NEWMARKET COURT FILE NO.: FC-20-1394-00
DATE: 20210709
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christopher Vincent Bressi
Applicant
– and –
Julia Francesca Skinulis
Respondents
Joseph Bressi (not present)
Self-represented
S. Strathopolous
S.M. Bookman (not present)
HEARD: July 8, 2021
Ruling on motion
A.J. HIMEL J.:
Relief Sought
[1] The Respondent Mother “Mother” brings a motion that the child primarily reside with her, and for specified parenting time to the Applicant Father “Father”, conditional upon the Father complying with orders respecting his drug and alcohol use and testing.
[2] The Father requests a shared parenting schedule and sole decision-making. He denies issues relating to drug and/or alcohol use. He denies that testing is required.
[3] Both parties’ materials exceed the page limits permitted by the Practice Direction of the Central East Region. The Father revised and re-submitted his materials on July 7, 2021. The Mother filed a Reply on July 7, 2021. I did not review these materials. The McCarthy J. order provided the Father with a deadline of July 6, 2021. It made no reference to the provision of any Reply and the Mother already exceeded the page limits (by filing 12 single space pages which is equal to 24 pages double space). The Father explained that he became self-represented in June 2021.. However, that is not an excuse for non-compliance with Practice Directions, the Family Law Rules or Court orders.
Facts and Analysis
[4] The parties were involved in a common relationship since November 2014, which ended on July 1, 2019. There is a dispute as to whether or not they married in Mexico in 2015.
[5] The Mother states that the Father was self-medicating for years and struggled with alcohol and drug issues for the entirety of the child’s life. The Father denies same but acknowledges that he currently drinks alcohol and has used cocaine in the past.
[6] There is one child of the relationship, AB (born 2018) age 3. At the time of separation, the child was 14 months of age.
[7] During the period of cohabitation both parents were actively involved in caring for the child. The Father worked full-time and the Mother remained at home with the child.
[8] Both parties love the child and have a close relationship with her.
[9] The child primarily resides with the Mother.
[10] The Father has parenting time during the day every Tuesday and every other Friday, Saturday and Sunday. The Mother facilitates the driving to and from the Father’s home.
[11] Immediately following a Case Conference before Bruhn J. on June 21, 2021, where her Honour expressed her views about ongoing alcohol and drug testing for a period of time and a gradated expansion of the Father’s parenting time, the Father withheld the child overnight. He did not implement the use of RAMP testing (alcohol screening).
[12] While the Father states that the overnight access (Tuesday June 22, 2021) was on consent, that is clearly untrue. I accept the Mother’s evidence that it took many emails/ OFW communications (19) and considerable effort for the Father to return the child. The Father’s counsel advised that his retainer terminated at 7:00 p.m. that day (just after the transition time). The Father threatened to continue to withhold the child unless the Mother signed the parenting plan that he had provided that afternoon. The child was only returned on the evening of Wednesday June 23, 2021 after the Mother’s counsel advised that Court intervention would be required.
[13] The Father has foregone his parenting time since June 23, 2021, as he refused to sign an agreement confirming that the existing schedule, (as set out in the Bruhn J. endorsement,) would continue pending a motion.
Decision
[14] Self-help is not tolerated by the Court.
[15] There continue to be unaddressed concerns about the Father’s use of alcohol and drug use.
[16] The Court requires ongoing monitoring of drug and alcohol use, and negative results and/or evidence that the Father is addressing any issues with drugs or alcohol use. The Court has concerns about the child’s safety.
Issues and Analysis
The Law
PARENTING ORDERS UNDER THE CHILDREN’S LAW REFORM AND THE DIVORCE ACT
[17] On March 1, 2021, the parenting provisions contained in the Children’s Law Reform Act, R.S.O 1990 c. 12 (CLRA) came into force and the amended provisions apply to the motion before me. These are the same as those contained in the Divorce Act.
Parenting orders
[18] As stated by Mandhane J. in the recent decision of E.M.B. v. M.F.B., 2021 ONSC 4264 at paras. 54 - 56.
Section 16.1(1) of the Divorce Act allows me to make an order providing for exercise of parenting time or decision-making responsibility by either parent. Parental “decision-making responsibility” is defined in s.2 as the “responsibility for making significant decisions about a child’s well-being, including in respect of: (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities.
“Parenting time” is defined as time that a child spends in the care of either parent, whether the child is physically with that person during that entire time.
“My powers under s.16 are broad and purposive. I can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that I consider appropriate to secure the child’s best interests.” Divorce Act, ss. 16,16.1,16.2
“Circumstances of the child”
[19] The CLRA calls on to courts to engage in a rigorous assessment of the child’s specific situation as part of determining their best interests. Section 24(3) sets out the factors related to the “circumstances of the child”, which include, but are not limited to, the following:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular, with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child;
ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
“Best interests of the child”
[20] E.M.B. v. M.F.B., 2021 ONSC 4264 explains the judge’s role at paras. 62-63:
“When making a parenting order, I must stay laser-focused on the child’s best interests: preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.
