COURT FILE NO.: FC-21-00001988-0000

DATE: 20240719

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gordon Grant Applicant

-and-

Katherine Shihan Respondent

BEFORE: Justice Nakonechny

COUNSEL: H. Cairns and H. Niman, for the Applicant

E. Daoust and M. Siemiarczul, for the Respondent

HEARD: July 19, 2024

ENDORSEMENT

[1] The Applicant father brings a motion for an Order:

1. Striking certain exhibits and paragraphs in the Respondent mother’s Affidavit sworn June 25, 2024 and certain paragraphs of a third-party Affidavit;

2. Varying the Endorsements of Justice Minnema dated June 26, 2023 and Justice Kershman dated March 24, 2022 such that the father have interim primary parenting and sole decision making for the child, S, aged 4, pending further agreement or court order;

3. That the Respondent mother have parenting time with S. supervised by a third party or at a supervised parenting facility and 15-minute Facetime calls on the days she does not have in person parenting time with terms; and

4. Rescinding the Order of Justice MacEachern December 16, 2021 that the father pay child support for S.

[2] The Respondent mother brings a motion for an Order:

1. That the status quo parenting time in Justice Minnema’s order continue with a schedule to commence when the child begins junior kindergarten on September 3, 2024; and,

2. That Sandra Kapasky be appointed to conduct an assessment pursuant to s. 30 of the Children’s Law Reform Act.

[3] At the outset of the motion the father’s counsel raised preliminary objections to the mother’s motion materials. Both parties filed extensive Affidavits, Factums and Briefs of Authorities on this long motion. Rule 2 of the Family Law Rules instructs the Court to deal with cases fairly in a way that is appropriate and an efficient use of the Court’s resources. I found that it would be most efficient for the parties and the best use of the Court’s resources to hear argument and response on the objections, proceed with the hearing of the long motion and make findings on the preliminary matters as part of my decision.

Overview

[4] This motion arises from specific events that took place on May 17, 2024 when the mother was on holiday in Florida with S and his two sisters from a prior relationship S, aged 9 and C, aged 11. The facts are not substantially disputed. The mother began drinking in the late afternoon. Over the course of the late afternoon and evening she drank a beer, two to three flavoured vodka drinks, and bottle of Pinot Noir. At about 11:00 p.m. the mother left the three children in the hotel room and went down to the bar in the hotel lobby. She took a drag from a man’s cigarette.

[5] At about 12:30 p.m. a couple approached the lobby bartenders and told them a woman (the mother) was passed out in a chair in the courtyard of the hotel. Two hotel staff members helped the mother back to her room. She began vomiting on the floor. The children woke up and were distraught and crying for help. The police and child services were called. The children were taken into care of child services overnight.

[6] The mother was arrested and charged with three counts of Neglect of a Child without bodily harm. She was taken to hospital and treated for intoxication and sunburn. While in custody the mother stated to police: “This is rock bottom” and “I smoked something and lost all function”. She also told emergency room staff:” I am a good mom I’m never this irresponsible”. A blood alcohol sample taken from the mother in hospital at 2:14 am showed a blood alcohol level of 197 mg/dL or 0.197.

[7] The father and HS, the father of S’s sisters, were contacted by police in the early morning of May 18. The father resides part time in New Liskeard and part time in Ottawa. HS resides in Ottawa. HS booked a flight to Florida that morning. The father authorized HS to pick up S.

[8] The father has two adult daughters who live near Toronto. They flew to Florida that morning to retrieve their brother. The father drove to Toronto and flew to Florida later in the day arriving late that night. The father, S. and his adult sisters flew back to Ottawa the next day. S has resided with the father since that time.

[9] The mother was released from custody and returned to Ottawa with HS and their two daughters. The mother agreed that the children should reside temporarily with their respective fathers upon their return to Ottawa. The Children’s Aid Society of Ottawa investigated at the request of the mother and HS. The Ottawa CAS found no concerns. The mother and HS have resumed their regular parenting schedule.

[10] S. remains in the care of the father. The mother has had video calls four days per week since June 9. The father says that the mother extends the calls past the time limit. The mother says the father has unreasonably limited her contact with the child. She says the child appears awkward and confused during the calls.

