COURT FILE NO.: FS-20-17584
DATE: 20210920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bradley Okonsky
Applicant
– and –
Kieran Engel
Respondent
G. Schwartz, for the Applicant
M. Stangarone and K. MacEachern, for the Respondent
HEARD: September 14. 2021
Papageorgiou J
REASONS FOR DECISION
The Motion
[1] This is a motion for increased and unsupervised parenting time brought by the Applicant (the “Father”) with respect to the child of this relationship, J.B. born July 5, 2018 (the “Child”) requesting the following:
Week 1
Commencing September 17, 2021 alternate weekends from Saturday morning at 9:00 am until Sunday at 5 pm.
Every Tuesday and Thursday from 4:30 pm until 8 pm;
Week 2
Sundays from 9 am until 5 pm;
Every Tuesday and Thursday from 4:30 pm until 8 pm.
[2] The Respondent (the “Mother”) opposes this motion alleging i) that the Father has a long history drug and alcohol addiction problems; ii) the Child is immunocompromised and at a heightened risk of developing serious complications if he contracted COVID-19; iii) the Father poses a danger to the Child; and iv) the Order requested violates the status quo.
[3] For the following reasons I am granting the Father’s motion.
Background
[4] The parties began living together in October 2016. The Child was born in 2018. They separated in October 2019.
[5] After their separation, the Mother would not permit the Father to see the Child unsupervised. He complied with her request, did not bring proceedings and had parenting time in her presence.
[6] In March 2020 COVID-19 became prevalent. The Father agrees that the Child was immune compromised at birth as he was born with herpes— Although he only had to take medication for the first seven months, the Mother was still very concerned about him and would not allow the Father in person visits but did provide facetime parenting time. The Father says he acquiesced to the Mother’s request to appease her.
[7] The beginning of COVID was a very uncertain time; I give the Father credit for consenting to extreme measures requested by the Mother, to his personal significant disadvantage, to ensure the Child’s safety and minimize conflict.
[8] In August 2020, the parties attended a case conference where the Mother agreed that the Father could have supervised parenting time. However, it did not begin until November due to what appear to be logistical issues with the Brayden supervisor, and other reasons which are not relevant.
[9] In January 2021, the parties attended at a settlement conference and the Mother agreed that the Father could have supervised parenting time in the Mother’s home for three hours on Sunday and three hours on Wednesday. The Mother imposed significant restrictions on the Father while in her home as I will discuss below.
[10] In May 2021 the Mother agreed to increase the Father’s parenting time on Sundays to seven hours with additional restrictions.
[11] At present, the Father has ten hours a week of unsupervised parenting time in the Mother’s home.
[12] All previous court orders have been on consent and without prejudice.
The Law
[13] The best interests of the child are paramount and the Children’s Law Reform Act solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”)
[14] The CLRA also states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the interests of the child: CLRA, s. 24(5). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.
[15] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being which is particularly significant in cases of family violence: Pereira at para 13, CLRA, s. 24(2)
[16] Other relevant considerations contained in the CLRA include:
Factors
24(3) Factors related to the circumstances of a child include,
(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(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 co-operate, 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, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[17] As set out by Justice Kraft, in White v. Kozun, 2021 ONSC 41 at para 174, no single criterion is paramount and “the weighing of each criterion will depend on the circumstances of the particular child.”
[18] As set out in Ferreira v Ferreira, 2015 ONSC 3602:
- The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 387. The party who seeks to reduce normal parenting time is required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946.
32 A child's relationship with a non-custodial parent should be interfered with only in demonstrated circumstances of danger to the children's physical or mental well-being: see Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont.Ct. (Gen. Div.)
