KINGSTON

COURT FILE NO.: 396/11

DATE: 2013/03/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES HENNINGSEN

Applicant

– and –

SHANOA SMITH, HEATHER BREWER, RICHARD PATTERSON

Respondents

Douglas R. Haunts, for the Applicant

Stephen Zap, for the Respondent, Shanoa Smith

Anne-Marie Langan, for the Respondents, Heather Brewer and Richard Patterson

HEARD: February 25-28, 2013

REASONS FOR JUDGMENT

M. LINHARES DE SOUSA J.

[1] The sole issue at this trial is what custody arrangement is in the best interests of the child, Keegan Smith, born February 10, 2010, who has now just turned 3 years old. The length of time it has taken to get this matter to trial has certainly not been in Keegan’s best interests. It is ordered that the Applicant father, James Henningsen (“Mr. Henningsen”) have sole and exclusive custody of the child. My reasons for this order follow.

[2] Keegan’s biological parents are the Applicant father, Mr. Henningsen, and the Respondent, Shanoa Smith (“Ms. Smith”). The other Respondents, Heather Brewer and Richard Patterson (“Mr. and Ms. Patterson”), are kin to the child. The evidence revealed that they are third cousins to the child by blood and by marriage (because the child’s great grandmother married two brothers) are a great aunt and uncle of the child.

[3] Mr. Henningsen is seeking custody of his son and wishes to take him to live with him in Des Moines, Iowa, where he lives with his wife, his son, Elijah, now 4 months old, and his stepson, Kaleb, who is now 6 years old.

[4] Mr. and Ms. Patterson are seeking custody of Keegan and wish to keep him in their care. Mr. and Ms. Patterson currently share the care of Keegan with Keegan’s great grandmother, Irene Miller (“Ms. Miller”) and have done so since September of 2012. Ms. Miller is 74 years old. If Mr. and Ms. Patterson were to be awarded custody of Keegan he would continue to live in the Kingston area in Ontario, Canada.

[5] Ms. Smith does not seek the custody of Keegan but supports an order that Mr. and Ms. Patterson be given custody of her son.

[6] All parties, regardless of the outcome, propose continued access to the child by the other parties, with access to Ms. Smith continue to be supervised.

FACTUAL BACKGROUND

[7] Mr. Henningsen and Ms. Smith met on facebook when Ms. Smith was 17 years old. At the time, Mr. Henningsen was in his early 20’s and an American citizen. He had just returned from a tour of duty in Iraq as a member of the United States military acting as a medic, and stationed at Fort Drum, New York, about an hour and half drive from Kingston where Ms. Smith lived. The parties met face to face in 2008 and began dating with Mr. Henningsen mainly coming to visit Ms. Smith on the weekends in Kingston.

[8] As the evidence showed, Mr. Henningsen was born in Des Moines, Iowa, where he currently lives and where his parents and other siblings live. Mr. Henningsen comes from a stable and loving family. His parents’ marriage is of long duration and all of his siblings are employed and self-supporting.

[9] Ms. Smith has been a resident of the Kingston area all of her life and was born into a troubled family with a tragic history. Both her parents were drug users and her mother died of a drug overdose. Her father has continued to use drugs. According to Ms. Smith in her court documents she has little to do with her father. However, in her oral evidence she indicated that she still sees him and even took Keegan to visit once.

[10] Ms. Smith’s parents were not able to care for her and her four siblings and after the involvement of the child welfare agency they were all put in the care of their maternal grandmother, Irene Miller. Ms. Smith was six months old when Ms. Miller began to care for her. Ms. Miller provided appropriate care for her grandchildren, including Ms. Smith, and has proved to be a stable and loving force in their lives.

[11] Unfortunately, and to the disappointment of Ms. Miller, Ms. Smith and all of her siblings have adopted a drug culture and lifestyle, involving much instability, encounters with the law and reliance on the welfare system. Ms. Smith testified that she has been smoking marijuana since she was 12 years old and recognizes that she is severely addicted to the drug. As a result, Ms. Miller has once again been asked to play the role of caregiver and parent to her grandchildren’s children, of which the child Keegan is one of many.

