Court File and Parties
Court File No.: FO-10-000042-00 Dryden Date: 2013-06-17 Ontario Court of Justice
Between: Tracy Bujold, Applicant (Respondent in this proceeding)
ā And ā
Shaun Laderoute, Respondent (Applicant in this proceeding)
Before: Justice Peter T. Bishop
Heard on: June 03, 2013
Reasons for Judgment released on: June 17, 2013
Counsel:
- Mark Mymko for the applicant(s)
- Mark Van Walleghem for the respondent(s)
BISHOP J.:
BACKGROUND
1Shaun Laderoute is the father of Nevaeh Angel Marie Laderoute, date of birth August 19, 2009 and Tracy Bujold is the mother of this child. The matter comes before me by way of an Application to vary an existing order and two amending agreements.
2On December 10, 2010, Justice J. Hoshizaki made the following order:
Tracy Bujold and Shaun Laderoute will have joint custody of Nevaeh Angel Marie Laderoute, born August 19, 2009 with periods of care and control to each parent as follows:
a) Tracy Bujold shall have care of the child from 9:00 a.m. each Wednesday until Sunday morning at 8:45 a.m.;
b) Shaun Laderoute shall have care of the child from Sunday morning at 8:45 a.m. until Wednesday at 9:00 a.m., except that Shaun Laderoute will return the child to Tracy Bujold from noon until 5:00 p.m. Sunday;
c) Tracy Bujold and Shaun Laderoute will make arrangements as between themselves for any special occasions including Christmas, Easter, Mother's Day, Father's Day, Thanksgiving and any other special family events.
Tracy Bujold and Shaun Laderoute shall not communicate with each other except for matters of importance regarding the child, Nevaeh Angel Marie Laderoute. Each parent shall be allowed to speak with the child on a daily basis.
Shaun Laderoute has a base income of $21,600.00 per year and has the ability to earn commission income.
Shaun Laderoute shall pay child support to Tracy Bujold in the amount of $185 per month, the Guideline amount of child support based on an income of $21,600.00 per year, commencing December 1, 2010 and continuing on the first day of each month thereafter.
The amount of child support to be paid by Shaun Laderoute shall be adjusted retroactively for the year in which the income was earned should the respondent earn in excess of $21,600.00 per annum.
Tracy Bujold and Shaun Laderoute shall exchange Income Tax Returns and Notices of Assessment/Re-assessment by June 1 of each year.
A Support Deduction Order shall issue.
All other claims of the parties are dismissed.
There shall be no order as to costs.
Unless the support Order is withdrawn from the Family Responsibility Office, it shall be enforced by the Family Responsibility Office and the amounts owing under the support Order shall be paid to the Family Responsibility Office, who shall pay them to the person to whom they are owed. Payments are to be made to: Family Responsibility Office, P.O. Box 2204, Station P, Toronto, Ontario M53 3E9.
This Order bears post-judgment interest at the rate of 2% per annum effective from the date of this Order. Where there is default of payment, the payment in default shall bear interest only from the date of default.
3The parties executed a Care and Control Agreement in May of 2012 as follows:
Paragraph 1 a and b of the Order of Madam Justice Hoshizaki, dated December 10, 2010 shall be deleted in its entirety and the following substituted therefore:
a) That the parties shall share equal periods of time with the child NEVAEH ANGEL MARIE LADEROUTE, born August 19, 2009, on alternating weekly basis from 9:00 a.m. Monday until the next Monday at 9:00 a.m. Exchanges shall occur at the daycare or school once the child commences her education.
Both parties agree that this agreement shall replace the provisions of Appendix "A" as to their care and control agreements for their children and in the event of any further court application in that regard this agreement may be pleaded to reflect the parties agreement in these issues.
Each party shall do all things necessary to facilitate the fulfilment of the terms of this Agreement by both parties including, without limiting the generality, providing further information and executing further documents.
This Agreement constitutes the entire Agreement between the parties and supersedes all previous representations and agreements whether verbal or written between the parties with respect to the subject matter of this Agreement.
The invalidity of any particular clause or sub-clause of this Agreement shall not affect any other clauses or sub-clause of this Agreement, but this Agreement shall be construed as if such invalid clause or sub-clause were omitted.
This Agreement may be amended by written agreement between the parties witnessed by at least one other person.
4There was a further amended Agreement in July of 2012 as follows:
Commencing immediately, Shaun shall not be required to pay child support and paragraph (4) of the Order of the Ontario Court of Justice, dated December 10, 2010 shall no longer have effect.
Commencing immediately, Tracy shall be entitled to collect the whole amount of the Child Tax payment and Shaun releases any claim to same.