Alleged Drug and Alcohol Addiction
[19] The evidence offered by the Mother in support of the Father’s alleged drug and alcohol addiction problem is as follows: i) The Father admits that he has slept in his car a few times--He says this is because of inclement weather when he must commute to and from London for work; ii) He asked to sleep on her couch and threatened to sleep in the hallway outside her apartment once. She has seen him sleep in a tent beside a construction site he was working at. She does not say when any of this occurred. He denies it; iii) He attended Alcoholics Anonymous meetings. He says he did this because she would not allow him to see the Child if he did not; iv) After the Child’s birth she saw him return home late, drunk and smelling of alcohol. During questioning he admitted that he came home intoxicated four or five times during their relationship; v) She saw him at a bar once after the Child’s birth while on a cell phone with him. He lied about where he was and advised that he was at work; vi) On October 22, 2019 he went missing for 24 hours. She called the police and. He was intoxicated when he arrived home. He denies this; vii) At her request, he agreed to attend therapy at the Centre for Addiction and Mental Health (CAMH). The Father says she gave him an ultimatum or he would never be able to see the Child; iix) He has driven while intoxicated. She does not say when or how she knows this and he denies it; ix) On one occasion she saw him sleeping on the front lawn. She does not say when and he denies this; xi) he has lost his keys and wallet on occasion.
[20] In my view the evidence proffered by the Mother is historical and vague. While she references substance abuse, she does not even say what the substance is. She does not indicate the times when she has seen the Father intoxicated nor the frequency. She also does not say that she has recently, or even in the last year, seen him intoxicated.
[21] The Father denies he has an alcohol or substance abuse problem and says that he has agreed to all of the restrictions imposed by the Mother to placate her in the hopes that she will become more reasonable. He is currently working as a teacher and also does some landscaping work on the side. There is no evidence of any problems with his employment. There has never been any involvement of Children’s Aid Services or the police.
[22] Initially, because of the Mother’s allegations, the Father underwent weekly drug and alcohol testing which was negative. The Mother has provided her personal opinion that there were problems with this testing and that it was not valid but provides no support for that. She is not an expert.
[23] When the drug and alcohol testing was negative, the Mother required the Father to have a hair follicle test which was also negative.
[24] Since January 2021, the Mother has required the Father to have a drug and alcohol test on her own machine every time he had parenting time—twice a week. He has passed every test.
[25] As well, since January 2021, the Mother finally agreed to allow the Father unsupervised parenting time in her home but she insisted that he be videotaped at all times and that she have access to this video. There were no videos presented to this court demonstrating any problematic behavior or anything resembling inebriation.
[26] As well, the Mother has proffered certain evidence that actually supports that the Father does not have a problem with alcohol. She swore that upon reviewing his bank statements from 2020 she saw that he spent $1,414.13 at the Beer Store and LCBO in 2020. The Father says that some of this he purchased as gifts for others or when he was invited to other people’s homes. Even if he spent the entire amount on himself, this is the equivalent of approximately $3.80 per day.
[27] She also saw $1,764.40 spent at bars and pubs. The bars and pubs serve food so I am inferring that the total amount of $1,764.40 was not spent on alcohol alone. This is indeed what the Father says. Even if the entire amount was spent on alcohol, it would be approximately $4.80 per day.
[28] It is possible that he was making cash purchases, but there is no evidence which supports this.
[29] In my view, the bank statements support that he was not purchasing any significant amounts of alcohol in 2020.
[30] I am not persuaded by evidence that the Father has a current alcohol and drug addiction problem that prevents him from having unsupervised parenting time. He is prepared to continue taking the Mother’s drug and alcohol test when he picks up the Child and even when he drops him off.
[31] It is not enough for the Mother to make bare allegations supported by a handful of historical examples.
The Father has acted contrary to the Child’s safety and is a danger
[32] The Mother also says that the Father has placed her and the Child in danger. These are the examples: i) In May 2021, the Child was ill and he did not dose the Child’s medication properly causing him to be drowsy. The Father explains that in fact the Mother crushed the medication into smaller pieces and he followed her instructions. ii) The Father was walking around the home with the Child on his shoulders once and the Child hit his head on a bulkhead by mistake; iii) On one occasion the Father allowed the Child to walk while eating and he choked and had to spit the food on the floor. The Father denies this and says that all that happened is that the Child did not want any more food and spit it out while walking in the kitchen. The Mother was present at the time and expressed no issues at the time. iv) the Father left a kitchen knife on the counter’s edge once which was close enough for the Child to reach. It fell on the floor and the Father picked it up; v) The Father fell asleep once on the couch with the Child while watching television. The Father denies that he was asleep; vi) The Father was playing wall ball with the Child on one occasion and the ball hit the Child and he fell; vii) He has missed a handful of Facetime parenting time. The Father explained that he works as a supply teacher in London and missed his time due to driving home from London and traffic; vii) He left the oven on once iix) During his videotaped parenting time on one occasion his mask slipped off and he put it back on.
