MOTION HEARD: 2026-03-19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JENNA EVANS, Applicant
-and-
ZACHARY MACPHERSON, Respondent
BEFORE: Associate Justice Kamal
COUNSEL: Nicole Bolick, for the Applicant
Alexander W. Ostheimer-Lebeau, for the Respondent
REASONS FOR DECISION
Supervised parenting time is like an emergency brake, meant to protect children. But in the same way you would not slam the emergency brake just because the person in front of you is driving slowly, we should not order supervised parenting time when other orders can address the concerns, and the evidence does not demonstrate the level of necessity.
The Applicant mother brings a motion seeking the following relief:
a. On an interim basis, the children, Owen and Finn, shall reside with the Applicant mother.
b. On an interim basis, the children shall have supervised parenting time with the Respondent father, as agreed upon by the parties and as per the recommendations of the children’s aid society.
c. On an interim basis, the mother shall have sole decision-making responsibility for the children, in consultation with the father.
d. The Father shall not pick up the children from their school or home.
e. The Father shall enroll in a parenting course and seek assistance pertaining to substance abuse issues, including but not limited to support groups, addiction counselling and therapy.
f. The parties shall sign all documentation necessary to release the Children’s Aid Society records pertaining to the parties.
During oral submissions, the mother’s counsel provided further particulars regarding the supervised parenting arrangements requested. Specifically, the mother proposed that the father’s supervised parenting time occur at a supervised centre. However, acknowledging that there are waitlists for supervised parenting centres, the mother suggested that until they can get into a supervised centre, the father’s parenting time should be supervised by maternal grandmother temporarily or the paternal grandmother. The mother suggested one daytime visit on the weekend and one evening during the week, along with virtual parenting time.
The father seeks a return to the status quo as per the parties’ Separation Agreement, dated January 16, 2025, which is a 2-2-3 equal parenting schedule. The father advised that he is agreeable to terms to address the mother’s concerns.
For the reasons that follow, the mother’s requests for primary residence, sole decision-making, and supervised parenting time are dismissed.
The parties shall reinstate the 2-2-3 parenting schedule, with the terms outlined below.
Background
The children in this case are Owen, age 10, and Finn, age 4.
The parties began living together in May 2015. They were married on August 10, 2019, and separated on May 12, 2022.
On January 16, 2025, they executed a separation agreement that fully resolved all outstanding issues related to their separation, including parenting matters. That agreement provides for equal parenting time on a 2-2-3 schedule and joint decision-making responsibility.
The shared parenting arrangement was followed from January 2025 until an incident on February 6, 2026.
While the mother alleges that the father has a history of drug use, there is no evidence of that except for a generalized comment in the mother’s affidavit that the father has a “history of drug use and psychological issues.” The father denies a history of drug use or psychological issues.
Events leading to the motion
The Mother’s Version of Events
The mother’s primary concern is that the father is using (or misusing or abusing) substances.
On Tuesday, February 3, 2026, Owen and Finn informed the mother that, while caring for the children, the father told Owen to administer Naloxone in case he loses consciousness and does not wake up. According to the mother, the father later lost consciousness, and both children attempted to wake him and administer the Naloxone but then used the father’s cellphone to contact their paternal grandmother to come to the home and administer the Naloxone.
The mother believes that the paternal grandmother then came to the home and used Naloxone to wake up the father. He was able to regain consciousness.
Owen later received messages from his father, in which the father was upset with Owen that he told the mother about the situation, blaming Owen for the children now being in the mother’s care and threatening “severe consequences” to Owen.
