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Brady v. Fitzpatrick, 2022 ONSC 2380 (CanLII)

Ontario

,

Canada

Due to the mother’s historic struggles with alcoholism, the mother’s access was reduced to one overnight visit per week under the supervision of her father. Under the best interests test, the children’s safety is of paramount concern. The mother was arrested twice for driving a motor vehicle while impaired by alcohol. Her children were passengers on both occasions. The mother was to be tested for alcohol use before and during the visits with the children.

Under the best interests of the child test, the children’s safety is of paramount concern

The mother, post-separation, was arrested on two occasions for driving a motor vehicle while impaired by alcohol. Her children were passengers on both occasions. After the father learned about the second incident, he refused to allow the mother to have any form of parenting time with the children for several weeks.

Faieta J. first considered the status quo of the parenting schedule and found that the father’s unilateral imposition of a new parenting regime did not change the status quo (paras 34-35). Where, as here, a parent changes the status quo due to concerns about a child’s safety while in the care of the other parent must seek the court’s approval at the earliest opportunity.

Faieta J. noted that, when allocating parenting time, a court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. The court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being (para 36). The safety of the children, however, is of paramount concern (para 39).

The mother’s battle with alcoholism was serious and had clouded her judgment as it relates to her children, given that they were with her on both occasions when she was arrested for having operated a motor vehicle after consuming alcohol (para 39). To minimize the risk to the children, the mother was to be sampled for alcohol before and during her parenting time with the children (para 40).

Given the children’s age and need to be nurtured and to have a strong bond to both parents, it was in the children’s best interests to resume some supervised overnight access with the mother (paras 43-44).

June 30, 2022
Brady v. Fitzpatrick, 2022 ONSC 2380 (CanLII)
Author: Katie Sharp