Preliminary issues to be decided

1. Should the letters from Tawnya Shimizu, Nurse Practitioner and Dr. Sarah Brandigampola, Psychiatrist, attached as Exhibits to the mother’s Affidavit sworn June 25, 2024 be struck as inadmissible?

2. Should paragraphs 45 – 49 of the mother’s Affidavit sworn June 25, 2024 be struck as hearsay and inadmissible?

3. Should paragraphs 8 and 9 of the Affidavit of Jenna Fletcher sworn June 25, 2024 be struck as hearsay?

Issues to be decided on the motion

1. What is the appropriate parenting time schedule for S. with each parent? Should the existing parenting orders be varied so that the father has interim primary residence and sole decision making?

2. Should the mother’s parenting time be supervised?

3. If the father has primary residence of the child should the child support order be rescinded? and

4. Should a s. 30 assessment be ordered?

The Preliminary Issues

The Exhibits

[11] The mother has seen Ms. Shimizu as her Nurse Practitioner since 2010. In her letter dated June 3, 2024, Ms. Shimizu gives opinions regarding the mother’s mental health, ability to parent the children, risk to the children in her care, and what the parenting arrangements for the children should be. The mother relies on Ms. Shimizu’s letter to support her argument that she has no substance misuse or mental health issues and that the children should be returned to her primary care.

[12] Judges have a gatekeeping role in determining the admissibility of expert evidence: White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23 at paras. 1 and 20. Ms. Shimizu did not provide her qualifications to give the opinion provided: White Burgess, at paras. 19 and 23.

[13] The letter was appended to the mother’s affidavit as an exhibit. The mother asks the court to accept the letter for the truth of its contents. It is not proper to attach a letter from a third party to an affidavit on a motion and expect the court to rely upon the truth of its contents without an explanation why it was not possible to obtain a sworn affidavit: Chrisjohn v. Hillier, 2021 ONSC 1666 at paras. 13 – 18.

[14] An expert giving opinion evidence must comply with Rule 53.03 of the Rules of Civil Procedure. Ms. Shimizu’s letter does not do so. I find that her evidence is not admissible for the truth of its contents and is not admissible as evidence on this motion. Exhibit L to the mother’s Affidavit dated June 25, 2024 is struck.

[15] Dr. Brandigampola provides a declaration dated June 18, 2024 setting out her professional affiliation, consultation details, scope of review and consultation nature. The doctor declares that these statements are true to the best of her knowledge and belief.

[16] Dr. Brandigampola also provides a statement dated June 18, 2024 containing her professional assessment that the mother is mentally sound, free from substance abuse disorders, poses no safety risks and is fully capable of caring for her children. This opinion is based on a review of the mother’s medical file and charts received from Ms. Shimizu and a 2-hour 20-minute meeting with the mother. Dr. Brandigampola calls this meeting a “thorough psychiatric evaluation.”

[17] Dr. Brandigampola states that the purpose of the consultation was to provide diagnostic clarification and treatment recommendations. The statement does not include either of these or an explanation of why they are not provided.

[18] Upon receipt of Dr. Brandigampola’s letter, the father’s counsel immediately requested production of the clinical notes and records reviewed by Dr. Brandigampola. This request was denied.

[19] Sections 24(1) and (2) of the Children’s Law Reform Act state that when the Court is making a parenting order, it shall take into consideration only the best interests of the child and give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. One of the factors in s.24(3) is the ability of a person to care for and meet the needs of the child.

[20] The mother is not a patient of Dr. Brandigampola. The doctor’s professional assessment is based on a review of the mother’s records and the 2-hour 20-minute meeting. The records must have, to some degree, informed the doctor’s process in the psychiatric evaluation on which her opinion is also based. In my view the notes are relevant to this Court in determining the mother’s ability to care for and meet the needs of the child and the parenting time schedule that is in S’s best interests. For this reason, I find that the records from the child’s birth to date are relevant and shall be produced.

