Court File and Parties
COURT FILE NO.: FS-22-00045709-0000 DATE: 2023-04-03 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R.A., Applicant AND: D.A., Respondent
BEFORE: Kurz J.
COUNSEL: Catherine Haber, for the Applicant Elliot Vine, for the Respondent
HEARD: March 30, 2023
Endorsement
Introduction
[1] The Applicant father (the “Father”) moves on an urgent basis to add his girlfriend, L.H. to a list of parenting supervisors as ordered by Conlan J. on January 24, 2023. In this decision, I have initialized the names of the parties and other relevant persons in order to protect the privacy of the parties and children as Conlan J. did in his previous endorsement, discussed below.
[2] As a preliminary matter, the Father has not only filed his own reply affidavit but reply affidavits of his mother (the “Grandmother”), and L.H. Counsel for the Respondent Mother (the “Mother”) objected to these affidavits as not representing proper reply evidence. I have reviewed those affidavits and generally agree that they do not reply to “any new matters raised in the evidence served by the party responding to the motion”, as required by r. 14(20)(3). However, the objection was raised in the middle of argument. In any event, while I do not exclude them, I find that they actually offer little assistance to the court.
[3] L.H.’s affidavit adds little new evidence other than the statement that she would have been available to supervise the Father’s parenting time on the dates that he missed seeing his children, as set out below. The Father already made that assertion in his affidavits and the Mother never denied L.H.’s availability. The Grandmother’s reply affidavit confirms an allegation raised for the first time in the Father’s reply affidavit about a conversation between the Mother and the Grandmother. That conversation, in which the Mother expresses concern about a girlfriend raising her children rather than the father himself must be seen in context, as set out below. It offers far more smoke than fire to the arguments in this motion.
[4] The key parenting issue in this application proceeding is whether the Father suffers from an alcohol abuse problem, which poses a danger to the parties’ children (the “children”). The Father vehemently denies that he abuses alcohol. His view is supported by the Grandmother, who is a family physician. The Father seeks an eventual full, equal shared-parenting arrangement, albeit not in this motion.
[5] As set out below, when ordering that the Father’s parenting time be supervised, Conlan J. stated that the supervisors shall be jointly agreed upon, with the Mother not to unreasonably withhold her consent. Thus, in this motion, I must consider whether the Mother’s refusal to consent to L.H. as a supervisor was reasonable within the context of the primary consideration of the children’s best interests. For the reasons that follow, I find that it was and dismiss this motion.
Background
[6] The parties commenced cohabitation in 2013 and were married on May 9, 2015. They separated on October 31, 2021. They have two children, W., who is 5 and M., who is 3. W. attends senior kindergarten while M. attends daycare three times per week.
[7] The Mother alleges that the Father is an alcoholic. In the parenting motion before Conlan J. of January 24, 2023, she provided the court with a great deal of evidence supporting her contention. The Father adamantly rejected the Mother’s contention. Those opposing positions were considered by Conlan J. as set out below.
Motion Before Conlan J.
[8] On January 24, 2023, Conlan J. heard the Father’s parenting motion. The Father had requested alternate weekend and mid-week unsupervised overnight parenting time, He also sought to have that time later expanded to a shared 2-2-3 parenting arrangement.
[9] Conlan J. carefully considered the evidence. He describes that evidence and his view of its import as follows:
An old conviction for impaired care or control of a motor vehicle; a complaint about the father’s alleged drunken behaviour at a winery in the Niagara region last July; a video of the father pummeling the front door of his house in October 2022, which I do not think is conduct consistent with a sober person; multiple photographs and videos of the father fast asleep on the couch in the midst of playing children around him; the alleged discharge report from France which describes the father as having abused alcohol to the degree of requiring hospitalization; the mother’s friend’s stories of the father over-indulging in alcohol even when nobody else around him is; and so on. That is the evidence that shows a pattern of excessive and irresponsible alcohol use on the part of R.A.