[33] The Mother has video footage of all the Father’s parenting time since January 2021 that she has obviously been pouring over and that is all she could find. And she chose not to share any footage with this court. Accordingly, where the Father says the video does not support what the Mother says, I prefer his evidence.
[34] Even if I take her examples at face value and do not accept the Father’s explanations, I do not find her evidence compelling. Indeed, the examples cited by her demonstrate more about her than they do about the Father. She is over-protective and over-reacting. She admits that she has suffered from anxiety since childhood and takes medication for it since elementary school.
[35] All one needs do to see that is review some of the consent orders which contained some of the measures that she thinks are necessary or must be spelled out in a court order.
[36] For example, Justice Faieta’s consent order dated January 7, 2021 prohibited the Father from using the oven during his parenting time; he was only allowed to use the toaster. This was apparently because he left the oven one time.
[37] The subsequent May 21, 2021 consent order contained details as to where the Father was allowed to eat. For the first 3 Sundays of his parenting time, he was permitted to only eat or drink inside his car prior to walks to the park and before the Mother left the house. After the first 3 Sundays, he was graduated to being permitted to eat and drink on the Mother’s porch while the Child was asleep for his nap. I cannot understand at all the reasons for this.
[38] As well, he was required to bring a baby monitor with video with him if he went on the porch while the Child was asleep and he was required to remain within a ½ km radius of the Mother’s home for some reason. And if he went out for a walk with the Child, she required him to send her a video of him locking the front door of the residence.
[39] The record of the Father’s behavior does not justify this level of micromanaging. While it is obviously important for parents to lock doors, sanitize their hands and ensure that they can hear a sleeping child, there is no reason to believe that the Father would not do these things without a court order.
[40] As well, it is impossible for any parent to be perfect. The examples of the Father’s “dangerous” behavior cited by the Mother in paragraph 32 above do not indicate a careless and dangerous Father; even if true, they are unfortunate instances that sometimes happen to the best of parents.
The Child’s Health
[41] The Mother also says the Child is immunocompromised and as such must remain in her home under the strict protocols which she has established because of COVID.
[42] The Child was born premature, with the Herpes simplex virus, and had to take medication for the first six months. He has not been required to take any medication since for this condition. The Mother has provided no medical evidence that he ever was, or continues to be immunocompromised because of this condition and that the precautions she insists on are necessary.
[43] Given that she says she regularly liaises with his doctors, she could have provided evidence as to his immunity status and necessary precautions if physicians have actually instructed her to take them. She did not even provide hearsay evidence that any physician has advised her as such.
[44] In light of everything the Father has done to appease the Mother with respect to his parenting time just so he can see his Child, I am not persuaded that he would not take all the necessary precautions. He is a teacher, is vaccinated, follows COVID guidelines and during the height of COVID did not socialize with anyone outside his bubble. Recently he has had outdoor visits with minimal friends as permitted by government regulations.
[45] As well, it appears that her concerns about COVID are selective. She admits that she has permitted her sister to spend time with the Child although not vaccinated.
Accommodation
[46] The Mother also complains that because the Father currently lives with his brother in a two-bedroom apartment, he does not have an appropriate accommodation for the Child. His brother also has a Child who has parenting time with his son Tuesdays and Thursdays and alternating weekends. When his brother’s son visits, the Father sleeps on the couch while the nephew takes the bedroom. The Father says that they will arrange his parenting time so that the Child is not there at the same time as the Father’s nephew and then the Child will have the bedroom.
