Court File and Parties
COURT FILE NO.: FC1173/21-01 DATE: December 13, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Hillary Anne Mulholland, Applicant AND: Hayden James Mulholland, Respondent
COUNSEL: Ms. A. Van Deven, for the Applicant Ms. M. Raithby, for the Respondent
BEFORE: HOWIE J. HEARD: November 27, 2024
Endorsement
[1] This Motion was heard on a “regular” motion day.
[2] There were 3 issues argued at the motion, primarily:
a. whether this motion should be adjourned to a special motion, January 10, 2025. In the event that I chose this route, counsel were able to work out the terms of a certificate of readiness. The court appreciates the cooperation;
b. the applicant’s motion to remove Ms. Raithby as the solicitor for the respondent; and
c. whether interim minutes of settlement signed August 22, 2024 should be set aside.
[3] Upon completion of those 3 issues, the court was asked to consider an expansion of the applicant’s parenting time.
[4] It is important to put this motion into context. The applicant commenced this application in late 2021. It has been set down for trial on several occasions, but the case was never “reached”. Given that a part of this matter is parenting arrangements to be made for Madeleine, it is not surprising that the passage of time, if nothing else, has resulted in a series of motions.
Brief Background
(a) History of parenting time
[5] The applicant admits to having a substance abuse issue, including alcohol and cocaine. It appears that the extent of her sobriety is a “live” issue, but not the sole issue.
[6] For some 3.5 years, Madeleine has had parenting time with her mother (the applicant) only through supervised visits at the local centre (Merrymount), every second week. This child has never enjoyed a normal relationship with the applicant.
[7] I would be surprised if either party anticipated that supervised parenting time would extend for several years. Regardless of the reasons why, that is the reality for Madeleine today. Madeleine is now 7 years old.
(b) Interim minutes of settlement
[8] This matter was not reached at the October 2023 trial sittings. In October 2023, the applicant brought a motion to expand parenting time. Her request was dismissed. It appears from the record that the extent of the applicant’s sobriety was not proven to the point where the court was convinced that some lesser form of supervision, or no supervision, was appropriate.
[9] The applicant brought a third motion for expanded parenting time. It was heard by Justice Tobin on May 29, 2024. Justice Tobin released a detailed, typed endorsement. In context, at the time, it was anticipated that the trial would be held in fall 2024. We now know that this will not happen.
[10] Justice Tobin noted that both parties, tacitly, acknowledged that an increase in the applicant’s supervised parenting time was in order. They could not agree on how to accomplish this.
[11] Justice Tobin worked through the procedural issues. He opined that it was likely inappropriate to try to argue the issue on a one-hour motion, based on untested affidavits; however, a long motion date was not available prior to the anticipated trial date.
[12] Following that decision, the parties engaged in negotiations. Those negotiations resulted in interim minutes of settlement executed on August 22, 2024. Those interim minutes of settlement are quite detailed and are 3.5 pages long. I highlight and summarize:
a. both parties were represented by counsel;
b. there was a provision for Tuesday afternoon/evening videoconferences between Madeleine and the applicant;
c. the applicant’s parenting time was conditional on the applicant refraining from consuming any alcohol or drugs 24 hours prior, and during, any parenting time, except prescription medication;
d. there were provisions for a three-month hair follicle test and the use of a breathalyzer device;
e. in the event that the applicant had a positive or missed test, the parenting time would continue at Merrymount;
f. if the tests were negative, and if the applicant did not consume illicit drugs or alcohol 24 hours prior to or during any parenting time, for a period of 8 weeks:
i. commencing August 24, 2024, the applicant was to have parenting time Saturdays from 10:30 AM to 4:30 PM (which appears to be an expansion of the existing 2-hour alternate week visits), supervised by the applicant’s mother;
ii. provided that 4 visits with the child were successful and that there was “no indication” that the applicant used illicit medication, commencing October 19, 2024, the applicant’s parenting time was to be expanded from alternate Saturdays at 10:30 AM until Sundays at noon, again supervised by the applicant’s mother.
(c) Events following minutes of settlement
[13] The applicant states that she uses cannabis to deal with anxiety, depression, sleep and appetite. She claims that the lawyers who negotiated the interim minutes of settlement agreed that “cannabis use would not be an issue”. In other words, she interpreted the minutes of settlement to say that she would not consume alcohol or drugs, except for cannabis. She states that she would not have signed the minutes if this exception was not made.
[14] On September 7, 2024, the applicant had her first visit with the child outside of Merrymount. The visit went well.
[15] On September 16, 2024, the test results came back “positive” for cannabis.
[16] The respondent took the position that the parenting time was to be returned to Merrymount. The parenting time continues, biweekly, for two hours.
