Court File and Parties

Ontario Court of Justice

Date: February 1, 2017

Court File No.: Brampton 735/16

Between:

Camillio Nikkio Senior Applicant

— And —

Christine R. Villaman Respondent

Before: Justice P.W. Dunn

Ruling on a Motion

Heard: January 20, 2017

Ruling released: February 1, 2017

Counsel

Ms. Jean Hyndman ............................ for the Applicant, Camillio Nikkio Senior

Lalit Kalra, Esq. ............................ for the Respondent, Christine R. Villaman

Decision

DUNN J.:

[1] Before the Court is the Respondent's motion dated 17 December 2016 in which she requested custody of the parties' child Zurie. The Applicant opposed the request and he brought his own motion for custody dated 28 December 2016.

[2] I have preliminary comments:

(A) Both parties are devoted to their child's care, and are able caregivers.

(B) In the lawyers' submissions, there were allegations of bad conduct on each party's behalf, and there was emphasis on how each treated the other in the past. This Court cannot put weight on those criticisms because findings of credibility would be needed, and that can only be done effectively in a trial and not on a motion.

(C) The Children's Lawyer's Report was critical of the Applicant in certain aspects.

The Applicant filed a Dispute, and the Children's Lawyer gave an Answer. As a practicality, if the Children's Lawyer was to be called as a witness, I would not expect that it would change its observations or opinions about the Applicant not supporting the importance of the Respondent's close involvement in this young child's life. In ruling on this motion, I will be relying on some of the observations of the Children's Lawyer.

(D) There has been an extraordinary amount of bitterness between these parties. They are both anxious to get matters fully settled, understandably in his or her favour. They are likely expecting that a decision on these motions would go a long way to reaching a complete resolution. That is unlikely because the party who does not receive custody may search for ways to obtain a different result.

[3] The whole issue of access to the non-custodial parent is somewhat in flux, and the parties themselves may work out an arrangement different than this Court has decided. Quite possibly nothing short of a full trial may be needed for the parties to put their concerns in full context.

[4] In preparation for a hearing on the motions, I read:

• the Respondent's affidavit sworn 17 December 2016 with Exhibits 1-48 inclusive;
• the Applicant's affidavit sworn 28 December 2016 with Exhibits A-P inclusive;
• the Affidavit by Sandra McKelnie sworn 29 December 2016;
• the Affidavit by Tedika Reid sworn 12 January 2017;
• the Respondent's affidavit sworn 17 January 2017 with Exhibit A-E inclusive;
• the Respondent's affidavit sworn 20 January 2017.

[5] After carefully considering the affidavit material and the lawyers' submissions, this Court rules as follows:

Temporary order for custody of Zurie Naslie-Zoelle Senior, born 26 November 2014 to the Respondent Mother.

[6] The Court's reasons for this decision are as follows:

(1) The Respondent is and has been the primary caregiver notwithstanding that the child has spent long periods with the Applicant. In the crucial first 10 months of Zurie's life, the Respondent met all the baby's needs and this ten month period is about one-half of Zurie's life. Even now when the Respondent only sees Zurie on weekends, the Respondent is spending high quality time with the child. This is in contrast to the Respondent's allegation that the Applicant put Zurie in daycare during many days when he was available to do parenting.

(2) If Zurie is with the Respondent, there would not be need for daycare because the maternal grandmother would care for the child when the Respondent is at work. Although daycare is often essential and advantageous for some children, there is much to be said for caregiving by family member(s) who are closely bonded to the child.

(3) If the Applicant were to have custody, this court would be concerned whether he would support the Respondent's role in the child's life, as well as the Respondent would support his position if she had custody. The spectre of the child's possible alienation from the Respondent arises. It is clear that the Applicant has a low regard for the Respondent and the child's need for close involvement with her.

(4) The Applicant has acted unilaterally in making decisions about the parties' child. He removed Zurie from Brampton and the daycare facility that Zurie enjoyed, moved to Toronto and placed Zurie in a new daycare, then returned to Brampton and the child was placed in another facility. All of that was without consultation with the Respondent. Parents are entitled to know what is happening with their child when the child is with the other parent. Apparently the Applicant does not understand the importance of this aspect of good parenting.

