Court File and Parties

COURT FILE NO.: FS-23-00046146-0000 DATE: 2023-07-20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mark Evan Shankman, Applicant AND: Melanie Marie Dennison, Respondent

BEFORE: Kurz J.

COUNSEL: Philip Viater, Counsel for Applicant Katerina Svozikova, Counsel for Respondent

HEARD: July 19, 2023

ENDORSEMENT

Introduction

[1] This was an “urgent” motion by the Respondent mother, prior to the exchange of pleadings or a case conference. She seeks an order requiring that the Applicant father’s parenting time be supervised for failure to comply with minutes of settlement (the “Minutes”) requiring that he undertake random drug testing. He has not taken a drug test since June 5, 2023. One of the two tests that he has taken show the presence of cocaine, albeit in trace amounts.

[2] The Applicant father, who previously brought a similar “urgent” motion against the mother, which was resolved with the Minutes, responds that he has complied with them. He has not failed to take a random urine test since June 5, 2023; he has not been asked to do so. That is the random luck of the draw. Regarding his one positive test, the only one reported, he says that it was the result of a very sensitive test. He says that that test was administered after he had been arrested and exposed to prisoners who ingested cocaine and a drug cocktail when he was hospitalized for an injury.

[3] The father does more than claim that he has fully complied with the Minutes, despite the one positive test, the lack of a reported result of the other test he took, and the paucity of any further tests. Rather in a bout of “whataboutism”, he complains that it is the mother who is failing to comply with the Minutes. While she has supplied a number of breathalyser results, he claims that they are not in compliance with the Minutes. While the mother’s alcohol use is not an issue before the court in this motion, he nonetheless goes on at length about her admitted and lengthy alcohol use.

[4] The father also points out that the Halton CAS has closed its file following her complaint of concerns about him. He neglects to mention that it has taken a similar tack towards her as well. The Society also says that the mother may have unsupervised parenting time.

[5] The paternal grandfather, who reported the father to the College of Dentistry, denies the father’s present drug use. To the extent that the mother cites him as a potential supervisor, the father points out that his father lives in Niagara-on-the-Lake. That means that he is not a realistic choice to supervise, particularly on a 2-2-3 basis as a potential supervisor.

Background

[6] By way of brief background, the parties began dating in 2017 and moved in together in April 2018. Their son, Josh, was born on July 27, 2018.

[7] Both parties have a history of substance abuse problems, the mother with alcohol and the father with drugs. The mother is a cardiac technologist who is on stress leave from her job. The father is a practicing dentist. The parties separated on January 25, 2022, when the father was charged with three counts of assaulting the mother. The alleged assaults occurred between December 2021 and January 2022. While the father denies the charges, they were resolved with a peace bond.

[8] The father has a history of substance abuse and drug treatment that goes back about ten years. His own father informed the Royal College of Dentistry of Canada (the “College”) of his drug use. The mother says that he was disciplined by the College with respect to insufficient record-keeping and inability to account for medications. She adds that he was cautioned by the College in 2009 for inconsistent record-keeping and in 2011 for inappropriate communication over social media with young women. In 2014, the College found that he failed to keep a drug logbook in respect to in-office supplies of sedative agents and was unable to account for hundreds of tablets of sedative agents during the years 2011-2013. She says that he was suspended for two months on February 1, 2016.

[9] The father has been receiving substance abuse treatment from Dr. Conrad Sichler, who describes himself as an “addiction medicine physician”. Dr. Sichler has written a report, dated June 29, 2023, in which he states that he has known and provided care to Dr. Shankman for the past eight to nine years and provided care for him over the majority of the time.

[10] The mother produces photos of what she claims to be the father’s drug paraphernalia. The father refers to the photos as “staged” fakes.

[11] In April 2023 the Father was charged with seven criminal offences, namely:

• Failure to comply with a recognizance x2;
• Criminal harassment x2;
• Utter threat
• Fail to stop;
• Dangerous operation of a conveyance.

The Minutes

[12] The father brought an urgent motion against the mother, returnable May 31, 2023, to require that her shared parenting time with the child be supervised. He claimed that she was again abusing alcohol. The day before the motion was scheduled to be heard the parties entered into the Minutes, which dealt with each parties’ concerns about the other’s substance abuse.

[13] In brief, the terms of the Minutes called for:

a. The parties to share parenting of the child on a 2-2-3 basis;

b. The mother shall immediately commence random alcohol testing through the Random Alcohol Monitoring Program, ("RAMP"), and shall submit to two fixed tests (9am and 10pm) and two random tests each day she has parenting time with the child. The Minutes include reporting terms regarding the results.

c. The father shall immediately undergo a urine drug test. Until varied or changed by agreement or Court Order, the father shall commence random drug testing to screen for non-prescription drug use, (i.e., cocaine, benzodiazepines and opioids). He shall immediately contact his physician, Dr. Sichler, to inquire about enrolling in a random drug testing program.

d. If either party fails a test or fails to take a test, their parenting time shall be supervised until a further agreement or Court Order.

e. In the father’s case, a "failed" drug test means a test that indicates that he has used a non-prescription drug without a prescription and for recreational purposes, as determined by Dr. Sichler. A failed drug test shall not include prescription medication or substances which, in Dr. Sichler's opinion, were ingested accidentally or through environmental exposure.