[10] Conlan J. ordered that the Father have parenting time with the children on alternate weekends from Friday to Sunday and every Tuesday from after school until Wednesday return to school (with adjustments for non-school days). But he ordered that the parenting time shall be supervised by either the Grandmother or a person approved by the parties, such approval not to be unreasonably withheld by the Mother. The Grandmother, a family physician, was approved as a supervisor without the need to obtain the Mother’s consent. Conlan J. further refused to require the Father to utilize a Soberlink device during his parenting time. He ordered that these terms remain in place until the motion returned, which he expected to occur about three months later.
[11] Conlan J. explained that he is “convinced that supervision is required, initially, in order to address what the evidence, in its totality, substantiates as being an alcohol problem for father”. He added that that totality of the evidence before him pointed to the conclusions that there is “ something wrong” [italics in original] and “something unhealthy about [the Father’s] relationship with alcohol”. He cited various evidence that led him to find the existence of “a pattern of excessive and irresponsible alcohol use on the part of [the father].”
[12] Conlan J. rejected the Father’s claims that the Mother concocted her evidence of his alcohol abuse. He also considered the evidence of the Grandmother, the Father’s employer and the mother of Father’s other child, all denying that he abuses alcohol. Conlan found that those witnesses can all be truthful despite the existence of an alcohol abuse problem. The Father can be a good employee, parent to his older child, and involved with his younger children, even while experiencing an alcohol abuse problem. Conlan decided that “[o]n balance…that is where the truth lies”.
[13] Conlan J. also cited relevant authorities to state that “[s]upervised parenting time is not meant as a long-term solution. But rather a preliminary or an intermediate step in situations that for example, include substance abuse problems.” He explained that the term of “temporary supervision is meant to protect the children against the risk of an unintended consequence until such time as we can get further to the bottom of what is going on.”
[14] Conlan J. conceded that he may be wrong but that the test was a balance of probabilities, and his decision must rest on the side of caution in protecting the children.
The Father’s List of Ten Supervisors
[15] A day after the release of Conlan J.’s endorsement, on January 25, 2023, the Father’s counsel provided the Mother’s counsel with a list of 10 potential supervisors. They included the father’s four siblings and six friends, including (without admitting the relationship) his girlfriend. The Mother approved eight of the ten proposed supervisors, with the exceptions of L.H. and another friend of the Father. The Mother’s lawyer explained that she rejected those two candidates because she did not know either of them. In all, she approved four siblings and four friends, or 80% of his choices. This was in addition to the paternal Grandmother, leaving the Father with nine potential supervisors.
The Father’s Missed Parenting Time
[16] The return of the motion which Conlan J. spoke of has yet to occur. In fact, the Father has missed much of his scheduled parenting time since that order. That is the asserted raison d'être for this motion and its urgency. He has missed visits on eleven occasions in just over two months since the time of the Conlan J. order. He missed visits on:
February: 1 (morning), 5, 7-8, 14-15, 17-19, 28 - March 1 March: 3-5, 7 (dinner), 14 (evening), 18 (half-day) 19.
[17] The Father accepts no responsibility for this state of affairs. Rather, he blames the Mother alone for her refusal to accept his girlfriend as his “primary” supervisor. He asserts that “my intention when I requested approval for several supervisors was that [L.H.] would be the primary supervisor and the other proposed supervisors would serve as backup options”. He goes on to complain that the Mother approved only his backup options while refusing to approve L.H.
[18] The Father continues, disparaging the Mother’s motivations, claiming that she is motivated by “jealousy, pettiness and vindictiveness” towards his new girlfriend. He cites the fact that the Mother told the paternal Grandmother that she did not wish her children raised by a girlfriend of the Father.
[19] The Father’s narrative offers a form of revisionist history. I have reviewed his lawyer’s email, setting out his proposed supervisors. As set out above, he offers no priority to any of them. He makes no mention of “primary” or “secondary” supervisors. If that was his intention, he failed to articulate it to the Mother through his lawyer’s email.
