COURT FILE NO.: FS-17-420942

DATE: 20220617

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JORDAN DUPUIS

Applicant

• and -

SUSHMA KANHAI-DUPUIS

Respondent

Poroshad Mahdi, Counsel for the Applicant

Roslyn Tsao and Danielle Dekeyser, Counsel for the Respondent

HEARD: April 4, 5, 6, 7, 8 and May 16, 2022

Davies J.

reasons for judgment

A. Overview

[1] Jordan Dupuis and Sushma Kanhai-Dupuis have three young children. S just turned 10, Su is seven years old and E is five. This trial is about what is in their best interests: how much time they should spend with each parent, which parent should make important decisions about them and who should pay child support for them.

[2] Ms. Kanhai-Dupuis is seeking equal parenting time with the children and joint decision making. Mr. Dupuis is seeking sole decision-making responsibility. In terms of parenting time, Mr. Dupuis argues that Ms. Kanhai-Dupuis’ parenting time should be increased but the increase should be gradual over several months. He also argues that Ms. Kanhai-Dupuis should only have overnight parenting time on the weekends and only if she moves into an apartment with two separate bedrooms for the children.

[3] The dispute between the parties arises from the fact that Ms. Kanhai-Dupuis has an alcohol addiction. Her use of alcohol became very problematic before she and Mr. Dupuis separated in the fall of 2017. On more than one occasion, Ms. Kanhai-Dupuis put the children in danger or was unable to properly care for them because she was drinking. The most dramatic incident occurred on July 17, 2017, when Ms. Kanhai had a car accident with two of their children in the car. She had been drinking before the accident.

[4] Over the last five years, Ms. Kanhai-Dupuis has participated in several alcohol treatment programs with varying degrees of success. She maintained her sobriety for most of 2018 and into 2019. But at some point in 2019 she relapsed. At first, Ms. Kanhai-Dupuis was not candid with Mr. Dupuis (or the Court) about her relapse. Ms. Kanhai-Dupuis eventually admitted she was drinking again and from November 2020 to April 2021 she attended a residential treatment program in Ottawa. Since completing that program more than a year ago, Ms. Kanhai-Dupuis has been sober.

[5] There is no dispute that when Ms. Kanhai-Dupuis is sober, she is a loving and careful mother to their three children. However, Mr. Dupuis is scared that Ms. Kanhai-Dupuis will relapse and put their children in danger again. He argues that Ms. Kanhai-Dupuis’ alcohol addiction makes her unsuitable for joint decision-making responsibility. He also argues that to manage the risk posed by Ms. Kanhai-Dupuis if she does drink, her parenting time should be limited, and she should be required to submit to alcohol testing before and during any parenting time.

[6] The question for me is what parenting arrangement is in the children’s best interests considering Ms. Kanhai-Dupuis’ alcohol addiction, the risks her addiction creates and the steps she has taken to manage it. For the reasons that follow, I find that it is in the best interests of the children for Mr. Dupuis and Ms. Kanhai-Dupuis to have joint decision-making responsibility for major decisions about the children. I also find that it is in the best interests of the children for Mr. Dupuis and Ms. Kanhai-Dupuis to have equal parenting time. Because Ms. Kanhai-Dupuis has had very limited parenting time for the last 18 months, it is also in the best interests of the children for there to be a transition period where Ms. Kanhai-Dupuis’ parenting time is increased incrementally.

B. Legal Framework

[7] When making any parenting decision, the only consideration is the best interests of the children, not the interests or wishes of the parents: Divorce Act, s. 16(1). I must decide what arrangements will ensure the physical, emotional and psychological well-being of the three children: Divorce Act, s. 16(2). The children should have as much time with each parent as is in their best interests: Divorce Act, s. 16(6).

[8] Parliament has articulated several factors to consider when deciding what is in the best interests of the children: Divorce Act, s. 16(3). The factors most relevant here are as follows:

• the needs of the children;

• the history of care of the children both during the marriage and since separation;

• the willingness and ability of Mr. Dupuis and Ms. Kanhai-Dupuis to care for and meet the needs of the children, including any plans they have for the care of the children;

• the nature and strength of the children’s relationships with Mr. Dupuis and Ms. Kanhai-Dupuis;

• Mr. Dupuis’ and Ms. Kanhai-Dupuis’ willingness and ability to foster the children’s relationship with the other parent;

• Mr. Dupuis’ and Ms. Kanhai-Dupuis’ willingness and ability to communicate and cooperate with one another on matters affecting the children; and

• the views of the children.

[9] Several of these factors are relevant to both parenting time and decision making. To avoid repetition, I will address each factor in turn and will then address what parenting time plan is in the best interests of the children and who should have decision-making responsibility for the children.

C. Needs of the children

[10] S, Su and E are healthy and doing well at school. They have friends and are involved in extra-curricular activities including gymnastics, badminton, rock climbing and swimming. None of the children have any special physical or psychological needs.

[11] To thrive, the children need a home environment (or environments) free from any risk to their physical or psychological safety. The need for physical or psychological safety is particularly acute here because of Ms. Kanhai-Dupuis’ history with alcohol addiction. She has put the children at risk in the past. For example, she admitted she left the children home alone when she was intoxicated. And she has driven with the children when she has been drinking, which creates an obvious risk of serious harm. Given these admissions, whatever parenting arrangements is put in place must minimize the risks associated with Ms. Kanhai-Dupuis’ alcohol addiction.

[12] The children also need a home environment (or environments) free from conflict. Despite her young age, S is very aware of the conflict between her parents. She spoke to a CAS worker in May 2018. At that time, S said she remembered a lot of fighting between her parents when they were living together. S also said that her father sometimes speaks negatively about her mother and she felt like she had to “stand up” for her mother. S was interviewed again in July 2019 for a Voice of the Child Report. S reported that her parents got divorced because her mother was sick and her dad did not want to take care of her. S said it is difficult to talk about the divorce with her father because he is still “a little bit hurt” and gets frustrated. S said that her mother told her that her father sent her mean messages. And her father told her that she was being brainwashed by her mother. S said that in the past she felt like she had to defend her mother or her father. None of the children should have been exposed to the conflict between their parents. Any parenting plan for the future must ensure the children are not exposed to ongoing conflict or tension between Mr. Dupuis and Ms. Kanhai-Dupuis.

[13] Finally, the children need a stable, predictable environment in which to thrive. Mr. Dupuis has been a source of stability for the children over the last five years. The children have lived primarily with him for most of that time. He has provided for them admirably. For the past five years, Ms. Kanhai-Dupuis’ parenting time has been less predictable. She has missed some parenting time with the children because she has been drinking. She had no parenting time during the six months she was in Ottawa attending a residential treatment program. Going forward, the parenting plan should be one that Ms. Kanhai-Dupuis will likely be able to sustain without disruption.

[14] Of course, it is also in the children’s best interests to have a strong, loving and supportive relationship with both of their parents, if possible.

D. History of care of the children and the ability of the parents to meet the children’s needs

[15] Mr. Dupuis and Ms. Kanhai-Dupuis disagree fundamentally about how to characterize their role as parents. They both say that they have been the primary caregiver for the children.

[16] Mr. Dupuis and Ms. Kanhai-Dupuis were both working full-time when they got married in June 2011. S was born in May 2012. Ms. Kanhai-Dupuis worked throughout her pregnancy. She took a one-year maternity leave after S was born. Ms. Kanhai-Dupuis returned to work after her maternity leave and worked until Su was born in September 2014. Ms. Kanhai-Dupuis took another one-year maternity leave to care for Su. Ms. Kanhai-Dupuis returned to work again in September 2015, a year after Su was born, and worked until E was born in November 2016. Ms. Kanhai-Dupuis was off work on maternity leave or sick leave until 2019.

[17] Mr. Dupuis took a short period off work after each child was born and then returned to work on a full-time basis.

[18] July 17, 2017 was a life-changing day for this family. That day, Ms. Kanhai-Dupuis got into a car accident. S and E were in the car at the time. Ms. Kanhai-Dupuis was going to pick up Su from daycare. Ms. Kanhai-Dupuis was intoxicated at the time of the accident. Luckily, the children were not physically injured.

[19] Ms. Kanhai-Dupuis was admitted to Mt. Sinai Hospital on July 18, 2017 for psychiatric care. Mr. Dupuis told the doctors at Mt. Sinai about the accident. The doctors at Mt. Sinai Hospital reported the drinking and driving incident to the Children’s Aid Society, which triggered a CAS investigation and several years of CAS involvement with the family.

