COURT FILE NO.: FS-23-00046146-0000
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mark Evan Shankman, Applicant
AND:
Melanie Marie Dennison, Respondent
BEFORE: Kurz J.
COUNSEL: L. Perelman, Agent for the Applicant
K. Svozilkova, for the Respondent
HEARD: September 28, 2023
ENDORSEMENT
Introduction
1This is an urgent motion brought by the Respondent mother (the “Mother”) for an order that the contact between the Applicant father (the “Father”) and their five-year-old son, J., be supervised.
2Until this motion was brought, the parties were operating under a consent 2/2/3 unsupervised shared parenting arrangement. That arrangement is the result of a motion brought by the Father and resolved on May 31, 2023. As set out below, no order was ever issued following that resolution.
3This is the second time in just over two months that I considered a similar urgent motion by the Mother. The first was argued on July 19, 2023 and resulted in my endorsement of July 20, 2023 (2023 ONSC 4265), whereby I dismissed the Mother’s request that the Father’s parenting time be supervised.
4I found that this motion should be heard on an urgent basis following a review of two affidavits forwarded on behalf of the Mother. Those affidavits set out that the Father failed two further drug tests since this matter was last before me, just over two months ago. The Father’s most recent failed drug test was administered on August 25, 2023 and showed the presence of cocaine metabolite in his system. The Mother further alleged that drug paraphernalia was found in the child’s backpack, that J.’s clothing was not changed in the Father’s care, the child’s backpack went missing in the Father’s care under questionable circumstances and that, in her view, the child was inadequately cared for while in the Father’s care.
5In his lengthy responding materials and his counsel’s argument of this motion, the Father categorically denied all of the Mother’s allegations. His defences were similar to those advanced in the previous motion before me. He stated that the failed August 25, 2023 drug test was the result of indirect ingestion of cocaine through sex with a woman who used cocaine, that the photos of drug paraphernalia were staged and that the allegations of improper care were false. In fact, this motion is the response to his threat to move to have the Mother’s parenting time supervised because of missed alcohol tests.
6The Father relies in large measure on the written response of his addictions counsellor, Dr. Conrad Sichler, to his counsel’s written question regarding the veracity of his explanation for his failed drug test. Dr. Sichler wrote that the Father’s rationale “can be a possible” explanation for the finding of cocaine in his system.
Brief Summary of my Decision
7As set out below, I am not convinced by either the Father’s explanation or Dr. Sichler’s defence of his account. Because I lacked time to draft a full endorsement for this motion on a timely basis, I issued a brief endorsement, without explication, on September 28, 2023. That endorsement sets out the following terms:
I order that between now and November 1, 2023, the return date of the Mother’s earlier motion of July 19, 2023, the Father’s parenting time shall be supervised by a family member or another person agreed upon I advance. So long as the supervisor is sleeping over, the Father’s overnight parenting time may continue.
8In this endorsement I set out my reasons for that order and elaborate on further terms of parenting as well as further procedural and substantive terms that the parties agreed upon at the time that this motion was argued.
Background
9The parties cohabited from April 2018 until January 2022. They never married. The parties have traded allegations of the other’s substance abuse for some time after their separation. The Mother is a cardiac technician who has been on stress leave for some time. The Father is a practicing dentist. Each party has experienced substance abuse problems; the Father with drugs, particularly cocaine, and the Mother with alcohol. Each alleges that the other’s substance abuse problems persist to this day.
10The Halton Children’s Aid Society (the “HCAS” or the “Society”) has been involved with this family for some time. As a result of the Mother’s alcohol abuse, on February 9, 2021 the parties signed a five month voluntary service agreement with the Society. The agreement required the Mother’s parenting time with J. to be supervised. That consensual supervision continued until earlier this year. Most of that supervision was conducted by the maternal grandmother.
11The HCAS also investigated allegations against the Father, but it closed its file this spring.
12The Mother has alleged that she is the victim of the Father’s family violence. In January 2020, he entered into a peace bond to resolve assault charges involving the Mother. He is presently facing further charges involving the Mother and the maternal grandmother, those being: two charges of breach of recognizance, two charges of criminal harassment, uttering a death threat, failing to stop, and dangerous driving. His bail terms restrict contact between the parties.
