McElroy v. Spence, 2025 ONSC 1252

Court File No.: FC-23-74
Date: 2025/02/25
Superior Court of Justice – Ontario
RE: Kristen McElroy, Applicant (Respondent on Motion)
– and –
Ryan Andrew Spence, Respondent (Moving Party on Motion)
Before: Anne London-Weinstein
Counsel: John Allan, for the Applicant; Jill Addison, for the Respondent
Heard: February 19, 2025 (Brockville)
Endorsement on motion regarding parenting time

Background

[1] The Applicant Mother and Respondent Father lived together for approximately one year, separating on May 25, 2019.

[2] There is one child of the relationship, Bryson McElroy. He is now six years old.

[3] The Mother has always been the primary parent. She has two other children and is a single parent.

[4] By May of 2022 the Father was spending every second weekend from Friday to Monday in one week and from Wednesday to Friday the second week with the child.

[5] This schedule continued until June of 2023. The Father also had additional time with the child when the Mother required assistance. For example, he had the child in his care for a total of 21 days in March 2023 as the Mother was scheduled for surgery.

[6] From June of 2023 to September of 2023 the parents had a week about schedule as the Mother had plans to attend school. An agreement to that effect was executed.

[7] In September of 2023, the Mother reneged on this agreement. The Mother indicated in a text that the Father was “lucky she was allowing him so much time.”

[8] The Mother unilaterally changed the parenting time to every other weekend.

[9] After the Father and his new spouse expressed concerns they had regarding the Mother missing some appointments for the child, and not being home to greet the child at the school bus, the Mother unilaterally terminated the parenting time.

[10] The Father then brought this motion seeking the restoration of his parenting time.

[11] The Mother had advised the Father that he could only see the child at her discretion. The Father’s parenting time was restricted to every second weekend from Friday to Sunday evening.

[12] The Mother maintains that the parenting time needed to be supervised by the Father’s mother, given concerns about his relapse into alcohol and drug abuse.

[13] The Father indicates the child’s school has expressed concerns that the Mother has not been home when the child has been scheduled to be dropped off after school. The Father’s spouse had to drive to the school to pick up the child. In one incident, neither the school nor the Father could locate the Mother. This has happened three times.

[14] Police were also called to conduct a wellness check when the child did not attend school. The Mother indicated he was at a birthday party, but this was during a school day.

[15] The school also contacted the Father when the child arrived at school with no coat, no gloves and no backpack. The backpack had been dropped off at school at a later point and left outside. It was located and able to be used by the child.

[16] The child also reportedly said that his mother was “falling asleep.”

[17] The Mother has missed some exchanges of the child. The Father had to reschedule an ENT appointment for the child which the Mother had missed. He took the child to the appointment.

[18] On January 16, 2025, the Father’s counsel wrote to the Mother’s counsel setting out concerns and requesting the appointment of the OCL.

[19] A few days later the Mother sent a text to the Father’s spouse advising she would no longer be sending the child for parenting time. On January 23, 2025, the Father was advised that due to concerns by the Mother about his drug and alcohol use, his parenting time was terminated.

[20] The Mother denies terminating the parenting time but maintains that it was in the best interest of the child that the parenting time be supervised by the child’s paternal grandmother.

[21] The Mother maintains that the Father has a history of drug and alcohol abuse and that he delegates his parenting role to his spouse and to his parents.

[22] The Mother agrees that the parents had a week about parenting schedule at one point in 2023 but says the Father was haphazard about the parenting time and was not attentive to her inquiries about the child. The child was also reportedly upset after drop off at school.

[23] The Mother has been stressed by the spouse reporting her to CAS and having to undergo an investigation by CAS. It was confirmed in this motion that the spouse had reported concerns about the Mother to CAS.

[24] The Mother took a drug screening test which was negative for all illicit drugs, but positive for a cannabis metabolite. The Mother has two other children and is a single Mother. She admits to being late to the bus for pick up due to the demands of parenting.

[25] The Father has been having supervised parenting time with his mother supervising him since February 1, 2025.

Analysis

[26] In considering the child’s best interests, I have considered the relevant factors under s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am.

[27] The child is six years old. Maximum parenting time with both parents such as is consistent with the child’s best interests is the aim here. The Mother is the primary parent, however the Father has been very involved with the child, including scheduling dental and ENT appointments, liaising with the school, and ensuring that the child is picked up when the Mother has not been available.

