Court File and Parties

COURT FILE NO.: FC-24-0000012 DATE: 2024/07/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDER KIDD, Applicant AND: MELANIE RACHEL MOKRENKO, Respondent

BEFORE: Justice M.A. Cook

COUNSEL: M. Villeneuve, Counsel for the Applicant L. Thompson, Counsel for the Respondent

HEARD: April 26, 2024

Endorsement

[1] Each party brings a motion pursuant to s. 28 of the Children’s Law Reform Act, R.S.O 1990, c. C.12 (“CLRA”) for an interim parenting order in relation to the child, Kamryn Carole Kidd, born September 8, 2022.

[2] The applicant father has had no parenting time with Kamryn since September 2023. The applicant seeks an order granting him parenting time with Kamryn in accordance with a graduated schedule that would see his parenting time expand to alternate weekends over a period of four weeks.

[3] The respondent motion opposes the applicant’s request, alleging that the applicant is abusive and has substance abuse issues that prevent him from parenting Kamryn in a manner consistent with her best interests. The respondent seeks an order requiring the applicant to submit to a parenting assessment pursuant to s. 30 of the CLRA, an order that the applicant’s parenting time be subject to supervision at a supervised access centre, and an order requiring the applicant to submit to hair follicle drug testing as an ongoing condition of his parenting time.

Background

[4] The parties began cohabitating on or about May 1, 2020 and separated on or about August 21, 2023. The parties were never married.

[5] There is one child of the relationship, namely Kamryn Carole Kidd, born September 8, 2022. Kamryn is developmentally on track and is a happy, thriving toddler.

[6] The parties have very differing narratives about the history of their relationship and about the applicant’s involvement in Kamryn’s care.

[7] The applicant deposes that he was very excited to become a father in 2022, and has been a dedicated and loving parent to Kamryn. The applicant describes Kamryn’s birth day as being the best day of his life.

[8] The applicant states that, until the respondent withheld Kamryn from his care in the fall of 2023, he was involved in Kamryn’s day-to-day care including meal preparation, play time, attending doctor appointments, and participating in bedtime routines.

[9] When the parties separated, the applicant moved from the matrimonial home in St. Thomas to his parents’ home in Rockwood, Ontario. The applicant says that he would spend 3-4 hours with Kamryn every day after work before driving home to Rockwood. On weekends, he would travel to St. Thomas early so he could spend the full day with Kamryn. While the applicant recognizes the respondent to be Kamryn’s primary caregiver, he describes his bond to Kamryn as being “close and affectionate”.

[10] The respondent denies the applicant’s involvement in Kamryn’s care and describes the applicant as a disinterested and abusive partner and parent who had a serious substance abuse disorder throughout the relationship. The respondent says that she finally asked the applicant to leave the matrimonial home in August 2023 after he went on a two-day cocaine and alcohol bender. The respondent does not dispute that the applicant attended at the matrimonial home frequently after separation, but she states that the applicant was less interested in spending time with Kamryn than in using drugs and in asserting control over the respondent.

[11] The respondent alleges that all of the members of the applicant’s entire family have substance abuse issues, and further alleges that the applicant was sexually abused by his father. The respondent claims that, as a result, Kamryn is unsafe in the applicant’s care or the care of any member of the applicant’s family. The respondent acknowledges that she does not have any evidence to corroborate her allegations about the applicant’s family.

[12] On or around September 25, 2023, the respondent requested that the applicant not attend at the matrimonial home in order to give the respondent a chance to move. The applicant agreed. The request was a ruse. Several days later, on September 27, 2023, the applicant was criminally charged with an historic assault involving the respondent.

[13] Once the criminal charge was laid, the respondent refused to allow the applicant to see or communicate with Kamryn in person or virtually. The respondent remained in the matrimonial home, where the applicant was prohibited from attending.

[14] On October 27, 2023, the applicant received a consent variation of his terms of release in the criminal proceeding which permitted the applicant to communicate with the respondent indirectly through legal counsel for the purpose of exercising parenting time with Kamryn. Despite this, the respondent did not facilitate any parenting time for the applicant.

[15] On November 17, 2023, the applicant’s lawyer delivered correspondence to the respondent’s lawyer seeking a transitional parenting schedule. After receiving no response, the applicant’s lawyer followed up by letter dated December 5, 2023.

