Michal Janik v. Reyna Lucina Monroy Demesa

Court File and Parties

Court File No.: Brampton 319/11 Date: 2012-07-06 Ontario Court of Justice

Between: Michal Janik Applicant

— And —

Reyna Lucina Monroy Demesa Respondent

Before: Justice J.C. Baldock

Heard on: June 22, 2012

Ruling on Motions released on: July 6, 2012

Counsel:

• Raymond Sharpe for the applicant
• Maria Elka Zagazeta Garcia for the respondent

BALDOCK, J.:

Introduction

1This is the applicant father's motion for temporary sole custody and the respondent mother's cross motion for the same relief.

2Both parties have made alternate claims for joint custody and principal residence.

Background

3The parties are the parents of Michael Julian Janik, born […], 2008 ("Julian") (now 4 years old). They married in May 2008 and separated in February 2011.

4The respondent mother has a child of an earlier relationship, namely Prospero Demesa, born […], 2004 (now almost 8 years old).

5Neither party has permanent residency status in Canada.

6The relationship quickly deteriorated to one of high conflict, exacerbated when the maternal grandfather Everardo Monroy Caracas moved into the family home.

7Following an incident on February 5, 2011 when the applicant alleges he was punched in the face by an inebriated Mr. Caracas, he left and moved into the residence of a family friend, Ms. Boudreau.

8The respondent ignored the applicant's requests for reasonable access to Julian and as a result, the applicant commenced his application.

9The respondent mother then insisted that access be supervised, alleging that the applicant has 'abused' her son Prospero.

10On March 28, 2011 a temporary order was made for the applicant to have access twice a week at the home of Ms. Boudreau.

11The respondent subsequently brought a motion to curtail that access based on an allegation that Julian had suffered an unexplained rash in his genital area. That motion was not granted and the case notes from Sick Kids Hospital indicated the rash was due to poor hygiene. The respondent mother was encouraged to ensure the child bathed properly.

12By that time (June 2011) the matter had become highly litigious and at least eleven affidavits had been filed by the parties.

13The applicant father was charged criminally as a result of the allegations concerning Prospero. These allegations were not verified by the Peel Children's Aid Society who found Prospero's account 'rehearsed' and that agency confirmed there were no protection concerns with respect to the applicant father's access.

14In March 2012, the criminal charges were withdrawn by the Crown when it became obvious that the child had been coached to make the allegations.

15On April 2, 2012, access was expanded to be on alternate weekends from Fridays at 2:15 p.m. to Mondays at 9:00 a.m., and from Tuesdays at 2:15 p.m. to Thursdays at 9:00 a.m.

16The pickup and return was to take place at the "Newcomers" Daycare Centre.

17The matter was then adjourned to June 22, 2012 for the parties' respective motions.

18In addition to the specific events referred to above, the respondent mother has involved other services, including the police, Sick Kids and Trillium Hospitals.

19She has made allegations that the father's girlfriend's daughter has abused Julian.

20She has accused Ms. Boudreau's son of uttering threats towards her.

21The mother has been uncooperative with the caseworker assigned to her and requested a new worker.

22Prior to the withdrawal of the criminal charges, she tried to arrange a meeting with the applicant father in the community when she was well aware that for him to attend would violate his bail conditions. She denies this, but the applicant produced telephone records showing she did in fact call him.

23On March 30, 2012, the Children's Aid Society confirmed that their file would be closed, but cautioned the mother about her intrusive behaviour and the risks inherent in exposing the child to many social agencies and authorities.

24To her credit, the respondent mother has recently granted the applicant father greater access, but there continue to be problems associated with the pickup and return.

25The father states that he had ten straight days with the child in April, and an additional weekend as Julian was missing him.

Analysis and Findings

26Overall, I find the evidence of the respondent mother to be troubling. Following the separation, she appears to have embarked on a campaign designed to discredit the applicant father. She has subjected the child to unnecessary intervention and scrutiny and made efforts to undermine his relationship with the applicant.

27I find the applicant father's approach has been more balanced, and he has made no effort to deny the child's relationship with the mother or to inflame matters, even in the face of the false allegations.

28The applicant's focus has been on the wellbeing of the child. In my view he offers a more stable environment and his plan will allow the child to maintain his relationship with the respondent mother and his brother.

29In contrast, the mother has at times been uncooperative, vengeful and unsupportive of the child's need to have time with the father. Although in recent weeks, the mother has been more accommodating, I have concerns that, without the catalyst of the pending motion, she may revert to her earlier behaviour and that she cannot be relied upon to foster Julian's relationship with the father.

30Given the history of the matter, I cannot conclude that the parties are able to co-operate sufficiently to enable them to parent jointly.

Order

31For these reasons, I make the following order:

1. The applicant father shall have temporary custody of the child, Michael Julian Janik, born […], 2008.

2. The respondent mother shall have liberal and generous access to the child to include:

   • (a) alternate weekends from Thursday at 5:00 p.m. to Sunday at 5:00 p.m.;
   • (b) overnight from Thursday at 5:00 p.m. to Friday at 9:00 a.m. prior to the "non access" weekends;
   • (c) such further or alternate times as the parties may agree.

3. In the event that the child is not eligible to remain enrolled at "Newcomers" Daycare, the applicant father may place the child in a daycare of his choice.

4. Whenever possible, the pickup and the return of the child shall take place at the daycare centre and the parties shall provide the centre's staff with the appropriate written authorization to facilitate same.

5. In the event the daycare centre is not available (such as the Sunday return time) the parties shall, unless otherwise agreed, arrange a neutral location.

6. The net (after tax or subsidy) cost of daycare shall be paid by the parties in proportion to income.

7. Counsel may make brief written submissions with respect to costs within thirty days.