Court File and Parties
Court File No.: FO-15-000052-00 Date: 2016-08-16 Ontario Court of Justice
Between:
Russell Brown Applicant
— And —
Lucy McKay Respondent
Before: Justice Peter T. Bishop
Heard on: March 23, 2016, April 7, 2016, July 14, 2016 and July 20, 2016
Reasons for Judgment released on: August 16, 2016
Counsel:
- Robert Labossiere, for the Applicant Russell Brown
- Kylee Ronning, for the Respondent Lucy McKay
BISHOP J.:
BACKGROUND
[1] This matter comes before me by way of an application for custody/access of the child Deshaun Timothy Cole Brown, date of birth September 21, 2012.
[2] The applicant and respondent both are seeking sole custody of the child.
EVIDENCE OF BRADLEY DUNCAN
[3] Mr. Duncan works for Tikinagan Child and Family Services and is a friend of Russell Brown.
[4] He has known Russell Brown since he was a small child and stated that in the past Mr. Brown was abusing prescription drugs. He would talk to Mr. Brown as a friend and knows that he is living with Myrna Winter.
[5] He described the applicant as a peace keeper and also he is on the Wapekeka Council as an elected member.
[6] Mr. Brown's partner, Myrna is also a peace keeper.
[7] He is not aware of any difficulty since Mr. Brown began living with his current partner. He is calm, he is not rowdy, and he has observed Mr. Brown with the child and believes that the child is in good care. Mr. Brown has the ability to financially support the child.
[8] He was impressed with Mr. Brown because he went "cold turkey" to get off a prescription drug addiction.
EVIDENCE IN CROSS EXAMINATION
[9] He was aware that the respondent Lucy McKay and Russell Brown had prescription drug addictions and they both struggled.
[10] His view is that Mr. Brown received the support he needed and is no longer involved with drugs. Mr. Brown's jobs require that he be clean in the community and the community would know if he was using drugs or alcohol.
EVIDENCE OF GRETA LUCY BROWN
[11] Ms. Greta Brown is the child's paternal grandmother; the child was brought to Wapekeka by both parents and they lived with her family shortly after the child was born.
[12] She described the child as tiny and premature and he couldn't keep his milk down.
[13] She was aware that both parents were using prescription drugs inappropriately.
[14] The child required some medical attention as her understanding was that the child's stomach was too small.
[15] The child went to British Columbia for open heart surgery and when they came back, the parents and the child stayed at her house and subsequently the mother and the child moved to Kasabonika.
[16] The mother and the child would come back for visits for a month or two weeks at a time and stayed at her place.
[17] When the child had open heart surgery he was almost two years old.
[18] The father attended in Vancouver with the mother for the surgery.
[19] After the mother moved back to Kasabonika, the mother would often call for money and would email requests for other items.
[20] She wanted her grandson to have what he needed.
[21] Eventually she stopped sending money and support because she didn't know what the money was going for. She is well aware that costs in the North are high but was suspicious that the money was not being spent on the child.
[22] She stated that she always believed that a young child belongs to their mom but it is a hard decision and she doesn't have to make it.
EVIDENCE IN CROSS EXAMINATION
[23] She was there when the parents needed her to help support the child. The child loves his dad and the child loves his mother. The child cries when there is a departure and is happy to see his father when he comes back.
[24] She is worried for her grandson when he is in Kasabonika because she doesn't know the circumstances of the mother's living and suspects the mother may be using drugs.
[25] The grandmother has funded some of the return trips to Kasabonika. The mother is the primary caregiver in Kasabonika but the father takes care of the child when living in Wapekeka.
RE-EXAMINATION
[26] When the child first started living at their home after coming back from surgery he was very hyper, running around and touching things that he wasn't supposed to, but he has calmed down somewhat. There has been an improvement in his behaviour.
EVIDENCE OF RUSSELL JOHN BROWN
[27] Mr. Brown is the father of the child and he has been a peace keeper and a youth counsellor and was elected to band council in Wapekeka.
[28] Presently he lives with Myrna Winter and has been doing so for two years. She has an eleven year old child.
[29] He remembers the break-up when the mother hit him with a stroller and that they were living with his mother, Greta Brown, and she was providing everything for his family.