[21] Without the records on which the assessment and opinion is based, the Court cannot determine what weight to give Dr. Brandigampola’s statement. On a without prejudice basis and pending production of the records, Exhibit M to the mother’s Affidavit dated June 24, 2025 is struck.

The mother’s Affidavit

[22] As a result of my findings above, paragraphs 45-49 of the mother’s June 25, 2024 Affidavit are struck.

Jenna Fletcher’s Affidavit

[23] Jenna Fletcher is a criminal attorney retained by the mother in relation to the criminal charges in Florida. In paragraph 9 of her Affidavit sworn June 25, 2024, Ms. Fletcher recounts a conversation she had on June 24 with Mr. Nash Lincona, the State Attorney assigned to the mother’s case and statements Mr. Lincona allegedly made to her. This is hearsay evidence which is presumptively inadmissible.

[24] The statements allegedly made by Mr. Lincona are hearsay. Rule 14(19) of the Family Law Rules allows a judge to admit affidavit evidence that the affiant learned from someone else where the source of information is identified by name and the affiant states they believe the information to be true.

[25] While this requirement has been met in Ms. Fletcher’s Affidavit, the jurisprudence also requires the affiant to explain why the original source of the information did not swear their own affidavit: Berger v. Berger (2016), 2016 ONCA 884, 85 R.F.L. (7th) 259 (Ont. C.A.). There is no explanation for why Mr. Lincona did not swear an affidavit attesting to the information attributed to him.

[26] The mother relies on Ms. Fletcher’s affidavit to prove the truth of Mr. Lincona’s statements. The father has no ability to cross examine on the statements and the Court has no means to assess the weight to give to the untested evidence.

[27] Rule 14(19) provides that admission of third-party evidence is not mandatory. I have no way of assessing Ms. Fletcher’s perception, memory, narration and sincerity as it relates to her recounting of what Mr. Lincona allegedly told her.: R v. Baldree, 2013 SCC 35, [2013] S.C.J. No. 35. This untested evidence must not be given more weight than it deserves, especially when determining the child’s best interests. For this reason, I find that the statements in paragraph 9 of Ms. Fletcher’s Affidavit are inadmissible hearsay and are struck.

[28] Having made these preliminary findings, I shall determine the issues on the motion.

Issues on the Motion

The parenting time schedule, primary residence and decision making

[29] The child has resided primarily with the mother since his birth. The status quo prior to the events of May 17 was the Order of Justice Minnema dated April 20, 2023, whereby the father has the child five of fourteen overnights.

[30] While the parties have been able to co-parent to some degree, the affidavits before me demonstrate their fractious relationship, lack of trust and tendency to blame and accuse the other of false claims and marginalizing their relationship with the child.

[31] The mother accuses the father of domestic abuse and alienation which is denied. The father argues that the mother has mental health issues and is neglectful in her care of the child. The allegations in the affidavits are not limited to the May 17 event but relate the complaints and disputes that have transpired since about October, 2021 when there was a breakdown of the parties’ parenting relationship.

[32] I troubled by the mother’s argument that the father is “using” the events of May 17 to gain an advantage in the litigation as if he somehow orchestrated it. She states that the father’s actions after the events of May 17 “indicate a worrisome effort to cut (the mother) out of S’s life.”

[33] The mother argues that the father’s reaction to the events, in particular, withholding of the child from her is not child focused but designed to cause harm to her.

[34] While I accept the mother’s evidence that she regrets her behaviour and takes full responsibility for her actions, these allegations against the father show a lack of insight and a failure to recognize just how serious these events were.

[35] The mother asks the Court to discount the incident as isolated and out of character. However, this was more than an “error in judgment”. The mother began drinking at 4 p.m. and continued drinking for about 7 hours. She argues that when she left the children she was in a courtyard within view of the door of the hotel room, as is she were in another area of a large home. But the mother told police that she “smoked something and lost all function”. She was found passed out and had to be carried back to the room by two staff members. When she got back to the room she began to vomit. It is clear the mother had no capacity to care for the children if the need arose. The outcome could have been much worse for the children and the mother if there had been an emergency and the children had required her care during this time.

