File and Parties

COURT FILE NO.: 1185/20 DATE: 2021-03-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brandon Pfeiffer, Applicant AND: Erin Elizabeth Dibsdale, Respondent

BEFORE: Heeney J.

COUNSEL: Carey Speirs, for the Applicant James Battin, for the Respondent

HEARD: February 19, 2021 by virtual hearing

Endorsement

[1] This is a motion and cross-motion for interim custody of the child Sora, born May 3, 2013. The applicant seeks sole custody or, in the alternative, a shared parenting arrangement. The respondent seeks sole custody, with the applicant receiving supervised access at the residence of his parents.

[2] By way of background, the parties began living together in December, 2010, and were married on November 22, 2012. The respondent has sole custody of a child from a previous relationship, Mika Lillepool, born September 20, 2009, who is Sora’s half-sister.

[3] The respondent fixes the date of separation at April 2016, which is when the applicant was sentenced to 5 years in penitentiary for multiple charges, including possession of a Schedule I substance for the purpose of trafficking, possession of a firearm contrary to a prohibition order, unauthorized possession of a prohibited or restricted weapon and possession of a Schedule II substance. The police seized six handguns, two shotguns, and eleven long guns in the raid that led to those convictions, plus 22 ounces of cocaine with an estimated street value of $33,000 and large quantities of cash.

[4] The applicant’s criminal record is a significant factor in this case. It dates back to December, 2004, when he was convicted of assault causing bodily harm. An impaired driving conviction in 2007 was followed by drugs and weapons convictions in 2008 at Kitchener, when he was sentenced to a total of 4 years in penitentiary. Those charges included trafficking in cocaine with a street value of $116,000, and possession of a loaded semi-automatic AK-47 assault rifle and ammunition.

[5] In 2012, while she was pregnant with Sora, two men forced their way into their residence and put a gun to the respondent’s head. They proceeded up stairs to where the applicant was sleeping and struck him with a gun, leaving a mark on his head, and tied him up. The men screamed at the applicant to tell them where the cocaine was. Despite this terrifying incident, the applicant continued his involvement with the drug subculture, ignoring the respondent’s pleas that he stop. This led to his arrest in 2015 and conviction in 2016.

[6] The respondent had de facto sole custody of the child while the applicant was serving the penitentiary sentence imposed in April, 2016, and the child has continued to be in her primary care ever since. The applicant’s own parents filed a letter of support for purposes of these proceedings, in which they describe the respondent as a “wonderful mother”. They are of the view that what is best for Sora is that they stay with her mother as her primary caregiver, and that the applicant see the child on a structured visitation arrangement.

[7] The applicant was released to a half-way house in September, 2017, but relapsed in 2019 and began using opiates again, and was recommitted to Stonehenge Rehabilitation House for 3 months. He remains subject to terms of parole at the present time.

[8] The applicant has complained frequently to the CAS about the respondent’s care of the child, but those complaints were investigated and found to be without substance. On November 27, 2020, Sarah Humphrey, who is a worker with Oxford CAS, called the respondent and told her that the applicant had physically threatened her, and made reference to “burying things in cement” when he did not get his way.

[9] Obviously, the records of the CAS will provide important verification one way or the other. An order will go, on consent, that the Children’s Aid Society of Oxford County provide to counsel copies of their records, as requested in the Notice of Motion of the respondent dated February 9, 2021. There will be no costs of that motion.

[10] The respondent had been allowing the applicant to have regular access to the child on most weekends. However, she has withheld access since November 3, 2020. Her reasons for doing so are the applicant’s repeated and frivolous complaints to the CAS, and the negative and derogatory comments that he makes to Sora about the respondent, which have been causing emotional harm to the child. She also has concerns that the applicant has again become active in the drug subculture. Allen Pfeiffer, the applicant’s father, advised her that he has a text message from a male wanting to “hurt” the applicant, supporting the concern that he is still involved in the drug subculture in the Kitchener/Cambridge area. He said the applicant called him a lot of names and threatened him.

[11] A great many affidavits were filed on these motions, which were never synthesized into factums as they should have been. I do not propose to refer to them in detail, because it is plain and obvious what order should be made. On all of the evidence, I am satisfied that the respondent has done an excellent job raising Sora since the separation, and that it would be in the child’s best interests that this status quo of approximately 5 years should continue. Under the old terminology, I am satisfied that the respondent should be awarded interim sole custody of the child. Since amendments to the Divorce Act which come into force today require different terminology, I will endeavour to make an order that is the equivalent of a sole custody order. Accordingly, an interim order will go that the primary parenting time of the child shall be with the respondent, and that she shall have sole decision-making responsibility over the child.

[12] With respect to the applicant’s parenting time (access) with the child, there are clear and obvious risks to providing unfettered access. His criminal record shows a long history of criminal activity and involvement with drugs and guns, which has the potential of creating situations of danger such as the respondent experienced in 2012. He obviously has addiction issues, as illustrated by his relapse. His pattern of criticizing and demeaning the respondent in his comments to the child are harmful to the parent/child relationship between the respondent and Sora, and emotionally and psychologically damaging to the child.

[13] Having said all of that, it is important that his contact with the child should resume as quickly as possible, provided that appropriate safeguards are in place to monitor the applicant’s contact with Sora to ensure that he does not demean the respondent, and to ensure that she is not exposed to the drug subculture. I understand that the applicant’s parents, Allen Pfeiffer and Ann Ball, are prepared to act as access supervisors. Having them act in that capacity will have a double benefit, because they have always had an excellent relationship with Sora, and had regular access visits with her while the applicant was incarcerated. Having the applicant’s access visits occur at their residence will provide them with the opportunity to spend time with Sora, which will be in her best interests.

[14] Accordingly, an interim order will go that the applicant will have parenting time with the child on alternate weekends, from Friday at 6 p.m. to Sunday at 6 p.m., such visitation to occur at the residence of Allen Pfeiffer and Ann Ball and to be supervised by them.

[15] On consent, an order will go that the applicant will pay to the respondent support for the child Sora in the amount of $400 per month, commencing March 1, 2021. This is the table amount of support for one child based on the applicant’s imputed income of $43,500 per year.

[16] I encourage the parties to resolve the issue of costs. If they are unable to do so, the respondent may submit brief written submissions within 15 days, with the applicant’s brief responding submissions to follow within 10 days thereafter, and any reply within 5 days thereafter.

Date: March 1, 2021 Mr. Justice T. A. Heeney