Issue #1: Should this motion be adjourned to a special motion date, being January 10, 2025?
[17] The answer is “no.”
[18] This motion was argued in the course of 60 minutes. I recognize that Justice Tobin made reference to a special motion date. However, he also made reference to “untested affidavits”, meaning that no cross-examinations were completed. It is not proposed that this motion be adjourned to January 10, 2025 for the purposes of completing cross-examinations.
[19] The parties have asked this court to consider the record as it is, that is, without cross-examinations. The court can do so now. The court would be in no better position if the parties were given an additional two or three hours to argue.
Issue #2: Should Ms. Raithby be removed as counsel of record?
[20] The answer is “no”.
[21] The Applicant’s former counsel, Ms. Samuels, elected to file an affidavit with regard to the terms of the interim minutes of settlement. In doing so, she made herself a witness. Quite properly, she no longer acts for the applicant.
[22] Ms. Raithby, the respondent’s counsel, acted during the negotiation and execution of the interim minutes of settlement. The respondent has elected not to file an affidavit by Ms. Raithby. That is his right. Ms. Raithby cannot be compelled to give evidence.
[23] Accordingly, there is no basis to remove Ms. Raithby.
Issue #3: Should the interim minutes of settlement the set aside?
[24] The answer is “no”.
[25] The interim minutes of settlement are clear and unambiguous.
[26] I have read the affidavit of Ms. Samuels very carefully. Ms. Samuels acknowledged that she was informed by Ms. Raithby that the respondent would not sign the interim minutes of settlement if cannabis testing was removed (see paragraphs 39 and 43). While there were assurances from Ms. Raithby that she didn’t believe that her client would act in an unreasonable manner, there is nothing in this affidavit which suggests that the inclusion of cannabis was an error, or a misunderstanding. There was a meeting of the minds. Unfortunately, the parties were left with different expectations. This is not a sufficient basis to set aside his agreement.
Issue #4: What are the terms of parenting time going forward?
[27] The answer is that parenting should be in accordance with the interim minutes of settlement. This applies to both parties.
[28] The sub-issue is whether a positive test for cannabis constitutes a “positive test.”
[29] Paragraph 2 of the interim minutes prohibits the applicant from consuming any alcohol or drugs prior to or during parenting time. However, an exception is made for prescribed medication. While the record is far from convincing, the applicant’s affidavit states that she obtained a prescription for marijuana.
[30] However, reference needs to be made to paragraph 4(a) of the interim minutes of settlement. This paragraph clearly states that the applicant’s parenting time shall be at Merrymount if she receives a positive test for “… alcohol (ethanol), illicit drugs, and or drugs for which the applicant does not have a valid prescription, and/or cannabis…”
[31] What is the implication of a “positive test”? According to paragraph 5, the applicant’s parenting time shall revert to Merrymount. I cannot determine how long the visits are to continue there, however. There is reference at paragraph 6 that the “progression” of the parenting schedule shall be paused until the next scheduled negative test result.
[32] The bottom line, accordingly, is that parenting time at Merrymount shall continue until a negative test result is obtained. At that point, “Phase One” of the expanded parenting time shall be in place for the next eight weeks.
[33] At this moment, I need to digress.
[34] Everything in the applicant’s affidavit indicates that her use of cannabis is occasional (see paragraph 20 of the affidavit of Ms. Samuels).
[35] It seems to this court that a progression of the applicant’s parenting time has been derailed by the applicant’s consumption of cannabis. This is unfortunate. If the applicant did not consume cannabis, by this time, both graduated phases contemplated in the interim minutes of settlement would have been completed, and this court could have considered an application for unsupervised parenting time. It appears that cannabis use has become a “line in the sand”, resulting in a further delay in the normalization of the relationship between the applicant and her daughter. This dispute was unnecessary.
Order
[36] Accordingly,
the request to adjourn this motion to a special date is denied;
the request to remove Ms. Raithby is dismissed;
the request to set aside the interim minutes of settlement is dismissed;
the parenting time of the applicant shall be in accordance with the interim minutes of settlement.
[37] In terms of costs, I do not recall which parties requested the adjournment to a special motion. Even if that was the request of the respondent, in totality, the respondent is the successful party. My presumptive view is that the respondent is entitled to the costs of this motion.
[38] That being said, if the parties cannot agree on this issue, the respondent shall have 30 days and the applicant shall have 45 days to deliver written submissions. The submission shall not exceed three pages plus a bill of costs and any necessary attachments (such as offers to settle).
[39] If the applicant takes the position that costs, if ordered, should not be payable immediately, her materials should provide a brief overview of her financial circumstances.
“Justice J. Howie”
Justice J. Howie
Date: December 13, 2024