Court File and Parties

COURT FILE NO.: FS-20-00008329-0000 DATE: 2024-11-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM ANDREW JAMES FERGUSON Applicant – and – LAURA CHRISTINE VIGGERS Respondent

Counsel: Ken B. Fraser, for the Applicant Jessica Bonnema, for the Respondent

HEARD: November 14, 2024

THOMAS, J. :

Endorsement

[1] Before me are two competing parenting motions set as a special appointment proceeding. The parties lived together from 2017 to 2019. They did not marry. This is the fourth motion of this nature. The other three were:

1. Desotti J. – March 24, 2022.
2. Cook J. – June 7, 2023.
3. Howard J. – June 19, 2024.

[2] The matter comes back to me today as Justice Howard wisely determined that a review approximately three months after the release of reasons (August 12, 2024) would be appropriate.

[3] I have the benefit of Justice Howard’s detailed endorsement, which captures the history of the difficulties between the parties and the impact of the applicant father’s alcohol abuse disorder on his ability to have contact with the child. I told counsel that I accepted Justice Howard’s findings of fact and his credibility observations as well as his historical review of the parenting issues.

[4] Adelle Elizabeth Ferguson, born June 27, 2018 is now six and in grade one at Sacred Heart Catholic School in Sarnia. All the material before me indicates Adelle loves both parents and that they are a positive force in her life.

[5] I also have the benefit of a 52 page s. 30 report, completed at the request of the applicant by Dr. Dilys Haner. The report is dated November 24, 2023.

[6] The order granted by Justice Howard in his August 2024 endorsement is very detailed. Some portions of the order came on consent, others were the product of argument.

[7] Justice Howard created an environment which allowed the applicant contact with Adelle while setting up a testing regime which ensured Adelle’s safety and encouraged the applicant to achieve and maintain sobriety.

[8] The applicant’s regular testing for alcohol has confirmed his abstinence and so it is time now, on this review, to expand his parenting time. The parties agree that this is so but are at odds with many of the details, including the extent of any proposed expansion.

[9] It is in Adelle’s best interests to expand contact with her father but her safety and ensuring that the contact is positive must be the Court’s overriding concern.

[10] Counsel have provided me with detailed facta which draw upon the affidavits filed in support and the relevant legislation and caselaw. In this endorsement, I will confine myself to the issues identified and argued before me.

Supervision

[11] The parenting time of the applicant has required supervision as a result of both the orders of Cook J. and Howard J. It is common ground that the applicant’s parents have supervised and transported Adelle when it was the applicant’s responsibility. While the respondent agrees to parenting time expansion, including alternate weekend overnights, she argues that supervision must remain in place until a hair follicle test result is produced that is negative for alcohol and marijuana within 90 days.

[12] That argument is premised on the applicant’s admitted recreational use of marijuana and Dr. Haner’s concern that the applicant may substitute a dependency on marijuana now that alcohol is “off limits”.

[13] The applicant argues that there is no evidence of abuse of marijuana and no evidence that it has ever, or will ever, impact his ability to care for Adelle. It is suggested that this is a demand inappropriately grounded in a hypothetical. I agree with the applicant on this issue. Paragraph 12 of Justice Howard’s order will remain in place that demands a total prohibition for alcohol consumption while prohibiting marijuana use 24 hours before parenting time with Adelle, or any time during his contact with the child.

[14] I find that while the applicant’s parents will no doubt be a continuing source of assistance for the applicant, supervision by them or anyone is unnecessary at this time and the continued presence of supervision would detract from the applicant’s parenting experience both for himself and Adelle.

Parenting Schedule

During the Week

[15] The applicant seeks to expand his Tuesday night contact so that Adelle would remain in his care as follows:

…from 3:00 p.m. on Tuesday if Adelle is in school (or 9:00 a.m. if Adelle is not in school) to the commencement of school on Wednesday morning (or 6:30 p.m. if Adelle is not in school);

[16] The respondent believes this expansion is premature and that both regular Tuesday and Thursday parenting time should remain as directed by Howard J. as follows:

Tuesday from 3:00 p.m. to 6:30 p.m. if Adelle is in school, or 9:00 a.m. to 6:30 p.m. if Adelle is not in school;

Thursday from 3:00 p.m. to 6:30 p.m. if Adelle is in school, or 9:00 a.m. to 6:30 p.m. if Adelle is not in school;

[17] The applicant’s position is that the Tuesday and Thursday access as presently created does not allow him any meaningful time with his daughter after he comes home from work and it would be beneficial for Adelle that the exchange on at least one of the mid-week visits take place in the morning (Elaziz v. Wahba, 2017 ONCA 58, para. 3).