13The Father’s contact with the child was also supervised on a number of occasions because of the Mother’s allegations of his drug use and erratic behaviour. However, on May 31, 2023 the parties agreed that they would engage in an unsupervised 2/2/3 shared parenting arrangement that is now the status quo. Those terms settled a motion by the Father to reinstate his unsupervised parenting time with J. However, the terms of that arrangement were not incorporated into a court order. I do note that as a term of the adjournment to the earlier motion before me, from July 13 – 19, 2023, Emery J. required the parties to adhere to the parenting time terms of the Minutes.
14I add that no Application has yet been issued in this proceeding. Both the previous motion before me and the motion resolved on May 31, 2023 were brought without either party having formally commenced this proceeding. I deal with that issue below by setting out a consent timetable for the exchange of pleadings.
My July 20, 2023 Endorsement
15The Father’s response to this motion is similar to his response to the Mother’s previous motion. That motion was based on a failed June 1, 2023 drug test, which showed a cocaine metabolite in his system, as well as a failure to regularly undergo drug tests, as agreed.
16In that previous motion, the Father claimed that his failed drug test was the result of indirect exposure to cocaine. At that time, he cited two sets of discrete events which occurred in May 2023 that could have led to his exposure to cocaine: 1) his brief time in prison on criminal charges arising from the Mother’s complaints; or 2) his time in hospital, where he was offered an unknown cocktail of drugs after his leg was burned in an accident.
17In my endorsement of July 20, 2023, I stated the following:
15Further, 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[ed] 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.
18In denying the request for an order that the Father’s parenting time be supervised, I analysed the issue as follows:
19The 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.
20Despite 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.
21My 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. Unfortunately, the Minutes were imprecise in regard to his drug-testing obligations. With this endorsement, I intend to correct that omission.
22Thus I do not require that the father’s parenting time be supervised at this time. [Footnoted in original.]
19Instead, I required that the Father’s drug testing take place weekly and be randomly arranged by Dr. Sichler. Further, the Mother’s counsel may contact Dr. Sichler directly to obtain the results of the random drug testing. I also ordered that “[i]f 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.”
20My decision was a close call. I closed by saying that “I am not satisfied with [the Father’s] failure to obtain regular random urine testing, which was the clear intention of the [parties’] Minutes.”
Alleged Breaches of my July 20, 2023 Order
21In her affidavit of September 21, 2023, the Mother pointed to a number of alleged breaches of my July 20, 2023 order. They included:
a. failing to enroll and participate in a random drug testing protocol;
b. producing four non-random drug tests while Dr. Sichler was on vacation this past summer;
c. failing to produce a report from Dr. Sichler regarding his June 5, 2023 drug test;
d. failing to sign a consent to allow her lawyer to speak to Dr. Sichler;
e. failing to issue an Application to formally commence this proceeding within 14 days, as ordered (my previous order was issued before pleadings had been issued).
22Besides those procedural and testing issues, the Mother pointed to the following added concerns:
a. She discovered an empty box of single-use foil pipes used for smoking crack, in J.’s backpack after a weekend with the Father;
b. She also found J.’s soiled laundry in his backpack on more than one occasion;
c. J. is being returned to her after the Father’s parenting time, smelly, dirty and often hungry;
d. When the Father took J. to school for his first day, the child had no school supplies, extra shoes, water bottle, sunglasses, or a hat, despite it being a very hot day;
e. On September 13, 2023, the Father’s assistant contacted the Mother at 5:35 p.m. to say that the Father was stuck in traffic and asked her to pick J. up. By 8:00 p.m. the assistant asked her to keep the child overnight;
f. The Mother allowed the child to stay with the Father and his family over Rosh Hashana on Saturday September 16, 2023 and keep him until the following Monday. When the Mother picked up the child from school the following Monday, she says that he was dirty and wearing the same clothing, including underwear and socks, with which he was clothed at pickup. The child told the Mother that his Father had not celebrated the Jewish high holiday because he had to “stay home and do homework”;
g. The Mother claims that an employee of the Father’s dental practice told her that most of the practice’s employees had walked out because of the Father’s allegedly aggressive and bizarre behaviour at work.