According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child.”
Maximal contact
[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”
[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.
The Parenting Time Schedule
[23] Sherr J. reviewed the caselaw respecting parenting time schedules in D.G. v. A-G.-D., 2019 ONCJ 43, and states as follows:
[130] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
[24] The child is very young and vulnerable. She has resided with the Mother for her entirety of her life. The parties separated when the child was a toddler. To date the child has spent an appropriate amount of time with the Father.
[25] The Father’s decision to withhold the child on June 22, 2021 shows a terrible lapse in judgement, potentially put the child at risk (if he was using drugs or alcohol), displays a lack of respect to the Mother and the Court, and will not be tolerated. While I accept the Father’s evidence that the first overnight visit went well, it could have been problematic for the child.
[26] The Mother has proposed a reasonable graduated parenting time schedule over the course of a three month period that will lead to the Father having the child in his care for four out of fourteen overnights during a two-week period. That is a child-focused plan. However, that schedule cannot be implemented unless the Father complies with the Court order respecting testing confirming that he has no drug or alcohol use issue. If the testing is positive, the Father must address these issues and complete the appropriate treatment. Moreover, the Father must comply with the Court order and not withhold the child.
[27] The Mother’s proposed schedule is supported by the AFCC-O Parenting Guide. The Guide provides suggestions for children aged 3 to 5 (at pages 18 to 19). The AFCC-O Parenting Plan Guide (pages 18–19) provides helpful considerations for parents, mediators, lawyers and judges when they are developing parenting time schedules.
Schedules for pre-schoolers, aged 3 to 5 years: Preschoolers can tolerate longer absences from a parent, but a child’s temperament and the pre-separation parenting arrangements must be considered. Transitional objects, such as a favorite toy, stuffed animal or blanket, moving between the two homes can help a preschooler manage sadness and anxiety.
If one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, the child should continue to reside with that parent, with a possible plan of step-up care to increase the involvement and skills of the other parent. This might start with two or three 4-hour blocks of parenting time per week, building up to one longer block (likely on a weekend) that may include an overnight. As a child becomes more comfortable moving between the two homes, one or two overnights a week might be added.
[28] The Mother’s evidence about the Father’s use of drugs and alcohol is concerning. The Father’s evidence that he has never had any issues with drugs or alcohol are not credible for the following reasons:
(a) various bank statements from 2019 to 2020 have an overwhelming number of purchases at LCBO/Wine Rack/ Dial-a-Bottle. The Father refuses to provide the credit card and bank statements from November 2020 onwards;
(b) the Father lost his job in May 2020 at around the same time that he stopped using the breathalyzer machine (that he had purchased);
(c) the Father previously used a breathalyser test for six months, but unilaterally terminated the use of same;
(d) at least one follicle hair test (which was handwritten) omitted many substances and is suspicious;
(e) the second hair follicle test (which was from a reputable service provider – Accu-Metrics) does not measure binge use of alcohol (although I recognize that this is hearsay evidence provided by the president of Accu-Metrics to the Mother). Binge drinking is the Mother’s primary concern. I am troubled by the Father’s delayed provision of the results (as he provided same in May while they were available in March 2021), and his refusal to permit the Mother to obtain a copy directly from Accu-Metrics (notwithstanding that his counsel initially seemed agreeable to same);
(f) the Father’s willingness to continue the alcohol testing but only so long as it paid by the Mother (who is currently not working and has received nominal child support) is not reasonable; and
(g) I have no understanding what the Father’s statement that he has“38 years of negative clinical evaluation by a licenced physician” means. I cannot read that one-page summary from St. Michael’s Hospital and there is no letter or expert report from the doctor explaining same.
[29] I am also troubled by the Father’s refusal to continue to voluntarily engage in drug and alcohol testing, given his prior agreement to do so. Moreover, the Father’s failure to provide the additional requested disclosure (From 2020 onwards in respect of credit card and bank statements), leads me to worry that he may be hiding his current consumption of drugs and/or alcohol.
[30] Concerns about the reliability of the hair follicle testing can be addressed by the provision of a letter from Accu-Metrics (when the results are provided to the parties) that includes the following: (1) The process used by the lab to ensure chain of command; (2) The methodology; (3) a copy of the curriculum vitae of the laboratory technician conducting the tests setting out his/her experience and expertise.
[31] I am mindful that a primary concern described by the Motherrisk Commission is that in various child protection cases, “seemingly damning test results sought to be used to take a child away from a caregiver which in many sad cases proved to have no real reliability at all” (Koenigsberger v. Parsons, 2018 ONCJ 803 supra at para. 30).
