Court File and Parties

Brampton Registry No.: 1655/10 Date: 2014-12-11 Ontario Court of Justice

Between: Carmen Cynthia Apolaya Calderon, Applicant

— And —

James David Howell, Respondent

Before: Justice Patrick W. Dunn

Heard on: 7 December 2014

Reasons for Judgment released on: 11 December 2014

Counsel:

• Gesta J. Abols, counsel for the applicant
• Michael J. Freeze, counsel for the respondent

Reasons for Judgment

Introduction

[1] JUSTICE P.W. DUNN:— Carmen Cynthia Apolaya Calderon, 28, was the applicant and James David Howell, 27, the respondent in an application for custody of their child, Alejandro Howell, born on 14 September 2010 ("Al").

Procedural Background

[2] Before the court was the respondent's motion for summary judgment dated 4 April 2014 which was opposed by the applicant. The lawyers agreed that the motion should be decided based on affidavit evidence. I read the following:

1. The respondent's affidavit, sworn on 4 April 2014.
2. The respondent's affidavit, sworn on 14 April 2014.
3. The respondent's affidavit, sworn on 15 July 2014.
4. The applicant's affidavit, sworn on 24 July 2014.
5. The respondent's affidavit, sworn 12 August 2014.
6. The applicant's affidavit, sworn 18 August 2014.
7. The respondent's affidavit, sworn on 25 August 2014.
8. The applicant's affidavit, sworn on 21 October 2014.
9. The respondent's affidavit, sworn on 7 November 2014.

[3] At Mr. Abols' request, I read all the affidavits in the continuing record. In a motion for summary judgment, the court must consider rule 16 of the Family Law Rules, O. Reg. 114/99, as amended.

Rule 16 — Summary Judgment

(4) Evidence required. — The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) Evidence of responding party. — In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(6) No issue for trial. — If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

Analysis

[4] The sole issue in this motion is whether there should be a trial over custody of Al. The court accepts the following information:

1. Caregiving History and Bonding

The parties only cohabitated from 9 September 2010 to 30 October 2010. From 30 October 2010, the respondent was Al's primary caregiver and he was assisted by his mother, Marya Howell, with whom he resided. Al is well bonded with Ms. Howell. The applicant was the full-time caregiver only for the first six weeks of the child's life.

2. Child's Health and Well-being

The child thrived in the respondent's care. His physician, Dr. Nicholas Blanchette, wrote a letter dated 1 April 2014 to say he has cared for Al since birth. The respondent took Al for all his checkups and Dr. Blanchette had no concerns about this child's well-being.

3. Arrangements for Child's Care

All arrangements for day care, school and dental care were made by the respondent.

4. Applicant's Lack of Care Plan

The applicant's materials did not propose a plan of care for Al regarding doctor, dentist, before/after school care.

5. Flight Risk and Stability Concerns

The applicant's family lived in Peru. Her only relative in Canada was an aunt in Montreal. Although the applicant had permission to reside in Canada, she had Peruvian and Canadian passports, and the court is concerned that she may remove the child permanently from Canada. On 15 March 2011, this court required the applicant's access to be supervised because of a flight risk. The applicant's future plans were changeable but, at one point, she considered returning to Peru with Al. The respondent's family lives in Canada.

6. Applicant's Transience and Housing Instability

The court has a concern about the applicant's transience because she had a history of frequent moves. There was some stability for a time when she lived in a rooming house at 456 Fairview Road West, Mississauga. However, as of 21 October 2014, she said in her affidavit of that date that she lived in an apartment at 1256 Kipling Avenue, Etobicoke. She gave no other particulars about this accommodation in her affidavit, such as whether there were others sharing the space, its size and bedroom and rental arrangements. There was also the possibility of the applicant's other son joining her from Peru to live, and whether this apartment could properly house three people.

7. Financial Difficulties

The applicant had difficulty managing her finances. What little money she possessed was on occasions spent on frivolous purchases. She has obtained some of Al's clothing, safety products and furniture from social agencies.

8. Credibility and Accuracy of Information

It has been difficult to obtain accurate information from the applicant. At the time of the 26 August 2014 hearing, the applicant was said to be unemployed. Yet in a letter from Tom Doyle Productions, dated 17 October 2014, Mr. Doyle wrote that the applicant worked for him since 15 July 2014.

9. Outdated Children's Lawyer Report

The applicant had relied on a report from the Children's Lawyer, dated 18 April 2012 that recommended custody to her. However, this report was over two-and-a-half years old and was very out of date respecting Al's current situation.

10. Respondent's Parenting Ability

The applicant impugned the respondent's parenting ability:

(a) The applicant charged that the respondent did not spend much time with Al because of his school and work commitments. It was Ms. Howell and day care who were Al's real caregivers.

The respondent only worked when he was not a full-time honour student at the University of Toronto. Many parents have to balance time away from their child with the quality time that is available in their lives. I find that the respondent was a conscientious care provider and that his mother was only his "back-up".

(b) The applicant believes the respondent did not care appropriately for Al because of the child's frequent cold and marks on his face.

There was nothing in the materials to substantiate poor caregiving by the respondent.

11. Applicant's Anger Management Issues

The applicant had serious anger management problems. She was convicted of assault on the respondent and she had difficulty living with one of her sureties when she was on bail.

12. Access Exchange Concerns

The applicant was so belligerent to the respondent on access exchanges that, on 3 February 2014, the Catholic Children's Aid Society of Toronto recommended that they occur at a police station.

13. Disrespect for Court Authority

The applicant was not respectful of this court's involvement in this case. On 10 April 2014, she enrolled Al in a school when she knew the issue of the child's school placement was being considered by this court. She also did not consult the respondent before doing so.

14. Communication Deficiencies

The applicant has not communicated with the respondent on simple issues like running late for access exchanges or on Al's clothing issues.

Conclusion

[5] In summary, given this child's very beneficial placement with the respondent for over four years, I do not see how a court could be moved to change the status quo. There was nothing in the applicant's materials to support an order for custody to her. I have serious doubts whether the applicant could meet Al's physical needs because of her unfortunate impecuniosity and sometimes spendthrift ways. There is also a concern about the possibility of parental alienation because the applicant was so at odds with the respondent that I fear the things she might say to Al about his father. An order for joint custody is not an option because of the lack of the parties' communication ability.

Order

[6] In the result, there is no genuine issue for a trial. The respondent's motion is granted and the following order shall issue:

Final order for the respondent to have sole custody of Alejandro Howell, born on 14 September 2010.

Costs

[7] This motion is now complete, any request for cost may be presented on a return date.

Released: 11 December 2014

Justice Patrick W. Dunn