[20] In August 2017, Ms. Kanhai-Dupuis enrolled in a 28-day rehabilitation program but did not complete it. She was discharged because they believed she had been drinking. Ms. Kanhai-Dupuis re-enrolled in the same program in September but was again discharged after only 14 days.

[21] By November 2017, Ms. Kanhai-Dupuis and Mr. Dupuis were separated. The children have lived primarily with Mr. Dupuis since July 2017.

[22] When assessing the history of childcare in this case, it is important to distinguish between what happened before July 17, 2017 and what has happened since.

a. Pre-July 17, 2017 childcare history

[23] According to Ms. Kanhai-Dupuis, she was the primary caregiver for all three children until July 2017. She stayed home and cared for the children when they were infants while Mr. Dupuis was at work. She testified that she was also responsible for most of the cooking and household chores. Ms. Kanhai-Dupuis testified that Mr. Dupuis was an active and engaged father but worked long hours.

[24] Mr. Dupuis does not agree that Ms. Kanhai-Dupuis was the primary caregiver for the children before their separation. The parties filed detailed affidavits as their evidence-in-chief at trial. In his affidavit, Mr. Dupuis states that Ms. Kanhai-Dupuis was “far too intoxicated far too frequently to be a primary caregiver. On the occasions Sushma was sober, we shared parenting responsibilities very equally.”

[25] Whether Ms. Kanhai-Dupuis was able to properly care for the children before July 17, 2017 is one of the main facts in dispute in this case.

[26] I heard conflicting evidence about Ms. Kanhai-Dupuis’ ability to care for the children in the months and years before separation. On the one hand, I heard evidence from Ms. Kanhai-Dupuis’ sister, Sonja Kent, that when Ms. Kanhai-Dupuis is sober, “she is the best mom ever.” Ms. Kent described her sister as a loving, kind, firm and present parent when she is sober. Ms. Kent described how Ms. Kanhai-Dupuis established good routines for the children. I accept her evidence on this point. While Ms. Kent was very supportive of Ms. Kanhai-Dupuis during and immediately after the separation, they now have a very strained relationship and have not spoken since March 2020. In fact, Ms. Kent now has more contact and a closer relationship with Mr. Dupuis than Ms. Kanhai-Dupuis. She was called as a witness by Mr. Dupuis. I find that Ms. Kent was an unbiased witness and I find her evidence about Ms. Kanhai-Dupuis’ early parenting both credible and reliable.

[27] On the other hand, I heard about several occasions when Ms. Kanhai-Dupuis’ drinking interfered with her ability to care for the children before the July 17, 2017 incident.

[28] By way of example only, I heard from one of their neighbours who testified about seeing Ms. Kanhai-Dupuis intoxicated during the day several times. The neighbour also described one evening in January 2016, before E was born. Mr. Dupuis was out of town. The neighbour found S and Su outside after dark without coats, hats or mittens. Ms. Kanhai-Dupuis was not with them. The neighbour took the children into her house and her partner went over to Ms. Kanhai-Dupuis’ house. Ms. Kanhai-Dupuis was incoherent and emotional and appeared to be extremely intoxicated. The neighbour described another incident after E was born when Ms. Kanhai-Dupuis appeared disheveled and was slurring her words at a neighbourhood party. Ms. Kanhai-Dupuis did not dispute the neighbour’s description of these two events.

[29] At trial, Ms. Kanhai-Dupuis admitted that her use of alcohol became problematic after Su was born. She testified she was feeling despondent and anxious. She used alcohol to ease her stress. She testified that her alcohol consumption got worse and worse over time. Ms. Kanhai-Dupuis testified that when she found out she was pregnant with E, she was worried that she would not be able to stop drinking during her pregnancy. That concern motivated her to seek help from a psychiatrist. She was diagnosed with postpartum depression. She did not tell Mr. Dupuis she was seeing a psychiatrist or about her diagnosis at the time. She testified that she did not want Mr. Dupuis to think that she could not handle things at home and with the children.

[30] Ms. Kanhai-Dupuis testified she stopped drinking during her pregnancy with E. She started drinking again a few months after he was born and things deteriorated quickly after that. Ms. Kanhai-Dupuis testified that in 2016 and 2017 she was in denial about her addiction and was unable to ask for help.

[31] Ms. Kanhai-Dupuis admitted that she put the children in danger because of her alcohol use. For example, Ms. Kanhai-Dupuis admitted that on one occasion before E was born, she left S and Su at home alone to go out and buy alcohol. Ms. Kanhai-Dupuis admitted that on a different occasion she left E home alone when she drove to pick up Su at daycare. Ms. Kanhai-Dupuis admitted that she was probably under the influence of alcohol that day. Mr. Dupuis’ mother, Ann Dupuis, was visiting them from New Zealand when this happened. Ms. Dupuis learned that Ms. Kanhai-Dupuis left E home alone but did not tell her son about it at the time.

[32] In deciding what is in the best interest of the children, I cannot consider past conduct unless the conduct is relevant to the issues of parenting time and decision-making responsibilities: Divorce Act, s. 16(5). The mere fact that a parent has an alcohol addiction is not necessarily relevant to the issue of parenting. What is relevant is that Ms. Kanhai-Dupuis’ drinking significantly interfered with her ability to care for the children and, at times, she put them in danger. That is the sort of past conduct that is relevant to whether it is in the children’s best interests for Ms. Kanhai-Dupuis to have significant parenting time, including overnight parenting time, and whether it is in their best interests for her to have decision making responsibility.

[33] I find that prior to their separation, Ms. Kanhai-Dupuis was the primary caregiver for their children. I find that she was mostly able to meet the children’s needs and provide a structured environment for them. At times, however, she was not able to properly care for them because of her alcohol addiction and depression.

[34] I do not accept Mr. Dupuis’ evidence that Ms. Kanhai-Dupuis was “far too intoxicated far too often” to be considered the primary caregiver. I do accept Mr. Dupuis’ evidence that he was worried about how much Ms. Kanhai-Dupuis was drinking before the accident. I accept that the amount Ms. Kanhai-Dupuis was drinking was a source of significant discussion and conflict between them for several years. I accept Mr. Dupuis’ evidence that before July 2017, he did not know Ms. Kanhai-Dupuis had been diagnosed with postpartum depression and did not fully understand the extent of Ms. Kanhai-Dupuis’ addiction. I also accept that by July 2017, Mr. Dupuis was reaching his breaking point but did not know what to do about Ms. Kanhai-Dupuis’ drinking.

[35] However, his evidence that Ms. Kanhai-Dupuis was drinking so much and so often that she was not caring for the children is not believable. Mr. Dupuis testified that prior to July 17, 2017, alcohol was ruling Ms. Kanhai-Dupuis’ life. He testified that alcohol affected every decision she made. He denied that Ms. Kanhai-Dupuis made good decisions when she was not drinking. He also testified that while the children did not suffer any physical injuries before July 17, 2017, he did not think she was a capable mother. He also testified that he did not think Ms. Kanhai-Dupuis devoted all her attention to the children. This evidence was directly contradicted by other statements he made about Ms. Kanhai-Dupuis in 2017 and is also inconsistent with how he, and others, acted before the accident.

[36] Mr. Dupuis was confronted with a note of a conversation he had with a CAS worker on July 20, 2017 – just three days after the accident – which reads, in part, as follows:

Apart from Monday [July 17, 2017], he had not suspected her drinking during the day.

He feels that besides reaching for alcohol, she otherwise makes good decisions. She is capable, very sound and very stable.

Jordan never saw any signs that the children were being neglected or abused. She puts 100% attention towards the children but struggles with coping of the stress of 3 children.

[37] Mr. Dupuis was asked to explain the inconsistencies between his testimony at trial and his comments to the CAS three days after the accident. He testified he does not remember the details of his conversation with the CAS worker. He also testified he does not remember the conversation as it was recorded in the note. Nonetheless, Mr. Dupuis testified that July 17, 2017 was the culmination of years of trauma associated with living with someone with alcohol addiction. He testified that when he spoke to the CAS, he knew his family was dysfunctional and he knew Ms. Kanhai-Dupuis was drinking frequently but did not know the full extent of her addiction. Mr. Dupuis testified he was extremely stressed when he spoke to the CAS. He was terrified his family would be split apart.