[36] The father argues that the mother’s behaviour had deteriorated and become more erratic. He states the child has suffered injuries while in her care. He is concerned about her ability to care for the child and keep him safe especially near the water.

[37] The mother denies having any mental health issues. She acknowledges that the litigation with the father has been stressful but states that since returning from Florida she has taken steps to ensure she has supports in place including individual counselling, meeting with her Nurse Practitioner, abstaining from alcohol and relying on her sister and best friend.

[38] The mother’s sister, Sarah Beaton and her best friend, Kristen Smith, both confirm their close relationship with the mother and that they have observed her to be a great caregiver to her children. Ms. Smith states that she was worried for the mother because she saw that the loss of her job and the stress of the litigation with the father have taken a toll on the mother’s well-being. Ms. Beaton states that the mother suffered immense stress relating to the end of her relationship with the father and the resulting litigation. She says that when the mother lost her job it further exacerbated the pressure on the mother.

[39] Both Ms. Smith and Ms. Beaton have supported the mother since her return from Florida. They both state that the mother has learned from her mistake and that this behaviour was out of character for her.

[40] Both Ms. Smith and Ms. Beaton are critical of the father’s behaviour toward the mother and his parenting of the child.

Law and Analysis

[41] Section 29(1) of the Children’s Law Reform Act provides that the Court shall not vary a parenting order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. Based on the evidence of the events of May 17 I am satisfied that there has been a material change that affects the best interests of the child that warrants a temporary, without prejudice variation to Justice Minnema’s Order.

[42] The child suffered a traumatic event. He saw his mother carried into the room by strangers then vomiting on the floor. The police were there. He and his sisters were crying and distraught. They spent the night in a strange place with strangers caring for them. S was brought home by his father and his adult sisters. He did not know where his mother was or when she was coming home.

[43] I do not doubt that S feels awkward and unsure when speaking to his mother. In my view, it is important to reestablish in person parenting time for S with the mother to return to some normalcy.

[44] Supervised access is appropriate in circumstances where a child requires protection from physical, sexual or emotional abuse and circumstances where there are clinical issues involving the access parent, N.M. v. M.M., [2018] O.J. No. 7104 paragraph 29. But it is an exceptional remedy which should only be ordered where there is a real risk of harm to the children that cannot be addressed in any other satisfactory way, S.I. v. I.I., 2013 ONSC 2762 paragraph 10.

[45] The father argues that the mother’s past conduct and the uncertainty about her mental health is relevant to her ability to parent and warrants supervised parenting time.

[46] The mother is parenting her two daughters in the schedule in place prior to May 17. There is no evidence that she has struggled or that those children have been at risk.

[47] While I am concerned by the mother’s behaviour on May 17 and the very unfortunate events that took place, I find there are no exceptional circumstances or evidence of real risk of harm in this case which require supervised parenting time.

[48] In determining what schedule of parenting time will be in S.’s best interests on a temporary without prejudice basis, I have considered the criteria set out in the CLRA, s.24 (2) and (3)(a) to (k). The list is not exhaustive. Under section 24(3)(d) and (g), I have considered the history of the care of the child and plans proposed for parenting time by each party.

[49] In my view, on a temporary, without prejudice basis, the mother’s parenting time should be reintegrated starting with day visits and progressing to overnight visits.

[50] While I do not find that the mother’s conduct warrants an order for supervised parenting time, it does warrant an order for Soberlink testing.

[51] The parties have agreed on the school S. will attend in the fall. There are no health or religious decisions required in the short term. A temporary decision-making order will have a significant impact on the litigation going forward, particularly as it affects a young child. In my view there is no need to order sole decision making for the child at this time.

The child support order

[52] The child has lived primarily with the father since May 18, 2024. Based on this parenting time order he will continue to have primary residence pending a return of this matter.

[53] Enforcement of the support Order of Justice MacEachern shall be suspended commencing June 1, 2024 continuing for so long as the child remains in the primary care of the father.

Should there be an assessment pursuant to s. 30 of the CLRA?

[54] The mother argues that a s. 30 assessment is required to address this high conflict case and the father’s alienating behaviour. The father argues that, while he has concerns about the mother’s mental health, an assessment is not warranted.