23With regard to her alcohol testing, the Mother stated that she had thus far completed 489 tests since June 1, 2023, but had inadvertently missed three. She made up those tests and had no “negative” or failed test results. Her tests are set up so that each party’s lawyer can receive them.
24On September 25, 2023, the Mother filed an affidavit of her lawyer’s law clerk which enclosed a September 23, 2023 letter of Dr. Sichler. That letter enclosed a series of drug test results without any comment on them. Although Dr. Sichler does not mention it, the attached results showed further failed tests on June 5, June 14 and August 25, 2023. The June 14 test was a retest of the June 1 and 5 tests. The result was the same. The Father does not contest the results, although he offers his explanations for them.
25The clerk’s affidavit also pointed out that the Father’s counsel had provided four negative drug test results to the Mother’s lawyer on August 21, 2023. But none of those results showed the failed June 5 and 14 tests. The Mother first learned of those failed tests, as well as the August 25, 2023 test, from the results attached to Dr. Sichler’s September 23, 2023 letter.
26In his September 23, 2023 letter, Dr. Sichler stated that he had decided that the parties’ May 30, 2023 agreement calling for random drug testing should be read to mean that the testing would occur monthly rather than weekly. He did not explain why he made that decision, especially in light of the facts that:
a. the Father failed June 1 and June 5, 2023 drug tests;
b. Dr. Sichler had admitted that the June 1, 2023 result could well be indicative of the Father’s drug use;
c. the other physicians with whom he consulted about the result felt that drug use rather than environmental contamination was the more probable explanation for the failed test.
The Case of J.’s Missing Backpack
27On September 27, 2023, the Mother filed a further affidavit, in which she pointed to a rather bizarre series of events the previous week regarding the Father’s parenting and the loss of J.’s backpack while in the Father’s care. The Mother stated that she first learned of the issue of the lost backpack at 2:22 a.m. on Monday September 25, 2023. At that time, she received a call from a woman who identified herself as “Heather”, an employee of the Father. Heather claimed to be doing work in the Father’s office the previous weekend but that somehow J.’s backpack was lost in an Uber. The woman, in the Mother’s telling, sounded panicked and confused.
28Heather then sent the Mother a text at 2:28 a.m., reproduced in the Mother’s affidavit, in which she apologized for leaving the backpack in an Uber, and offering to pick it up if the Mother could supply its location. As the Father was obviously aware, the Mother had placed an AirTag in the child’s backpack.
29The Mother then received a 5:41 a.m. text from the Father’s friend, Ryan Blais (“Ryan”), saying that “we can’t find J’s backpack” and asking for help in tracking it. Ryan had also attempted to contact the maternal grandmother at 5:57 that morning for the same purpose. Another friend of the Father also attempted to contact the maternal grandmother about the missing backpack.
30The Mother received a text from Kayla, the Father’s receptionist, at 7:10 that morning, seeking the address of the backpack. The Mother responded with an address, which, ironically, she understood to be the Father’s home.
31Later that day, the Mother picked up the child from school. He had been with the Father the previous weekend. J. was wearing a gym shirt even though it was a non-gym day. The Mother adds that the Father had sent the child to school that day with no water bottle, sunglasses and hat. The Mother recounts that the child complained of having no water all day.
32On September 26, 2023 the Mother received a call from Janina Etherington, Ryan’s cousin. Ms. Etherington told the Mother that the Father’s car had been stolen with the child’s backpack in it. She knew nothing of the bag being left in an Uber. However, J. told the Mother that the Father’s car had been stolen the previous week and that his truck was in the shop.
33On September 27, 2023, Sara, the Father’s bookkeeper, texted the Mother at what she said was the Father’s behest. She stated that he needed a report on the bag’s whereabouts from Sunday at 8 p.m. to Monday at 8 a.m. If the Mother complied, he would bring her child support payments up to date and prepay them until the end of this year.
34The Mother complied. Sara responded that the Father wanted to know whether the child had his bag with him on Monday (September 25). In response, the Mother asked how the Father was unaware of the answer to that question as he was supposed to have the child with him until school drop-off that morning. The Mother asked Sara a question of her own: was the child with the Father on the Sunday night? Sara replied that J. was with the Father.