[20] Further, he failed to articulate that L.H. was his girlfriend; a fact that appears to have been unknown to the Mother at the time. In the lawyer’s email, L.H. is described only as: “[f]riend for 24 years. Employed for 10 years at Baffinland Iron Mines as EA to the CEO. Works remotely”. The omission of the key fact of L.H.’s relatively new-found romantic relationship with the Father can only have been deliberate.
[21] In accepting eight of the Father’s ten potential supervisors but rejecting two, the Mother’s lawyer explained in a responding email that she was rejecting them because she did not know them.
[22] The Father claims to have known L.H. for 24 years (he does not say how). Yet neither the Father nor L.H. depose that L.H. knows the Mother. Certainly, no evidence has been presented that the Mother knew of L.H.’s romantic relationship with the Father when she rejected her candidacy for supervision.
[23] In his February 15, 2023 affidavit, the Father offers evidence as to why each of his proposed supervisors but L.H. is either unsuitable or generally unavailable. Yet again, he was the one who proposed them.
[24] In response to this motion, the Mother attaches emails between herself and a paternal uncle, Scott and aunt, Laura. Both stated that he failed to contact them on a timely basis to request their supervision assistance after proposing them as supervisors. The Mother also attaches texts between herself and Scott, arranging for his supervision of the Father’s parenting time on February 28 – March 1 and March 3-5, 2023. The Father rejected the offer.
[25] The Mother also attaches her own email exchanges with the Father, in many of which she requests information about supervision arrangements. For example:
a. On Tuesday February 7, 2023, the Father stated at 1:38 p.m. that he “is currently calling the emergency supervisors to see who is available to come to my house and spend the night. I will let you know asap”. This was for a visit that night. He did not explain why he did not contact them earlier or why he designated them as “emergency” supervisors. b. On Tuesday February 14, 2023 the Father wrote that he would be unable to spend time with the children as “[m]y mom is working today”. He added that L.H. was available. c. On Friday February 17, 2023, the Father emailed the Mother to say that he still was unable to secure an overnight supervisor for that weekend “as [L.H.] is still not approved and my mom is not available” He made no reference to the eight other approved supervisors. d. On Thursday March 2, 2023 the Mother emailed the Father to request that he let her know which supervisors he had arranged for the coming days and weeks. He responded that he had no supervisor for the upcoming weekend but will “message them all again and hope for the best”. He added that she should stop contacting his family. Recall that she had been attempting to secure supervisors for the Father from amongst his siblings. e. The point is highlighted in another communication that same day, when the Mother texted Laura to see whether she could supervise the Father’s upcoming weekend visit. Laura responded “unfortunately I can’t this weekend we have plans to go up north. We would need more notice next time.” Obviously, she did not receive sufficient notice from the Father.
[26] In almost every email chain cited by the Mother, the Father mentions his desire to have L.H. approved as a supervisor but makes no mention of contacting any other supervisor but the Grandmother.
[27] The Mother points out that the January 13, 2023 affidavit of the Grandmother, offered by the Father in the motion before Conlan J., stated that she and her children, the Father’s siblings, are “all local and available to assist [the father] at any time that he may require support in caring for the children.” The evidence does not support the Father’s full or timely utilization of this familial resource.
[28] In his reply affidavit, the Father pointed to one instance where his brother, Scott, was unable to assist him. He points to a text exchange to demonstrate his brother cancelling on him. But the text exchange shows that Scott felt that the father’s late timing and refusal to accommodate or compromise with him when requesting his assistance led to his absence on the weekend in question. Scott wrote: “I offered the other weekend and u didn’t respond…” Regarding his refusal to supervise on the upcoming weekend, Scott wrote: “[d]on’t put this on me. Trying to do you a favour and you gotta do everything ur way with no compromises. I have a life going on bro.” The exact issues are not clear but Scott’s willingness to assist his brother and his view of the father’s recalcitrance is clear from their exchange.