[14] Since the time of the Minutes the Father has taken only two “random drug tests in June and none since June 5, 2023.” While I have been provided with a purported explanation that there has been no random call for him to be tested since June 5, that claim is nonsense. The clear intent of the Minutes was for random drug testing, something that has not occurred.

[15] Further, the one result that has been provided, as set out in Dr. Sichler’s report, cited above, showed trace amounts of cocaine in the father’s system. While Dr. Sichler attempt to explain, offer theories and arguably minimize that result, he admitted that it could well be indicative of the father’s drug use. In fact, the other physicians with whom he consulted about the result felt that drug use rather than environmental contamination was the more probable explanation.

[16] His summary of the result of the one drug test taken by the Father since the Minutes were signed offers reasons for concern. He wrote:

Therefore, in summary, the June 1^st, 2023 urine sample that Dr. Shankman provided was found via clinical toxicology testing to have very low levels of cocaine and low levels of benzoylecgonine that were initially reported as positive. This sample was re-tested and the results were confirmed.

The levels of these drugs found in his urine, had the result been reported under forensic toxicology standards, would have resulted in a report of the sample being negative for any drugs of concern. Part of the reason for this is that levels such as those found in Dr. Shankman’s sample have also been found under experimental conditions of passive drug exposure. There is obviously some chance that the results seen in this sample do represent actual use of the substance in question, and the other physicians who I spoke to said that this was the more probable explanation. My clinical assessment of Dr. Shankman is that he is under strain but that he is sober and continues to be in recovery. There is also some chance that this sample was someone else’s sample that was mistakenly tested as Dr. Shankman’s sample. This possibility could be mitigated by future chain of custody sample collection and handling.

[Emphasis added.]

[17] Dr. Sichler is a participant expert, who is not subject to the same obligations to the court as a litigation expert. In particular, his obligations to the court does not prevail over any obligation owed to his patient: r20.1(3). Without hearing from him directly, I cannot speak to Dr. Sichler’s impartiality. However, his report can be read as advocating for his long-standing patient’s perspective that the presence of cocaine and another drug related to it are not the result of his drug use.

[18] I add that it is not clear why the father has not been randomly tested on a more regular basis. Dr. Sichler’s does not answer that question.

Analysis

[19] The father has provided a less than fulsome or compelling explanation of his failure to test more regularly or his failure of his one reported test.

[20] Despite my concerns set out above, I have been presented with no evidence that there has been an actual problem with the father’s care of the child since the signing of the Minutes. I note that the Halton CAS recently closed its file regarding him.

[21] My decision on this motion must be based on the child’s best interests rather than a form of punishment of the father for a failure to comply with the intent of the parties’ Minutes, which for some reason were never turned into an order[^1]. Unfortunately, the Minutes were imprecise in regard to his drug-testing obligations. With this endorsement, I intend to correct that omission.

[22] Thus, I do not require that the father’s parenting time be supervised at this time.

Order

[23] The terms of the Minutes shall be incorporated as my temporary order, subject to the terms set out below:

a. This motion is adjourned to November 1, 2023 for further evidence. I am not seized.

b. The father’s random urine drug testing, as set out in the Minutes, shall occur weekly.

c. The father shall obtain and produce a report from Dr. Sichler setting out the result of the other urine test taken so far and why the father has not been more regularly tested.

d. The mother is entitled to the expeditious production of all records of any drug testing which the father undertakes.

e. On consent, the father’s counsel may make inquiries, whether in writing or orally, directly of Dr. Sichler regarding any drug testing undertaken by the father. If there is any fee for any such consultation, the mother is responsible for paying it, subject to review by the court. This term may be reviewed upon the review of this motion.

f. If the mother believes that the father has failed a further drug test or has failed to take drug test as set out above, she may bring an urgent motion to vary the terms of this order.

g. The parties will exchange pleadings with the father filing his application within 14 days, the mother shall do the same within a further 14 days. The parties will arrange a case conference date as expeditiously as possible thereafter.

h. The terms regarding the drug testing obligations of both parties may be reviewed upon the return of this motion.

[24] I order no costs of the motion to date. While the father was generally successful, it was a close call. Additionally, I am not satisfied with his failure to obtain regular random urine testing, which was the clear intention of the Minutes.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz

Date: July 20, 2023

[^1]: I do note that as a term of the adjournment to this motion from July 13 – 19, 2023, Emery J. required the parties to adhere to the parenting time terms of the Minutes.