[12] After meeting and dating for as short a time as six months, Ms. Smith and Mr. Henningsen acknowledged that they developed a serious relationship. There was discussion of marriage and moving to live in Des Moines, Iowa. Mr. Henningsen even purchased Ms. Smith an engagement ring which she later pawned. According to Mr. Henningsen, and there was really no evidence to dispute this, he was committed to Ms. Smith, wanted to marry her and have a family and he thought Ms. Smith was equally committed to moving to the United States with him to raise their family. Mr. Henningsen was also anticipating leaving the American military and taking employment and continuing with his education in Des Moines, Iowa. He was quite delighted when Ms. Smith informed him that she was pregnant with Keegan. He participated in pre-natal classes and was there at Keegan’s birth. Mr. Robert Henningsen, Keegan’s paternal grandfather who testified at the trial, also confirmed his son’s commitment to Ms. Smith and their child.

[13] As far as Ms. Smith was concerned she never wanted nor intended to move to the United States, because it meant being far away from her family, particularly Ms. Miller whom she regarded as a mother. In December of 2012, Ms. Smith moved to Vancouver, British Columbia.

[14] Prior to Keegan’s birth both Ms. Smith and Mr. Henningsen engaged in a lifestyle that included partying and consuming marijuana. At his cost, Mr. Henningsen provided Ms. Smith with an apartment and stayed there when he visited her from the United States. The relationship between the couple became conflictual. According to Mr. Henningsen, he wanted Ms. Smith to stop consuming drugs and he refused to purchase drugs for her which led to arguments. According to Ms. Smith she stopped consuming drugs shortly before Keegan’s birth and for approximately one month after when she once again began to consume marijuana. Ms. Smith’s evidence was that Mr. Henningsen was becoming more and more controlling which led to arguments. She could not remember the subject of nor the reason for the arguments. She testified that the last time she consumed drugs with Mr. Henningsen was in December of 2009.

[15] The evidence also showed that there were some incidents of violence between the couple. Ms. Miller testified to seeing marks on her granddaughter’s neck and face. Ms. Smith testified that Mr. Henningsen was aggressive with her. However, more objective evidence seems to lead to the conclusion that Ms. Smith behaved aggressively towards Mr. Henningsen in her own right. The evidence showed that she was arrested and charged with mischief when she broke his car windshield. She threw a cell phone at his head and drew blood and she slapped him during child birth. With respect to violence in their relationship, it is difficult to reach any conclusions about who was initiating and who was responding to aggressive behaviour. What is clear is that the couple were a bad mix. It is noted that when the couple were arguing or partying, whichever, during their short relationship, Ms. Miller, who lived nearby, was always there to take care of Keegan.

[16] Keegan was born on February 10, 2010, and Mr. Henningsen spent one month with Ms. Smith after Keegan’s birth. Ms. Smith testified that she felt that once Keegan was born, Mr. Henningsen did not support her emotionally, however she acknowledged that he did support her financially. According to Ms. Smith, Mr. Henningsen continued to pay for her accommodation and sent her [moneygrams] when she requested it. These monies were sent via Ms. Miller who would then sign them over to Ms. Smith. Curiously, Ms. Miller testified that she had no knowledge of Mr. Henningsen providing financially for her granddaughter and great grandson.

[17] As the relationship began to unravel, Mr. Henningsen began to visit less and less, particularly after Keegan was born. According to Mr. Henningsen he visited when he could. However, his military service was over and he had to leave Fort Drum and return to Des Moines, Iowa, which entailed a longer trip to visit. With the military’s financial assistance he returned to continue his education and also became employed so that he could provide financial support to Ms. Smith and Keegan. While Mr. Henningsen never has paid any formal child support, there is no question that he provided for Ms. Smith financially. Both Ms. Smith and Mr. Henningsen agreed that their relationship was definitively over by the end of 2010.

[18] The evidence showed that by the summer of 2010 Mr. Henningsen was becoming concerned about the care Ms. Smith was providing for Keegan. Ms. Smith had resumed her consumption of drugs and began associating with individuals who were into the drug lifestyle. Ms. Smith had other sexual partners and began spending time with her current partner, Mr. Cody MacDonald. Mr. MacDonald is a known drug dealer and had a history of violence. Mr. Henningsen contacted the Kingston child welfare agency, the Family and Children’s Services of Frontenac, Lennox and Addington (the “Agency”), who had had past dealings with Ms. Smith and her siblings. The Agency had also received reports of Ms. Smith’s care of Keegan from other community sources.