[29] In his affidavit, he went on to renounce his choice of Scott as a supervisor, because he cancelled on him the one time. He then adds that another reason that he changed his mind about Scott is that his brother had assaulted him in 2022, resulting in charges being laid and later withdrawn.
[30] Regrading his sister, Laura, the Father says that she was twice unavailable. But the texts offered by the Mother show that at least one of the requests was made at the last minute. Further, the Father complained that Laura is close to the Mother.
[31] None of his claims against his two siblings is based on information that is new to the Father. He already knew about the incident in which Scott allegedly assaulted him and that Laura offered an affidavit in support of the Mother in the motion before Conlan J. before offering them as supervisors. He also knew and relied on the Grandmother’s assertions regarding the availability of all four of his siblings to assist him in parenting his children.
[32] In other words, he renounced two of his own siblings, who were among the first names on his list, as unsuitable candidates for reasons he already knew when he proposed them.
[33] The Father’s rejection of two of his siblings out of hand also contradicts an assertion that he made in the motion before Conlan J. He deposed that “[m]y family is a close-knit family…I have the full support of my Mother and siblings should I need help with the children…My mother is an experienced family physician and I would have immediate and easy access to her should the need ever arise”. Yet he not only rejected his two siblings but now asserts that the Grandmother’s busy schedule severely limits her availability to supervise his parenting time.
[34] The Father also vaguely asserts that another brother recently received a promotion at work and has less time to provide supervision. He adds that another supervisor has moved to Hamilton (at an unspecified time) and recently had a baby, making it impractical to provide supervision. He does not say when he learned this information. As set out above, he offers similar comments about all of his other accepted supervisors, whom he has relegated to the role of subordinate supervisors.
[35] What is left is the notion that the only proper and “primary” supervisor is his girlfriend, L.H., with his mother as an occasional backup. That appears to be the veiled reason for both L.H.’s selection as one of ten proposed supervisors and his lack of candour about their relationship. Yet the Father accused the Mother of petty jealousy and vindictiveness for originally refusing to accept the woman as a supervisor. He says this when the evidence points to the Mother not even being aware of the romantic relationship that is the purported motivation for her impugned response.
[36] In her oral argument, the Father’s counsel attempted to highlight the jealousy angle by stating that the only two proposed supervisors rejected by the Mother were women, L.H. and another friend, Thabit Olufowabi. Counsel went on to point out that Thabit Olufowabi is a family physician, thereby attempting to highlight the unreasonableness of the Mother’s rejection of that candidate.
[37] Yet curiously, the Father’s Notice of Motion does not ask that Dr. Olufowobi be added to the list of approved supervisors. Only L.H. If there were a legitimate shortage of available supervisors, one would think that a parent truly seeking to add as many supervisors as possible would have requested Dr. Olufowobi’s appointment in his Notice of Motion.
[38] While the Mother initially rejected L.H. as supervisor simply because she did not know who she was, she articulated other reasons in this motion. They were based upon her knowledge of the relationship between the Father and L.H. In doing so, the Mother takes pains not to malign L.H., whom she concedes “might be a trustworthy and responsible person”. The Mother contends that:
a. L.H. has no relationship with the children to date. b. She is subject to “new relationship pressures to please her new partner”. She would have difficulty undermining that new relationship by reporting him to the court if he were drinking or intoxicated with the children. c. The Father is psychologically controlling and may exert emotional pressure on L.H. She points out that the couple are in the “honeymoon” stage of their relationship. d. The court should not gamble with the safety of the children when there are a number of other available and approved supervisors.
Analysis
[39] Conlan J. set the bar for withholding consent to any proposed supervisor at reasonableness. That is a sensible standard. But of course, any decision regarding parenting time must be based on the best interests of the children, as articulated in s. 16 (1) and (3) of the Divorce Act, R.S.C. 1985, c.3, (2nd. Supp.).