[38] Mr. Dupuis also explained that his current views about past events must be understood in the context of what he now knows about how much Ms. Kanhai-Dupuis was drinking before the July 2017 accident. Mr. Dupuis now looks at events through a different lens than he did at the time they were happening.

[39] I find that the July 20, 2017 note accurately reflects what Mr. Dupuis told the CAS worker and how he was feeling about Ms. Kanhai-Dupuis and her parenting abilities at that time. The comments attributed to him in the CAS notes is also consistent with Mr. Dupuis’ conduct prior to July 2017. While I accept that Mr. Dupuis was concerned about Ms. Kanhai-Dupuis’ drinking, he had not done anything to change the parenting arrangements. In fact, Mr. Dupuis testified that he immediately took action to protect his children as soon as he knew the situation at home was untenable and his children were in danger. He agreed that he came to the realization that his children were in danger on July 17, 2017. Before July 17, 2017 incident, his concern about the day-to-day safety of the children had not reached a level that he thought he needed to take time off work to care for them or find someone else to care for E during the day while he was at work.

[40] I find that before the July 2017 accident, Mr. Dupuis thought Ms. Kanhai-Dupuis was “capable, very sound and very able” as he told the CAS worker. I also accept that Mr. Dupuis no longer believes that to be true. Both Ms. Kanhai-Dupuis and Mr. Dupuis were in denial about the full scope of Ms. Kanhai-Dupuis’ addiction. Both have learned a lot about addiction since then.

[41] I find that Mr. Dupuis’ evidence at trial that Ms. Kanhai-Dupuis was too drunk too often to care for the children is, perhaps understandably and unavoidably, tainted by what has happened since then and what he has learned about Ms. Kanhai-Dupuis’ addiction. To be clear, I do not think Mr. Dupuis was deliberately exaggerating or trying to mislead the court. Nonetheless, both parties have, to some extent, re-interpreted past events and re-written the narrative of their relationship based on what has happened since, which makes it difficult to get a clear picture of precisely how much Ms. Kanhai-Dupuis’ drinking was impacting her ability to parent and how often she put the children at risk before July 17, 2017.

[42] I do not need to determine precisely how often Ms. Kanhai-Dupuis’ drinking impacted her ability to care for her children. I accept that Ms. Kanhai-Dupuis’ drinking had a negative impact on her parenting abilities and she put her children at risk on several occasions when she was drinking. Ms. Kanhai-Dupuis has taken steps to address her addiction. Nonetheless, the risk Ms. Kanhai-Dupuis poses to her children if she drinks must be managed in any parenting plan to protect the children’s best interests.

[43] At the same time, I am satisfied that the history of childcare prior to July 17, 2017 shows that when Ms. Kanhai-Dupuis is not drinking, she is able to properly care for the three children. I accept that when she was not drinking, she made good decisions about her children and provided them with a safe, stable, loving environment.

[44] I find that Mr. Dupuis was also very involved in caring for the children before July 2017. He took some time off when each child was born. After he returned to work, he continued to be an active, involved and loving parent. By way of example only, after E was born, Mr. Dupuis would get S and Su ready for school and daycare every morning while Ms. Kanhai-Dupuis took care of E. He took S and Su to school and daycare every day. Twice a week, he left work early to pick them up from school as well. He was involved in the bath and bedtime routine every night as well.

b. Post-July 17, 2017 childcare history

[45] Immediately after the July 17, 2017 accident, the children went to stay with Ms. Kanhai-Dupuis’ sister, Ms. Kent, for a few weeks. After they returned, Mr. Dupuis assumed primary responsibility for the children. He has provided the children with a stable, loving, supportive home since then. There is no doubt that Mr. Dupuis can meet the children’s needs. He has been caring for them since the separation and the children are thriving.

[46] Between July 2017 and March 2020, Mr. Dupuis’ mother, Ann Dupuis, spent close to half her time in Canada helping Mr. Dupuis with the children. Ms. Dupuis testified Mr. Dupuis has turned into a superb parent since the separation. She testified that she has seen a huge development in Mr. Dupuis’ parenting. She testified that in his care, the children are incredibly well loved, well fed and intellectually stimulated.

[47] The parent of one of Su’s friends also testified at trial. Ms. Dickerson testified that Mr. Dupuis is a great dad. She testified that he interacts with his children in an emotionally mature way. She said Mr. Dupuis creates fun activities for the children within appropriate limits. She marvelled at how Mr. Dupuis can manage the children’s enthusiasm without stifling it.

[48] The first few months after the July 17, 2017 accident were quite chaotic. Ms. Kanhai-Dupuis enrolled in two residential treatment programs but did not complete them. In between, she was staying at the family home and things between her and Mr. Dupuis were quite volatile. Mr. Dupuis and Ms. Kanhai-Dupuis described several distressing events that took place during that time. For example, Mr. Dupuis accused Ms. Kanhai-Dupuis of dropping E on his head. Ms. Kanhai-Dupuis testified E slipped out of her arms during an argument with Mr. Dupuis. She admitted she was either drunk or hung over during that incident. Fortunately, Mr. Dupuis caught E and he was not injured. Ms. Kanhai-Dupuis described how upset she was when Mr. Dupuis went on a family vacation to Cuba on July 29, 2017 with her family while she was in a residential treatment facility for the first time. I also heard conflicting reports about a physical altercation between Mr. Dupuis and Ms. Kanhai-Dupuis in a washroom over a telephone. I heard conflicting evidence about one time when Ms. Kanhai-Dupuis came back to the house to collect some of her belongings.

[49] I do not need to make factual findings about most of the allegations. I accept that things were very volatile and conflict-ridden between Ms. Kanhai-Dupuis and Mr. Dupuis in the months immediately after the July 17, 2017 accident. They were confronting the reality of Ms. Kanhai-Dupuis’ addiction for the first time, and Ms. Kanhai-Dupuis was still drinking. They were also facing a CAS investigation triggered by the accident. They were each dealing with the breakdown of their family and all the fears and anxiety that come with that. I am satisfied that the conflict and violence I heard about was very short-lived and will not recur now that Mr. Dupuis and Ms. Kanhai-Dupuis are not living together and Ms. Kanhai-Dupuis has made significant progress in her addiction management.

[50] There is, however, one incident that I feel needs to be addressed directly. Mr. Dupuis’ mother testified that she saw Ms. Kanhai-Dupuis fondling E’s genitals while dressing him after a bath. The timing of this incident is not entirely clear but it happened after the accident in July and before Ms. Kanhai-Dupuis moved out of the home. Ms. Dupuis testified that she confronted Ms. Kanhai-Dupuis about it in the moment. Ms. Dupuis testified that Ms. Kanhai-Dupuis appeared to be “out of it” and did not appear to know what she was doing. Ms. Kanhai-Dupuis adamantly denied this ever happened. I am not satisfied on a balance of probabilities this incident occurred as Ms. Dupuis described. Ms. Dupuis did not tell Mr. Dupuis about this incident when it happened. It appears she did not tell Mr. Dupuis about it for several weeks or months. Ms. Dupuis explained that she did not tell Mr. Dupuis because she trusted that it was an aberration, and that Ms. Kanhai-Dupuis would not do it again. Even after Mr. Dupuis learned about this incident, he never reported it to the CAS. He simply raised it in court documents in the context of the family litigation. I find that if Ms. Dupuis and Mr. Dupuis felt that Ms. Kanhai-Dupuis fondled E in an inappropriate way, Mr. Dupuis would have raised it as a safety concern with the CAS.

[51] I do not think Ms. Dupuis deliberately fabricated the allegation against Ms. Kanhai-Dupuis. I accept that she honestly believes she saw Ms. Kanhai-Dupuis fondling E. However, this incident is alleged to have happened during a very chaotic, stressful time for this family. On Ms. Dupuis’ evidence, Ms. Kanhai-Dupuis had just bathed E. She laid him on the bed to put on a diaper and dress him for bed. In those circumstances, there is significant room for events to be misinterpreted, particularly given the tension and mistrust between the parties at the time. I am not satisfied that Ms. Dupuis’ description of the incident is reliable.

[52] Ms. Kanhai-Dupuis moved to a shelter in Hamilton in October 2017. Since then, Ms. Kanhai-Dupuis’ parenting time has been inconsistent. Sometimes her parenting time has been supervised. Sometimes it has been unsupervised. Sometimes she has had overnight parenting time and at other times she has only had limited parenting time during the day.

