Court File and Parties

Court File No.: F1098/18 Date: March 5, 2021 Superior Court of Justice – Ontario Family Court

Re: Dakota Chrisjohn, applicant And: Kaylee Hillier, respondent

Before: MITROW J.

Counsel: W. Scott Gallagher for the applicant Salim J. Khot for the respondent

Heard: March 3, 2021

Endorsement

Endorsement

1This is the applicant father’s (“the father”) urgent motion seeking the return of the parties’ child, age 3, to the father. The mother has withheld the child, alleging that the father’s substance use poses a risk to the child.

2The respondent mother (“the mother”) alleges that the father had been drinking when he came to pick up the child from the mother’s care on February 19, 2021. The mother deposes that she realizes, now, that she should not have allowed the father to leave with the child; however, she was fearful of a confrontation with the father and, hence, she allowed the father to take the child.

3However, the mother called the police, and deposes having received information from the police later that evening, that police attended at the father’s residence, informing the mother that “it was clear” that the father “was intoxicated.”

4The father deposes that he was not drinking on that occasion, that he was not intoxicated and denies the mother’s suggestion otherwise. The father lives with other persons, including his own mother, who has filed an affidavit that she was at home that day, that the father was not drinking and that he was sober when he left to pick up the child and when he returned.

5The father deposes that the police came to the home, that he spoke with the police at the front door, that he had not been drinking and that “this was obvious.”

6When the child came into the mother’s care the following day, the mother elected not to return the child, thus prompting the father’s emergency motion.

Background and Status Quo

7This case has been in litigation for a number of years. The current order governing the mother’s parenting is the interim order dated February 20, 2020 setting out that the mother shall have unsupervised parenting time every Monday from 4 p.m. to 7 p.m., every Friday from 2 p.m. to 5 p.m., every Thursday from 4 p.m. to 6 p.m. and alternate Saturdays from 9 a.m. to 5 p.m. Over time, the parties had altered some of the above times, on consent.

8The status quo is that the child has remained in the father’s primary care. Although the father’s emergency motion, which he obtained permission to bring, was focussed narrowly on the return of the child, the mother, in her responding material, brings her own motion seeking an interlocutory order that she have primary care of the child, with the father having supervised parenting time.

9During the course of the hearing of the motions, it was discussed, and agreed, that the mother’s motion to vary the existing interim order should be set for a separate date, which was agreed to be April 28, 2021 at noon, with fresh motion material to be filed.

10The purpose of this endorsement, primarily, is to make an interim without prejudice order to deal with parenting time, and impose any necessary restrictions in the child’s best interests, until the mother’s motion is resolved.

11The order below does include some overnight parenting time to the mother. She has complained vociferously that the father has refused to agree to same, despite her requests for same. It is in the child’s best interests to allow some overnight visits at this time. The parenting time also restructures some midweek time to allow the mother to better coordinate her schedule, as she has another child in her care, and she has parenting time with a third child, including on alternate weekends.

Inadmissible Hearsay Evidence

12I do find it necessary to address the unfortunate trend of inadmissible hearsay evidence seeping into evidentiary records on motions. The father, in his submissions, complains about portions of the mother’s material.

13This “trend” was noticed by Vogelsang J. over 30 years ago in Lisanti v. Lisanti, 1990 CarswellOnt 219 (Ontario Provincial Court, Family Division). In that case, during a motion, Vogelsang J. struck an exhibit to the wife’s affidavit that consisted of a lengthy prose statement tendered as part of the wife’s evidence on the motion. The exhibit was not in affidavit form.

14Vogelsang J. states, at paras. 4 and 5:

4 An interesting issue arose, before argument of the motion, concerning the propriety of Ex. D annexed to the wife's affidavit. Mr. Mamo brought an oral motion to strike that portion of the affidavit which, after submissions, I granted. The exhibit is a lengthy prose statement consisting of material headed "History of Abuse""Interaction with Children""Interactions During Visits with Mr. LiSanti" and "Interactions with Staff of Women's Community House". The allegations made in the exhibit are clearly stated to be hearsay. The tone is highly pejorative and prejudicial to the husband. The exhibit is not in affidavit form. No one swears as to the source of information outside his or her personal knowledge and deposes to a belief that the statements are true. Not the subject of an affidavit, no one can cross-examine on the statements, or the source of the information.

