COURT FILE NO.: FC-21-099
DATE: 2022/01/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Scott Sullivan, Applicant
AND:
Laetitia Senechal, Respondent
BEFORE: Honourable Justice M. Fraser
COUNSEL: Julie Ada, Counsel for the Applicant M. Peter Sammon, Counsel for the Respondent
HEARD: December 7, 2021
ENDORSEMENT
[1] The Applicant father, Scott Sullivan (the “father”) brings the present motion asking to enlarge upon his parenting time with the two children, Hayden age 8 and Leila age 3. He asks for parenting time every second weekend from Friday at 6 p.m. until Sunday at 4 p.m. He asks that this parenting time be extended to include Monday if it is a long weekend. He additionally asks for an order that the parties inform each other of any important information and developments concerning the children and that each party have the right to access such information from third party professionals and that both parties be entitled to attend activities, events, medical appointments or school meetings in which one of the children is being discussed.
[2] The Respondent mother, Laetitia Senechal (the “mother”) does not agree to the relief the father is requesting. In response she asks that the court confer sole decision-making authority on her. She asks that she have primary parenting time with the children with the father’s parenting time being supervised at a supervised access and exchange center. Finally, she asks for child support.
Background:
[3] The mother and father were in a relationship for approximately twelve years. They lived common-law from January 31, 2017 until April 16, 2020 when they separated.
[4] Hayden and Leila are the only children of the relationship.
[5] The parties entered into a separation agreement (the “agreement”) dated April 29, 2020. This agreement, among other things, provided that the parties have shared/joint custody of the children. Parenting time according to this agreement was to be shared on a week-about basis.
[6] The parties followed the parenting schedule set out in the agreement until January 28, 2021 when, according to the father, the mother picked the children up for her parenting time and refused to return them. Since then the father has had limited parenting time with the children.
[7] The father states that he has tried to pick the children up from their school but that the school presented a letter from the mother stating that the children cannot be released to anyone except her.
[8] The father admits that there were criminal charges laid against him relating to uttering threats, mischief, failure to comply with a release order, breach of a conditional sentence and failure to stop for a peace officer. The father asserts that these charges have now been dealt with that that his terms of probation do not prohibit him from having ongoing contact with the children and that his criminal charges have nothing to do with the children. He states that Family and Children’s Services of Renfrew County (“FCSRC”) have confirmed that there are no protection concerns.
[9] The father suggests that the mother is “behind” many of the criminal charges that were laid against him and that she has made false allegations against him.
[10] He claims that the mother’s change in position all began once he became involved in a new relationship. He asserts that the mother is motivated by jealousy.
[11] The father claims the terms of his probation prohibit him from directly or indirectly contacting the mother except for the purpose of making contact arrangements or having contact with the children through the Our Family Wizard application. He advises that his attempts to contact her by this means has gone unanswered despite consistently requesting parenting time with the children.
[12] At the case conference in this matter, held on July 15, 2021, the parties consented, on a without prejudice basis, to a temporary order providing for the father to have up to two weekly visits with the children for one to two hours at a time, at the supervised access centre. This order also permitted the father to have access to information concerning the children from their doctor or school by writing directly to those third parties. Finally, the involvement of the Office of the Children’s Lawyer was requested.
[13] Since this order, the father’s parenting time has been limited to one hour, once per week (on Sunday’s between 10:30 and 11:30 a.m.).
[14] In response to this motion, the mother maintains that the father has serious unresolved and untreated mental health and addiction issues. She asserts that he is not being candid in his affidavit materials.
[15] The mother states that at the end of January 2021, the father was a “fugitive” from the police and subject to a number of release conditions which he breached. He was held in custody for these offences between February 3, 2021 and March 12, 2021. He was then re-arrested May 12, 2021 and held in custody for a breach of his bail review release conditions. He pled guilty to his charges on July 12, 2021 and according to the mother, the father is under a strict probation order and driving prohibition order.
[16] The mother asserts that the father has moved to Ottawa. She claims he has not obtained counselling or treatment for his drug and alcohol abuse issues or mental health issues as directed by his probation officer.
[17] The mother maintains that the children are unsafe in the father’s unsupervised care and that he has a severe alcohol problem. She recalls, prior to their separation, the father being admitted to the Queensway-Carleton Hospital for his addiction to alcohol and mental health issues (April 2019). She claims he has not changed.