[53] Throughout the fall of 2017, Ms. Kanhai-Dupuis had supervised parenting time that was monitored by the CAS. In January 2018, Ms. Kanhai-Dupuis started having overnight parenting time every other weekend as well as evening parenting time during the week. For about a year after separation, Ms. Kanhai-Dupuis submitted alcohol test results as a condition of exercising her parenting time. In the fall of 2018, Mr. Dupuis and Ms. Kanhai-Dupuis agreed that the alcohol testing would be discontinued.

[54] Ms. Kanhai-Dupuis had a relapse in 2019 and started drinking again. In mid-September 2019, she agreed to resume alcohol testing as a condition of her parenting time. Within a couple of weeks, Ms. Kanhai-Dupuis submitted positive alcohol tests. On at least two occasions – October 10, 2019 and October 28, 2019 – Ms. Kanhai-Dupuis submitted positive alcohol tests shortly before or after she would have driven with the children to or from school, which suggests she again drove with the children while under the influence of alcohol.

[55] Ms. Kanhai-Dupuis was not candid about her relapse in the fall of 2019. She denied she was drinking again. She took the position that the alcohol test was malfunctioning and the positive test results were false positives. Ms. Kanhai-Dupuis’ counsel accused Mr. Dupuis of being “hypervigilant.” Ms. Kanhai-Dupuis accused Mr. Dupuis of policing her.

[56] Mr. Dupuis believes Ms. Kanhai-Dupuis relapsed much earlier in 2019. For example, he describes an incident in late January 2019 which led him to believe Ms. Kanhai-Dupuis was drinking again. The children’s daycare closed early because of snow. Mr. Dupuis and Ms. Kanhai-Dupuis spoke several times to arrange who would pick up the children. Mr. Dupuis testified that Ms. Kanhai-Dupuis was slurring her words and unable to understand simple concepts. He formed the opinion that Ms. Kanhai-Dupuis was intoxicated. Ms. Kanhai-Dupuis denied drinking that day. Ms. Kanhai-Dupuis’ sister testified that Mr. Dupuis called her that day and expressed concern that Ms. Kanhai-Dupuis had been drinking. Ms. Kent spoke to Ms. Kanhai-Dupuis and did not detect any signs that Ms. Kanhai-Dupuis was drunk.

[57] Mr. Dupuis also believes that Ms. Kanhai-Dupuis was drinking when she had the children for Mother’s Day in 2019. The children reported to him that Ms. Kanhai-Dupuis had been sleeping with E during their visit. Mr. Dupuis was also concerned because Ms. Kanhai-Dupuis did not feed the children lunch until almost 5:00 p.m. Mr. Dupuis sent Ms. Kanhai-Dupuis an email outlining his concerns. Mr. Dupuis did not mention that he thought she had been drinking but asked about her mental health and capacity to care for the children. Ms. Kanhai-Dupuis responded and explained what had happened during the visit. At trial, Ms. Kanhai-Dupuis denied that she had been drinking that day.

[58] I also heard evidence about an incident on July 25, 2019 at the children’s daycare. The parent of one of the other children, Ms. Dickerson, testified that she ran into Ms. Kanhai-Dupuis when she went to pick up her son. Ms. Dickerson testified that Ms. Kanhai-Dupuis appeared very stressed and was rushing her children to leave. Ms. Dickerson testified that she suspected something was wrong so she decided to engage with Ms. Kanhai-Dupuis. Ms. Dickerson said that Ms. Kanhai-Dupuis’ demeanour changed during their conversation: she went from being stressed out to being happy. Ms. Dickerson described Ms. Kanhai-Dupuis as having glassy eyes. She also testified that Ms. Kanhai-Dupuis was speaking deliberately and was slurring a bit. Ms. Dickerson formed the opinion that Ms. Kanhai-Dupuis was intoxicated. Ms. Dickerson did not report this incident to anyone until five days later when she ran into Mr. Dupuis at the school. Mr. Dupuis eventually convinced Ms. Dickerson to report the incident to the CAS.

[59] Ms. Kanhai-Dupuis denied that she had been drinking before she picked up the children on July 25, 2019. Ms. Kanhai-Dupuis maintained that she started drinking again in late summer and by September her drinking was a problem.

[60] I do not need to decide when Ms. Kanhai-Dupuis relapsed in 2019. The precise timing of her relapse does not matter. What matters is that she tried to hide her relapse from Mr. Dupuis (and the Court) and lied about the positive test results. It would not be in the best interests of the children for Ms. Kanhai-Dupuis to have significant overnight parenting time if there is a significant risk she will have another relapse and lie about it again.

[61] Ms. Kanhai-Dupuis’ relapse, while very relevant, is not the end of the story. In November 2019, Ms. Kanhai-Dupuis enrolled in a six-month residential treatment program in Ottawa. She completed the program in late April 2020 and returned to Toronto. Ms. Kanhai-Dupuis now understands that staying sober requires a lifelong commitment. Ms. Kanhai-Dupuis has been attending Alcoholics Anonymous daily for more than a year. She has also submitted to alcohol testing three times each day. Every single test result since April 2020 has been negative.

[62] Counsel for Mr. Dupuis argues that Ms. Kanhai-Dupuis has not taken responsibility or made amends for the harm she caused in the past. Counsel for Mr. Dupuis argues that because Ms. Kanhai-Dupuis insists that she was a good mother to the children before the accident and disputes some of the allegations made against her, she is still in denial. I disagree.

[63] I am satisfied that Ms. Kanhai-Dupuis has taken responsibility for past conduct. She has admitted that she drove on several occasions with the children in the car when she was intoxicated. She admitted that she left the children alone to buy alcohol. She admitted to leaving their youngest son home alone in his crib to pick up her other children. She admitted the children were exposed to harm before July 2017. Ms. Kanhai-Dupuis has admitted that she was in denial and was not truthful about her relapse in 2019. In her affidavit, she wrote:

Over the past five years, I have felt the most heartbreak, shame and guilt for the pain and displacement my actions have caused [my children]. I was the children’s primary parent and became reduced to a deficient, alcoholic mother, which is not a reality they deserve. I know it confused and upset them when I was away from them for sometimes weeks and months at a time. I take full responsibility for the hurt and suffering they experienced because of my actions. I struggle with this the most beyond everything else.

[64] I find that Ms. Kanhai-Dupuis now understands the impact her alcoholism has had on her family. She acknowledged the enormous burden Mr. Dupuis has carried over the last five years. When asked if there was anything she wanted to say to Mr. Dupuis, she thanked him for keeping their children safe and for being a formidable parent when she needed time to recover. She recognized how difficult it has been for Mr. Dupuis to continue to work and carry the responsibility of caring for their three children.

[65] Ms. Kanhai-Dupuis testified that she is committed to making a “living amends” to Mr. Dupuis. She explained that a living amends involves taking responsibility for her past wrongdoings and the harm she has caused through her actions rather than with words. She intends to make a living amends to Mr. Dupuis by remaining sober and healthy so their children are never put in harm’s way again. I find that Ms. Kanhai-Dupuis has taken responsibility for her conduct and understands her sobriety is crucial to her children’s physical and psychological safety. I also find that Ms. Kanhai-Dupuis is committed to maintaining her sobriety.

[66] Ms. Kanhai-Dupuis’ parenting time since her return from Ottawa has been supervised. The supervisor’s notes were filed as an exhibit at trial. The supervisor’s notes demonstrate that Ms. Kanhai-Dupuis is now able to meet her children’s needs. Each visit she cooks meals for them. She is teaching them about their Trinidadian culture and her Hinduism faith. She talks to them about important issues in their lives. She plans activities for them, like crafts and picnics and trips to the park. She plays with them. She reads to them. They watch movies together. She comforts them when they are upset or hurt themselves. The notes paint a picture of a devoted, caring and capable parent with a close, loving bond with each of the children.