(5) The Applicant sought to limit the Respondent's access. He now recommends that the Respondent's access be decreased from three weekends a month to two, and that that access be supervised, when there is no cogent reason for any supervision of the Respondent's access. The Children's Lawyer verified that in the past, the Applicant sought to limit the Respondent's access. It is always a serious concern to a court when it finds that a party seeks to decrease access. Often a party wanting to diminish access does not obtain custody. On the other hand, the evidence was clear that the Respondent is supportive of access to the Applicant.

(6) The Applicant suggested that his reason for supervised access was his fear of mental instability on the Respondent's behalf. The Respondent had a history of depression, but she was proactive in obtaining medical help. Dr. Contenelli and Dr. Hirsh were both supportive of the Respondent's mental stability.

(7) The Children's Lawyer had serious concerns about the Applicant's truthfulness and he was inconsistent in his responses. The Applicant said he offered increased access to the Respondent in the past, but then he did not follow through. The Children's Lawyer appears to suggest that the Applicant seeks power and control over the Respondent. These allegations are serious obstacles to the Applicant obtaining custody, even at a trial, if the Children's Lawyer's opinions are substantiated by a trial judge. Parties in a custody dispute are judged by their capacity to respect and support each other as parents.

(8) There was important evidence about the Respondent involving the child in the community. Even though Zurie is young, she was properly exposed to church and family activities and various outings. The Respondent and the maternal grandmother planned interesting activities with Zurie's best interests at heart. The Applicant was not forthcoming about his activities with the child. He put the child in daycare, but there was no evidence about his work history nor what he did with his time.

[7] Turning now to the issue of the Applicant's access, he proposed in his motion that if he had custody, the Respondent should have access on alternate weekends and on a mid-week overnight. The Court finds that this would be an appropriate arrangement also for the Applicant's access.

Temporary Order for the Applicant to have access:

(a) On alternate weekends from Friday afternoon, with pick-up from daycare, until Monday morning with a return to daycare.

(b) Every Tuesday overnight with pick-up from daycare on Tuesday and return to daycare on Wednesday morning.

(c) Such further access as the parties agree upon.

(d) If the Respondent is not using daycare, the Respondent shall choose a location for access exchanges and that is where the access exchanges will take place. If the Respondent cannot find a suitable location for access exchanges, it shall be at the nearest police station to the Respondent's residence.

Temporary order for the Respondent to choose the daycare facility that Zurie may need.

[8] There will not be an order for 50-50 access sharing for the following reasons:

(a) The parties would need to have effective communicative ability to support such an arrangement. Electronic messages would not be sufficient for dissemination of daily information. They would not be able to talk to each other without arguments and communication through third parties would be impracticable.

(b) There was no clear information about the Applicant's routine with the child on a weekly basis. The Court does not know what the Applicant would do with Zurie if he had access in a week-about arrangement, especially if significant daycare is part of the Applicant's caregiving.

[9] The Applicant's motion dated 28 December 2016 is dismissed.

[10] In the Respondent's motion dated 17 December 2016, paragraphs 1 and 2 are complete. Paragraphs 3-10 inclusive were not considered, and could be discussed at the next case conference. The request in paragraph 3 of the Respondent's motion requiring an order for the Applicant to pay child support is dismissed as not being an appropriate request in a motion at this time. If the Respondent wants paragraphs 4-10 inclusive to be considered as part of this motion on the return date, then on notice to the Applicant, the Respondent would have to seek leave of this Court, and the Court would set a time limit for all oral argument on a motion and deadlines if there are to be further filings.

[11] This case is adjourned to 10:00 a.m. 13 March 2017 court 201, allow 90 minutes for a case conference.

[12] I thank both lawyers for their careful presentations. I particularly observed that Ms. Hyndman put the Applicant's case in the most favourable light possible. However, the observations of the Applicant by the Children's Lawyer did not help his case at all.

[13] Administration is to send the endorsement to Ms. Hyndman and Mr. Kalra.

Released: February 1, 2017

Justice P.W. Dunn