[18] The respondent’s position is that this is too soon for such an increase in contact and that there is no plan for Adelle’s transportation to school if Wednesday is a school day.

[19] I agree with the applicant’s position. This expansion makes contact more meaningful and allows Adelle to sleep over one night during the week without an exchange at bedtime on both Tuesday and Thursday. The applicant’s parents have done much of the transportation and can do so again for the Wednesday drop off.

Alternate Weekends

[20] The applicant suggests that alternate weekend parenting time be the following:

From 3:00 p.m. on Friday to the commencement of school on Monday morning, with such weekends to commence on Thursday at 3:00 p.m. if the Friday is a PA/PD Day or statutory holiday other than Christmas, Easter or Thanksgiving and to continue until the commencement of school on Tuesday morning if the Monday is a PA/PD Day other than Christmas, Easter or Thanksgiving;

[21] The respondent’s position is set out below:

From 3:00 p.m. on Friday to Sunday at 6:30 p.m., with such weekends to commence on Thursday at 3:00 p.m. if the Friday is a PA/PD Day or statutory holiday other than Christmas, Easter or Thanksgiving and to continue to Monday at 6:30 p.m. if the Monday is a PA/PD Day other than Christmas, Easter or Thanksgiving;

[22] The respondent argues that at no previous time, even before the applicant’s alcohol issues surfaced, did he have overnight weekend access until Monday morning.

[23] Here, I agree with the respondent. With the increase in time I have directed on Tuesday/Wednesday of each week, it is in Adelle’s best interest, at this time, to return to the respondent’s residence on Sunday at 6:30 p.m. unless PA/PD days or holidays are in play as suggested by the respondent.

Happy Fridays

[24] The applicant is off work on one Friday out of every month. Paragraph 2(c) of Justice Howard’s order allows for Happy Friday parenting time for the applicant as follows:

c) For the Applicant’s “Happy Fridays” once per month when he is off work, from 3:00 p.m. to 6:30 p.m., if Adelle is in school, or 9:00 a.m. to 6:30 p.m. if Adelle is not in school; and

[25] The respondent requests that the Happy Friday contact always be followed by the applicant’s weekend parenting time. She is concerned that having Adelle returned to her on Friday at 6:30 p.m. cuts into the respondent’s weekend with her daughter.

[26] The applicant wishes to have Happy Fridays on the present schedule as the respondent’s plan means that there would be two consecutive weekends where he will not have Saturday/Sunday contact.

[27] I agree with the applicant. The Happy Fridays will remain on the present schedule. It allows for regular meaningful weekends for both parties and for Adelle. It minimally impacts the respondent’s time with her daughter on those occasions when the Friday coincides with her weekend and I believe creates a schedule that is consistent and easy to follow.

Christmas 2024

[28] Justice Howard directed that the parties come to this review with a plan for Christmas to alleviate a further late motion. The parties have expended some effort in trying to agree on a plan for parenting over the upcoming Christmas season. Unfortunately, any extended parenting time for the applicant could not be the product of those attempts. The respondent is concerned about “too much too fast” and wants to maintain the regular schedule but for allowances for the time right around Christmas day.

[29] The applicant requests shared Christmas holiday time with extended periods of contact with Adelle.

[30] With the Christmas season approximately six weeks away, I agree with the respondent that a 50/50 sharing of time is inappropriate at this time. I do, however, see the merit in some extension of the applicant’s contact, and I have decided upon a hybrid version of their requests as being in the best interests of Adelle.

