COURT FILE AND PARTIES
COURT FILE NO.: F397/10
DATE: January 17, 2013
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Jessica Ann Dermo, applicant
AND:
Tommy James Waugh, respondent
BEFORE: MITROW J.
COUNSEL:
Jessica Ann Dermo in person
Tommy James Waugh in person
HEARD: January 9, 2013
ENDORSEMENT
INTRODUCTION
[1] Each party brings a motion before a case conference.
[2] The applicant, Jessica Ann Dermo (“Ms. Dermo”), and the respondent, Tommy James Waugh (“Mr. Waugh”), are the mother and father of Carter Kenneth Brock Waugh, born May 23, 2009 (“Carter”).
[3] Pursuant to the final order of Morissette J. dated March 31, 2010, it was ordered that the applicant and the respondent shall have joint custody of Carter, with the primary residence of Carter to be with each parent on a week about basis (the exchange being 6:00 p.m. Sunday), and it was also ordered that each parent have access to Carter during the week that Carter is residing with the other parent, with that access to be arranged between the parties.
[4] Ms. Dermo brings her motion initially returnable January 2, 2013, asking for interim custody of Carter.
[5] Mr. Waugh brings his motion initially returnable December 19, 2012, seeking leave to bring a motion prior to a case conference and requesting “access to my son [Carter] pursuant to the joint custody order dated March 31, 2010.”
[6] The case conference is scheduled for February 12, 2013.
[7] Ms. Dermo’s notice of motion (tab 9) is most irregular, as it sets out in detail factual allegations (which are properly the subject of an affidavit). Ms. Dermo does not request leave to bring her motion prior to a case conference.
[8] The proceeding commenced by Ms. Dermo is also irregular and not in compliance with the Family Law Rules, O. Reg. 114/99. Ms. Dermo proceeded by way of application issued August 21, 2012 to change the existing final custody order. Ms. Dermo should have proceeded to issue a motion to change pursuant to R. 15.
[9] However, given that Mr. Waugh has responded by way of answer (in fact, he was given leave to do so pursuant to the interim order of Vogelsang J. dated October 16, 2012), the order set out below grants leave to Ms. Dermo to proceed via application – to make an order now dismissing the application as an irregularity or requiring a motion to change to be filed, in my view, will only serve to add unnecessarily to the costs and length of this proceeding.
[10] For his part, Mr. Waugh failed to file a form 35.1 affidavit and it is unclear how he was permitted to file his responding material without that affidavit. The order set out below requires Mr. Waugh to file his form 35.1 affidavit.
[11] The affidavit evidence of both parties is somewhat incomplete, with important pieces of information missing. I have concerns about the conduct of both parents. More importantly, however, there is insufficient evidence to conclude that a matter of urgency exists requiring the court to make an order prior to a case conference. Accordingly, for reasons set out below, the motion of each party is dismissed and this means that the parties shall share Carter on a week about basis pursuant to the existing final order.
DISCUSSION
[12] Ms. Dermo’s material alleges that Mr. Waugh had been incarcerated “for cutting all the furniture in his residence that he shared with his current girlfriend Katelyn Moore in half with a chainsaw” after which he then physically assaulted Ms. Moore. Ms. Dermo does not tell the court how she knew Mr. Waugh cut furniture in half with a chainsaw.
[13] However, Mr. Waugh does agree that he was incarcerated for an offence that included assaulting Ms. Moore and, during his oral submissions, Mr. Waugh advised the court he was in jail from August 25, 2012 to November 30, 2012.
[14] There is no disagreement between the parties that while Mr. Waugh was in jail he was obviously not in a position to exercise week about access and, accordingly, Carter was with Ms. Dermo.
[15] Ms. Dermo also alleges that earlier in 2012, Mr. Waugh received a jail sentence for another conviction for assault against Ms. Moore and that he was sentenced to serving weekends in jail. Ms. Dermo alleges that while serving his intermittent weekend jail sentence that Mr. Waugh did not communicate his incarceration to Ms. Dermo and that Mr. Waugh’s girlfriend, Ms. Moore, looked after Carter while Mr. Waugh was in jail during those weekends when Carter was in his care. Mr. Waugh does not dispute his intermittent jail sentence, or that Ms. Moore cared for Carter, but he disputes that Ms. Dermo was not aware of his sentence.
[16] Ms. Dermo deposes that while Mr. Waugh was serving his most recent jail sentence that Ms. Moore would call Ms. Dermo “every night” alleging she was going to kill Ms. Dermo and/or beat her up and kidnap Carter. Ms. Dermo deposes this forced her to put “a year peace bond on me and Carter against her.” Unfortunately, Ms. Dermo does not attach any court documents confirming the existence of this “peace bond.”
[17] It is Ms. Dermo’s evidence that Mr. Waugh is still in a relationship with Ms. Moore and Ms. Dermo also states that Mr. Waugh “lies” about residing in his brother’s home “in which Carter does not have a room.” Ms. Dermo says this makes her scared for Carter’s safety and wellbeing.
[18] Ms. Dermo also levies some other allegations against Mr. Waugh that include Carter witnessing incidents of violence between Mr. Waugh and his girlfriend, Ms. Moore.
[19] For his part, Mr. Waugh deposes that Carter has not been a witness to arguments or violence while in Mr. Waugh’s care. Mr. Waugh deposes that he has his own place at 25 Rathgar Street in London and that everything is more than ready for Carter to “come home” and that Carter has a room in a loving, safe and clean home.
