COURT FILE NO.: FS-22-45709
DATE: 2023-01-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R.A., Applicant
AND:
D.A., Respondent
BEFORE: Conlan J.
COUNSEL: Catherine Haber, for the Applicant
Elliot Vine, for the Respondent
HEARD: January 24, 2023
ENDORSEMENT on motions
I. Introduction
[1] On January 24, 2023, by Zoom, the Court heard two motions, one by each side.
[2] The Applicant father, R.A., moves for, among other things, an order that the two children, a boy who is almost 6 years old and a girl who is 3 years old, shall have specified parenting time with him (i) on alternate weekends from after school on Friday until Monday morning, and (ii) every Tuesday from after school until Wednesday morning. The father proposes that the said regular schedule be expanded to an equal 2-2-3 parenting regime as of July 1, 2023.
[3] The Respondent mother, D.A., moves for, among other things, an order that the children shall have parenting time with their father (i) every Sunday from 1:00 p.m. to 5:00 p.m., and (ii) every Wednesday from 4:00 p.m. to 7:00 p.m. The mother proposes that the said regular schedule be expanded as of March 22, 2023 and then further expanded commencing May 24, 2023.
[4] The mother takes the position that the father’s parenting time must be supervised or, alternatively, that the father must utilize a Soberlink device. The father opposes both of those alternatives.
II. Short Conclusion and Temporary Order
[5] This is not a case where the Court can safely make an order that is anything beyond the “first phase”, as that term is employed by both sides. The case will have to come back to Court for an update in approximately three months’ time. Either party may cause that to happen by scheduling a Settlement Conference or by bringing a motion; and if the latter method is chosen, then this Endorsement shall be considered the authority for that party’s motion to be brought.
[6] This Court orders that, between today and the return date, which return date shall be approximately three months’ after today, the father shall have parenting time with the two children as follows:
(i) alternate weekends, commencing on the first weekend after the date of this Endorsement, from after school on Friday (or 3:30 p.m. if the children are not at school on Friday) until Sunday at 6:00 p.m.; and
(ii) every Tuesday, commencing on the first Tuesday after the date of this Endorsement, from after school (or 3:30 p.m. if the children are not at school on Tuesday) until Wednesday morning return to school (or 9:00 a.m. if the children are not at school on Wednesday).
[7] This Court orders further that:
(iii) all of the above parenting time shall be supervised;
(iv) supervisor shall be any person approved of by both parties, except that the supervisor may be the paternal grandmother, even if D.A. does not approve of the paternal grandmother; and
(v) D.A. shall not unreasonably withhold her approval of any supervisor that is proposed by the father.
[8] To be clear, first, the father is not required to utilize a Soberlink device. Second, the Court considered but has rejected the father’s proposal to have the alternate weekend parenting time extend through to Monday morning because it is impractical to ask any supervisor to be present for three consecutive overnights. Third, the Court considered but has rejected the mother’s proposed schedule because it unreasonably relegates R.A. to being an infrequent visitor in the lives of the children, as opposed to being their father. Fourth and finally, the Court is convinced that supervision is required, initially, in order to address what the evidence, in its totality, substantiates as being an alcohol problem for the father.
III. The Law
[9] The issue of the father’s parenting time with the children, including its supervision, depends entirely on an assessment of what is in the best interests of the children – section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supplement), as amended. In allocating parenting time, the maximum contact principle applies in that, in so far as it is in the best interests of the children, they should have as much time as possible with each parent – subsection 16(6). Supervised parenting time is expressly authorized by subsection 16.1(8).