[31] Therefore, the Christmas 2024 parenting time for the applicant will be the following:

(a) From Friday, December 20 at 3:00 p.m. to Sunday December 22 at 6:30 p.m. (b) From Tuesday, December 24 at 1:00 p.m. to Wednesday December 25 at 1:00 p.m. (c) From Thursday, December 26 at 1:00 p.m. to 6:30 p.m. (d) From Tuesday, December 31 at 9:00 a.m. to Wednesday January 1 at 9:00 a.m. (e) From Thursday, January 2 at 9:00 a.m. to Sunday January 5 at 6:30 p.m.

[32] In addition, the materials suggested versions of parenting time throughout future holiday and summer periods. The order of Justice Howard at paras. 3, 4 and 5 makes provision for future extended holiday and vacations times. I advised counsel that I was not prepared to entertain a review of those paragraphs as I believe that exercise to be premature.

Alcohol Testing

[33] The order of Justice Howard considered alcohol testing for the Applicant at paras. 7 to 11 of the order as well as para. 20. Those paragraphs directed that the applicant utilize an app-based remote alcohol monitoring service to test for alcohol at defined times and transmit the results with photographic proof to the respondent. Paragraph 20 required the use of a breathalyzer key to start his vehicle if he was to transport Adelle. The order demands that the test results at all times register 0.00 blood alcohol content.

[34] To his credit, the applicant has submitted over 1800 BAC test results since December, 2023 as well as an Alcohol Hair Follicle test that was negative for alcohol for 90 days prior to August 19, 2024.

[35] The parties have agreed that continuing to demand tests at specific times becomes significantly difficult for the reasons set out in their material. Instead, they have agreed that the testing during the day be submitted at intervals of no more than four hours. Again, I have taken the suggestions of both parties and created what I find to be a workable regime of testing that I believe will create a safe environment. Importantly, in defining the start and stop time for testing, it is important to note that the test result must be 0.00 BAC. Therefore, small adjustments in time provide no greater protection.

[36] My resolution of this issue at this time is as follows:

The applicant, William Andrew James Ferguson, shall use an app-based remote alcohol monitoring service to test for alcohol:

(i) When the child is in his care, he shall complete a test before 7:00 a.m. and after 9:30 p.m. and there shall not be more than four hours that passes between tests; (ii) When the child is not in his care, he shall complete a test before 8:00 a.m. and after 9:30 p.m. and there shall not be more than four hours that passes between tests; (iii) Prior to driving the child at any time during his parenting time, in addition to the condition that the applicant maintain an interlock breathalyzer system in accordance with para. 20 of the order of Justice Howard dated August 12, 2024.

Failed Test

[37] If the applicant, William Andrew James Ferguson, generates a test result through the app-based remote alcohol monitoring service that is positive for alcohol, meaning the result is more than 0.00% BAC, the parenting schedule set out herein shall be suspended and the parenting arrangements shall automatically revert to the parenting arrangements outlined in paras. 2, 18 and 19 of the order of Justice Howard dated August 12, 2024 for a minimum of 90 days. If the applicant is then able to provide test results through the app-based remote alcohol monitoring service, in accordance with the schedule outlined herein, which are negative for alcohol, meaning that the result is 0.00% BAC, for 90 days following the reduction in parenting time, the parenting time provided for herein will resume.

Missed Test

[38] A test received by the respondent more than six hours late shall be considered a missed test and as well considered positive for alcohol and thereby a failed test.

Transportation

[39] The respondent takes the position that the applicant should now personally transport the child to and from all parenting time. It is the respondent’s position that this will indicate a show of commitment and responsibility by the applicant.

[40] I do not understand the respondent’s argument and I see no reason for requiring the applicant to effect all the transportation. The responsibility for transportation will remain as set out in para. 6 of Justice Howard’s order.

Further Review

[41] The parties will arrange with the trial co-ordinator a settlement conference at least 90 days from the release of these reasons. A further review of the parenting time directed herein will be undertaken at the settlement conference.