35The Mother deposed that J. told her that he and the Father had spent the previous Friday and Saturday in a hotel room in Toronto. The child added that the Father and his girlfriend were fighting and that he had to sleep on the couch.
36Later that day, Sara asked the Mother to pick up the child from school on the Father’s parenting day.
37The Mother’s September 27, 2023 affidavit exhibited an email her counsel received from Dr. Sichler earlier that day. The email stated that while the Father had “mostly done tests on the day they were called for”, he had failed to do so on four occasions since August 14, 2023. He did take the tests but not on the dates scheduled. On two of the wrong dates there may have been a mix-up between testing date protocols, and on the other two there was no relationship between the test date and the date that the test should have been taken.
38The Father’s materials, prepared in great haste because of the short window to respond to this urgent motion and because the Father’s primary counsel was at trial in another matter, denied all of the Mother’s allegations. Instead, he asserted that:
a. he has been drug-free for over ten years;
b. he reiterated the indirect exposure defence for the failed June 5, 2023 drug test he had offered for the failed June 1, 2023 test;
c. he stated that the Mother’s photos of drug paraphernalia in J.’s backpack were “staged”;
d. he had advised the Mother that he was planning to bring his own motion to make her parenting time supervised just before she brought this motion. He claims that this motion is intended to retaliate for or pre-empt his threatened motion;
e. his failed August 25, 2023 drug test was also the result of indirect ingestion. This time it was caused by cross-contamination from a cocaine-using woman with whom he was having sex;
f. that same woman later stole his car, with J.’s backpack in it;
g. he relies on the opinions offered in a September 27, 2023 report of Dr. Sichler, addressed to the Father’s counsel;
h. the Mother’s claims of his inadequate child care are false. He pointed to the fact that the HCAS had earlier closed its file regarding him.
39In his September 27, 2023 report, Dr. Sichler expressed his openness to the Father’s explanation for his failed August 25, 2023 drug test. When asked whether, as the Father claims, the August 25, 2023 result may be one of cross-contamination from a sexual partner, Dr. Sichler responded, speaking to all three distinct failed drug tests:
Yes, the above explanation can be a possible explanation for the observed positive test results. It could also be a possible explanation for the earlier two positive test results. Urine drug testing cannot differentiate between whether cocaine has been ingested primarily or through secondary exposure. I should note that I do not yet have a quantitative number on the August 25th, 2023 test result, despite having spoken to a toxicologist about it, requesting it, and following up on it today. However, I did learn that the cutoff for this test is 50 ng/mL for the cocaine metabolite.
40During the course of argument, the Father’s counsel pointed to her client’s long-standing desire for an assessment under s. 30 of the Children’s Law Reform Act. He was willing to pay the initial costs of the report, subject to reallocation at trial. The Mother was unwilling to agree unless the order called for no potential contribution to the costs of the report because of her precarious finances. The Father wanted me to draw an adverse inference from that refusal. But after some discussion before me, the Mother agreed to the Father’s proposal. I will have more to say about that below.
41The Father’s counsel further asserted that his test results were so low that they should not be relied upon. She also pointed out that the June 14, 2023 result was simply a re-testing of the June 1 and 5, 2023 results, which were again found to be positive.
42With regard to the latest test result, the Father’s counsel pointed to the comments in Dr. Sichler’s September 27, 2023 report, cited above. Counsel also pointed to Dr. Sichler’s earlier June 30, 2023 report, in which the treating physician wrote: “I have seen positive test results from patients who have had intimate relations with cocaine users but have reportedly not used the substance themselves.”
43Counsel added that the Father has had negative test results since the August 25, 2023 test. Counsel also pointed out that I had adjourned the balance the Mother’s motion to November 1, 2023. The matter could hold till then.
44The Mother’s counsel repeated the comments set out above but made a point of the timing of the August 25, 2023 failed report. That test took place on a Friday, just before the Father had the child in his care for the weekend. The Mother had raised the issue of drug paraphernalia and dirty clothing after the child was returned to her care the following Monday. But she was not aware of the failed drug test when she raised her concerns about the drug supplies and the soiled clothing in the child’s backpack.