[16] On December 8, 2023, the respondent, by her lawyer, delivered correspondence making serious allegations about the applicant and placing onerous preconditions on the applicant having any parenting time. In particular, by the letter, the respondent asserted that:

a. She was gravely concerned about applicant’s drug use, noting that the applicant used cocaine during the relationship;

b. Kamryn’s paternal grandfather sexually assaulted the respondent as a child and, accordingly, that it was contrary to Kamryn’s best interests to spend any time in the presence of the paternal grandparents or in the home where the respondent lives with them;

c. The respondent would be required to complete a mandatory domestic violence program before having any parenting time with Kamryn; and

d. The respondent would be required to provide six months of clean drug tests before the respondent would agree to supervised parenting time for the applicant.

[17] The applicant denies that his parents have substance abuse issues and further denies that he was subject to sexual abuse by his father. The applicant denounces the respondent’s allegation as “a representation of the lengths it appears [the respondent] will go to eliminate [the applicant]’s parenting time with Kamryn”.

[18] The applicant admits that he has a history of alcohol and drug abuse but states that he has been clean for approximately eight months. The applicant presented clean broad spectrum toxicology urine screen results taken on February 8, 2024 and clean hair follicle testing results taken March 12, 2024. The applicant is willing to complete hair follicle testing every three months for a period of six months to demonstrate his sobriety if doing so is necessary to afford him parenting time with Kamryn.

[19] The respondent’s allegations have been investigated by the Halton Hills Children’s Aid Society (“CAS”). On December 12, 2023, the applicant was contacted by social worker Alexandra Turner, who attended at the applicant’s residence to inspect the living arrangements for Kamryn and to interview the applicant and the paternal grand parents. The respondent states that he had a follow-up interview with Ms Turner on February 6, 2024. The applicant states that the CAS has no protection concerns. Neither party filed any evidence from CAS.

[20] The applicant states that the assault charge against him was resolved by way of a peace bond, with terms requiring him to attend counselling. The peace bond was not presented to the court and the facts admitted by the applicant and accepted by the court in making the peace bond are not in the record before me.

Section 30 Assessment

[21] The applicant seeks an order directing the respondent to submit to a parenting assessment under s. 30 of the CLRA to determine his ability to safely care for the child.

[22] Section 30 of the CLRA allows court to appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

[23] In A.C.V.P. v A.M.P., 2022 ONCA 283 at para. 30, the Court of Appeal noted that “there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA; rather, the inquiry is fact-driven and flexible”. However, generally speaking, an assessment is not ordered unless there is some evidentiary foundation to warrant expert evidence being received in the proceeding.

[24] As the party who is proposing an assessment, the applicant has the burden of satisfying the court that the assessment is justified. She has not discharged her burden. The respondent has not proposed an assessor, nor does she articulate precisely why a s. 30 assessment ought to be ordered in this case. In fact, respondent’s counsel made no submissions in support of this request during the hearing.

[25] Kamryn is a healthy, well adjusted toddler who is meeting her developmental milestones. She has no special needs. The respondent has not presented medical or other objective evidence that the applicant suffers from a diagnosed mental health disorder or other condition that necessitates expert evidence being received in this application. The applicant admits that he has struggled with substance abuse issues in the past. This is not the kind of behavioral or psychological issue about which the average person would need the assistance of an expert to understand.

[26] The respondent’s request for a s. 30 assessment is dismissed.

Parenting Order

[27] The other interim relief sought by each party falls within the scope of a “parenting order” as defined within s. 18(1) of the CLRA.

[28] When making a parenting order, “the court shall only take into account the best interests of the child” as defined in s. 24 of the CLRA: s. 24(1). The court is required to consider “all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: s. 24(2).

[29] In assessing the best interests of the child, the court must consider “all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: CLRA, s. 24(2).

[30] The factors related to “the circumstances of a child” are set out in s. 24(3) of the CLRA:

a. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

b. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays a vital role in the child’s life;

c. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

d. the history of care of the child;

e. the child’s views and preferences, giving due weight to the child’s age and maturity unless they cannot be ascertained;

f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g. any plans for the child's care;

h. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

i. the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

j. any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child;

ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child and

iii. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[31] In allocating parenting time, the child should have as much time with each parent as is consistent with his or her best interests: see Barendregt v. Grebliunas, 2022 SCC 22 at para. 135.

[32] At the age of 22 months, Kamryn’s primary relationships are with her parents. The right of a child to visit with a non-custodial parent, to know and maintain, or form an attachment to, a non-custodial parent is a fundamental right belonging to the child, and should only be subject to interference or supervision in very limited circumstances: Klymenko v. Klymenko, 2020 ONSC 5451 at para. 22.

[33] The court is deeply concerned about the respondent’s resort to self help and her decision to deny any parenting time to the applicant since September 2023. A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. Even if the respondent had legitimate concerns about the applicant’s parenting ability, her obligation as the custodial parent was to facilitate parenting time or seek court direction. The respondent’s decision to unilaterally withholding Kamryn from any parenting time with the applicant suggests that the respondent is not willing to support the development and maintenance of Kamryn’s relationship with her father.