[40] Here, I find that it is not in the best interests of the children to approve L.H. as a supervisor for the following reasons:
a. The Mother’s rejection of L.H. was not made in bad faith. To the contrary, she approved eight of ten proposed supervisors, including all four of the Father’s siblings and four of his friends. When she rejected L.H. it was because she did not know the woman. Only later did she learn that L.H. was the father’s girlfriend. b. As set out above, the Father places great weight on a conversation between the Grandmother and the Mother. In it, the Mother expresses the concern that the Father will allow a girlfriend to raise her children. That comment is meant to illuminate the hidden bad faith motivation behind the Mother’s objection to L.H.’s supervision. But it comes within the context of a greater concern that the Father has allowed others, including the Grandmother herself, to care for the children in his stead. I am not in a position to determine the veracity of that claim. But from the evidence, the concern was a child-focussed one rather than one motivated by petty jealousy, as the Father contends. Thus, I place no weight on it. c. I add that the correspondence provided to me shows that the Mother has attempted in good faith to work with the Father regarding his visits. She has attempted to both assist in finding a supervisor when the Father has failed to do so and to be flexible in changing dates to accommodate his supervisors’ schedules. d. The Father’s counsel cites the decision of Pomerance J. in Thibert v. Thibert, 2020 ONSC 3807, to make the argument that the Mother acted unreasonably in rejecting L.H. as a supervisor because she did not know her. But the facts of Thibert were quite different from those here. In Thibert there were no allegations of problem drinking and denial as there are here (although there was a credible allegation of family violence). Mr. Thibert’s parenting time had originally been supervised at a supervised access centre. But the centre was forced to close because of Covid. If Mr. Thibert did not offer alternate supervisors, he would have had no contact with the children. But he managed to offer six supervisors, all of whom were rejected by Ms. Thibert, simply because she did not know them. None of the proposed supervisors was a recent romantic attachment. None raised any concerns. That is far from the case here, where the Mother accepted 80% of the Father’s proposed supervisors, both family and friends, who were supplemented by the paternal Grandmother. That leaves him with nine supervisors. Further, while the Mother originally rejected L.H. because she did not know her, that was not the rationale for her refusal in this motion. e. The Father has not been candid with the court and the Mother regarding L.H. I place great weight on that lack of candour. The Father failed to mention L.H. in his materials before Conlan J. He then misled the Mother by omission when describing L.H. in his lawyer’s email, setting out his list of supervisors. His lawyer spoke of her employment record but not the fact that she was his girlfriend of six months at the time. Of course, this speaks to the Father’s instructions rather than counsel’s conduct. f. Further, I do not find that the Father’s list of potential supervisors was offered in good faith and with complete candour. He represented to Conlan J. that he had a very close and supportive family, including the Grandmother and his four siblings. Yet, soon after offering his siblings, Scott and Laura, as supervisors, he effectively withdrew them. He also diminished the potential of his other siblings or the Grandmother as supervisors, based on facts that he knew when he proposed them. Either they were suitable and generally willing to supervise or they were not. g. Further, from the evidence before me, the Father rarely if ever asked his siblings on a timely basis to supervise his parenting time. h. In fact, on February 15, 2023 the Father proffered an affidavit offering reasons why each of the supervisors but L.H., whom he had proposed less than three weeks earlier, were not suitable as anything but secondary, backup supervisors. i. While the Father’s original lack of candour regarding L.H. is concerning, so too is his speed in assigning blame to the Mother for two things for which he is responsible. They are: rejecting an unknown woman who turns out to be his girlfriend, and failing to effectively utilize the nine supervisors who had been approved. j. The only conclusion that I can reach on the facts before me is that the Father always intended L.H. to be the primary supervisor, and that he hid that fact from the Mother. Only after providing an unranked list of potential supervisors did he refer to all of the eight ones accepted by the Mother as “backup” or “emergency” ones. k. In