[67] I understand why Mr. Dupuis does not trust Ms. Kanhai-Dupuis. She was not honest with him about her mental health and addiction for many, many years. I also understand why Mr. Dupuis has ongoing fear about the safety of his children. Too often, drinking and driving has devastating consequences. Nonetheless, I am satisfied that both Mr. Dupuis and Ms. Kanhai-Dupuis are currently able to provide for the children’s physical, emotional and developmental needs. This factor favours a much more equal parenting plan than is currently in place.

a. Physical accommodations

[68] Ms. Kanhai-Dupuis lives in a basement apartment that is 750 square feet. Mr. Dupuis lives in a three-bedroom house. Mr. Dupuis argues that Ms. Kanhai-Dupuis’ current living arrangements are unsuitable for overnight parenting time because the children do not have privacy at her apartment or a separate area for homework. He also notes that Ms. Kanhai-Dupuis’ apartment is at least 30-minutes away from their school. He argues that Ms. Kanhai-Dupuis should not be permitted to have overnight parenting time unless she has an apartment with two separate bedrooms for the children. I disagree.

[69] Ms. Kanhai-Dupuis testified and I accept that she cannot afford a larger apartment in Toronto at the moment. Ms. Kanhai-Dupuis currently earns $58,000 annually. She is paying $1,100 in child support. She is also paying $800 per month towards her child support arrears. According to her March 20, 2022 Financial Statement, Ms. Kanhai-Dupuis’ rent for the studio apartment is $1275. Ms. Kanhai-Dupuis has other debt as well.

[70] Mr. Dupuis is aware of Ms. Kanhai-Dupuis’ financial circumstances. He knows that requiring Ms. Kanhai-Dupuis to have a three-bedroom apartment would have the effect of denying her any overnight parenting time for the foreseeable future. Mr. Dupuis’ position is not reasonable. It is based on classist assumptions about what is in the best interest of these children. There is no evidence Ms. Kanhai-Dupuis cannot properly care for their three children in her current home, even if it is small. There is no evidence that children need their own bedrooms to thrive. Ms. Kanhai-Dupuis has enough beds for each child to have their own. Ms. Kanhai-Dupuis testified she has partitions she can put up to give S and SU privacy.

[71] It is not in the best interests of these children to restrict Ms. Kanhai-Dupuis’ parenting time indefinitely because of her financial circumstances.

[72] Counsel for Mr. Dupuis also argued that it would not be fair to the children if the quality of their accommodation at their mother’s place is substantially lower than at their father’s house. While it is preferable for children to enjoy similar lifestyles with each parent, Ms. Kanhai-Dupuis should not be punished with less parenting time because her financial circumstances do not allow her to provide the children with the same lifestyle as Mr. Dupuis can.

[73] Mr. Dupuis earns $80,000 a year. He is also receiving $1,900 per month in child support. He can afford a three-bedroom home close to the children’s school. If Ms. Kanhai-Dupuis and Mr. Dupuis have equal parenting time, she will no longer have ongoing child support obligations and may well be able to afford a bigger apartment.

[74] I have already found that Ms. Kanhai-Dupuis is able to meet her children’s physical, emotional and developmental needs. Ms. Kanhai-Dupuis should not be deprived parenting simply because she is not in a socio-economic position to rent a house or apartment comparable to Mr. Dupuis, who earns substantially more than she does.

E. Willingness and ability to cooperate about matters affecting the children

[75] Other than the parenting time schedule, Mr. Dupuis and Ms. Kanhai-Dupuis have been able to agree on several important issues affecting the children.

[76] They agree that the children will continue to go to school in the neighbourhood where Mr. Dupuis currently lives, regardless of where Ms. Kanhai-Dupuis lives.

[77] They also agree on the children’s cultural and religious upbringing. Mr. Dupuis and Ms. Kanhai-Dupuis have different cultural and religious backgrounds. Mr. Dupuis was born in New Zealand. He is an atheist. Ms. Kanhai-Dupuis’ family is from Trinidad. She is Hindu. Despite their different backgrounds and beliefs, they agree that it is in the children’s best interest that they learn about and be exposed to the religion and cultural traditions of each parent. Mr. Dupuis recognizes that he is not equipped to teach their children about their Trinidadian culture or about Hinduism. That is something they will learn from their mother.

[78] More recently, three important issues have arisen that Mr. Dupuis and Ms. Kanhai-Dupuis resolved without conflict.

[79] First, on May 2, 2022, Mr. Dupuis and Ms. Kanhai-Dupuis received an email from S’s teacher about some concerning behaviour. The teacher asked if Mr. Dupuis and Ms. Kanhai-Dupuis wanted the school to put supports in place S. Mr. Dupuis and Ms. Kanhai-Dupuis met together with the teacher, school principal, and social worker. They agreed on a plan to support S.

[80] Second, Mr. Dupuis is in a new relationship with a woman who lives in Hawaii. Mr. Dupuis’ new partner came to Toronto in late April for a visit. Mr. Dupuis wanted to introduce his new partner to the children. On April 24, 2022, Mr. Dupuis sent Ms. Kanhai-Dupuis an email about his new relationship and about his intention to introduce the children to his new partner. Ms. Kanhai-Dupuis asked what he intended to tell the children about his new relationship and whether his new partner would be bringing her children to Toronto. Mr. Dupuis answered Ms. Kanhai-Dupuis’ questions and offered to speak to Ms. Kanhai-Dupuis about it further. Ms. Kanhai-Dupuis thanked Mr. Dupuis for the additional information. Mr. Dupuis’ new partner visited Toronto and met the children. Mr. Dupuis brought his new partner when he dropped the children off for their parenting time with Ms. Kanhai-Dupuis. The children talked positively about Mr. Dupuis’ new partner during their time with Ms. Kanhai-Dupuis. Introducing a new partner to children after a separation can be a source of significant conflict. Mr. Dupuis and Ms. Kanhai-Dupuis navigated this significant event without any conflict and they both appear to have supported the children in the process.

[81] Third, Mr. Dupuis and Ms. Kanhai-Dupuis have agreed that Mr. Dupuis can take the children to Hawaii to visit his partner and their children at the end of June.

[82] These last three issues arose after the evidence at trial was completed but before closing submissions. Ms. Kanhai-Dupuis brought a motion to re-open her cross-examination of Mr. Dupuis to ask him about them. Mr. Dupuis opposed the motion. I granted the motion to re-open the cross-examination. The decision to permit a party to re-open its case is discretionary. The events that transpired after the trial ended are relevant to the issues at trial, namely whether it is in the best interests of the children for their parents to have joint decision-making authority. The evidence Ms. Kanhai-Dupuis sought to adduce was not available before or during trial. Mr. Dupuis had not told Ms. Kanhai-Dupuis about his new relationship before the trial ended. The teacher did not raise her concerns about their daughter until after the trial ended. Allowing further cross-examination did not prejudice Mr. Dupuis. Closing arguments had not been made. The further cross-examination was brief and focussed and did not delay the completion of the trial.

[83] After I granted Ms. Kanhai-Dupuis’ motion, the parties agreed that the affidavits filed on the motion should form part of the record at trial. Other than the hearsay comments attributed to the children in the affidavit of Mr. Dupuis, which is inadmissible, I have considered the affidavits as evidence on the trial.

[84] Ms. Kanhai-Dupuis questioned Mr. Dupuis’ motive for not telling her about his new relationship until after the evidence at trial was completed. She suggested Mr. Dupuis chose not to tell her earlier because he did not want it to be an issue at the trial. Mr. Dupuis denied that suggestion. Ms. Kanhai-Dupuis also expressed concern that Mr. Dupuis intended to relocate with the children to Hawaii. Mr. Dupuis denied that suggestion as well.

[85] Mr. Dupuis testified that, in his view, Ms. Kanhai-Dupuis’ response to his email about his new relationship fit into her pattern of responding to issues with anger and doubt. He interpreted Ms. Kanhai-Dupuis’ questions about what he intended to tell the children about his new relationship as a sign she does not trust his judgment. He also suggested that Ms. Kanhai-Dupuis brought the motion to re-open the cross-examination because she is angry about his relationship.

[86] I do not accept either party’s interpretation of the events around Mr. Dupuis’ disclosure of his new relationship. I do not accept that Mr. Dupuis decided not to tell Ms. Kanhai-Dupuis about his new relationship to hide his intention to relocate to Hawaii. Mr. Dupuis is required to give Ms. Kanhai-Dupuis at least 60-days’ notice if he wants to relocate with the children. If Ms. Kanhai-Dupuis objects to his relocation, Mr. Dupuis will require a court order to be permitted to move with the children to Hawaii: Divorce Act, ss. 16.9 and 16.91(1)(a). I also accept Mr. Dupuis’ evidence that he and his new partner finalized the plans for her visit after the trial ended. Until that happened, there was no need to address the issue of introducing her to the children with Ms. Kanhai-Dupuis.