[34] As is the case with most motions for interim parenting orders, I am not able to resolve all the conflicts in the affidavit evidence. That said, I have concerns about the credibility of some of the respondent’s evidence in particular, and I have approached it with great caution. For example, the respondent disputed the applicant’s evidence that he was involved in the respondent’s labour and Kamryn’s birth, stating that the applicant got intoxicated and left her to labour alone without support. Her evidence was either overstated or plainly false; the text messages and photographs presented by the applicant in reply show the applicant’s excitement about Kamryn’s birth and his support of the respondent during her labour.

[35] The respondent mother sought to file two video recordings to support her allegations regarding the applicant’s drinking and abusive behaviour. The applicant was not able to view the videos until after he filed his reply materials.

[36] Both of the video recordings are presumptively inadmissible. The prejudicial effect of secret recordings is presumed to outweigh their probative value in family law proceedings except in the most limited circumstances: Whidden v. Ellwood, 2016 ONSC 6938 at paras. 96-98, Van Ruyen v. Van Ruyven, 2021 ONSC 5963 at para. 41.

[37] Making a surreptitious video of one’s intimate partner offends the privacy interests of the partner and the family. Such videos are destructive to the maintenance, restructuring, and encouragement of constructive family relationships: Veljanovski v Veljanovski, 2016 ONSC 2047 at para. 49. As Justice Pazaratz observed in Whidden v Ellwood at para. 86, the “obvious reality is that taking videos is a strategic act of aggression and escalation”.

[38] The first video (Exhibit I to the respondent’s affidavit) is undated and shows what appears to be a male individual lying face down on a bed, in his underwear, weeping despondently. The respondent says it is the applicant in the video but she has not identified when the video was taken. The audio on the video is barely intelligible. The video has no probative value and is inadmissible in the proceeding.

[39] The second video (Exhibit M to the respondent’s affidavit), also undated, consists primarily of the respondent yelling at and berating the applicant in the presence of the child. When, after four minutes of being baited by the respondent, the applicant tells her to “shut up and do the fucking dishes”, the respondent turns off the running water and asks the applicant to “say it again, please” before pointing the camera at him. She tells the applicant that she’s got “the last four minutes of [his] shit”. The applicant does not respond and walks away from the respondent with Kamryn in his arms.

[40] Despite the very serious public policy concerns engaged in admitting the surreptitious recording into evidence, I admit the second video because it is probative to the issues of the respondent’s credibility, family violence, and the parties’ ability and willingness to communicate and co-operate with one another on matters affecting the child.

[41] The respondent states in her affidavit that she left her cellphone on during an argument with the applicant “for her safety”. Having reviewed the recording, the respondent’s claim that she recorded her argument with the applicant is simply not credible. Most of the recording is of her yelling at the applicant while he is in another room trying to ignore her. I find that the respondent made the recording to exercise control and gain tactical advantage over the applicant.

[42] Denigrating one’s intimate partner in front of one’s child, as the respondent does in the second video, fits within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204; McIntosh v. Baker, 2022 ONSC 4235. The parties’ casual use of abusive and profane language with one another, in front of Kamryn, as shown on the video, is deeply troubling to the court. Their relationship is now over but the parties must take steps to develop the communication skills necessary to parent Kamryn without exposing her to the kind of emotionally charged, ugly conflict documented in the recording.

[43] Substance use is also significant concern. Substance use impacts the ability of a parent to care for and meet the needs of a child. Kamryn is only 22 months old and vulnerable. Her physical safety demands that her caregivers not be impaired. Moreover, impairment impacts a parent’s ability to be fully present for and emotionally responsive to their child.

[44] The court accepts the applicant’s evidence that he is no longer using illicit drugs but is concerned that the applicant is equivocal about abstaining from alcohol. The applicant acknowledges his heavy-drinking past. The evidence shows that the applicant has been prone to overconsumption and poor judgment when drinking. It strongly suggests that the applicant cannot have “just one”. Kamryn’s physical safety and best interests demand that the applicant be clean and sober when he is in a caregiving role.

[45] For her part, the respondent acknowledges using marijuana regularly with Kamryn in her care. The respondent states that her physician used to prescribe her cannabis but, now that marijuana is legal, she no longer bothers with medical supervision. The respondent states that she only uses marijuana in the evening, and only after Kamryn is asleep. The very limited evidence before me does not persuade me that the respondent’s cannabis use is inconsistent with Kamryn’s best interests, and I decline to impose any conditions in relation to her cannabis use.