[47] The Mother argues that the Father has admitted that the Father’s accommodations are insufficient because when the Father was questioned, he said that his parenting plan is to move out and find his own two-bedroom apartment for the Child to attend. The fact that he intends to ultimately get his own two-bedroom apartment does not mean that his current situation is unacceptable for a single overnight visit during a two-week period.
[48] The suggestion that a parent’s accommodation is insufficient because they live with someone else essentially privileges the wealthy. I doubt that a three year old cares much about their bedroom. But they will be significantly affected if they do not have sufficient time and opportunity to bond with a parent.
Disparaging the Mother
[49] The Mother also states that the Father has disparaged her in front of the Child on a Facebook call, and she is afraid that he will disparage her if he has more parenting time. The Father admitted when questioned that he did on one occasion, but also gave evidence that he thinks the Mother is an excellent mother, that he realizes he should not have disparaged her and that he will not. Again, the Mother has video footage of the Father since January 2021 and there is no evidence that he has been using his parenting time to disparage her.
Status Quo
[50] While the Mother argued strenuously that the status quo must be preserved, and that that means leaving things as they are, the fact is that they have been modifying and increasing the Father’s parenting time continually. This ongoing gradual increase is the status quo. Indeed, even Justice Faieta’s consent order specifically directed that there should be a review of the parenting time therein at the March 1, 2021 settlement conference. The proposal by the Father is the next step in a gradual, sensitive and child-focused manner: Barnes v. Parks, 2001 CanLII 24146 (ON CA), 2001 CarswellOnt 486 (C.A.) at paras 10, 13; Serafini v. Serafini, 2015 CarswellOnt 7804 at para 39.
[51] I do not find the case Chin Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824 relevant as it involved a motion to change a final order obtained through Minutes of Settlement—not without prejudice consent interim orders with review provisions. Indeed, many cases cited on this issue were not applicable and distinguishable. For example, Saunders v. Ormsbee-Posthumus, 2020 ONSC 2300; involved a non-custodial parent seeking shared custody where the non-custodial parent already had overnight visits. In Cormier v. Cormier, 2010 ONSC 870, there was medical evidence that the child was resistant to change and the other parent demonstrated an inability to put the interests of the child first. These are not the facts here
The Best Interests of the Child
[52] The Father says he is deeply bonded to the Child and that they enjoy their time together. If there was any proof that this was not the case, the Mother would have it on video. I find that he has an appropriate plan for the care of the Child in the context of being a parent with one night of access every 14 days. He is clearly willing to comply with any Order; he has complied with Consent Orders which are quite extreme, just to be able to see the Child and appease the Mother.
[53] There was a great deal of argument about the Mother having been the primary caregiver in the past. Even if that was the case, it is not a reason to prevent the kind of parenting time which he is requesting.
[54] Regarding the Child’s age, he is three. In Barnes v. Barnes, 2001 CanLII 24146 (ON CA), [2001] O.J. No. 643 (C.A.) at para 10, the Court referenced the critical importance of bonding, attachment and stability in a young child’s life. The current, unnatural way the parenting time has been set up is not conducive to the child’s bonding and attachment with the Father.
[55] The Mother testified that she has a special bond; it is in the Child’s best interests that this be the case with the Father too.
[56] Further, the Father’s request involves only one overnight: In Holomey v. Hillis (Holomey), 2020 ONSC 6299 Justice Monaghan reviewed caselaw which considers overnights for young children which makes it clear that overnight visits are in the best interests of children even at a young age.
[57] As set out in paragraph 19 of his decision:
The Saskatchewan Court of Queen’s Bench in Lygouriatis v. Gohm, 2006 CarswellOnt 448 takes a similar view, rejecting the idea that, in that case a three-month-old child, was not “ready” to spend overnight visits away from her primary residence. Wilson J. cites Joan Kelly and Michael Lamb’s work in “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” published originally in the Family and Conciliation Courts Review, where the authors write:
Such unnecessarily restrictive and prescriptive guidelines were not based on child development research and, thus, reflected an outdated view of parent-child relationships. Furthermore, such recommendations did not take into account the quality of the father-child or mother-child relationship, the nature of both parents’ involvement, or the child’s need to maintain and strengthen relationships with both parents after separation. Research and experience with infant day care, early preschool, and other stable caretaking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized. Indeed, a child also thrives socially, emotionally, and cognitively if the caretaking arrangements are predictable and if parents are both sensitive to the child’s physical and developmental needs and emotionally available.
