COURT FILE NO.: FS-22-0027-00
DATE: 2022-05-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
T.T.
Applicant
T. Matthews, for the Applicant
- and -
J.D.B.
N. Rea, for the Respondent
Respondent
HEARD: May 19, 2022 at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Motion
Overview
[1] What began as a motion by the father[^1] for a temporary order for shared parenting time and other relief has morphed into a motion by the father for primary care of the children with supervised parenting by the mother with strict conditions on the mother’s behaviour while parenting the children.
[2] The impetus for the change in the father’s position is a serious motor vehicle accident which occurred last Friday, May 13, 2022. That afternoon, according to information the father was told by the police, the mother was driving her vehicle on a highway with the children as passengers when she turned left and collided “head-on” with another vehicle. The mother was charged with operating the vehicle while impaired by alcohol and/or drugs, operating the vehicle with an impaired blood alcohol concentration, and dangerous operation of a motor vehicle.
[3] The father attended the accident scene and found the mother and the children in an ambulance. Fortunately, all were unharmed. According to the father, the mother was “extremely intoxicated”. According to the father, both vehicles are likely unrepairable.
[4] Since then, the children have been in the father’s sole care.
The Motions
[5] By notice of motion dated May 2, 2022, the father sought shared parenting time on a “week on, week off” basis, child support payable by each party in the table amount, sale of the jointly owned home, and other orders.
[6] Filed in support of that motion was an affidavit from the father and his father, both sworn May 2, 2022. In response the mother delivered an affidavit sworn May 16, 2022.
[7] After the car accident, the father delivered an amended notice of motion on May 17 seeking the same relief but:
a. a temporary order for primary care of the two children who are aged six and nine;
b. supervised parenting by the mother;
c. that the mother not operate the motor vehicle with the children as passengers;
d. that the mother not consume alcohol or nonprescription drugs while exercising parenting time and in the 24 hours prior;
e. that the mother undergo regular drug and/or alcohol testing;
f. that exchanges occur at the school whenever possible; and
g. that the mother not contact the father more than one time per day.
[8] The father also delivered a further affidavit, dated May 17, 2022, setting out the facts of the accident.
[9] Counsel for the mother did not object to the filing of this new material as it is relevant to the best interests of the children but has not had an opportunity to file any responding material.
[10] The parties agree that only the issue of temporary parenting is to be dealt with at this time.
The Facts
[11] The parties started living together in 2011. They separated in 2021. They have two sons, one born in September 2012 and the other in May 2015.
[12] The father deposes that up until April 2022 he resided with the mother in the jointly owned home. He said that since separation they have cared for the children approximately equally.
[13] On April 20, 2022, the mother removed the children from the jointly owned home and moved in with her mother. The father deposed that the mother has refused to let the father see the children since then apart from a video call. Since bringing the motion, the father has had parenting time from Friday, May 6 until Sunday evening May 8 and on two evenings.
[14] The father’s made allegations about the mother being severely intoxicated and that he is concerned that her alcohol consumption “appears to have increased again recently.”
[15] In her responding affidavit, the mother did not address the allegations of alcohol consumption. She deposed that she has been the primary caregiver, that the children have been injured “numerous times while in the care” of the father, and that she has “not withheld” the children. She claims that the father has been emotionally and verbally abusive to her.
[16] The mother did not respond to the father’s affidavit regarding the motor vehicle accident and the impaired driving charges.
Positions of the Parties
[17] Counsel for the father referred me to the recent case of Brady v. Fitzpatrick[^2]. In that case, the mother was arrested for impaired driving twice. On both occasions her children were passengers. One incident involved a minor single vehicle accident with no injuries to the children. The father withheld the children following the second car accident. The mother acknowledged her problem with alcohol, sought treatment, purchased a breathalyzer for home use and was providing results to the father, and was willing to have her parenting time with the children supervised by her parents.