Both parties agree that this Amending Agreement shall replace the provisions of paragraph (4) of the Order of the Ontario Court of Justice, dated December 10, 2010 and in the event of any further Court applications in that regard, this Agreement may be pleaded to reflect the parties agreement to this issue.
Each party shall do all things necessary to facilitate the terms of this Agreement by both parties including, without limiting the generality of the foregoing, providing further information and executing further documents.
This Agreement may only be amended by written Agreement between the parties, witnessed by at least one other person.
ISSUES
5The main issue before the court is whether the joint custody arrangement relating to this child should be varied to sole custody in favour of the father or the status quo to remain.
EVIDENCE OF SHAUN LADEROUTE
6Mr. Laderoute is thirty-two years of age and employed as a sales person at Dufresne Furniture. He has been married for two years to Jamie Laderoute and they have one child together as well as two step-children from Jamie Laderoute's previous relationship.
7Differences have arisen between the mother and the father wherein Mr. Laderoute feels the child is being used against him.
8In May of 2012, the parties agreed that there would be one week on and one week off.
9It was agreed that the father would not pay child support and the mother would get the child tax credit. As it worked out, the father estimates he had the child most of the time. From time to time the mother would call for him to come to get the child and he always obliged.
10The mother has moved nine to ten times in the last year and on October 9, 2012 moved to Thunder Bay with no prior notice. She signed a statement filed as Exhibit One as follows:
"I am in the process of moving Thunder Bay, Ontario and getting myself set up there. At this time, Nevaeh's father, Shaun Laderoute, will be looking after her full time. We presently have a shared custody agreement and Nevaeh has been attending daycare 2 weeks in my care and 2 weeks in Shaun's care every month. As of today, this new agreement will be in effect until further notice."
11At one time the mother went to the Kenora Psychiatric Ward when Nevaeh was six or seven months old threatening to inflict self-harm.
12He has noticed that the child is upset when he leaves from an exchange and Nevaeh does not want to return to the mother's home.
13He related an incident where the parties had agreed that the child's hair would be cut shoulder length and the mother, on her own, cut the hair in a bob cut so that the child looked like Justin Bieber. He feels that the mother doesn't care what he thinks or respect his role as an equal parent.
14He handles discipline by time-outs and sending her to her room and explaining the problem.
15The Respondent had some health issues and was off work for approximately ten months and now is back working at Dufresne's. He had a very difficult time when his best-friend and his father passed away. He is now working full time and earning a good income.
16He estimates that since the order of Justice Hoshizaki the mother has had seven or eight relationships.
17The parties have agreed that the child will attend St. Joseph's public school in Dryden.
EVIDENCE OF LORI LYNN LADEROUTE
18Ms. Laderoute is the father's mother and grandmother to Nevaeh.
19She would pick up the child from daycare and assist in some responsibilities at the home.
20She described her son as having a very good relationship with the child, always telling her that he loves her. The child likes school. The child appears very well adjusted, like any normal kindergarten student. She has observed her son giving the child time-outs when being disciplined.
EVIDENCE OF DANIEL PAUL LADEROUTE
21Daniel Laderoute is the younger brother of the Applicant.
22He remembers a telephone call from Tracy's mother, Sandra, wherein she stated that she felt her daughter was on drugs and that the father should have care of the child.
23He has seen the child every time he comes to visit, either at his brother's house or his mother's place or his grandmother's and the child is always happy and well adjusted. There is a large extended family in Dryden for support.
EVIDENCE OF JAMIE LADEROUTE
24Ms. Laderoute is the Applicant's current spouse and has two children from her previous relationship. They have one child together who is three months old.
25She describes the child Nevaeh as being funny and playful with a very strong personality and she gets along well with all of the other children. From time to time she would cry when returning to her mother, but she would always encourage her to go and see her mother, as she would be returning in a few days.
26She sometimes would take the child to daycare and pick her up from her mother's residence.
27She observed that the schedule would change when the birth mother was ill or it was convenient to her. This would often happen on weekends. It was not a problem for Jamie Laderoute or her partner as they cared for and were happy to look after Nevaeh.
EVIDENCE OF WAYLON MORTON
28Mr. Morton is thirty years of age and had a relationship with Tracy Bujold. They were together for approximately two years and have a child together named Paityn. The relationship was on-again-off-again and she would sometimes use his child as a bargaining tool.
29The mother threatened the child's life saying she was going to throw the child in the lake. She smoked marijuana throughout their whole relationship. There was some physical violence when she would throw things at him and she used to threaten to cut herself before they broke up.
30He described the mother as high most of the time but still able to care for the children.
31Nevaeh wanted to go to see her father often.
32In cross-examination he admitted that in May of 2012 the mother freaked out and he entered into a peace bond after a physical altercation. He also was a user of marijuana.