Analysis
45When I dealt with the issue of the Father’s drug use in my endorsement of July 20, 2023, he only failed one drug test, which he vigorously contested. I gave him the benefit of the doubt, but just barely. Now I am faced with two further failed drug tests and a further test (June 14, 2023) confirming the veracity of the first two tests (June 1 and 5, 2023).
The Father’s two Main Defences
46The Father’s three main defences, beyond broad denial are:
a. What I described in my earlier endorsement as “whataboutism”; i.e. that the Mother is the person with the substance abuse problem;
b. Reliance on Dr. Sichler’s reports, as set out above;
c. Blaming the unnamed girlfriend, who allegedly gave him a detectable level of cocaine through sex and later stole his car with the child’s backpack in it.
“Whataboutism”
47The “whataboutism” defence may be a sword, but it is not a shield. It does not respond to the claims that he is using drugs again.
My Concerns with Dr. Sichler’s Evidence and the Notion of Passive Ingestion
48For reasons cited below, I find that Dr. Sichler’s evidence offers an unsatisfactory response to the concerns raised by the failed tests. I say this for a variety of reasons, which follow.
49While I previously described Dr. Sichler as a participant expert in my June 20, 2023 endorsement, the Father now attempts to rely on him as a litigation expert as well. He has filed a Form 20.2 Acknowledgment of Expert’s Duty, signed by Dr. Sichler. That form sets out a litigation expert’s preeminent duty to the court to offer opinion evidence that is:
a. fair, objective and non-partisan;
b. related only to matters that are within the expert’s area of expertise; and
c. offers such additional assistance as the court may reasonably require, to determine a matter in issue.
That duty prevails over any duty owed to any party who retained the expert.
50But the mere execution of the form does not make Dr. Sichler an objective litigation expert. As I wrote at para. 17 of my July 20, 2023 endorsement:
17Dr. 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 [do] not prevail over any obligation owed to his patient: r 20.1(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.
51Nothing that has happened since has changed my view. I point, for example, to Dr. Sichler's letter to the Mother’s lawyer of September 23, 2023, where he makes no reference to failed drug tests. He fails to mention them even though the attached test results demonstrate the failed June 5, 14 and August 25 results.
52Dr. Sichler appears willing to give a wide berth to the Father’s explanations for his positive drug tests. He wrote on September 27, 2023 that the Father’s claim of cross-contamination can be a possible explanation. That response includes two levels of equivocation, “can” and “possible”, in the same sentence. Yet he does not offer an explanation for that equivocation or any analysis of the reasons that cross-contamination may or may not be an explanation for yet another failed drug test.
53I am not questioning the integrity of Dr Sichler. Rather, I am pointing to his role as a addictions therapist, where it is necessary to support his patient in the difficult and long-term process of remaining drug-free. His role is to be a support to his patients, not to police their drug use.
54Rule 20.2(1) of the Family Law Rules, O. Reg 114/99, defines a participant expert as “a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.”
55In Westerhof v. Gee Estate, 2015 ONCA 206, at para. 62, Simmons J.A., writing for the Court of Appeal of Ontario, described the evidence of a participant expert as “ the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.” That is the role that Dr. Sichler has played in this litigation to date.
56But, as Simmons J.A. pointed out in a civil context at para. 63 of Westerhof, to the extent that a participant expert like Dr. Sichler moves beyond his role, his evidence must meet the stringent test set for litigation experts.
57The term, litigation expert, is defined for family law purposes in r. 20.2(1) as “a person engaged for the purposes of litigation to provide expert opinion evidence”. Those persons are generally outside experts, not involved in the facts and circumstances of the case, including the treatment of a party, called upon to offer independent expert evidence regarding an issue raised in the case.
58There are both procedural and legal tests that must be passed before a litigation expert can be qualified to provide expert evidence to a court. The procedural requirements are set out in r. 20.2(2) as follows:
Expert witness reports
(2) A party who wishes to call a litigation expert as a witness at trial shall, at least six days before the settlement conference, serve on all other parties and file a report signed by the expert and containing, at a minimum, the following:
The expert’s name, address and area of expertise.