[18] Given that the mother has not filed any material in response to the impaired driving allegations, the father takes the position that the mother does not acknowledge that she has a problem with her drinking and that supervision by the maternal grandfather is required when the mother has parenting time. He does not dispute the mother having parenting time but only that she abstain from alcohol and drugs before and during parenting time, that she not drive the children, and that the parenting time be supervised.
[19] Counsel for the mother argues that her client has had an opportunity to respond to these allegations and that driving with the children is not an issue since her driving privileges have been suspended automatically for 90 days. Her client agrees not to consume alcohol while she is parenting the children. The mother argues that there is no need for her parenting time to be supervised. She gave no information as to her current living arrangements but did not contradict the father’s evidence that she is living with her parents.
Analysis and Disposition
[20] As the judge said in Brady, “the children’s safety is of paramount concern[^3]”.
[21] I have arranged for this motion to continue before me in two weeks, June 3, 2022, at 1:30 p.m. The mother will have an opportunity before then to provide her affidavit addressing the issues raised by the father. That should include information about the accident and the charges. While I appreciate that disclosure may not be available from the Crown by then her affidavit should include any blood alcohol level readings.
[22] A serious car accident while allegedly impaired in the afternoon is a source of great concern. Not only is this suggestive of a serious problem with intoxicants, but this also suggests significant issues with judgement as it relates to the safety of the children. Consequently, until further evidence is available, the mother’s parenting time shall be supervised.
[23] During any parenting time, the mother shall abstain absolutely from the consumption of any alcohol or drugs and for 24 hours prior to parenting time. Even though her driving privileges have been suspended by operation of law, I further order that she not operate a motor vehicle with the children as passengers. Her parenting time shall be supervised, and she shall advise the father 24 hours in advance of the name and telephone number of the person or persons who will be supervising her continuously during her parenting time. Failure to provide that information to the father 24 hours in advance will cancel the mother’s parenting time. That communication should be in an electronic form, preferably by Our Family Wizard as previously ordered. There is insufficient evidence before me to place restrictions on who may supervise the mother’s parenting time.
[24] There is nothing convincing in the material before me that to suggest that shared parenting, as the father requested initially, is not in the best interests of the children. I note that the intervention of the Office of the Children’s Lawyer has been requested but delayed due to the very late filing by the mother.
[25] Accordingly, I make a temporary order for shared parenting time such that the children shall reside with the applicant and the respondent on a week on, week off, basis.
[26] The shared parenting arrangement will be subject to the following terms:
a. The exchanges shall occur on Tuesday, after school, with the party who has the children in their care to be responsible for transporting the children to school on Tuesday morning and the other party shall pick up the children from school on the Tuesday afternoon. The children will remain with the father until Tuesday, May 24, 2022, and the mother will begin her shared parenting with the children returning to the father’s care on Tuesday, May 31, 2022.
b. During any parenting time, the mother shall abstain absolutely from the consumption of any alcohol or nonprescription drugs and for 24 hours prior to parenting time.
c. The mother shall not operate a motor vehicle with the children as passengers.
d. The mother’s parenting time shall be supervised continuously, and she shall advise the father 24 hours in advance of the name and telephone number of the person or persons who will be supervising her continuously during her parenting time. Failure to provide that information to the father 24 hours in advance will cancel the mother’s parenting time. That communication should be in an electronic form, preferably by Our Family Wizard as previously ordered.
e. The children shall be free to contact the other party by telephone or electronic means.
[27] The father is entitled to his costs of this motion and shall submit his cost submissions, limited to two pages plus costs outline, within seven days. The mother may deliver cost submissions, limited to two pages plus costs outline, three days thereafter.
[28] This motion is adjourned to June 3, 2022, at 1:30 p.m.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: May 20, 2022
COURT FILE NO.: FS-22-0027-00
DATE: 2022-05-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
T.T.
Applicant
- and -
J.D.B.
Respondent
REASONS ON MOTION
Newton J.
Released: May 20, 2022
/lvp
[^1]: Nondescriptive identifiers will be used to protect the privacy of the parties and their children.
[^2]: 2022 ONSC 2380.
[^3]: 2022 ONSC 2380 at para. 39.