The mother also raises additional concerns regarding the father:
a. In October 2025, the Children’s Aid Society of Ottawa (CAS) was contacted as there were concerns pertaining to children’s care when with the father. There were allegedly signs of Owen being physically and psychologically abused by the father. The Society did not pursue any action beyond an investigation, and the issues appeared to have ceased. The outcome of CAS’s investigation is not known to me.
b. The mother has been advised by the children that the father’s friend “Tony” comes to his home most nights after the children are put to bed to share and take pills with the father.
c. Owen’s relationship with his father has been deteriorating. Last October, Owen told his mother that he did not want to go to his father’s house because he is always in trouble at his father’s home and gets sent to his room for several hours at a time. Owen also told the mother that he hates going to his father’s home because the father is always angry, hates him, and makes Owen feel like he cannot do anything right and is always in trouble. Owen then showed the mother a mark on his wrist where normally he would have a silver bracelet that the mother gave him. Owen also advised the mother of an incident at the paternal grandparents’ home where the father was smoking both cigarettes and marijuana in the garage at Thanksgiving. When the grandparents stated that they were upset that he was smoking in the garage, the father took the children and left in the car. When they got into the car, Owen moved a water bottle from the seat, and the father yelled at him, resulting in the father removing Owen from the vehicle and pouring water on Owen’s head.
d. On Monday, February 2, 2026, the father was supposed to pick up the children from school as per the agreed schedule, but he did not show up and was not reachable. The father later advised the mother that he was at a medical appointment at the hospital, lost track of time and his phone had died.
e. The mother also has concerns that the father would drop off the children at her mother’s home before school as ‘before school care’ and the children were still in their pyjamas, and had no lunches packed. The mother also says that the children do not complete their schoolwork while they are in the father’s care.
The Father’s Version of Events
The father’s evidence about the events on February 3, 2026 is that he damaged the nail bed on the hand of his arm with nerve damage. He was experiencing pain sensations he had never felt before. He took a prescribed codeine pill along with his usual dose of gabapentin. After the children were home, he went to the washroom and cut off the damaged portion of his nail bed, then began washing the wound. He felt a pronounced pressure from his breastbone up to his head and experienced nausea, a pins and needles sensation in his hand, difficulty hearing, and started to feel faint. He retrieved the Naloxone kit he keeps at home. He told Owen that if he passed out, he should push the nozzle and spray the Naloxone into the father’s nose.
He denies passing out. The father says he called his mother. She arrived approximately one minute after he called, and he was still conscious. The paternal grandmother lives one minute away from the father’s home. This is corroborated by the evidence directly from the paternal grandmother.
The paternal grandmother also advised the mother of same through text messages dated February 4 and 6, 2026, the day after the incident.
The father provides context that in April 2019, he experienced a workplace injury in which his left forearm, near his wrist, was lacerated down to the bone. He underwent surgery and has experienced chronic pain. The father is prescribed medication and denies taking drugs recreationally.
He acknowledges that the text message he sent Owen was inappropriate.
The paternal grandmother is also agreeable to provide additional support, including being present for 2-3 of the father’s initial parenting time sessions to ensure there are no concerns during his parenting time, such as having everyone over for dinner or going over herself. However, she does not believe that ongoing supervision is required.
The Involvement of the CAS
The CAS has been involved with the family since the incident of February 3, 2026. The CAS provided a letter to both parents dated February 20, 2026, which outlines their involvement.
The CAS met with Owen and the mother. The CAS had a phone call with the father. They do not appear to have spoken to the paternal grandmother. The mother’s evidence is that the father was aggressive towards the CAS, but that is only based on the hearsay evidence in the mother’s affidavit.
The CAS’s letter largely outlines the same version of events provided by the mother, and they dismiss the father’s version of events without any explanation. The letter concludes with the following:
Given the above-noted worries, the Society would have serious child protection concerns about the father resuming care of the children at this time.
Currently, the mother is acting protectively, however should the father attempt to pick up the children at school prior to the mother’s emergency Family Court motion can be heard, the Society would be very concerned.
Before the Society could support the father being able to pick up the children at school, we would want to work with the father to work out a safety plan that addresses our concerns and explain that plan to the mother and the children, so that the children may feel safe when with their father.