[10] Supervised parenting time is not intended to be a long-term solution but rather a preliminary or an intermediate step in situations that, for example, include substance abuse issues. It is exceptional and should be viewed as such. After all, it is somewhat artificial, can appear unnatural or uncomfortable to a child, and is not that far removed from the outright termination of any relationship between parent and child. T.E. v. G.E., 2021 ONSC 7661, at paragraphs 8-9; Izyuk v. Bilousov, 2015 ONSC 3684, at paragraphs 52-53; Supervised Access as a Stepping Stone Rather Than a Destination: A Qualitative Review of Ontario Services & Policies for Assisting Families Transitioning from Supervised Access, 2016 CanLIIDocs 4597, by Nicholas Bala, Michael Saini, and Sarah Spitz.
IV. The Evidence and Analysis
[11] Ms. Haber is correct that there are limitations with several pieces of evidence filed on behalf of the mother. For example, three of the four affidavits are from deponents who are obviously inclined to be in favour of D.A.’s position – the mother herself, her very good friend, and the maternal grandmother. As another example, some of the exhibits relied upon by the mother are incomplete, like the alleged July 2022 discharge report from the health care facility in France which paints a terrible picture of the father’s excessive alcohol consumption but which appears to be an English translation of an original French-language document that the Court does not have.
[12] What Ms. Haber cannot overcome, however, despite her very good advocacy for her client, is the inescapable conclusion that comes from the totality of the evidence, and that conclusion is that there is something wrong with the father’s use of alcohol. He may or may not be an alcoholic; that does not matter for today. There is something unhealthy about his relationship with alcohol, and the 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.
[13] 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.
[14] This Court does not accept the father’s explanation that the mother has concocted all of the video and photographic evidence, to the point of staging the scenes. If the alleged alcohol problem depended exclusively on the aspersions advanced by the mother, then that explanation offered by R.A. would perhaps seem less far-fetched. But the evidence goes well beyond the mother’s bald assertions. The mother did not instigate the complaint about the incident in Niagara. The mother did not create what happened in France. The mother did not invent the criminal conviction. These are examples of things that the mother had nothing to do with.
[15] This Court is not ignoring the evidence put forward by the father. That the paternal grandmother (also a very experienced family physician), the father’s employer, and the mother of R.A.’s other child all have sworn affidavits that point away from the father having an alcohol problem does not mean that those witnesses are being untruthful or that they are trying to mislead the Court, and I make no such finding about any of those deponents. In fact, much of their evidence I accept. It is not an either/or proposition, however. R.A. can be a good father to the child that he shares with his former partner, and he can be an excellent employee, and he can be someone who was an active parent in the lives of the two children that he shares with D.A., all while also having an alcohol problem. On balance, that is where this Court thinks the truth lies.
[16] I may be wrong that the father has an alcohol problem. But the standard of proof is on a balance of probabilities, not anything higher than that. And I would rather err on the side of caution, temporarily, as I think that approach is more in keeping with the Court’s duty to make a parenting order that is in the best interests of the children. When the case returns to be addressed in about three months’ time, any judge will be in a better position to determine whether there is any further need for supervision.
V. Other Matters Included in the Draft Orders, and Costs
[17] There has been some divided success here. The father got significantly more parenting time than what the mother had proposed. On the other hand, it is supervised parenting time, as the mother suggested. If either side wants to pursue costs, we will do so in brief oral submissions by counsel – ten minutes per side, to be arranged by the trial office upon request. A Bill of Costs and any relevant offer(s) to settle may be filed in advance.
[18] There are some matters included in the draft orders filed by the parties that have not been addressed herein. That is because much of it is unnecessary to resolve at this time, such as holiday parenting time after Easter of this year. All such holiday parenting time can be dealt with on the return date. Regarding holiday time within the next three months or so, the parties are urged to resolve that, along with other items that any two reasonable adults should be able to work-out amicably, like the details of future exchanges of the children.
[19] As for decision-making responsibility, this Court orders that section 16.2(2) of the Divorce Act shall apply. Otherwise, for anything that is not captured by that provision, on a temporary without prejudice basis, this Court orders that the mother shall have decision-making responsibility with respect to both children.
[20] I thank Mr. Vine and Ms. Haber for their assistance in this case.
Conlan J.
Date: January 24, 2023