[30] He wished to quit using drugs and the mother did not want to quit. He was using OxyContin and morphine. He went "cold turkey" and the recovery took approximately six months.
[31] He attributes some of the child's health problems to the mother's use of drugs when pregnant. The issue with the child was a heart murmur and the child had surgery for that problem in Vancouver.
[32] For the last while, they have been sharing custody one month on – one month off and when he has the child the child is never sick, but when he is with his mother she doesn't properly care for him.
[33] This past February, the child was out of pampers and going six hours a day and was potty trained, but when he returned from a visit with his mother he was no longer potty trained and always wanted to eat junk food.
[34] When he is working or on call his partner, Myrna, cares for Deshaun.
[35] The child has had many of his teeth removed and states that dental hygiene has not been proper in the mother's care. He also sees an issue with speech management, needs therapy and the child sometimes has aggressive outbursts. When he has been cares for the child his manners improve greatly.
[36] He is of the view that the mother deserves to have her son but not at this time until she corrects the drug problem.
[37] The father's mother has been instrumental in providing support and material goods for this child's well-being which is not the case with the mother's extended family.
EVIDENCE IN CROSS EXAMINATION
[38] He could not get off the drugs when the mother was living with him because she didn't want to do it.
[39] He started to get clean in March, 2013, after she left, and care was shared with approximately one month with him and one month with the mother.
[40] He took a video on his phone showing the mother using drugs which caused him to keep the child in September, 2015.
[41] The mother would call from time to time and he considered that harassment. He never refused to go to the airport to pick her up but there were arrangements made and in November she did not show up in Wapekeka to retrieve the child.
[42] He has no difficulty with the mother parenting the child if she is clean of drugs and a good mother.
[43] She was abusing OxyContin.
[44] He had observed that the child lost weight when he went to live with the mother and he expressed a concern about where the money from his family was going which was being sent to Kasabonika.
[45] The video that he recorded on his cellphone showed the mother using illegal drugs in her home and concluded she was still using OxyContin.
EVIDENCE OF LUCY MCKAY
[46] Ms. McKay is the mother of Deshaun and stated that she lived together with Mr. Brown from 2008 until March, 2013. She confirmed that they both used drugs and that she sent her son to visit Russell in June but he had been drinking. When she was in Wapekeka for a birthday party with her son she smelled home-brew on Russell Brown.
[47] From March until June she had facetime on the phone and asked for pampers and milk but they were not sent.
[48] The mother has shared parenting from October to December and visited the child in Wapekeka.
[49] The child would go back and forth between Wapekeka and Kasabonika one month with her in Kasabonika and one month with the father in Wapekeka commencing in December, 2014.
[50] In September, 2015, the access stopped. This month on - month off access stopped because Mr. Brown called Tikinagan Child and Family Services on her as a result of what he observed in Kasabonika. Tikinagan Child and Family Services took no action.
[51] In September, 2015, she went to Wapekeka for a funeral and stayed there for three days and she saw Deshaun for about ten minutes. She asked for a picture of him and but did not get it.
[52] In December, 2015, Deshaun came to Kasabonika for a few days.
[53] In January, 2016, she had Deshaun for five days and in February, 2016 she had him for three weeks.
[54] From March 3 – 27, 2016, she had Deshaun in Kasabonika.
[55] When she has the child in Kasabonika she is teaching him to speak the dialect of Kasabonika and brushes his teeth and doesn't feed him junk food and properly cares for him.
[56] He is surrounded by family members and friends and lots of cousins, aunts and uncles and enjoys his time there.
[57] When it's time to go back to Wapekeka the child begins to cry and doesn't want to go.
[58] She lives with her mother, brother and sister and two nieces and shares a room in that home with Deshaun.
[59] Presently she is enrolled in a Suboxone Program for drug abuse and will be finished the ten day treatment program in a couple of days.
[60] She will then take a further treatment program in June and hasn't missed her sessions once.
[61] She last used drugs in March, 2015, and she wants Deshaun in Kasabonika so that the child can attend school there in September.
[62] She wants Deshaun to attend for some speech therapy and has not observed him acting out physically with other individuals.