[87] I do not accept that Ms. Kanhai-Dupuis was questioning Mr. Dupuis’ judgment or expressing any discomfort with new relationship. Introducing the children to a new partner is a very significant event. It was appropriate for Mr. Dupuis to tell Ms. Kanhai-Dupuis about his intent to introduce his children to his new partner in advance. It was also appropriate for Ms. Kanhai-Dupuis to ask questions about what he intended to tell the children and how the introduction would happen.

[88] This interaction shows that both parents still have significant distrust for each other. Their lack of trust may be understandable considering all that has transpired between them over the last five years, or more. The fact that Mr. Dupuis and Ms. Kanhai-Dupuis have work to do (individually or together) to re-establish trust between them does not make them incapable of exercising joint decision making in the best interests of their children. The question for me to decide is whether, despite their differences and disagreements, Mr. Dupuis and Ms. Kanhai-Dupuis can communicate with each other and make decisions together that are in the best interests of their children. I must also consider whether Mr. Dupuis and Ms. Kanhai-Dupuis can make decisions together without exposing the children to any conflict between the two of them: McBennett v. Danis, 2021 ONSC 3610, at para. 97.

[89] Mr. Dupuis and Ms. Kanhai-Dupuis have made joint decisions about the children’s education and religious upbringing. They have also navigated the introduction of a new partner into their family without exposing the children to conflict. I am satisfied that Mr. Dupuis and Ms. Kanhai-Dupuis have demonstrated they can communicate and cooperate about matters affecting their children, which supports shared decision-making responsibility.

F. The strength of the children’s relationship with each parent and the views of the children

[90] S, Su and E have a strong bond with each parent.

[91] Mr. Dupuis has been the primary parent for the three children for the last five years. He has provided them with a stable home and provided for their every need. The children are also very close with Mr. Dupuis’ mother, who often spends many months with them when she visits from New Zealand.

[92] There have been times when Ms. Kanhai-Dupuis has had little or no contact with the children. When she was in treatment in Ottawa, she did not see the children for six months. Since then, she has only seen them for a few hours a week. Despite the limited contact over the last 18 months, she has maintained a very strong bond with each of her children. The notes from the supervisor demonstrate how much the children love their mother and enjoy their time with her. The children have not become estranged from Ms. Kanhai-Dupuis despite the limited parenting time she has had in recent years. In fact, the children are often sad when the visits are over and express that they want to stay longer.

[93] The strength of the children’s current bond with Ms. Kanhai-Dupuis supports my finding that she was their primary caregiver before July 2017. The children obviously formed a very strong bond with Ms. Kanhai-Dupuis before to the accident, when she was their primary caregiver. That bond has continued despite several years of very limited parenting time.

[94] My decision about parenting time and decision-making responsibility will have a profound impact on the children. Whenever possible and appropriate, it is important to consider the views of the children before making decisions about where they will live, how much time they will spend with their parents and who will make important decisions about them: V.M.Y. v. S.H.G., 2019 ONSC 7279, at paras. 67-69.

[95] In May 2018, a CAS worker met with S. At that time, Ms. Kanhai-Dupuis had overnight parenting time on alternating weekends. S told the CAS worker that things were ok but she would change her living arrangements if she could. She told the CAS worker she wanted to live with her mother but was worried that she would not see her grandmother (Mr. Dupuis’ mother) as much if she did. She explained to the CAS worker that if she could have exactly what she wanted, she would live with her mother and her siblings and her dad would visit them on weekends.

[96] In July 2019, S was interviewed twice for a Voice of the Child Report. During her first interview, S said she wanted more time with her mother. She said she wanted equal time with both parents. In her second interview, S said she had some other ideas instead of equal time with each parent. Ultimately she said the schedule does not matter as long as she can spend time with each parent.

[97] Since April 2021, all of Ms. Kanhai-Dupuis’ parenting time has been supervised. The supervision notes contain comments by each of the children about wanting more time with her. The parties agreed that the supervision notes were admissible to prove the statements made by the children.

[98] Su frequently says she does not want to leave at the end of her parenting time with Ms. Kanhai-Dupuis. Su has said that she considers Ms. Kanhai-Dupuis’ apartment her “real house” and she considers their father’s house her “fake house.” Su often says she wants to live with her mother. She has also said that it is not fair that they have to go back to Mr. Dupuis’ house.

[99] S has also made several comments about wanting more time with Ms. Kanhai-Dupuis. On one occasion, S said, “I want to live here with you and see Daddy on Saturdays.” On another occasion, S said she wanted to have sleepovers with her mother.

[100] E has also said that he wants to live with his mother. For example, on one occasion E is reported to have said, “I want to stay with you forever, I’m not leaving.”

[101] When asked about the comments the children made about staying with or living with their mother, Mr. Dupuis testified that the comments might mean they want more time with their mother or they might just mean that the children are having a good time in the moment. I disagree.

[102] I find the notes of the children’s comments during their parenting time with Ms. Kanhai-Dupuis are the most reliable evidence of their wishes. There is no evidence in the supervisor’s notes that Ms. Kanhai-Dupuis was soliciting these comments from the children. I find the comments made by the children during their time with Ms. Kanhai-Dupuis indicate that they want to spend more time with her. This factor favours a more equal parenting time schedule.

G. Ability and willingness of each parent to foster the children’s relationship with the other parent

[103] I have some concerns about Mr. Dupuis’ willingness to foster a meaningful and equal relationship between the children and their mother.

[104] There is no doubt Mr. Dupuis wants his children to have a relationship with their mother. He has, in some ways, facilitated an ongoing relationship between the children and Ms. Kanhai-Dupuis. For many years, he drove the children to and from their parenting time with their mother. He has also arranged telephone calls between the children and their mother during the week. Before 2019, Mr. Dupuis agreed to increase the amount of time Ms. Kanhai-Dupuis spent with the children, including regular overnight parenting. But since Ms. Kanhai-Dupuis’ relapse in 2019, Mr. Dupuis would not agree to anything more than 5 hours per week (with a few additional daytime visits in the summer of 2020 and over Christmas in 2021) or unsupervised parenting time despite the positive reports from the supervisor and all the negative alcohol tests.

[105] Mr. Dupuis has also refused to agree to allow Ms. Kanhai-Dupuis to have video calls with the children over the last year. Ms. Kanhai-Dupuis speaks to the children by phone on Tuesday and Thursday evenings. Ms. Kanhai-Dupuis asked that the calls be video calls. Su has also asked if she could have FaceTime calls with her mother during the week. Mr. Dupuis would not agree. When asked why not, he simply said he thought telephone calls “were sufficient and working well.”

[106] By contrast, Mr. Dupuis allows the children to have video calls with his mother in New Zealand. The children have a very close relationship with Mr. Dupuis’ mother. From 2017 until March 2020 (when the COVID pandemic closed many international borders), Ms. Dupuis spent almost half the year in Canada. Since March 2020, Ms. Dupuis has been unable to travel to Canada. To maintain their relationship, the children have video calls with their grandmother twice a week for up to an hour. It is wonderful that the children have such a strong connection with their grandmother and have twice weekly video calls with her. However, there is no principled reason why Ms. Kanhai-Dupuis’ mid-week calls with the children could not be by video as well. I find that Mr. Dupuis’ continued refusal to allow video calls with Ms. Kanhai-Dupuis is not a child-centred decision but rather an attempt to control the parenting arrangement and punish Ms. Kanhai-Dupuis.

[107] Mr. Dupuis also objected to Ms. Kanhai-Dupuis being at the children’s school in the fall of 2021 for an Orange Shirt Day event. Several parents arranged to tie orange ribbons on the fence around the school yard and Ms. Kanhai-Dupuis volunteered to help. Mr. Dupuis was concerned that Ms. Kanhai-Dupuis was at the children’s school when it was not her parenting time. Mr. Dupuis sent an email to Ms. Kanhai-Dupuis saying he did not want her involvement in that event to set a precedent for her being at the school outside her parenting time. Mr. Dupuis suggested that Ms. Kanhai-Dupuis was being sneaky and was trying to circumvent their agreement about parenting time by going to the school for the event. The problem with Mr. Dupuis’ position is that in the fall of 2021, Ms. Kanhai-Dupuis had no parenting time during the week. If Ms. Kanhai-Dupuis followed Mr. Dupuis’ direction that she should only be at the school during her parenting time, she would never be able to participate in any events at the children’s school. Again, I worry that Mr. Dupuis was attempting to control the parenting arrangements and had not considered that it is in the best interests of their children for both parents to be involved in school activities.