[19] In November of 2010, when Ms. Smith had left a sick Keegan with Ms. Miller, an Agency worker, Ms. Vicki Casey, visited Ms. Miller and informed her that the Agency, based on their community reports about Ms. Smith’s care of Keegan and ongoing protection concerns, intended to apprehend Keegan. After some discussion with Ms. Miller who asked to continue to care for Keegan, the Agency agreed that Ms. Miller’s home could be a short-term placement for Keegan. According to the Agency’s Family Service Worker, Ms. Vicki Casey, Ms. Miller knew that to continue to care for Keegan on a long term basis was not in the child’s best interest (exhibit #1 tab 1). Ms. Smith agreed to the voluntary placement of her son with her great grandmother, which was effected by way of a Voluntary Agreement. The Agency also insisted that Ms. Smith’s contact with the child be supervised, which it has been since that time.

[20] There were no restrictions placed on Mr. Henningsen’s access to the child. Even after Ms. Miller had care of Keegan Mr. Henningsen continued to visit his son. According to the evidence, Mr. Henningsen visited with his son between June, 2010, and July, 2011, some four to five times for weekends and for some extended periods of time.

[21] The evidence showed that Ms. Miller encouraged these visits. She willingly provided Mr. Henningsen with accommodation and even the use of her car during his visits. He was also invited to family celebrations such as the family Christmas celebration of 2010 which took place at the Patterson home. Mr. Henningsen visited Keegan for his first birthday in February of 2011, and cared for his son for a week or two in the home of Ms. Smith’s sister, Tiffany Miller. While there he had sexual relations with Tiffany Miller and some consumption of marijuana took place. Ms. Tiffany Miller, like her sister, also has had an addiction to marijuana. In March of 2011, Mr. Henningsen visited with his son. By April, 2012, according to correspondence from Ms. Vickie Casey, Ms. Miller is reporting to the Agency that Mr. Henningsen is having “one week-end a month access since the month of November, and that it has been going well”. (See exhibit # 1 tab 1). In May, 2011, Mr. Henningsen was permitted to take his son for a week to Niagara Falls to attend a Henningsen family wedding. This was the first time that Keegan met his extended family on his father’s side.

[22] According to Ms. Miller after the May, 2011 visit, weekend visits by Mr. Henningsen occurred roughly monthly with some months being missed, such as October, 2011, because Mr. Henningsen had to spend time in the United States military Reserves. Some visits were missed in the summer of 2012 and there was a misunderstanding about when the August, 2012 visit was to take place and that visit was missed even though Mr. Henningsen had travelled to Kingston to visit his son. The family had taken Keegan on a camping trip and he could not be returned until it was time for Mr. Henningsen to return to Iowa.

[23] It was Ms. Miller’s evidence that she did not know that Mr. Henningsen wanted to care for Keegan. I find as a fact that Mr. Henningsen very early on expressed the desire to parent his son. He communicated this desire to the Agency who advised him to obtain legal advice and consider bringing custody and access proceedings in Family Court. According to Mr. Henningsen the fact that he lived in the United States was problematic for the Agency and explained why the Agency could not entrust him with the care of Keegan. Ms. Smith also testified that she was fully aware that Mr. Henningsen wanted to parent Keegan in the United States from very early on after the child’s birth.

[24] In the course of the evidence some question was raised about Mr. Henningsen’s commitment to his son because he arranged to have DNA testing of Keegan when he had Keegan in his care during his May, 2012 visit. It was Mr. Henningsen’s evidence that it was not because he did not think Keegan was not his son that he arranged for DNA testing. Rather, Mr. Henningsen was seeking positive proof that Keegan was his son because Ms. Smith herself had expressed to him her doubts that Keegan was Mr. Henningsen’s biological father. Ms. Smith admitted to telling Mr. Henningsen that Keegan was not his son when she was angry with him. These same doubts were expressed by Ms. Smith to Ms. Miller.

[25] Furthermore, contrary to Mr. Henningsen’s will, Ms. Smith refused to acknowledge on Keegan’s birth certificate that Mr. Henningsen was the father of the child. According to Ms. Smith, she and Mr. Henningsen agreed that he would not be recognized as the father in order to save him the requirement of formally paying child support and having Ms. Smith’s social assistance payments be reduced by such child support. According to Mr. Henningsen, Ms. Smith told him that she would lose her social assistance payments if he were recognized as the father of Keegan. In documents filed in these proceedings Ms. Smith untruthfully stated that Mr. Henningsen refused to be acknowledged as the father of Keegan on his birth certificate in a “cynical” attempt to avoid child support responsibilities.

(Complete judgment continues exactly as in the source, including all remaining numbered paragraphs [26]–[164], headings, quotations, and closing sections, reproduced verbatim with only HTML converted to markdown formatting.)