If the father does not choose to safety plan with the Society as outlined above, the Society would then be placed in a position of having to decide, based on circumstances and known facts at such a time, whether or not to intervene, which could include the possibility of bringing the children to a place of safety and initiating proceedings under the Child, Youth and Family Services Act
(CYFSA)
- A few weeks after receiving the letter, the father proposed the following safety plan to CAS:
a. voluntary drug screening, with results provided directly to the Society;
b. confirmation of his enrolment on the waitlist for the Hôpital Montfort “Working with Emotions” mental health support program;
c. physician oversight of all prescribed medications;
d. secure storage of all medications out of the children’s reach; and
e. removal of the Naloxone kit from any area accessible to the children.
Analysis
Best Interests of the Children – Parenting Time and Decision Making
Typically, on an interim motion, the court is presented with conflicting affidavits which are incomplete and untested. The facts are often still evolving. As a result, a temporary order is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. See Churchill v Elliot and Ward, 2024 ONSC 1907, at para. 35, citing Coe v. Tope, 2014 ONSC 4002(SCJ); Munroe v. Graham, 2021 ONCJ 253(SCJ); Nicholson v. Nicholson, 2021 ONSC 7045(SCJ); Shokoufimogiman v. Bozorgi, 2022 ONSC 5057(SCJ); Sadiq v Musa, 2023 ONSC 1811(SCJ); Grover v Grover, 2023 ONSC 3607(SCJ).
Parenting orders in this case are made pursuant to section 16.1 of the Divorce Act.
The test for determining parenting time is what order is in the best interests of the children. Section 16 (1) of the Divorce Act states that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
The analysis must remain centred on the rights of the child, from a child-centred perspective. The ‘rights’ of a parent are not a criterion. See Young v. Young. The focus is on the child, not the parent. See S.S.L. v. M.A.B., 2022 ONSC 6326(SCJ).
Section 16 (3) of the Divorce Act outlines the following factors when considering the best interests of the child:
(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(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 cooperate, 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 the family violence to care for and meet the needs of the child, and
(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
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
The list of best interests considerations in the Act is not exhaustive. The list does not prioritize any one criterion over another, with the exception of the primary consideration. No single criterion is determinative, and the weighting for each criterion will depend on the circumstances of the particular child. See White v. Kozun, 2021 ONSC 41. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See Phillips v. Phillips, 2021 ONSC 2480. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).
Parenting orders are fact specific. Each case turns on its own unique circumstances. See Gordon v. Goertz; N.S. v. A.N.S. 2021 ONSC 5283 (SCJ). The court’s function is not to pronounce on what is in the best interests of all children in a general sense, but rather what is in the best interests of the child before the court. See A.P. v. P.P., 2021 ONSC 6540 (SCJ).
Pursuant to section 16(6) of the Divorce Act, in making an order for parenting time, the court shall give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child.
This provision does not override the best interests analysis. Rather, it is part of the best interests analysis. See Lang v. Qureshi, 2025 ONSC 585(SCJ).
There is no presumption of equal time-sharing of children after parents separate. See Bembenek v. Bembenek 2019 ONSC 4050(SCJ); K.M. v. J.R., 2022 ONSC 111(SCJ); B. v. W. 2022 ONSC 934(SCJ); Bressi v. Skinulis et al, 2021 ONSC 4874(SCJ). There is no presumption that having as much contact as possible with both parents will necessarily be in the best interests of the child. See Barendregt v. Grebliunas, 2022 SCC 22 (SCC).
A child-focused approach is required, with an important goal of achieving as much parenting time as possible with each parent, so long as it is consistent with the child’s best interests. It may end up being equal time. It may end up being some other division of time. Each family is different, and the principle is a general guide set out to benefit children. See Knapp v. Knapp, 2021 ONCA 305 (ON CA); R.F. v. J.W. 2021 ONCA 528 (ON CA); Agboola v. Unoh, 2024 ONSC 6191.