[108] One final example involves the childcare arrangements during March Break this year. The children stayed with Ms. Kanhai-Dupuis’ sister, Ms. Kent, for part of the March break. Ms. Kanhai-Dupuis had asked for additional parenting time over March Break but Mr. Dupuis would not agree. When Mr. Dupuis was cross-examined following Ms. Kanhai-Dupuis’ motion to re-open, it came to light that Mr. Dupuis’ new partner was visiting Toronto from Hawaii while the children were with Ms. Kent. I am concerned that, by having the children stay with Ms. Kent rather than spending additional time with their mother, Mr. Dupuis was putting his own interests ahead of the children.

[109] I do not mean to be overly critical of Mr. Dupuis. He immediately stepped up in July 2017 and has provided for the children consistently since then. He is a loving, present father and the children appear to be thriving. He has made many, many sacrifices in his own life for his children. He is to be commended for all he has done to protect and care for the children over the last five years. Notwithstanding, I remain concerned that, at times, Mr. Dupuis has tried to limit and control the children’s relationship with Ms. Kanhai-Dupuis in a way that is not always in their best interests.

H. Conclusion on Parenting Time

[110] The biggest issue in this case is whether Ms. Kanhai-Dupuis has addressed and is able to manage her addiction to alcohol so that the children will not be in danger when they are with her. There will always be a risk that Ms. Kanhai-Dupuis will relapse and start drinking again. The consequences of a relapse could be extremely serious. Mr. Dupuis’ greatest fear is that his children will be hurt (or worse) if Ms. Kanhai-Dupuis decides to drive while intoxicated again. I understand his fear. However, based on the evidence before me, I am satisfied that Ms. Kanhai-Dupuis is not drinking now and has not consumed alcohol for the last 18 months. I am satisfied that she has support, including daily Alcoholics Anonymous meetings and regular sessions with her psychologist, to help her remain sober. I find that the risk of a relapse is not significant.

[111] I find that Ms. Kanhai-Dupuis’ alcohol addiction is no longer a reason to limit her role in the children’s lives. The fact that Ms. Kanhai-Dupuis had addiction and mental health issues that interfered with her parenting for a period of time should not forever brand her an incapable parent: Cassels v. Cassels, 2006 CanLII 10520 (ON SC), at para. 25. Many people with mental health and addiction issues undergo treatment and are able to resume productive lives. Ms. Kanhai-Dupuis has done significant work over the last 18 months to address her mental health and addiction and is now able to be a loving, caring parent again.

[112] I have already found that Mr. Dupuis and Ms. Kanhai-Dupuis both have very strong bonds with their children. They both love their children very much. They are both able to provide for the children’s needs. I find that it is in the best interest of the children for Mr. Dupuis and Ms. Kanhai-Dupuis to have equal parenting time.

[113] I also find that it is in the best interests of the children to move gradually to an equal parenting schedule. A period of transition will be important for the children to adjust to overnight parenting time with Ms. Kanhai-Dupuis after many years of very limited time with her. It is also important to give Ms. Kanhai-Dupuis time to adjust to additional parenting time and the pressures it will involve.

[114] Starting on June 20, 2022, and continuing until August 1, 2022, Ms. Kanhai-Dupuis is to have overnight parenting time four nights every two weeks. If the parties cannot agree on the parenting schedule, Ms. Kanhai-Dupuis shall have parenting time on the following schedule:

Week 1: Wednesday from after school until the start of school on Thursday or, if the children are not in school, daycare or camp from 8:30 am on Wednesday to 8:30 am on Thursday;

Week 2: Wednesday from after school until the start of school on Thursday or, if the children are not in school from 4:30 pm on Wednesday to 8:30 am on Thursday morning plus Friday from after school (or 4:30 pm if the children are not in school) until Sunday evening at 7:00 pm.

[115] Starting on August 1, 2022, the parties shall have equal parenting time. If the parties cannot agree on a mutually convenient schedule, Ms. Kanhai-Dupuis shall have parenting time on the following schedule:

Week 1: Monday from after school until Wednesday morning or, if the children are not in school from 8:30 am on Monday until 8:30 am on Wednesday; and

Week 2: Monday from after school until Wednesday morning (or from 8:30 am on Monday until 8:30 am on Wednesday if the children are not in school) and Friday after school until Monday morning (or from 8:30 am on Friday until 8:30 am on Monday if the children are not in school).

[116] Ms. Kanhai-Dupuis shall not consume alcohol during her parenting time or 24-hours before the start of any parenting time. To ensure that Ms. Kanhai-Dupuis maintains her sobriety during the transition to equal parenting time, until December 31, 2022, she is required to do a RAMP test 1 hour prior to picking up the children and at 7:30 am and 7:30 pm each day the children are with her.

[117] I find that Mr. Dupuis and Ms. Kanhai-Dupuis should have 2 one-week periods of parenting time, consecutive or non-consecutive, during the summer. I also find that the parties should have parenting time for the whole March Break period in alternating years. I find that Mr. Dupuis and Ms. Kanhai-Dupuis should have equal parenting time over the Winter school holiday.

[118] I find that the children shall spend Diwali with Ms. Kanhai-Dupuis. If Diwali does not fall on Ms. Kanhai-Dupuis’ regular parenting time, the children will be with her from after school the day before Diwali (or 4:30pm if there is no school) until the start of school the day after Diwali (or 9:00 am if there is no school).

[119] The children will spend Mother’s Day with Ms. Kanhai-Dupuis. If Mother’s Day does not fall on Ms. Kanhai-Dupuis’ regular parenting time, the children will be with Ms. Kanhai-Dupuis from 5:00 p.m. on the Saturday before Mother’s Day until the start of school on the Monday after Mother’s Day.

[120] The children will spend Father’s Day with Mr. Dupuis. If Father’s Day does not fall on Mr. Dupuis’ regular parenting time, the children will be with Mr. Dupuis from 5:00 p.m. on the Saturday before Father’s Day until the start of school on the Monday after Father’s Day.

[121] If either Mr. Dupuis or Ms. Kanhai-Dupuis cannot be present for more than five hours of their scheduled parenting time, the other parent must be given the first opportunity to look after the children during the time the other parent is not available before other childcare arrangements are made. The only exception to this is that Mr. Dupuis is permitted to leave the children with his mother for longer than five hours when she is visiting them from New Zealand.

[122] I find that supervised parenting is no longer required. Supervised parenting time is intended to be short-lived. It should only be ordered when necessary to protect the children from a demonstrated risk: N.M. v. M.M., [2018] O.J. No. 7104 at para. 29, S.I. v. I.I., 2013 ONSC 2762 at para. 10. Ms. Kanhai-Dupuis’ parenting time has been supervised for more than a year. The reports are all positive. The supervisor has not raised a single concern about Ms. Kanhai-Dupuis’ interactions with the children. The reports clearly demonstrate that Ms. Kanhai-Dupuis is a loving, caring and capable mother. Assuming there was a basis for supervised parenting time, it is no longer in the best interests of the children to have a stranger (or anyone) monitoring their interactions with their mother.

I. Conclusion on Decision-Making Responsibility

[123] There is no presumption in favour of giving both parents joint decision-making responsibility in all areas. Nonetheless, I find that it is in the best interests of the children for Mr. Dupuis and Ms. Kanhai-Dupuis to have joint decision-making responsibility for major decisions concerning the children’s health and welfare, education, religion and extra-curricular activities.

[124] Mr. Dupuis argues that he should have sole decision-making responsibility because he has made all the major decisions for the last five years and because there is a risk Ms. Kanhai-Dupuis will be unavailable to make joint decisions about the children if she relapses again. Mr. Dupuis pledged to discuss major decisions with Ms. Kanhai-Dupuis but argues he should have the authority to decide if they cannot reach an agreement.