numerous emails to the Mother, particularly regarding his purported inability to find a supervisor, the Father requests that L.H. be approved as a supervisor. But he does so without reference to having contacted any alternatives but the paternal Grandmother. l. When moving to have L.H. added to the list of parenting supervisors, the Father omitted to make the same request regarding Dr. Olufowobi. That omission is notable. Other than L.H., Dr. Olufowobi was the only proposed supervisor that the Mother rejected because she did not know the candidate. During her argument, the Father’s counsel disparaged the Mother for having rejected the female Dr. Olufowobi. If this motion were truly about expanding the roster of parenting supervisors rather than just installing the Father’s new girlfriend as “primary” supervisor, he surely would have included Dr. Olufowobi in this motion. That fact raises further concerns about the Father’s motivations in this motion. m. In saying this, I wish to make clear, as the Mother implicitly admitted, that there is no reason to question L.H.’s integrity or good faith. But that is not sufficient to appoint her as a supervisor. While she professes good intentions, she says nothing about her observations of the Father’s drinking. Conlan J. found that the Father has a drinking problem. He did so based on a variety of evidence before him, including a historical impaired driving offence, affidavits of people who observed him to be intoxicated, and videos from a door cam apparently showing the Father to be impaired around his home. Yet the Father remains defiant that this is not true. n. For her part, L.H. expresses a disdain for the notion of a parent being intoxicated around the children. But she does not express an opinion contrary to that of her new romantic partner regarding his drinking. In fact, she says little at all in that regard. If the Father is not candid with the Mother or the court, it is hard to believe that he would be candid with L.H. about his drinking either. If he is in denial about his drinking, which the evidence to date seems to indicate, and L.H. implicitly accepts that view in maintaining her relationship with the Father, it is hard to expect that she will be able to objectively report on any of his drinking. Further, doing so, as the Mother points out, may well diminish her developing romantic relationship with the Father. o. I do not trust the Father’s motivations at this time. The Mother alleges that the Father is manipulative and is in danger of manipulating L.H. Despite her good will, L.H. is in a relatively new relationship with the Father and is placed in a far more difficult position regarding the supervision of his parenting time than his other supervisors. From the evidence that claim is credible regarding the Father’s conduct, as set out above. It was manipulative in the sense of creating an urgency that could only be met with the approval of L.H. as a supervisor. That was an urgency of his own making. p. I find that at all material times it was the Father’s unstated (and now stated) intention to make L.H. his primary supervisor. If approved, she would be the most frequent if not exclusive supervisor of the Father’s parenting. I do not find that he intended to make full use of his other supervisors. He could have worked with his nine other approved supervisors to create a supervision schedule with sufficient advance notice that they would be available to assist him during the period in which his parenting time is supervised. Instead, he has relied on his choice or failure to properly plan to have his supervisors available for his parenting time. q. Ultimately, the children have suffered from the Father’s failure to properly arrange for supervisors on a timely basis. That is unfortunate. I am hoping that he will start to make those arrangements well enough in advance to ensure that they are honoured. r. In light of the concerns set out above, I do not believe that it is in the children’s best interests to take a chance with L.H.’s supervision of the Father’s parenting time. s. The Father must plan and work more closely with his nine supervisors to create a supervision plan that is workable. In the meantime, he has lost a great deal of parenting time with his young children that can never be made up.
Conclusion
[41] For the reason set out above, I dismiss this motion
Costs
[42] During the course of argument, each party offered the court their costs expectations, if successful. Their numbers were not very far apart. I find that the Father shall pay the Mother costs of $4,000, inclusive of the previous case conference. That amount is fair, reasonable, proportionate and in line with the reasonable expectations of the party called upon to pay costs.
“ Marvin Kurz J. ”
Electronic signature of Justice Marvin Kurz