Summary

[42] Paragraph 2 of Justice Howard’s order of August 12, 2024 will be deleted and replaced by the following, which is effective immediately upon receipt of these reasons:

Pending a review of the parenting schedule at a settlement conference to be scheduled through the trial co-ordinator’s office, the applicant, William Andrew James Ferguson, shall have parenting time with the child, Adelle Elizabeth Ferguson, born June 27, 2018, as follows:

Week One :

1. From 3:00 p.m. on Tuesday if Adelle is in school (or 9:00 a.m. if Adelle is not in school) to the commencement of school on Wednesday morning (or 6:30 p.m. if Adelle is not in school);
2. Thursday from 3:00 p.m. to 6:30 p.m. if Adelle is in school, or 9:00 a.m. to 6:30 p.m. if Adelle is not in school;

Week Two :

1. From 3:00 p.m. on Tuesday if Adelle is in school (or 9:00 a.m. if Adelle is not in school) to the commencement of school on Wednesday morning (or 6:30 p.m. if Adelle is not in school);
2. Thursday from 3:00 p.m. to 6:30 p.m. if Adelle is in school, or 9:00 a.m. to 6:30 p.m. if Adelle is not in school;
3. From 3:00 p.m. on Friday to Sunday at 6:30 p.m., with such weekends to commence on Thursday at 3:00 p.m. if the Friday is a PA/PD day or statutory holiday other than Christmas, Easter or Thanksgiving and to continue to Monday at 6:30 p.m. if the Monday is a PA/PD day other than Christmas, Easter or Thanksgiving;
4. For the applicant’s “Happy Fridays” once per month when he is off work, from 3:00 p.m. to 6:30 p.m., if Adelle is in school, or 9:00 a.m. to 6:30 p.m. if Adelle is not in school; and
5. For such further and other times as the applicant and the respondent, Laura Christine Viggers, may agree.

[43] Paragraphs 7 and 11 of Howard J.’s order of August 12, 2024 will be deleted and replaced by the following:

The applicant, William Andrew James Ferguson, shall use an app-based remote alcohol monitoring service to test for alcohol:

(i) When the child is in his care, he shall complete a test before 7:00 a.m. and after 9:30 p.m. and there shall not be more than four hours that passes between tests; (ii) When the child is not in his care, he shall complete a test before 8:00 a.m. and after 9:30 p.m. and there shall not be more than four hours that passes between tests; (iii) Prior to driving the child at any time during his parenting time, in addition to the condition that the applicant maintain an interlock breathalyzer system in accordance with para. 20 of the order of Justice Howard dated August 12, 2024; (iv) If the applicant, William Andrew James Ferguson, generates a test result through the app-based remote alcohol monitoring service that is positive for alcohol, meaning the result is more than 0.00% BAC, the parenting schedule set out herein shall be suspended and the parenting arrangements shall automatically revert to the parenting arrangements outlined in paras. 2, 18 and 19 of the order of Justice Howard dated August 12, 2024 for a minimum of 90 days. If the applicant is then able to provide test results through the app-based remote alcohol monitoring service, in accordance with the schedule outlined herein, which are negative for alcohol, meaning that the result is 0.00% BAC, for 90 days following the reduction in parenting time, the parenting time provided for herein will resume. (v) A test received by the respondent more than six hours late shall be considered a missed test and as well considered positive for alcohol and thereby a failed test.

[44] Additionally, my order will include the following:

Christmas Parenting

In 2024/2025, the applicant will have parenting time as follows:

(a) From Friday, December 20 at 3:00 p.m. to Sunday December 22 at 6:30 p.m. (b) From Tuesday, December 24 at 1:00 p.m. to Wednesday December 25 at 1:00 p.m. (c) From Thursday, December 26 at 1:00 p.m. to 6:30 p.m. (d) From Tuesday, December 31 at 9:00 a.m. to Wednesday January 1 at 9:00 a.m. (e) From Thursday, January 2 at 9:00 a.m. to Sunday January 5 at 6:30 p.m.

[45] The balance of the terms in the order of Howard J. dated August 12, 2024 remain in full force and effect.

Costs

[46] As was the situation when these issues were litigated before Justice Howard, costs are in my discretion and since success in my view is mixed, there will be no order as to costs.

“Justice Bruce G. Thomas” Justice Bruce G. Thomas

Released: November 19, 2024.