The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise.
The nature of the opinion being sought and each issue in the case to which the opinion relates.
The instructions provided to the expert in relation to the case.
The expert’s opinion on each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research or test conducted by or for the expert, or of any independent observations made by the expert, that led him or her to form the opinion, and, for each test,
A. an explanation of the scientific principles underlying the test and of the meaning of the test results, and
B. a description of any substantial influence a person’s gender, socio-economic status, culture or race had or may have had on the test results or on the expert’s assessment of the test results, and
iii. a description and explanation of every document or other source of information directly relied on by the expert in forming the opinion.
- An acknowledgement of expert’s duty (Form 20.2) signed by the expert.
59The strict test for the qualification of a litigation expert was set out by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19 -24. That test requires a two-step process. The first step is the application of the Mohan1 criteria: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified. The second step is the "discretionary gatekeeping step". There, the court engages in a cost-benefit analysis, balancing “the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks": at para. 24. The gatekeeping step is a continuing one, which applies throughout the proceeding: Bruff-Murphy v. Gunawardena, 2017 ONCA 502, at para. 61-63.
60The importance of the gatekeeping role was highlighted by Simmons J.A., writing for the Court of Appeal of Ontario in Bruff-Murphy at para. 2. There, she writes:
The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness' training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts. This gatekeeper role is especially important in cases, such as this one, where there is a jury who may inappropriately defer to the expert's opinion rather than evaluate the expert evidence on their own.
61As the two Motherisk Inquiry reports2 demonstrate, as well as the Goudge Inquiry into Pediatric Forensic Pathology in Ontario report3, even absent a jury, the gatekeeping role remains vital, to ensure that the court does not improperly defer to purported medical expertise.
62Here, there has been no voir dire in regard to Dr. Sichler’s expertise as a litigation expert. For that reason alone, as well as his role as a participant expert who has counselled the Father for over a decade in regard to his addictions, I must be careful that he does not offer expert evidence outside the scope of his qualifications.
63Dr. Sichler’s C.V., which is attached to his Form 20.2 Acknowledgement of Expert’s Duty, speaks to the issue of his expertise. The Father and his counsel do not pinpoint Dr. Sichler’s exact area of expertise, despite the White Burgess/Mohan requirement of a properly qualified expert. If it is addictions medicine, it is necessary to delineate exactly what that means and what opinions Dr. Sichler is able to safely offer to the court.
64From his C.V., it is clear that Dr. Sichler is not a toxicologist and has no training in that area. He describes his present practice as family medicine, addictions medicine and psychotherapy. He has certificates in addiction medicine but his C.V. contains no reference to a fellowship or any other specialization in that field. In short, Dr. Sichler is a family doctor with extra training in addictions. His work in addictions is with regard to psychotherapy and family medicine.
65None of that detracts from his work as an addiction therapist. But, based on the evidence before me, it does not mean that he can offer expert evidence on second-hand ingestion of cocaine and its effect on toxicological tests.
66I add that none of Dr. Sichler’s evidence can support the Father’s various assertions of second-hand cocaine ingestion. He offers no references to studies, monographs, recognized experts in the field or other authorities for his views that such ingestion is possible. He does not explain the potential mechanism of such ingestion. Instead, he offers only vague second-hand anecdotal evidence.
67In his June 28, 2023 report, Dr. Sichler gave credence to a number of scenarios offered by the Father for his June 1, 2023 failed test. He went on at length trying to minimize the levels of cocaine found in the Father’s system, even though he stated that this amount was confirmed on retesting. He added that the levels of cocaine found to be in the Father’s system have been found to occur under experimental conditions of passive drug use. Dr. Sichler offers other potential scenarios of passive cocaine ingestion, including second hand smoked cocaine, having cocaine smeared on the Father and intimate relations with cocaine users. But he offers no evidence of the likelihood of any of these scenarios and what may be required for them to come to pass. He also fails to cite the source of this experimental information.