Disposition

[46] As both parties acknowledged during the hearing of these motions, Kamryn deserves and is entitled to a meaningful relationship with both of her parents.

[47] On the record before me, I find that it is in Kamryn’s best interests to have regular parenting time with the respondent. The evidence before me does not satisfy me that the applicant’s parenting time ought to be supervised. To the contrary, imposing supervision on the applicant’s parenting time in the wake of months of withholding could further impact the relationship between the respondent and Kamryn at a time it needs to be normalized.

[48] The court orders on an interim basis that the respondent shall have primary residence with Kamryn, with graduated parenting time to the applicant father on the following terms:

a. The parties shall use a parenting app like OurFamilyWizard or AppClose to facilitate appropriate, child-focussed communication between them, subject to the terms of any court order governing communication between them.

b. The parties shall give Kamryn’s needs and convenience primary importance and shall give their own needs and convenience only secondary importance in relation to parenting time.

c. The parties shall confer with each other on all important matters relating to Kamryn’s health, welfare, education, and upbringing, and shall keep each other fully informed of all matters touching on Kamryn’s interests.

d. The parties are each entitled to obtain information and documentation from third parties as to Kamryn’s health, education, and welfare and each party shall provide any written consent necessary to facilitate same.

e. Both parties shall execute consents for the release to both parties of police records and child protection records relating to themselves or Kamryn.

f. The parties shall ensure that Kamryn is not exposed to adult conflict or other adult issues, including but not limited to issues raised in this litigation.

g. Each party is prohibited from disparaging the other.

h. The applicant father shall have a regular schedule of parenting time as follows:

i. The applicant shall have parenting time with Kamryn on Saturday, July 20, 2024 from 9am – 5pm;

ii. The applicant shall have parenting time with Kamryn on Saturday, July 27, 2024 from 9am – 5pm;

iii. The applicant shall have parenting time with Kamryn from Saturday, August 3, 2024 at 12 noon to Sunday August 4, 2024 at 12 noon;

iv. The applicant shall have parenting time with Kamryn from Friday, August 9, 2024 at 5pm to Sunday, August 11, 2024 at 5pm;

v. Commencing Friday, August 16, 2024, the applicant shall have parenting time with Kamryn on alternate weekends from Friday at 5pm until Sunday at 5pm;

vi. Exchanges for parenting time shall occur at the Tim Hortons at the corner of Elm Street and Sunset Drive in St. Thomas, Ontario or elsewhere as may be agreed by the parties in writing from time to time;

i. The applicant shall not ingest any non-prescription drugs or alcohol 24 hours prior to or during his parenting time with Kamryn;

j. The applicant shall, at his own expense, submit to two further broad spectrum drug hair follicle tests, one to be taken before July 20, 2024 and the second to be taken during the week of October 14-18, 2024, and he shall provide a copy of the testing results to the respondent forthwith upon receipt;

k. The applicant father shall have additional parenting time as follows, unless otherwise agreed by the parties:

i. The applicant father shall have parenting time with Kamryn for the Easter long weekend in all odd numbered years while the respondent shall have the child in her care for the Easter long weekend in all even numbered years regardless of the regular parenting schedule;

ii. The applicant father shall have parenting time with Kamryn each Thanksgiving Sunday and the respondent mother shall have Kamryn in her care each Thanksgiving Monday regardless of the regular parenting schedule;

iii. The applicant father shall have parenting time with the child from Christmas Eve at 12 noon to Christmas Day at 2:00pm in each even numbered year and from Christmas Day at 2:00 p.m. to Boxing Day at 5:00 p.m. in each odd numbered year, regardless of the regular parenting schedule;

iv. Notwithstanding the regular parenting schedule, the child shall be with the father on Father's Day and with the mother on Mother's Day, from 10:00am to 7:30pm; and

v. The applicant father shall have not less than two hours of parenting time with Kamryn on her birthday on September 8 of each year, regardless of the regular parenting schedule.

[49] The parties are urged to register and actively participate in a parenting course to better understand Kamryn’s needs and to learn how to parent without conflict.

[50] The parties are encouraged to resolve the matter of costs between them in light of the outcome of these motions and the respondent’s limited financial resources. If the parties are unable to resolve the matter of costs, the applicant may file costs submissions not exceeding three pages exclusive of dockets or case law by not later than August 2, 2024. The respondent may file responding costs submissions not exceeding three pages exclusive of dockets and case law, by not later than August 22, 2024. No reply submissions may be filed without leave of the court.

[51] The application is adjourned to be spoken to on August 9, 2024 at 10:00am in accordance with the endorsement of Justice Gorman dated July 12, 2024.

Justice M.A. Cook Date: July 15, 2024