[18] The mother states that she only entered into the separation agreement despite its present terms as she needed to get away from the father and what she terms was his “abusive” behaviour. She sets out the details of the incident which occurred in April 2019 at which time the father caused damage to the home in which they were living. She states that FCSRC became involved following the father’s hospitalization.
[19] The mother asserts that the father went to “rehab” in September 2019 following a conviction for impaired driving. Her history of the relationship would suggest this did not stop his alcohol abuse and she maintains that the father continued to drink and behave aggressively and that he was verbally and emotionally abusive.
Analysis:
[20] Pursuant to section 24(1) of the Children’s Law Reform Act R.S.O. 1990, c.C12 (the “Act”), when making a parenting order I am to only take into account the best interests of the children in accordance with that section.
[21] In determining the best interests of a child, I am to consider all factors related to the circumstances of the child, including those factors listed in section 24 of the Act. In doing so, I am to give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being (subsection 24(2)).
[22] As per subsections 24(3), (4) and (5) of the Act, provides as follows:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
[23] Section 24 applies to both temporary and final parenting orders.
[24] Parenting determinations at temporary motions pose an added challenge in that decisions are being made without the benefit of a full evidentiary record. Temporary orders are “band-aid” solutions pending a full hearing. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children requires a change.
[25] Pursuant to section 34 of the Act, the court may give such directions as it considers appropriate for the supervision, by a person, a Children's Aid Society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. The person, society or body must consent to provide supervision.
[26] Supervision orders may be beneficial in attempting to protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children (See: VSJ v LJG, 2004 CanLII 17126 (ON SC), [2004] OJ No 2238).
[27] In BRM v MAEM 2021 ONSC 2791, Finlayson J. noted that the case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child, a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child's views and preferences are in favour of supervision.
[28] In this instance, a status quo was initially created following the parties’ separation which involved a shared parenting regime. However, that changed in January 2021 around the time when the father had criminal charges laid against him. The children have remained principally in the mother’s care since that time. It is unclear whether FCSRC required this change or not.
[29] The children are still quite young. There has been no suggestion that they do not have good relationships with both of the parties.
[30] No independent evidence of the children’s views have been made available for this motion.
[31] According to the father (as stated in his Form 14A Affidavit), he pled guilty to certain charges in July 2021. The charges for which convictions have been entered are not identified in paragraph 6 of the father’s Form 35.1 Affidavit sworn November 29, 2021. He has, however, appended his probation order to Form 14A Affidavit. Charges (from March 2020, January 2021 and May 2021) and the terms of his probation are set out therein. They include “Utter a Threat to Kill an Animal” and “Mischief.”
[32] The father asserts that his criminal charges have “nothing to do with the children” and he does not identify these convictions in paragraph 8 of his Form 35.1 Affidavit. However I note that the terms of his probation prohibit contact or communication with the mother and absent a complete knowledge of the circumstances giving rise to the charges, I am not prepared to conclude that the particulars of his actions are not to be considered relevant pursuant to subsection 24(4) of the Act.
[33] While I am of the understanding that there remain no outstanding charges against the father, I note he completed paragraph 7 in his updated Form 35.1 Affidavit which is inconsistent with this position.
[34] The mother’s main concern arises from the father’s apparent issues with alcohol and his mental health. She fears these issues have not been appropriately addressed. The terms of the father’s probation require that he attend such assessment, counselling and rehabilitative programs as directed by his probation officer for substance abuse, alcohol abuse, and domestic violence.
[35] The father disputes the mother’s assertions that he has a continuing issue with substance abuse. He asserts that he has completed a 21-day rehabilitation program in Belleville in 2019. I don’t place significant weight on the father’s participation in this program as it appears to predate the events which gave rise to the father’s criminal charges and the mother’s renewed concerns respecting his issues with alcohol abuse.
[36] The father also asserts that when he was released from jail in 2021 and as part of his probation conditions, he attended Pathways Alcohol & Drug Treatment Services in Pembroke. Since moving to Ottawa, he asserts that he is continuing with alcohol and drug treatment services there. He also states that he has participated in an Anger Management program through his doctor’s office and that he has completed a 21-step program online. He states that he is on medication for anxiety and for sleeping. The father has not put forward independent confirmation to evidence his successful participation in these programs and therefore I am unable to determine the substantive depth and/or success by the father in these programs.