The evening and overnight periods (like extended days with nap times) with non-residential parents are especially important psychologically not only for infants but for toddlers and young children as well. Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hour visits cannot provide. These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments.
[58] In my view, the current parenting time is not in the Child’s best interest. The arrangement whereby the Father must attend at the Mother’s home and be videotaped throughout his parenting time, under extreme restrictions and control is unnatural, likely to interfere with his bonding with his Child and most importantly causing conflict between the parents which is not in the Child’s best interests.
[59] The Mother has been and wants to continue restricting the Father from normal parenting time. Courts at both trial and at interim motions have confirmed that the onus is on the party seeking to restrict normal parenting, or who seeks unequal parenting, to satisfy the Court that such restrictions are necessary: Fraser v. Fraser, 2016 ONSC 4720 at para 50; Arbitman v. Lee (Arbitman), 2021 ONSC 315 at para 30. She had not satisfied that onus.
[60] The Mother has not satisfied me that the restrictions she has been insisting on are necessary or in the Child’s best interests. Rather, it is in the Child’s best interests to increase the Father’s parenting time in accordance with the Father’s request.
[61] In order to address the Mother’s anxiety over this, the Father has agreed that for the time being he will continue to take the Mother’s drug and alcohol test when he picks up the Child and when he drops the Child off.
[62] Therefore, I order as follows pursuant to s. 28(1) of the CLRA:
i. The Mother shall immediately provide the Father with the name and contact information for the Child’s physician.
ii. Within one week of this Order, the Father shall arrange for an appointment with the Child’s current treating physician to review any precautions which the treating physician advises are necessary. If there are any precautions he does not wish to follow, then he shall write to the Mother and advise her of the physician’s recommended precaution and why he does not wish to follow it. If the Mother is concerned, she may make bring an urgent motion on the issue of whether or not the physician’s recommendation which the Father does not wish to follow should be followed.
iii. If the Father does not have the contact details for the Child’s physician, the Mother shall immediately provide such detail to the Father and in any event in no less than 3 days.
iv. Immediately after the Father has met with the Child’s physician, the Father’s parenting time shall begin and shall be as follows:
Week 1
Every Tuesday and Thursday from 4:30 pm until 8 pm;
Saturday morning at 9:00 am until Sunday at 5 pm.
Week 2
Sundays from 9 am until 5 pm;
Every Tuesday and Thursday from 4:30 pm until 8 pm.
v. The Father’s parenting time shall take place at his apartment located at 172 Sunnyside Avenue, Toronto, M6R 2P6 and he shall do all pick-ups and drop offs.
vi. The Father shall not consume any drugs or alcohol within 24 hours of his parenting time or during his parenting time.
vii. The Father shall complete a breathalyzer test provided by the Mother when he picks up the Child and when he drops the Child off.
viii. The Father shall forfeit his access visit on any days when his blood alcohol reading is in excess of .05-50 mg of alcohol in 100 mg of blood or where he is under the influence of cannabis.
ix. If the Father forfeits any parenting time as a result of using alcohol or cannabis, the Mother may bring an urgent motion to address parenting.
[63] If the parties cannot agree on costs, they may make submissions no longer than 5 pages as follows;
i. The Father within 5 days; and
ii. The Mother within 5 days thereafter.
[64] I am seized of this matter and will hear any urgent motions related to it.
Papageorgiou J.
Released: September 14, 2021
COURT FILE NO.: FS-20-17584
DATE: 20210920
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bradley Okonsky
Applicant
– and –
Kieran Engel
Respondent
REASONS FOR JUDGMENT
Papageorgiou J.
Released: September 20, 2021