[55] In this case, the mother became pregnant less than a month after the parties began their relationship. They did not cohabit so they have always parented the child separately. At some point in October 2021, the relationship became strained. The litigation began shortly afterward.

[56] Despite this, the parties consented to the Orders of Justice MacEachern and Justice Kershman. At the motion before Justice Minnema the father provided an alternate parenting time proposal to address some of the mother’s concerns regarding block time and pick up and drop off locations. Even after the events in Florida the parties agreed to a FaceTime schedule for the mother and the child after attending before Justice Engelking. While there have been disputes, the parties have been able to work together to some degree to parent the child.

[57] I have reviewed the criteria set out by Justice Kiteley in Glick v. Kale 2013 ONSC 893. While there is acrimony between the parties, prior to the May 17 events, the worked together to co-parent the child. The time spent, and tasks performed may not have been equal, but each parent had an important and involved role.

[58] The mother denies any mental health issues. The father has concerns about the mother’s behaviour but does not seek an evaluation by an assessor. While clinical issues are not a prerequisite for a s. 30 assessment, many of Justice Kiteley’s criteria relate to behaviours that require clinical analysis.

[59] A s. 30 assessment is lengthy, expensive and intrusive. S is four years old. At this time, it is in his best interests to normalize a parenting schedule with his mother and have him enjoy time with both of his parents. I am not satisfied that a s. 30 assessment is necessary for this case from an evidentiary or a therapeutic perspective or that it would be in S’s best interests. I decline to order a s. 30 assessment.

ORDER

[60] This Court makes the following Order on a temporary without prejudice basis:

1. The child, S, born April, 2020, shall have parenting time with the mother as follows:

(i) Starting on July 22, 2024, in person parenting time every Tuesday, Thursday and Saturday from 10 a.m. to 6 p.m.

(ii) Facetime calls every Monday, Wednesday, Friday and Sunday with the calls not to exceed 15 minutes at a time to be agreed.

(iii) The mother shall engage in Soberlink alcohol monitoring 12 hours prior to her parenting time, one hour before her parenting time and once a day during her parenting time. The parties shall share the cost of the Soberlink device and testing equally. If she has a positive test result, the child shall be picked up by the father or his agent as soon as practicably possible. The link for Soberlink can be found at Family Law | Soberlink Experts in Remote Alcohol Monitoring.

(iv) If there is a positive test result, then the mother shall miss her next scheduled parenting time in addition to the parenting time that gets cancelled.

2. Starting on Tuesday August 6, the mother’s parenting time shall be Tuesdays from 10 am to Wednesday morning return to day care and Thursdays from 10 am to Friday morning return to day care and alternating Saturdays from 10 am to Sundays at 6 p.m. When the child is with the mother overnight, the mother shall test on the Soberlink device 12 hours prior to her scheduled parenting time, one hour prior to her parenting time and once during her parenting time. If there is a positive test result when the child is in the mother’s care, the child shall be picked up by the father or his agent as soon as practicably possible. The mother shall then forfeit her next parenting visit and her parenting time shall revert to daytime visits until she has three consecutive visits without a positive result, at which time the overnight parenting time shall resume.

3. At all other times, the child shall reside with the father.

4. The mother shall authorize the release of Dr. Brandigampola’s complete file including the mother’s medical file and clinical records from April 2020 to date.

5. Commencing June 1, 2024, the Family Responsibility Office shall suspend enforcement of child support pursuant to the Order of Justice MacEachern dated December 16, 2021 pending further Order of this Court.

6. The matter shall return for an urgent conference the week of August 19 on a date to be arranged with the Trial Coordinator to determine the parenting schedule. If the parenting schedule cannot be resolved, a motion shall be scheduled prior to the child commencing school.

7. If the parties cannot agree on costs, the Applicant shall serve and file costs submissions of no more than 2 pages exclusive of Bills of Costs and Offers within 14 days. The Respondent shall serve and file costs submissions 14 days thereafter. There shall be no reply submissions. Costs submissions shall be sent to AnnaMaria.Tiberio@ontario.ca.

Nakonechny J.

Date: July 19, 2024