BACKGROUND

The parties were married on September 22, 2017, and separated in the spring of 2023. They have three children: twins (almost five years old) and a third child (two years old). The separation occurred after the Mother discovered that the Father had forged her signature to secure a second mortgage on the matrimonial home, initially for $325,000, later increased to over $600,000, to cover gambling debts. This was the first time the Father had done so without informing the Mother. He also took the Mother's driver’s license and passport and enlisted a female to impersonate her to obtain the mortgage.

Post-separation, the parties agreed on a parenting schedule that became a consent Order on June 28, 2023. This Order allowed the Father to have unsupervised parenting time with the children three evenings a week and on Sundays, provided he wasn’t under the influence of substances. However, within a week, the Father was alleged to have arrived intoxicated at the matrimonial home, where the Mother observed what appeared to be a firearm in his vehicle. The Father was arrested and charged with offenses related to firearm possession and was released on bail on July 10, 2023, with conditions including residing with his sureties, having limited communication with the Mother, and not possessing weapons.

Due to his bail conditions, the Father could not exercise his parenting time in person and instead participated in residential treatment and had parenting time via Facetime. A new parenting Order was established on September 12, 2023, allowing him supervised parenting time on Wednesdays and Thursdays and additional time on weekends.

In October 2023, the Father was charged with failing to comply with his recognizance by attempting to contact the Mother indirectly. The Father was also arrested in January 2024 for impaired driving and failing to comply with his recognizance, leading to his plea of guilty and a 15-month driving prohibition.

A new temporary parenting Order was made on April 15, 2024, allowing the Father to have additional supervised parenting time with the children.

The Father is now seeking unsupervised and increased parenting time, including overnights, arguing that both parents were equally involved in the children's care before separation. He admits to a gambling addiction that strained the marriage but claims the Mother has interfered with his relationship with the children by restricting his access. The father also alleges intimate partner violence by the mother. In contrast, the Mother insists that the Father's parenting time should remain supervised due to concerns about his stability, his limited involvement in childcare, and his unsafe handling of firearms. She argues that the children's best interests require that they live primarily with her, citing the Father's financial irresponsibility and abusive behavior. While she is open to gradually increasing his parenting time, she believes overnight visits should only be considered once trust and stability are established.

LEGAL PRINCIPLES

Best Interests of the child

The court highlighted that the fundamental criterion for determining decision-making responsibility, primary residence, and parenting time is the best interests of the child. Both the Children’s Law Reform Act (“CLRA”) and the Divorce Act mandate that a child's best interests must be the primary consideration in any decisions regarding parenting Orders or contact Orders.

Section 16(1) of the Divorce Act specifically requires courts to focus exclusively on the best interests of the child, emphasizing the importance of the child's physical, emotional, and psychological safety, security, and well-being. This child-focused approach means that any contact or parenting time may be restricted if it conflicts with these best interests, since parenting time is the child’s right, not the parent’s.

The court emphasized that they are required to take a holistic view of the child's situation, considering all relevant circumstances, including family violence, which encompasses physical, psychological, and financial abuse. The court must also assess the impact of any violence on the child’s well-being and the ability of each parent to meet the child’s needs.

Supervised Parenting Time

The court noted that supervised parenting time is considered a significant intrusion into the relationship between a parent and a child and is reserved for the most extreme situations, such as concerns about substance abuse, child safety, or prolonged absence of a parent. Courts maintain that supervised access should be a temporary measure and should not be imposed simply for the comfort of the other parent. The burden of proof lies with the parent requesting supervised parenting, and such arrangements are expected to evolve toward unsupervised parenting when possible.

Status Quo

The court highlighted that status quo, while not explicitly mentioned in legislation, is a significant factor in interim custody decisions. Courts often consider the history of care as outlined in Section 24(3)(d) of the CLRA, and maintaining the status quo is seen as important, especially in cases where there is an established parenting arrangement that has been consented to by both parties. Changes to the status quo at the interim stage are approached cautiously to avoid disruption before a final determination is made at trial.

ANALYSIS

In this case, the court acknowledged that the initial interim order was understood by both parties to be subject to future variation, reflecting the Order's inherent flexibility. This understanding indicated that the status quo might not necessarily be maintained if compelling reasons arose that necessitated changes in the children's best interests.

Guided by the best interests of the children, the court considered various factors, including the children’s physical, emotional, and psychological well-being. The complexity of this assessment was heightened by the allegations of substance abuse made by both parties. The Father’s repeated legal troubles and lack of transparency regarding his criminal charges, particularly those involving firearms, raised significant concerns about the children's safety.

Despite these concerns, the Father had taken positive steps to address some of the issues, such as attending counseling, obtaining a negative substance abuse test (with the exception of prescribed medications), and ensuring a safe environment for the children during visits. The court ultimately determined that it was in the children’s best interests to have both parents involved in their lives, including additional time with the Father. The parenting schedule established by the court aimed to balance the children’s stability with the need to allow the Father to build a relationship with them, under specific conditions.

Given the Father’s legal issues and the serious concerns raised, the court ordered that overnight parenting time be supervised by the Father’s parents. This supervision was deemed necessary due to the Father's current bail conditions and the potential risks involved. The Mother’s request for sole decision-making responsibility was denied, as the court found it premature to grant such a measure. Joint decision-making responsibility was maintained, ensuring both parents remained involved in significant decisions affecting the children.

Finally, the court refrained from ordering direct communication between the parties through a parenting application due to the ongoing conflict. However, it suggested that the Mother consider using an app to exchange communications in the future for the sake of the children’s welfare. The court also recommended the use of a third party to facilitate transitions and minimize conflict in the children's presence.