COURT FILE NO.: FS-22-0027-00
DATE: 2022-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
T.T.
T. Matthews, for the Applicant
Applicant
- and -
J.D.B.
N. Rea, for the Respondent
Respondent
HEARD: June 3, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons On Motion
Overview
[1] This motion deals with whether parenting time by the mother[^1] should be supervised or otherwise restricted and whether the matrimonial home shall be sold.
[2] By reasons dated May 20, 2022[^2], I ordered shared parenting time and that the mother’s parenting time be supervised. The order for supervised parenting time arose from the fact that the mother was involved in a serious motor vehicle accident on May 13, 2022, while the children were passengers in a vehicle she was operating. 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. There were other allegations made by the father that the mother had an issue with alcohol. As the mother did not have an opportunity to respond to those allegations when that motion was heard on May 19, 2022, I adjourned the motion to June 3, 2022, to allow the mother to file affidavits in response with respect to the accident and her alcohol use.
[3] On the return of this motion, the father seeks continued supervision as previously ordered, the ordering of a breathalyzer testing plan, and an order for the sale of the property.
[4] The mother has filed her affidavit and affidavits from friends and other family members asserting that she does not have a problem with alcohol. The mother submits that neither supervision nor alcohol testing is required in the circumstances. The mother seeks time to attempt to purchase the matrimonial home before a sale is ordered.
[5] For the reasons that follow, I conclude that the father has not met his onus of establishing that further supervision of parenting time is required or that alcohol monitoring is necessary in the circumstances. Further, I order that the matrimonial home be listed for sale but that the mother shall have 60 days from the date hereof to attempt to purchase the home prior to the house being listed for sale.
The Facts
[6] The father filed an affidavit from a first responder who attended at the accident scene. The first responder, who knows both parents, testified that the mother told her that she had been drinking. According to the first responder, the mother was “intoxicated to the point that she was almost unable to open her eyes and make a regular conversation.” The first responder also noticed a bottle of prescription medication on the floor that she thought that the mother was attempting to conceal the bottle.
[7] The mother filed an affidavit from her describing some of the circumstances of the accident and affidavits from her mother and five other friends.
[8] The mother’s affidavit does not directly address all the observations of the first responder. The mother deposed that she had a “couple” beer between 2:30 and 5:50 PM when the accident occurred. She denied the presence of a pill bottle in the car. Information as to a blood-alcohol level is not yet available.
[9] Attached as an exhibit to the mother’s affidavit was a letter from the Thunder Bay District Children’s Aid Society dated May 27, 2022, that confirms that the Society “has not made a recommendation of supervised parenting” for either of the parents but reminds the mother that there is an expectation that she will obtain from alcohol use while the children are in her care.
[10] Her mother, the grandmother, deposed in an affidavit that she also attended at the scene of the accident and observed her daughter who “did appear to be disoriented but did not appear to be intoxicated”. The grandmother’s affidavit does not address substance abuse by the mother.
[11] One friend deposed in an affidavit that an incident that the father refers to did not involve intoxication by the mother. Other friends depose that they do not know the mother to be a “drinker” and that she “rarely consumed alcohol”. The current “romantic partner” of the mother did not address alcohol consumption by the mother. The sister of the mother said that mother does not have “any issues with alcohol”.
Analysis and Disposition
Supervision of Parenting Time
[12] In Brady v. Fitzpatrick[^3], Faieta J. reviewed the law on supervision of parenting time:
[42] In Stec v. Blair, 2021 OSNC 6212, paras. 22-24, Fowler Byrne J. reviewed the law related to supervised access:
Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.
23 The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)
24 The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.
[13] In Brady, the mother had been arrested twice for impaired driving while impaired. The children were with her both times.
[14] The motor vehicle accident and the allegations of impairment raise serious safety concerns for the children and may indicate significant judgement issues. However, the facts are disputed. The evidence indicates that the mother has a “clean” driving record and no prior convictions. The CAS has not expressed a need for supervised parenting. As noted, the onus of proof lies with the father, and I am not satisfied, on a balance of probabilities, that continued supervision is required. The Brady case is distinguished on the facts. However, as previously ordered, the mother shall abstain absolutely from the consumption of any alcohol or nonprescription drugs during any parenting time and for 24 hour prior to parenting time. Also, the mother shall not operate a motor vehicle with the children as passengers until further order of the court.
[15] For the same reasons, blood alcohol testing is not ordered.
[16] My order made May 20, 2022, shall continue except that paragraph d. shall be deleted.
Partition and Sale
[17] In Dhaliwal v. Dhaliwal[^4], Pazaratz J. summarized the applicable legal principles.
[18] Those principles include that there is a prima facie right to an order for partition or sale and that the onus is on the party who opposes a sale to establish that there is a good legal reason why the court should refuse sale. Generally, there must be malicious, vexatious, or oppressive conduct to avoid the sale.
[19] No such conduct exists in this case. The mother’s financial circumstances are such that it will be difficult for her to find alternative accommodation and she submitted that it may be possible for her to buy out the father’s interest.
[20] Accordingly, a short delay is appropriate in the circumstances.
[21] Failing the purchase of father’s interest by the mother within 60 days from the date of these reasons, the property shall be listed for sale.
Costs
[22] Since success was divided there shall be no order as to costs.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: June 6, 2022
COURT FILE NO.: FS-22-0027-00
DATE: 2022-06-06
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: June 6, 2022
/cjj
[^1]: Nonspecific identifiers will be used to protect the privacy of the parties and their children. [^2]: T.T. v. J.D.B., 2022 ONSC 3068. [^3]: 2022 ONSC 2380. [^4]: 2020 ONSC 3971.