[20] Mr. Waugh admits his incarceration and deposes that he is not proud of his past conduct. He states that he has made arrangements at the N’Amerind Friendship Centre to take some anger management counselling and to “become more in touch with my culture.” He states he has completed an aboriginal parenting course and has had Carter involved as well doing crafts and playing. However, Mr. Waugh does not attach as exhibits any verification that he has completed counselling or other courses at the N’Amerind Friendship Centre. He should do so.
[21] For his part, Mr. Waugh also deposes that Ms. Dermo has made poor decisions, including being married to “a full patch Hells Angel,” who was later shot, and that Ms. Dermo was allegedly arrested as part of some type of police “takedown” regarding the father of her youngest child. Mr. Waugh complains that Carter is always with babysitters and that Carter has suffered two seizures and had to be taken to hospital by ambulance, during which time Mr. Waugh was present but allegedly Ms. Dermo did not attend at the hospital. It should be noted that Ms. Dermo has not responded to these allegations that were contained in Mr. Waugh’s affidavit sworn January 7, 2013.
[22] Mr. Waugh also deposes that he is no longer in a relationship with his former girlfriend, Ms. Moore. During oral argument, Mr. Waugh advised the court that his sentence included a one year probation order but Mr. Waugh has failed to provide the court with a copy of his probation order, so it is not known what conditions exist regarding his probation.
[23] Mr. Waugh further deposes that in August 2012, Ms. Dermo was arrested for her attempt to “home invade my ex girlfriend Katelyn Moore’s house.”
[24] In her affidavit material, Ms. Dermo does not really volunteer much information about her arrest, although Ms. Dermo does disclose in her form 35.1 affidavit sworn August 21, 2012 in paragraph 7 that she is charged with attempted break and enter and uttering death threats, and that the terms of her release are 9:00 p.m. to 7:00 a.m. curfew and not to associate with “Tommy Waugh or Katelyn Moore.”
[25] It is unfortunate that Ms. Dermo failed to provide full and complete details regarding these criminal charges and, in particular, the current status of those charges. Ms. Dermo also failed to provide a copy of the terms of her release on those charges.
[26] Ms. Dermo leaves it unclear how she can deal with Mr. Waugh in terms of arranging access given the apparent non-association condition as part of the terms of her release (assuming that the release is still in effect).
[27] Mr. Waugh brought his own motion because Ms. Dermo had refused to reinstate the existing week about schedule after Mr. Waugh’s release from jail at the end of November 2012 and, hence, Mr. Waugh found himself in a position where he was asking the court for “access,” when in fact he was a joint custodial parent entitled to have Carter with him on a week about basis pursuant to the existing final order.
[28] Given the conduct of both parties, and given the failure of both parties to provide all necessary documents to the court regarding criminal proceedings against each of them, I am of the view that the Children’s Aid Society of London and Middlesex should be given copies of the court documents, together with a copy of this endorsement, in order that the Society can make any inquiry and/or investigation that it deems appropriate regarding any potential child protection concerns.
ORDER
[29] For reasons set out above, I make the following interim order:
The motions of Ms. Dermo (at tab 9) and Mr. Waugh (at tab 5) are dismissed but this order is on a without prejudice basis to the right of each party to bring a fresh motion for interim custody and/or interim access subsequent to the case conference supported by fresh affidavits that include up to date information regarding each party’s criminal record, copies of any current probation orders, peace bonds and conditions of release from custody on any current criminal charge. Also, each party shall attach a copy of this endorsement as an exhibit to his or her affidavit.
Ms. Dermo is granted leave nunc pro tunc to commence this proceeding by way of a notice of application rather than a motion to change as required by R. 15 of the Family Law Rules and the title of the current proceeding shall continue to show Jessica Ann Dermo as the applicant and Tommy James Waugh as the respondent.
The clerk of the court shall immediately forward by regular mail or fax to the Children's Aid Society of London and Middlesex a copy of this endorsement, together with copies of the following affidavits (and shall file an affidavit of service confirming same in the continuing record):
a) form 35.1 affidavit of Ms. Dermo sworn August 21, 2012 (tab 2);
b) Mr. Waugh’s affidavit sworn December 18, 2012 (tab 6);
c) Ms. Dermo’s affidavit (tab 10); and
d) Mr. Waugh’s affidavit sworn January 7, 2013 (tab 11).
Within 14 days of the date of this order, Mr. Waugh shall file his form 35.1 affidavit and a further affidavit, which includes as an exhibit, a copy of his current probation order and Mr. Waugh shall include a copy of that probation order in his case conference brief.
Within 14 days of the date of this order, Ms. Dermo shall file an affidavit, which includes as an exhibit, a copy of the conditions of her release in relation to her August 2012 criminal charges and a copy of the “peace bond” that Ms. Dermo alleges she obtained regarding Ms. Moore, and Ms. Dermo shall include a copy of the conditions of her release and the peace bond in her case conference brief.
Each party shall include a copy of this endorsement in his or her case conference brief.
Each party shall within 14 days file in the continuing record a written verification that he or she has attended the mandatory information program and, if either party has not yet attended the mandatory information program, then he or she shall attend the first available mandatory information program and shall thereafter file in the continuing record proof of attendance.
In relation to the week about schedule contained in the final order of Morissette J. dated March 31, 2010, which said order provided for exchanges at 6:00 p.m. Sunday, Carter shall be with Ms. Dermo for the week starting 6:00 p.m. on the first Sunday following the date of this order.
Each party shall keep the other party advised as to his or her current residence address and telephone number.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: January 17, 2013