68Having given credence to a number of potential scenarios that lack an evidentiary foundation here (other than the Father’s speculation), Dr. Sichler admitted that “[t]he explanations for his positive test therefore can be, in order of probability; use of cocaine, passive exposure to cocaine, and lab error”. Thus, even by his own reckoning, the use of cocaine is the most likely explanation for the first failed drug test. Yet later in the same report, Dr. Sichler discounted the possibility of cocaine use as “obviously some chance”. But he also admitted that the unnamed physicians with whom he consulted felt that actual cocaine use was the more probable explanation.
69With all of that said, and in the face of two other failed drug tests and one further retest of the two earlier samples, Dr. Sichler remains willing to offer a generally, if tepidly accepting view of the Father’s continuing excuses for failed drugs test. As stated above, he opined on September 27, 2023 that those explanations may be possible. Of course what may be possible is not the test facing this court.
70I add that Dr. Sichler fails to explain why he has moved from the open-minded stance of June 30 2023 in which he admits to the likelihood of the Father’s drug use to his more recent, uncritical one.
71In light of those considerations, it is hard to accept the objectivity or even toxicological expertise of a family doctor who gives credence to those explanations. Perhaps as a therapeutic support for the Father, Dr. Sichler is willing to be uncritical of the Father’s explanations and justifications. But as the number of failed tests pile up, it is far hard for this court to do so.
72Thus, in exercising my gatekeeper role, I am not willing to accept Dr. Sichler’s opinion as to the etiology of the drugs in the Father’s system on June 1 and 5 as well as August 25, 2023. I simply believe that his opinions are beyond his level of expertise and that, despite his Form 20.2 Acknowledgment, they are not fully objective.
73Further, if the Father claims that he passively ingested cocaine from a sexual partner, in a jailhouse or from a hospital administered drug cocktail, he needs to offer greater detail and more credible evidence to support that claim. I am not asking for lurid details, particularly regarding the last failed test. But he must offer sufficient fact and expert evidence to make his claim credible.
74Regarding his claim of a drug cocktail in the hospital in May 2023, he has had two months to obtain the medical records of his treatment in order to prove the presence of cocaine in his hospital administered pain medication.
The Explanation of Sex With a Cocaine User
75The fact that the Father is explaining his latest failed drug test on his sex with a cocaine user, a scenario theoretically mentioned in his therapist’s June 30, 2023 report, does not heighten the credibility of the Father’s explanation. In fact, that explanation raises more questions than it does answers. Why was the Father, a purportedly recovering cocaine addict, consorting with a known cocaine user (he had to know that she was a user in order to offer her up as the reason for his failed drug test)? He also seems to have exposed J. to this woman to J. in a Toronto hotel room on his parenting weekend and perhaps other occasions. Why would he do so?
Timing of the Mother’s Concern
76I also find it highly relevant that the Mother raised her concern about drug paraphernalia in J.’s backpack on the Monday following the failed Friday drug test and the child’s weekend with the Father. At the time that the Mother raised the issue of the soiled clothing in J.’s backpack and the potential of the Father’s drug use that weekend, she was not aware of the Father’s failed August 25, 2023 drug test. Thus it cannot be said that she tailored her evidence to the failed drug test. The juxtaposition of those two events cannot be ignored.
Other Reasons why I Share the Mother’s Concerns with the Father’s Drug Use
77I am also greatly concerned with the events related to J.’s missing backpack and the inconsistent accounts of its fate. As the Mother posits, the Father seemed to be panicked by the lost backpack. So much so that he violated his bail terms to have two people text the Mother when its absence was noted. The Mother speculates that the concern was the presence of dugs in the backpack. Without more evidence, I cannot rely on that speculation.
78But the Father went to great lengths to track that backpack down. To be fair those lengths may relate to an attempt to find a stolen car. But that too is not clear from the materials and even more particularly from the evidence. Recall that the Father’s “employee”, Melanie, said in a 2:48 a.m. text to the Mother that it was left in an Uber, not the Father’s car. The Father claims that it was in his car when it was stolen by an ex-girlfriend (the purported source of his passive cocaine ingestion). That girlfriend may have been Melanie, but I do not know.
79Adding to the confusion, J. told the Mother that the car was stolen the previous week. Also, J. told the Mother that he had been with his Father at a Toronto hotel with a woman that weekend, leaving him to observe their arguments and sleep on a couch. The Mother also pointed to J.’s dress in a gym shirt on a non-gym day and the failure to offer the child a hat, sunglasses and water bottle on the hot day that he was brought to school after a weekend with the Father.