EVIDENCE IN CROSS EXAMINATION
[63] She expects to be enrolled in the Suboxone Program until June and is trying to take a program to completely remove herself from Suboxone dependency.
[64] It is her view that she is the only one arranging access and she never talked to Russell's parents. The main issue now is that the child is going to start school and there should be some consistency in that regard.
EVIDENCE OF MARIAH MCKAY
[65] Ms. McKay is the mother of Lucy McKay and does not allow drugs or alcohol in her home.
[66] She stated that Lucy feeds Deshaun and cleans his teeth and he is always well cared for and happy in Kasabonika.
[67] When told he is going to visit his father in Wapekeka he begins to cry.
EVIDENCE IN CROSS EXAMINATION
[68] She knows that her daughter is in a drug treatment Program and the child and the mother have not really lost weight.
[69] She has not helped out with any transportation between Kasabonika and Wapekeka.
EVIDENCE OF RALPH BEGG
[70] Mr. Begg has known Lucy McKay since she was child and is a friend. He is a council member in Kasabonika.
[71] He has given Lucy guidance to get treatment for her drug problem and counsels her not to give up.
[72] He is of the view that she has been clean for about two years with the Suboxone Program and the support of workers and relatives. He is instrumental in giving her emotional support.
[73] He has observed the child with the mother and they seemed to be bonded and a happy child.
[74] He does not really know Russell Brown.
[75] The Court heard evidence in Kasabonika on July 14, 2016, and July 20, 2016, to have updates on the parents' progress.
[76] The mother still is involved in the Suboxone Program and anticipates taking another course to completely be removed from that dependency but that has not yet happened.
ISSUES
[77] The father is of view that the mother has not cleaned up her drug problem and that it is best for him to look after the child.
[78] His mother Greta Brown has been instrumental in ensuring that the child's best interests are looked after. The main issue is schooling and where the child is going to start school in the Fall. He is also concerned about the hygiene and behaviour and the teeth of his son while in the mother's care.
[79] The mother wants sole custody with extended access to the father which could be flexible. The mother has assisted in the care in the month on – month off changed because of her drug abuse.
[80] The mother is of the view that the father created his own status and went "cold turkey" with respect to his drug addiction. The father raises concerns about the care by the mother in Kasabonika but the mother rejects all of the father's concerns.
DECISION
[81] Having heard all of the evidence, I am finding that both parents love this child and it is in the best interests of the child that they have joint custody of him with the day to the day care and control being with the father for the following reasons:
The father and his partner both have responsible jobs and the father is totally drug free.
The child appears to be progressing well for his age in both communities.
The father has addressed the child's dental hygiene and has attempted to arrange some counselling for the child's speech therapy.
The father has a stable job and support within the community and the support of his present partner to care for the child when he is absent for work. The father's household has a greater financial income.
The mother is still dependent upon Suboxone and is not yet taken the steps and courses to completely to remove herself from that drug.
The father has better living arrangements for the child at this time. The mother lives in a home with approximately six individuals and shares a room with the child.
The mother, at the time of separation, used violence against the father.
The child is about to start school and there must be consistency and continuity to allow that to take place. It is better for the child to be with the father in his home with his partner in Wapekeka.
The mother is not able to financially provide transportation to effect access to the father as the distance between Kasabonika and Wapekeka is great and the airfare is prohibitive for both parents.
It is not in the best interests of this child to continually be moved a month at a time between each community and his schooling demands stability, planning and continuity.
I am finding that at this time it is in the best interests of the child that the father have care and control of him. This does not mean that at a later date the child may be transferred to the care of the mother should her dependency on Suboxone cease and she is completely drug free and has better living arrangements for herself and the child.
[82] With respect to access, the mother shall have liberal and reasonable extended access as follows:
(a) Christmas 2016 for at least 10 days with the parties to arrange the specific dates;
(b) Alternate March school breaks commencing in 2017;
(c) Extended Easter breaks for 7 days commencing in 2017;
(d) 1 full month in the summer either July or August with the mother to notify at least 60 days in advance as to which month she requires;
(e) Any other time that can be agreed upon by the parties.
[83] This is not a case where costs will be awarded.
Released: August 16, 2016
Signed: Justice Peter T. Bishop