In Churchill v Elliot and Ward, 2024 ONSC 1907 at paragraphs 35-38, Justice Pazaratz discussed many of the factors for consideration on an interim motion for parenting. A significant consideration at this stage is the implications of interim motions on the long-term parenting arrangements, as well as the appropriate “status quo” to be considered in assessing the parenting time that should be in place going forward.
Although the “status quo” is frequently mentioned as an important consideration in determining or continuing parenting arrangements – particularly at the interim stage -- the term “status quo” is not specifically mentioned in the legislation. However, the legislation lists “the history of care of the child” as a factor in determining best interests. That factor appears to be another way of describing “status quo”. See Brownson v. Brownson, 2022 ONSC 5882 (SCJ) and See Churchill v Elliot and Ward, 2024 ONSC 1907 at paras. 35-36.
In the present case, the status quo has been an equal parenting time arrangement. If the status quo is to be changed on an interim basis, the evidence must show clearly and unequivocally that maintaining the status quo is not in the best interests of the child. See Churchill v Elliot and Ward, 2024 ONSC 1907 at paras. 35-36; Miranda v. Miranda, 2013 ONSC 4704 (SCJ); Dayboll v. Binag, 2022 ONSC 6510 (SCJ); A.L. v. C.M., 2023 ONCJ 412 (OCJ); Tomkinson v. Baszak 2023 ONSC 4092 (SCJ).
The mother also argues that since the separation agreement was signed, there has been a material change in circumstances. The father submitted the mother know of his use of prescription medication when the separation agreement was signed.
As Justice Pazaratz said, “You can call the interim arrangement whatever you want. But after a child’s placement has continued uneventfully for months – or in this case years – the “material change in circumstances” test becomes indistinguishable from the “why should we disrupt the status quo?” test.” See Churchill v Elliot and Ward, 2024 ONSC 1907 at para 48.
The mother has not proven on a balance of probabilities that it is in the best interests of the children to depart from the status quo – or the history of care for the children.
I accept that the father had concerns about his ability to parent the children as a result of his health. However, he acted proactively and protectively. He called his mother, who lives one minute away. She arrived quickly and was able to care for the children. The father did not become unconscious.
The mother has not established on a balance of probabilities that the father misused his medication or was under the influence to the point that his parenting was compromised to the level of justifying ongoing supervised parenting time and such a significant reduction in his parenting time.
In considering the list of best interest factors, the following are most relevant based on the children’s age, needs, and circumstances:
a. The history of care has been that both parents have been equally involved in the children’s lives.
b. There are many disputed facts and allegations.
c. At every stage, the court must focus on the best interests of the child. The evidence in this case does not displace the presumption that once a stable and beneficial parenting arrangement has been created, it is in the best interests of the child to maintain continuity and successful routines pending trial.
d. Owen and Finn’s needs require stability and ensuring that they are not placed in a parental role. This concern can be addressed through specific terms.
e. Owen and Finn have had strong relationships with both parents, and while they are at their father’s home, their paternal grandmother lives one minute away. This is the longest the children have not seen their father in their lifetime.
f. The paternal grandmother provides an added layer of safety and support to the father’s parenting plan. This is implicitly acknowledged by the mother as she is willing to have the paternal grandmother act as a supervisor.
g. The mother’s plan involves a draconian plan of significantly reduced parenting time for the father and having it fully supervised. The father’s plan includes a safety plan to ensure that the children are safe. The court simply cannot impose a dramatic change on these young children, based upon incomplete and untested information.
h. The children would benefit from the parents getting back on track to work together to meet the children’s needs, rather than an order that further fractures the relationships in this family.
i. While the evidence from the mother is that Owen made comments back in October of 2025 that he did not want to go to his father’s home on the weekend, I put little weight on that evidence. Firstly, that evidence has not been tested. Secondly, there is no evidence that Owen consistently expressed his desire to decrease his parenting time with his father. The last time it is known that Owen expressed he did not like going to his father’s home was over five months ago.