80The various versions of the missing backpack story are troubling and inconsistent. Taken as a whole, they raise many questions, some of which point to a laxity in the Father’s care of the child. In light of the other evidence cited above, I cannot ignore the concerns raised by the missing backpack and its various narratives.
Conclusion
81This is a case where the most simple and obvious explanation is likely the most accurate one: the Father failed three drug tests in three months because he was using cocaine, at least occasionally. That is the explanation suggested by the other physicians with whom Dr. Sichler consulted prior to his June 30, 2023 report (although he ignores their opinions in his latest report).
82Here, there is an agreement to a shared, supervised, 2/2/3 parenting arrangement. There does not seem to be an ongoing court order, although adherence to the agreement is a term of an adjournment from July 13 - 19, 2023. While the point was not argued, in the absence of an ongoing order, that agreement is not binding on me.
83If the parties’ agreement was intended to result in a temporary order, that order should not be varied unless the circumstances were urgent: Brooks v. Brooks, at para. 60, Thompson v. Thompson, 1995 CarswellOnt 2004 (Ont. Prov. Div.) and Pakka v. Nygard (2004), 47 R.F.L. (5th) 184 (Ont.S.C.J.), Nour v. Youssef, 2021 ONSC 2717, at para. 32. I have already made a finding of urgency in agreeing to hear this motion My view is not changed in light of my other findings above.
84But even if I were to treat the parties’ agreement as representing the equivalent of a final order and apply the even stricter test set for the variation of a final order, that variation would be appropriate here.
85As I set out in Epshtein v Verzberger-Epshtein, 2021 ONSC 7694 at para 126, the test for an interim variation of a final order is:
a. A strong prima facie proof that there is a material change in circumstances regarding a parenting issue;
b. The parenting issue must be an important one;
c. The circumstances arising since the final order must be urgent or pressing; and,
d. The moving party must then prove that the remedy sought is in the child's best interests.
86All four arms of that test are met here. I say that because:
a. there is strong prima face proof that the Father has begun using cocaine again;
b. the parenting issue is an important one, as the evidence of drug use in the child’s backpack as well as a lack of change of clothing, his condition upon return home and the events surrounding the loss of his backpack can attest;
c. the circumstances are pressing in that the child should not be exposed to drug use by a caregiver; and
d. the remedy of supervision is in the child’s best interests. The child need not lose time with the Father if supervision can be arranged, but his physical, emotional and psychological safety, security and well-being must be my primary consideration: Divorce Act, R.S.C. , 1985, c. 3 (2nd Supp.), s. 16(2).
Order
87On September 28, 2023, I ordered that the Father’s parenting time shall be supervised by a family member or another person agreed upon in advance. So long as the supervisor is sleeping over, the Father’s overnight parenting time may continue. That order remains in effect.
88Further, and on consent, I order as follows:
a. an assessment shall be conducted of the child’s needs and the ability of the parties to meet those needs under s. 30 of the Children’s Law Reform Act. I suggest that the assessor be someone with expertise in the field of substance abuse;
b. if the parties are able to agree on an assessor and obtain that assessor’s consent to conduct the assessment, they may move by 14B motion before me for an order confirming the appointment;
c. the Father shall pay the full costs of the assessment, subject to re-apportionment, if any, at the discretion of the trial judge;
d. commencing on August 1, 2023 and continuing on the first day of each succeeding month, the Father shall pay child support to the Mother, fixed at $3,000 per month. While the parties did not particularize the details, and it is unknown whether there is a s. 7 aspect to the calculation, $3,000 per month is the Child Support Guidelines table child support figure amount for an income of $386,250 per annum;
e. the Father will issue and serve his Application by October 6, 2023. The Mother shall serve and issue her Answer within 20 days of service of the Application.
89The Mother was substantially successful in this motion. If the parties are unable to resolve the issue of costs on their own, the Mother may submit her costs submissions of up to three pages, double spaced with one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Father may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and will make no costs order.
Justice Marvin Kurz
Date: October 6, 2023