[37] While the father maintains that FCSRC has issued a letter confirming that there are no protection concerns, that letter has not been produced. I am not able to determine the basis of its understanding of what issues have been raised, the extent of their involvement, or even the date of the letter, all of which might have been helpful. I do not have the benefit of the FCSRC records or the police records in order to get a better sense of what has transpired or the extent to which there are concerns with substance abuse.
[38] An order was made at the case conference requesting the involvement of the Office of the Children’s Lawyer (the “OCL”). However, the OCL was not prepared to become involved.
[39] In my view, the mother has raised issues which present a reasonable concern that the father’s parenting time should be supervised at this point in order to ensure that his parenting time with the children is secure and safe until there has been an opportunity to determine whether any alcohol issues have been appropriately addressed and pending the opportunity to investigate the allegations made by the mother as far as they assert that the father has. This measure does not and should not, in my view, be a long-term arrangement. However, I consider this precaution is necessary in order to ensure that the relationship between the father and the children may be safely preserved pending the court being in a better position to determine whether there are any safety concerns.
[40] I therefore conclude that the father’s parenting time should continue, on a temporary basis, to be supervised.
[41] I have reviewed the notes from the supervised access centre. It is clear that the father has a warm and loving relationship with the children and that this relationship needs to be fostered and promoted. This cannot happen with limited one-hour visits at a supervised access centre.
[42] I do not see that the father’s supervised parenting time needs to occur at a supervised access centre if a friend or family member can be found who is prepared to consent to supervising the father’s parenting time over the short term until there has been a better opportunity to assess the issues based upon a fuller evidentiary record. The father is asked to put forward the name of a proposed individual who is agreeable to supervising his parenting time over the short term. This will allow for the parenting time to be expanded and for it to occur in a less artificial environment.
[43] As such, a temporary order shall issue requiring the father’s parenting time to continue to be supervised by a third party to be agreed upon by the parties. His parenting time should occur every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In the event the parties are unable to agree upon an individual to supervise the father’s parenting time, then this matter can be returned before me (on a date to be arranged through the trial coordinator) to make submissions on this issue. In this respect each party shall serve and file an affidavit addressing this issue which is no longer than three pages typed and double-spaced in which the father may provide information as to who he proposes supervise his parenting time and the mother may provide her reasons for any objection.
[44] If the father is unable to propose an appropriate individual to supervise his parenting time, he is to continue to have parenting time with the children at a supervised access centre every weekend for one to two hours in duration.
[45] This temporary order is without prejudice to the father asking the court to revisit the issue of supervision once there is further evidence available for the court (i.e. the information noted in paragraphs 36 and 37 of this endorsement) to determine the necessity for supervision.
[46] The mother did not advance a cross-motion and I decline to make an order with respect to decision-making authority. I do not see that it would be appropriate or necessary at this juncture to do so.
[47] Additionally, I do not consider it appropriate at the point to make an order requiring communication from the mother to the father concerning the developments in the children’s lives. The decision respecting how communications should occur between the parties and with third parties should, in my view, be made once a fuller evidentiary record is before the court.
[48] The father, in his reply affidavit, has agreed that he has an obligation to contribute to the support of the children. He agrees that his present annual income is $65,606. As such I am prepared to make a temporary order for the support of the two children
[49] Child support shall be payable in accordance with the Child Support Guidelines by the father to the mother for the two children in the monthly amount of $1,000. per month commencing January 1, 2022 based upon the father’s present annual income of $65,606.
Disposition:
[50] A temporary order shall issue as follows:
The father’s parenting time shall continue to be supervised by a third party to be agreed upon by the parties. His parenting time should occur every second weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. In the event the parties are unable to agree upon an individual to supervise the father’s parenting time, then this matter can be returned before me (on a date to be arranged through the trial coordinator) to make submissions on this issue. In this respect each party shall serve and file an affidavit addressing this issue which is no longer than three pages typed and double-spaced in which the father may provide information as to who he proposes supervise his parenting time and the mother may provide her reasons for any objection.
If the father is unable to propose an appropriate individual to supervise his parenting time, he is to continue to have parenting time with the children at a supervised access centre every weekend for one to two hours in duration.
This temporary order in either event is without prejudice to the father asking the court to revisit the issue of supervision once there is further information available for the court (i.e. the information noted in paragraphs 36 and 37 of this endorsement).
Child support shall be payable in accordance with the Child Support Guidelines by the father to the mother for the two children in the monthly amount of $1,000. per month commencing January 1, 2022 based upon the father’s present annual income of $65,606.
Honourable Justice M. Fraser
Date: January 28, 2022