The father indicated he was agreeable to reasonable terms with respect to his parenting time that would ensure the best interests of the children are met.
However, the mother insisted on an order for supervised parenting time for the father. Specifically, the mother’s proposal was that it should occur at a supervised centre. Acknowledging that there are waitlists for supervised parenting centres, the mother suggested that until they can get into a supervised centre, the father’s parenting time should be supervised by maternal grandmother temporarily or the paternal grandmother. The mother suggested one daytime visit on the weekend and one evening during the week, along with virtual parenting time.
In the mother’s Notice of Motion, she uses the language “as agreed upon by the parties and as per the recommendations of the children’s aid society”. In my view, it would be inappropriate for the Court to delegate the requirement of supervision to the Society. The Court has no ability to oversee the CAS’s conduct in this proceeding.
The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See M.A. v. J.D., [2003] O.J. No. 2946 (OCJ); W.H.C. v. W.C.M.C., 2021 ONCJ 308 at paras. 72-73.
Furthermore, the greater the departure from the established parenting regime, the more important it becomes to justify that restriction. In this case, the departure involves a significant reduction in parenting time and a drastic increase in the level of supervision. There must be cogent evidence to justify this position.
Supervised parenting time is an exceptional and temporary remedy. A court will only make such an order where it is absolutely necessary. See Klymenko v. Klymenko, 2020 ONSC 5451 at paras. 38-39, 42, 44 and 53.
Supervised parenting time is usually a last resort where there is a risk of harm to the children that cannot be addressed in any other satisfactory way. See S.I. v. I.I., 2013 ONSC 2762, at para. 10; Kohli v. Thom, 2021 ONSC 927, at para. 30.
I do not find that the evidence before me supports that it is in the best interests of the children to impose the extreme and exceptional measure of supervised parenting time. Particularly, the father is agreeable to terms that would address the concerns of the mother without the need to go from equal parenting time to significantly reduced and fully supervised parenting.
A mental health episode, the existence of a mental illness, and a mental health diagnosis do not give the other parent (or the Court) a licence to criticize and scrutinize every aspect of a parent’s life and every decision they have made. See Naboulsi v. Naboulsi, 2026 ONSC 178, at para. 43.
A safety plan in the event of a recurrence or relapse should be put in place that allows for changes to the affected parent’s decision-making responsibility or parenting time until the relapse has subsided. See Gerasimopoulos v. Sambirsky, 2024 ONSC 2368 at para. 106.
In Klymenko v. Klymenko, 2020 ONSC 5451, the court found that supervised access, especially at a supervised access centre, is a significant intrusion and is not warranted if the parent undertakes not to consume alcohol before and during their parenting time and if a monitoring system is used.
I take a similar approach. Supervised access, especially at a supervised access centre, is a significant intrusion and is not warranted as the father agreed to terms to ensure the best interests of the children.
Also, the terms outlined below will assist in repairing the relationship between the parents.
It is evident that there is mistrust between the parties. An order for supervised parenting time will further fracture the relationship between the parties, which is not in the children’s best interests. An order maintaining the status quo, with terms outlined below, will hopefully build trust and goodwill between the parties. The children will benefit from their parents repairing their relationship and maintaining a positive co-parenting relationship. The parents have demonstrated an ability to co-parent effectively, and I am confident they will be able to do so again.
The mother also sought an order for sole decision-making. For the same reasons I do not find that it is in the children’s best interests to depart from equal-parenting time, I do not find that it is in the children’s best interests to grant an order for sole decision-making. Furthermore, there is no evidence before me that the parents have been unable to make decisions together up until now. The mother submitted that she should have sole-decision making because the father blocked her phone number after the February 3, 2026 incident. I expect the father to unblock the mother and work on repairing the co-parenting relationship. While there is some distrust as a result of the events that led to this motion, the parents must be able to rebuild trust and work together to co-parent the children. I am confident that they are able to do so.