[32] However, in this case the purpose is not to take the child away from the Father and, in doing so, terminate his relationship with the child. The Father’s parenting time will continue. As has been the practice (until recently when the Father prohibited same), the Mother will drive the child to and from the Father’s home and spend a few minutes confirming that he appears not to be under the influence of drugs or alcohol.
[33] The provision of the hair follicle testing, along with the provision of disclosure (bank accounts and credit card statements), as well as the RAMP testing (during his parenting time) will enable the Mother and the Court to have better information about the Father’s substance use, and whether there is an issue that must be addressed.
[34] The goal is to increase the Father’s time with the child.
[35] The requested testing (hair follicle and RAMP) are temporary measures that can be addressed at the settlement conference in January 2022. Even if the Father tests positive for drug use or has an issue with alcohol, his parenting time can be increased once he completes an appropriate treatment program and provides random urine screens.
[36] The parenting time schedule must follow the child’s best interests and account for her age and stage of development, routines, safety and other relevant factors.
[37] This is not an appropriate case for an equal/shared parenting time schedule. These arrangements are most likely to be successful where there are two parents who can communicate reasonably well, display low/moderate conflict and have a school-age child. To date there have been no overnights at the Father’s home (except the withholding incident), and there are ongoing concerns respecting his drug and alcohol use. The parties have been separated for about the same amount of time that they were together (from the child’s birth to present).
[38] In respect of significant decision-making the parties seem to agree on most issues. Therefore, the Mother and Father shall jointly consult one another on all significant issues (including medical/health, choice of daycare, public school and religious activities). In the absence of urgency, the Mother shall provide the Father, in writing, details about the decision that needs to be made and her proposed solution. She shall do so at least 14 days before a decision needs to be made. The Mother will provide the Father with seven days to provide his input. The Mother will then consider the Father’s position and advise as to her decision and the reasons for same. In other words, if they disagree the Mother shall have final decision making.
[39] Day to day decisions shall be made by the party having care of the child at any given time.
[40] The parties must put their love for the child ahead of their anger/frustration towards each other. One step in that direction is for the parents to engage once again in mediation. The issues that should be mediated include: (1) The parties’ poor communication and the implementation of communication protocols; and, (2) The identification of areas causing the most conflict and how to address same. As I see the potential benefits of mediation the parties should attend for mediation through York Hills Family Mediation or Mediate393 (virtual mediation).
[41] There shall be a one-time police enforcement clause. If the police are required to locate, apprehend and deliver the child, the Father’s parenting time shall be suspended pending further order of the Court or agreement of the parties.
[42] As the Father will be solely liable for the costs of the testing, and for the payment of child support, and in recognition that he has only recently returned to work, I am deferring the issue of costs. This is notwithstanding my finding that the Mother has been wholly successful on this motion.
TEMPORARY ORDER TO GO:
A summary of the orders are as follows:
The child primarily resides with the Mother.
Temporary (with prejudice orders) in accordance with paragraphs 2 to 7 of the Notice of Motion dated June 28, 2021, subject to the changes below.
The hair follicle testing results, and the documents listed above, shall be provided by Accu-Metrics directly to both parties. These shall be filed with the Court at least 2 days before the next attendance.
Within 7 days the Father shall provide the Mother with the balance of his 2020 and his 2021 bank statements and credit card statements (personal or work). He shall continue to provide these statements until otherwise ordered by the Court or agreed to by the parties.
The Father may not consume any alcohol or non-prescription drugs for 12 hours before his parenting time or during this parenting time.
At the commencement of the Father’s parenting time, the Mother shall attend in his home to ensure that he is sober and not affected by drugs or alcohol. This will end once the RAMP testing is in place.
The Father shall advise the Mother if he needs to cancel any visit in the event that he has consumed alcohol or drugs within 12 hours of the start of his parenting time.
Any failed RAMP test shall result in that parenting time period being cancelled / terminated early.
The timing for the various phases will begin once the Father has provided negative screens as required by the order. If he tests positive for drug use and there has been a period of at least eight weeks of random drug use urine screens along with confirmation that has completed a treatment program, the first phase may be implemented.
The parties may incorporate any consent terms as may be agreed.
Mediation as set out above.
Joint consultation with the Mother having final significant-decision-making where the parties disagree, as set out above.
The parties shall review the High Conflict Tip Sheet and AFCC-O Parenting Guide.
Police enforcement as set out above.
Child support based on an imputed income of $29,400, in the amount of $250 per month. This shall be reviewed prior to the Settlement Conference in January 2022. It shall be varied once the Father’s income increases.
Costs adjourned to the settlement conference or the trial judge.
The Mother’s counsel shall prepare the order and the Father shall approve same as to form and content. If there is a disagreement the Mother’s counsel shall send a brief outline of the issues and a copy of the order to my attention through the judicial assistant (Nurit.suzana@ontario.ca). I will finalize the order.
Justice A. Himel
Date: July 9, 2021