5 There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion in an affidavit. The rules, however, require evidence on a motion to be by way of affidavit. The basis of that requirement is obvious. Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition. That is the situation with this exhibit.

15In the present case, the mother appends as an exhibit some text messages from the father’s girlfriend that the mother submits show that the father had been drinking on the occasion in question.

16The mother makes allegations about the father’s alleged history of substance abuse. As evidence of same, the mother attaches, as an exhibit, a copy of an electronic message from the mother of one of the father’s other children, alleging drinking and substance use by the father.

17A difference, between today and the days of Lisanti, is the use of electronic communication as a tool of injecting inadmissible hearsay evidence into an evidentiary record.

18The lesson from Lisanti has withstood the test of time and remains the law today. Litigants should remain vigilant in ensuring that motion material is restricted to admissible evidence. The temptation to append as exhibits to affidavits text messages, or email strings from third parties, who do not swear to their truth, must be avoided.

19The mother’s aforesaid exhibits are inadmissible.

20Equally inadmissible for the truth of the statements is the mother’s evidence in paragraph 15 of her affidavit deposing what the “police” told her and what the “officers” said. That evidence contravenes r. 14(19) of the Family Law Rules, O. Reg. 114/99, in particular cl. (a):

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

21In making the parenting order below, I note the father’s request for a police assistance order. I decline to make such an order at this time.

22There is conflicting evidence regarding the allegations as to the father drinking. Police records, if they are obtained, may shed some light on this issue. For now, the father’s parenting time should be in the presence of his mother (who is the child’s paternal grandmother and who lives in the same home as the father).

Order

Order

23I make the following order:

1. The mother shall have unsupervised parenting time with the child as follows: (a) every Tuesday and Thursday from 2 p.m. to 7 p.m.; (b) alternate weekends from 2 p.m. Friday to 7 p.m. Sunday commencing Friday, March 19, 2021; and (c) alternate Fridays from 2 p.m. to 7 p.m. commencing Friday, March 12, 2021.

2. The father shall have parenting time with the child at all other times, on the condition that he shall exercise all his parenting time in the presence of the child’s paternal grandmother, Tracey Charters, including when he is in a motor vehicle with the child.

3. The father shall provide the mother with reasonable written notice as to any medical appointments for the child, and the mother may attend all such appointments. If the father is not available to take the child for a medical appointment that he has made, then he shall forthwith advise the mother and she will take the child to the medical appointment. Until any further order, the child’s medical appointments shall be made by the father.

4. Unless the parties agree otherwise, the mother shall pick up the child from the father’s residence at the beginning of the mother’s parenting time, and the father shall pick up the child from the mother’s residence at the beginning of his parenting time.

5. Each party is prohibited from consuming alcohol or any non-prescription drugs or substances 24 hours prior to, and during, his or her parenting time with the child.

6. Paragraphs 1 and 2 of the interim parenting order of Mitchell J. dated February 20, 2020 are suspended and replaced by the provisions of this order pending the determination of the motion referred to in paragraph 8.

7. Paragraphs 1 to 6 of this order are made on an interim without prejudice basis pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12.

8. The material for the mother’s motion on April 28, 2021 at noon, for an interim variation of the interim order of Mitchell J. dated February 20, 2020, shall be served and filed as follows: (a) by the mother, by March 22, 2021; (b) responding material by the father, by April 7, 2021; and (c) by the mother, reply, if any, by April 16, 2021.

9. The balance of each party’s motion is dismissed with the costs of those motions being reserved to the judge who deals with the motion referred to in paragraph 8.