[125] I accept that Mr. Dupuis would consult with Ms. Kanhai-Dupuis about major decisions if he had sole decision-making responsibility. However, my concern is that if Mr. Dupuis had sole-decision making responsibility, he could simply ignore Ms. Kanhai-Dupuis’ views. Over the last year, Mr. Dupuis has denied Ms. Kanhai-Dupuis’ requests for more time and unsupervised parenting time. He has denied requests for video calls during the week. He denied Ms. Kanhai-Dupuis’ request for parenting time during March Break to accommodate his visit with his new partner. I have already found that at least some of these decisions were not motivated by what is in the best interests of the children.

[126] I do not know how Mr. Dupuis and Ms. Kanhai-Dupuis’ relationship will evolve. I hope they work hard to regain each other’s trust. I am, however, worried that giving Mr. Dupuis sole decision-making responsibility on a permanent basis will create conflict between them, which is not in the best interests of the children.

[127] Mr. Dupuis’ argument that Ms. Kanhai-Dupuis might relapse and be unable to make decisions is speculative. Of course, there is a chance Ms. Kanhai-Dupuis might relapse and there is a chance that a relapse might interfere with Ms. Kanhai-Dupuis’ ability to make joint decisions about the children. I have already found that the risk of a relapse at this point is not significant because of the work Ms. Kanhai-Dupuis has done and the supports she has in place. A risk of a relapse is not sufficient basis to deny her an opportunity to participate in major decisions for her children. To the extent that Ms. Kanhai-Dupuis does relapse in the future and to the extent a future relapse interferes with her decision-making ability, that can be address by a motion to change.

[128] I have already found that both parents can meet the children’s needs and can communicate with each other. While Mr. Dupuis and Ms. Kanhai-Dupuis have disagreements and need to work on building a more trusting relationship, there is no evidence they are unable to make joint decisions in the best interests of their children. In fact, the evidence is to the contrary.

[129] Both parents are clearly committed to the children. They have agreed on where the children will go to school. They have agreed that each parent can expose the children to their own culture or religion. The parties have not had any conflict over extra-curricular activities. They have, from time to time, adjusted the parenting time schedule to accommodate extra-curricular activities and special events in their children’s lives. For example, in April of this year, Ms. Kanhai-Dupuis’ parenting time was changed on agreement so E could attend a friend’s birthday party. To the extent necessary, they have agreed on issues related to the children’s physical and mental health as well. I have no reason to believe this level of cooperation will not continue.

[130] I find that it is in the best interests of the children for Mr. Dupuis and Ms. Kanhai-Dupuis to have joint decision-making responsibility for all major decisions about the children, including but not limited to health care, education, religion and extra-curricular activities. If Mr. Dupuis and Ms. Kanhai-Dupuis are unable to agree on a major decision for the children, they are required to mediate the issue. The cost of the mediation will be shared in a manner that is proportionate to their income. If the mediation fails, either party can bring a motion in court to resolve the issue.

[131] Mr. Dupuis and Ms. Kanhai-Dupuis are both entitled to information about the children from any third party involved with the children. Both Mr. Dupuis and Ms. Kanhai-Dupuis shall sign any necessary consent and authorization to ensure that each parent can access information directly. Both Mr. Dupuis and Ms. Kanhai-Dupuis will be listed as parents and contacts with the children’s school and daycare.

[132] Mr. Dupuis and Ms. Kanhai-Dupuis will share the safe-keeping of the children’s government-issued identification and documents. Mr. Dupuis shall hold the children’s Canadian passports and social insurance number cards. Ms. Kanhai-Dupuis shall hold the children’s birth certificates and OHIP cards. Each parent will have a copy of the documents in the other parent’s possession. Each parent will be responsible for renewing the documents in their possession.

[133] Neither parent can enrol the children in an extra-curricular activity that will interfere with the other’s parenting time or holiday parenting time without the other parent’s prior written consent. Mr. Dupuis and Ms. Kanhai-Dupuis can both attend major extra-curricular events such as recitals, concerts, performances, tournaments and graduation ceremonies. Otherwise, Mr. Dupuis and Ms. Kanhai-Dupuis will not attend routine extra-curricular activities during the other’s parenting time without consent.

[134] Mr. Dupuis and Ms. Kanhai-Dupuis are both entitled to travel with the children within Canada and internationally on vacation. If Mr. Dupuis or Ms. Kanhai-Dupuis plans to travel with the children outside of Ontario, they must provide the other with at least 30 days’ notice together with a full itinerary and emergency contact information. The parent that is not travelling with the children will sign a travel consent to the other parent within three days of receiving the document from the travelling parent. If the parties are travelling for seven days or more, they will facilitate phone or video parenting time with the other parent at least once during their vacation.

[135] Mr. Dupuis and Ms. Kanhai-Dupuis shall not unreasonably withhold their consent or agreement on any matter related to the children.

J. Child Support

[136] Until August 1, 2022, Ms. Kanhai-Dupuis will continue to pay child support to Mr. Dupuis in accordance with the Child Support Guidelines. Between now and August 1, 2022, Ms. Kanhai-Dupuis is not required to pay any of the child support arrears.

[137] Starting on August 1, 2022, Mr. Dupuis and Ms. Kanhai-Dupuis will have equal parenting. Under the Child Support Guidelines, Mr. Dupuis would be required to pay Ms. Kanhai-Dupuis $1,588 in child support (based on his annual salary of $80,257). Ms. Kanhai-Dupuis would be required to Mr. Dupuis pay $1,156 in child support (based on her annual salary of $58,381). If the amount owing by each is off-set, Mr. Dupuis would owe Ms. Kanhai-Dupuis $432 per month in child support.

[138] In my view, it is not appropriate to require Mr. Dupuis to pay Ms. Kanhai-Dupuis child support once their parenting time is equal. Mr. Dupuis’ housing costs are much higher that Ms. Kanhai-Dupuis’. According to Mr. Dupuis’ March 24, 2022 Financial Statement, his rent is $2,550, which is almost double what Ms. Kanhai-Dupuis is paying in rent. The parties have agreed that it is in the best interests of the children to stay at the school in Mr. Dupuis’ current neighbourhood. In effect, the parties have agreed that it is in the children’s best interests for Mr. Dupuis to spend a disproportionate amount on housing to ensure the children’s stability in their education. Because Mr. Dupuis’ household expenses are, by agreement, more than Ms. Kanhai-Dupuis’, it is not reasonable to require him to also pay child support to Ms. Kanhai-Dupuis. I, therefore, order that starting August 1, 2022, neither parent will pay ongoing child support to the other.

[139] Starting August 1, 2022, Ms. Kanhai-Dupuis will pay Mr. Dupuis $500 each month until the child support arrears are paid off. I expect the parties to be able to agree on the amount of arrears owing.

[140] Mr. Dupuis and Ms. Kanhai-Dupuis are required to provide updated income disclosure to each other in accordance with s. 24.1 of the Federal Child Support Guidelines by July 1 of each year.

[141] Mr. Dupuis and Ms. Kanhai-Dupuis shall share the cost of agreed upon extra-curricular activities and special or extraordinary expenses as defined in s. 7 of the Federal Child Support Guidelines in a manner that is proportionate to their income. Each parent shall be wholly responsible for the cost of extra-curricular activities they arrange during their own parenting time.

I. Conclusion

[142] Mr. Dupuis and Ms. Kanhai-Dupuis shall have joint decision-making responsibility for their three children.

[143] Starting August 1, 2022, Mr. Dupuis and Ms. Kanhai-Dupuis shall have equal parenting time with the children as set out above.

[144] On July 1, 2022, Ms. Kanhai-Dupuis shall pay Mr. Dupuis $1,156 in child support for the three children. Starting August 1, 2022, no ongoing child support is owing between the parties. Starting August 1, 2022, Ms. Kanhai-Dupuis shall pay Mr. Dupuis $500 per month in retroactive child support until the arrears are paid in full.

[145] I encourage the parties to agree on the issue of reasonable costs. If they are unable to reach an agreement, Ms. Kanhai-Dupuis may serve and file cost submissions of no more than 5 pages together with any relevant offers to settle by no later than July 11, 2022. Mr. Dupuis may serve and file responding cost submissions of no more than 5 pages no later than July 29, 2022.

Justice Breese Davies

Date: June 17, 2022

Amended on: June 29, 2022

COURT FILE NO.: FS-17-420942

DATE: 20220617

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JORDAN DUPUIS

Applicant

• and –

SUSHMA KANHAI-DUPUIS

Respondent

REASONS FOR JUDGMENT

Justice Breese Davies

Released: June 17, 2022

Amended on: June 29, 2022