ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-71-0000
DATE: 20120504
BETWEEN:
Sylvia Hawkins Applicant – and – Anthony Schlosser Respondent
Applicant, unrepresented
D. Andrew Thomson, for the Respondent
HEARD: January 9, 10, 11, 12, 13, and March 5, 6, 7, 2012 in Parry Sound, Ontario
REASONS FOR JUDGMENT
r.d. gORDON J.:
Overview
[ 1 ] The trial of this matter was held to: (1) determine custody of and access to Selena Antonia Schlosser, born, November […], 2007; (2) determine the child support payable for her; (3) determine Ms. Hawkins’ entitlement to spousal support; and (4) determine Ms. Hawkins’ claim of unjust enrichment.
Background
[ 2 ] Ms. Hawkins and Mr. Schlosser lived together for a period of just over three years, from December 2006 until their final separation on December 26, 2009. It would be fair to say that their domestic situation was complicated.
[ 3 ] Ms. Hawkins was about 35 years of age when they began living together. At that time she had five children, all of whom were in her care: Kayla-Dawn Silver, born […], 1993, Isaiah Robert Silver, born […], 1997, Alexandria Hazel Silver, born […], 2001, Aurora Lynn Silver, born […], 2002, and Noah Thomas Silver, born […], 2005.
[ 4 ] Mr. Schlosser was about 39 years of age when he and Ms. Hawkins began living together. At that time he had three daughters, all of whom were in his care: Cassandra Jordon Schlosser, born […], 1996, Claudia Marie Schlosser, born […], 1998, and Calista Jane Schlosser, born […], 2000.
[ 5 ] Together, Ms. Hawkins and Mr. Schlosser had one further child, Selena Antonia, born on […], 2007.
[ 6 ] Initially they all lived together at a resort Mr. Schlosser had been hired to maintain over the off season. In March of 2007 they moved into Mr. Schlosser’s home at […] Street in Sunridge, Ontario. Not surprisingly, the two families had considerable difficulty integrating. Among the problems: Ms. Hawkins and Mr. Schlosser had different parenting philosophies, the children were of varying ages and degrees of maturity, and their ex-spouses were not entirely supportive.
[ 7 ] In the end, and notwithstanding significant efforts to resolve these difficult issues, the parties determined they could no longer live together. Ms. Hawkins moved from the home with her children and the child Selena and returned to North Bay.
In the years since their separation the parties have enjoyed periods of time when they have been on excellent terms and have worked cooperatively to ensure that both parents were integrally involved in Selena’s life. On at least as many occasions, the parties have been completely unable to effectively communicate and have put their own needs ahead of their daughter. The dynamic between them is interesting – they seem to bring out both the very best and the very worst in each other. They are unable to maintain the sort of stable or balanced relationship required to have them raise their daughter jointly.
The Issue of Custody of Selena
The Position of Ms. Hawkins
[ 8 ] Ms. Hawkins was unrepresented in these proceedings, but she is no stranger to the court process and was able to effectively communicate the basis of her claim of custody. She was of the view that it was in Selena’s best interests to remain in her care for the following reasons:
She has been the primary caregiver for Selena since her birth.
Selena has a close relationship with her brother and sisters and it would be detrimental to break the close bond they enjoy.
Selena and her other daughters have a seizure disorder with which she is familiar and is able to address.
She is a good mother who has successfully raised her other children without significant assistance.
She is able to provide Selena with a stable home.
Mr. Schlosser’s child Cassandra presents a risk to Selena.
Mr. Schlosser’s daughter Claudia presents a risk to Selena.
Mr. Schlosser’s family history puts Selena at risk of harm from others.
Mr. Schlosser has made choices which indicate that he places his needs and the needs of friends over the needs of his family.
The Position of Mr. Schlosser
[ 9 ] Mr. Schlosser is of the view that Selena’s best interests would be met by being in his care and custody. He bases his claim on the following factors:
He has had sole custody of his three daughters since separating from his first wife and has raised them successfully;
Ms. Hawkins has not demonstrated the ability to provide a stable household and to give her children the individual care and attention they need to thrive. Her household is chaotic and unstable and detrimental to Selena’s well-being.
Ms. Hawkins’ other children have behavioural problems which she has either failed to acknowledge or failed to adequately address.
Ms. Hawkins has, out of simple malice, made it most difficult for him to maintain a close relationship with Selena whereas he will promote a positive relationship between Selena and both himself and Ms. Hawkins.
Ms. Hawkins has difficulty managing her finances, such that her children sometimes have to do without all they should have.
He has the support of extended family to assist in looking after Selena.
He is able to provide her with a stable home life.
Analysis
[ 10 ] The law is not particularly complicated in a case such as this. Pursuant to section 24(1) of the Children’s Law Reform Act , the merits of an application for custody is to be determined on the basis of the best interests of the child. That determination is to be made after considering all of the child’s needs and circumstances, including those delineated in subsection 24(2) and an applicant’s past conduct in accordance with subsection 24(4) or if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
[ 11 ] In making my decision, I have considered each of the factors set out in section 24, and have addressed the arguments of the parties as outlined above in the context of those factors. My analysis is as follows.
(Document continues exactly as in the original with paragraphs [12] through [115] unchanged.)
Mr. Justice Robbie D. Gordon
Released: May 4, 2012
COURT FILE NO.: FS-10-71-0000
DATE: 20120504
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Sylvia Hawkins Applicant – and – Anthony Schlosser Respondent REASONS FOR JUDGMENT R.D. Gordon J.
Released: May 4, 2012