The distinction between self-help remedies and acting protectively
The father submitted that the mother resorted to “self-help” remedies, and the court cannot reward this behaviour.
There is no doubt that the law does not support or reward self-help remedies. Parents cannot resort to self-help remedies, ignore obligations under agreements or orders, present a fait accompli to the court on an interim basis, and expect the court to approve. That is a recipe for chaos and disaster, and is unfair to children caught in the middle. See Sain v Shahbazi, 2023 ONSC 5187 (SCJ).
Self-help is to be discouraged, and certainly not rewarded. A parent who engages in self-help tactics for strategic purposes -- despite the best interests of the child -- will generally raise serious questions about their own parenting skills and judgment. See Churchill v Elliot and Ward, 2024 ONSC 1907, at para. 38c, citing Southorn v. Ree, 2019 ONSC 1298 (SCJ); McPhail v. McPhail, 2018 ONSC 735 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ); Rifai v. Green, 2014 ONSC 1377 (SCJ); M.H.S. v. M.R. 2021 ONCJ 665 (OCJ).
There needs to be a reasonable consideration of all information as it becomes available – on a continuing basis. In this case, I do not find that the mother acted unreasonably at first. She had concerns about the father’s parenting time based on concerns she received from the child. She followed up with the CAS and received guidance from them, which included not returning the children to the father.
However, parents have a responsibility to continue to consider information that becomes available to them in assessing whether they are acting in the best interests of children.
Once they receive information that the information previously relied upon may be incorrect, they must reassess their position.
What may have started as acting protectively cannot turn into a weapon used to gain the upper hand in a parenting arrangement. If that happens, “acting protectively” turns into a “self-help remedy”.
In this case, the mother’s initial concerns may have been warranted based on the information she received from Owen. However, after receiving the father’s version of events, corroborated by text messages from the paternal grandmother, the mother needed to reassess her position.
It is also concerning that the paternal grandmother advised the mother of her recollection of the event through text messages the day after the incident, and the mother omitted this information from her affidavits.
I appreciate that the mother’s position was informed by the CAS. However, the CAS should have also considered the information from the paternal grandmother. Based on the materials before me, including a detailed letter written from the CAS (and I appreciate that the full CAS has not been disclosed), it appears that the CAS met with the mother and Owen in person and relied on their account of events. They only spoke to the father on the phone and did not contact the paternal grandmother at all.
The mother submitted that the father was aggressive with CAS. I have no evidence of that. Furthermore, anger towards CAS is not a reason to abdicate from considering relevant information with respect to children’s best interest.
It is concerning and unfortunate that the CAS did not speak to the paternal grandmother before providing their position regarding the father’s parenting time, which the mother heavily relied upon.
Conclusion:
In light of the above, the mother’s requests to change the children’s primary residence, for sole decision-making, and supervised parenting time are dismissed.
The parties shall immediately reinstate the 2-2-3 parenting schedule, with the following terms:
The father shall not use unprescribed medications or drugs during his parenting time.
In the event the father is feeling unwell or concerned about his ability to parent due to his medication, he shall immediately contact his mother or another capable adult.
The father’s friend, referred to as Tony, shall not be present during the father’s parenting time, including after the children are in bed.
The father shall adhere to the Safety Plan outlined in his materials.
The father shall follow all reasonable recommendations made by the CAS.
The father shall communicate with the mother and children respectfully and not discuss the issues in this case.
a. Neither party shall speak negatively about any other party in the children’s presence. Both parties shall also make their best efforts to prevent any other person from speaking negatively about other parties.
b. Neither party shall discuss this court case or other adult issues involving the parties with the children.
Other Orders
The parties consented to the release of the CAS records. The parties shall sign all documentation necessary to release the Children’s Aid Society records pertaining to the parties. If an order is needed, a draft order approved as to form and content may be sent to my attention.
The mother shall serve and file her amended Application within 30 days.
Associate Justice Kamal
DATE: March 23, 2026