33In re-examination when he told the mother that he was coming to give evidence today, Tracy slammed the door in his face.
EVIDENCE OF TRACY ANGELISE BUJOLD
34She is the mother of the child and is twenty-one years of age. When the parties were living together they both worked at doughnut shops, he at Tim Horton's and she at Robin's. She shifted over to Tim's so that they could be on the same work schedule.
35She describes Nevaeh as being very smart.
36She admits to having several relationships and is currently residing with Tristan Kirkby for the last two months and he is thirty-three years of age and has his own child. She is presently living in a two bedroom duplex. There are three children in that residence every second Friday. She now has an agreement with her birthfather to rent an apartment for six hundred and fifty dollars per month plus one hundred and fifty dollars for utilities and will be moving there shortly. The exchange of the child usually happens on a Monday.
37In the last year she has had six relationships and some were just boyfriends and she stated that she doesn't bring her boyfriends into the child's life.
38She uses marijuana at night or if the kids are not around. It helps her to sleep.
39She denies threatening to slit her wrists and hasn't had any problems like that since she was fifteen years old. Mr. Morton did take a knife away from her. She described her move in with Mr. Kirkby as having no choice and people liked to interfere with her life.
40The job situation did not work out in Thunder Bay and she states that she was two hours late and her boss gave her job away.
41She estimates that she moved ten times over the last year and she talks to the child and explains to her that they are moving.
EVIDENCE OF CASSANDRA WANICK
42Ms. Wanick is a friend of the mother and struck up a relationship when they were both residing at Hoshizaki House. The mother lived there with Paityn and always had a neat and clean house and was a good cook.
43She knows that the mother used marijuana a couple of times but never did it around the kids.
EVIDENCE OF SANDRA BRITON
44She is the Applicant's mother and is forty years of age.
45She is close to the grandchildren and described having fun with Nevaeh. She has had her ups and downs with Tracy and feels that Tracy had moved because she was being harassed by some of her former partners. People were accusing her of being a drug dealer.
46She observed that Tracy's homes were always clean and that she was a good mother and a good baker. When she would pick up the child at daycare the child was happy to see her.
47When Tracy left for Thunder Bay she was not in a good mental place as she was in an abusive relationship with Mr. Waylon Morton. At that time Tracy was in Thunder Bay for a couple of weeks and the child Nevaeh went with the father.
48During the last year Tracy would stay with her for awhile.
49In cross-examination she admits that her daughter had trouble with finances and that she called Shaun Laderoute and his brother because Tracy had gone to Thunder Bay for a week before she found out.
50She was very concerned about the moves that her daughter was making and she could see it in Nevaeh's face every time she moved to another location.
DECISION
51Having heard all of the evidence I am finding that there has been material change in the circumstances and it is in the best interest of the child that the father have custody of the child and the mother have access for the following reasons:
i) The mother has had an unstable lifestyle, moving six to ten times in the last year with multiple relationships;
ii) She uses marijuana on a regular basis and minimizes the use that that may be and justifies it by stating that "never in front of the kids" and "always in the evening when they are asleep or go outside". She appears to have no understanding of the consequences of protracted use of non-prescription drugs and the fact that it is a criminal offence;
iii) The number of relationships that don't last is also a concern for the court and meeting people at bars and then moving away on a whim is not in the overall best interest of stability and commitment to this child;
iv) There is evidence from the daycare that between July and September the mother picked up the child three times when she was supposed to have the child a week on and a week off;
v) The mother is not as involved in this child's life as the father;
vi) The father and his current spouse have been giving most of the care for this child since 2012;
vii) The mother states that "it is all going to be fine" now that her father has arranged for a renovated apartment for her but it is just a pattern, it won't last;
viii) All of the moves are not in the best interests of the child and the mother appears to think it is not her fault.
52I am encouraged that the parties have agreed on the education place for this child at St. Joseph's school.
53With the child in the custodial care of the father he will insure that the mother has access to all medical records and reports for the child and that he will insure that the mother has meaningful access.
54In these circumstances an order will issue wherein the father has custody of the child, Nevaeh Angel Marie Laderoute, born August 19, 2009 and the mother shall have access as follows:
a) Each Wednesday after the child finishes junior kindergarten until 8:00 p.m.;
b) Every second weekend commencing June 21, 2013 at 4:00 p.m. until June 23, 2013 at 4:00 p.m. and thereafter;
c) Any further time that can be agreed upon by the parties;
d) The mother shall have unlimited telephone access to the child;
e) The father shall provide the mother with all medical, dental and school records as soon as they are obtained.
55If costs are an issue I may be spoken to.
Released: June 17, 2013
Signed: "Justice Peter T. Bishop"