[28] The Father has a long history of having a successful relationship with the child. While the Mother alleges that the Father had a history of substance abuse, particularly alcohol, in the past there is no evidence that this is a present day problem. The Mother alleges that she has heard reports, without substantiating the source of those reports, that the Father has relapsed.

[29] The Father continues to be employed and appears to be a responsible parent. I do not accept that the reason for the suspension of parenting time, and the imposition of supervised parenting time by the Mother was related to concerns about drug or alcohol abuse.

[30] Given the timing of the suspension of the Father’s parenting time, I find that it was directly related to the Father’s spouse reporting the Mother to CAS, and the letter sent reporting concerns about her parenting and requesting the appointment of the OCL.

[31] I am satisfied that the Mother felt threatened by these criticisms of her parenting and responded by altering the parenting time available to the Father. If the Mother had legitimate concerns regarding false allegations being made about her, or with regard to the Father’s drinking, the correct course of action was to bring a motion for change, not to unilaterally alter parenting time.

[32] Supervised contact is the exception not the rule. The burden rests on the parent seeking to justify such a restriction of parenting time. There are no circumstances in this case that would justify requiring that the Father’s parenting time be supervised, given my conclusions on the evidence.

[33] The allegations of substance abuse in relation to the Father are not substantiated and came only after the Father and his spouse expressed concern regarding incidents of missing exchanges and picking the child up along with a request of an OCL appointment.

[34] The Mother was correct that it was the Father’s spouse who reported the Mother’s conduct to the CAS. This state of affairs has not assisted the relationship between the Mother and the Father, who must co-parent this child. It is most unfortunate that these concerns could not be addressed through co-operative, mutual discussions with all parties.

[35] Going forward, mutual communication of concerns should be attempted to be addressed first between the parents to see if issues can be resolved. This may minimize conflict, which is in the best interests of the child.

[36] The Father’s regular parenting time is to be restored as of Friday, February 28, 2025. I do not agree that the OCL should be requested in this case. The child is six and his views and preferences will be difficult to ascertain and of limited value. The argument for involving the OCL was that they are better able to access documents related to the child and gather information. There is no evidence before me that the parties do not have access to all of the child’s medical, dental and school records. Given the heavy workload that the OCL carries on a day-to-day basis in cases where the need for their involvement is critical, I have declined to request their involvement in this case.

[37] It is ordered that the Father Ryan Andrew Spence have parenting time with the child every second weekend from pick-up after school on Friday to Monday return to school, commencing Friday, February 28, 2025. If the Monday following the Father’s access weekend is a holiday or if there is no school that day, his parenting time shall be extended to include the holiday and the child shall be returned to the Mother’s care at 9:30 a.m. on the Tuesday.

[38] Both parents are to abstain from the consumption of alcohol and drugs in the presence of the child. Both parents are to remain civil in their communications with one another.

[39] I was also advised that despite an order for child support which was made almost a year ago, the Mother has not received any child support. Justice Johnson, on April 23, 2024 ordered the Father to pay child support in the amount of $251.00 per month commencing May 1st, 2024. The Father indicates that he is still in the process of setting up his FRO account and that FRO has indicated that he should not pay the Mother, but should pay the funds to FRO, or suffer a $200 penalty. This prolonged delay in providing child support is unacceptable. In the circumstances of this case, it is not in the best interest of the child to continue to wait for child support which is long overdue. The Father is ordered to pay the entire outstanding amount of child support directly to the Mother within seven days of this order. Counsel advises me the Father has been saving the $251.00 each month. FRO is ordered not to penalize the Father with any financial sanction for following this court’s order regarding the direct payment of the outstanding child support to the Mother. The child should not have to endure hardship by having to wait for almost a year for FRO to establish a garnishment collection mechanism.

Costs

[40] The parties are encouraged to resolve the issue of costs. If the parties cannot resolve the issue of costs for this proceeding, they may file brief written submissions not exceeding two pages exclusive of Bills of Costs. The Father shall file submissions by March 11, 2025 and the Mother shall file submissions by March 25, 2025. Costs submissions are to be sent to scj.assistants@ontario.ca and to my attention.

Anne London-Weinstein
Date: February 25, 2025