ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0015-00
DATE: 2013-02-11
B E T W E E N:
Fay Elizabeth Brugger and Paul Johann Brugger
Richard Culpeper, for the Applicants
Applicants
- and -
Jessica Mary Marie Casmey
Meghan Y. de Souza, for the Respondent
Respondent
-and-
James Wallace Dunn
Respondent
Unrepresented
HEARD: February 4, 5 and 6, 2013,
in Thunder Bay, Ontario
McCartney J.
Decision on Motion and Cross-Motion
Introduction
[1] This is a motion and cross-motion for interim custody pursuant to an Application for custody/access brought by the Applicants on January 18, 2013.
The Parties
[2] The Applicants Fay Elizabeth Brugger (Fay) and Paul Johann Brugger (Paul) are the grandmother and step grandfather of the child Hanna Brea Dunn-Casmey (Hanna) born January 26, 2011. The Respondent Jessica Mary Marie Casmey (Jessica) is Hanna’s mother. The Respondent James William Dunn (James) is the son of Fay, stepson of Paul, and father of Hanna. James has neither appeared nor filed responding material on the motions.
Court Proceedings Leading to Motions
[3] On January 18, 2013, Fay and Paul commenced an application for custody and or access for Hanna. On that date they also attended before Wright J. in Thunder Bay with an ex parte motion for interim custody, alleging among other things, that Jessica had attempted to commit suicide the day before. On January 18, 2013 Wright J. made an interim interim custody order in favour of Fay and Paul effective to January 24, 2013, and further adjourned the case until that date. Shortly thereafter, on the afternoon of January 18, 2013, Jessica appeared before Herald J. in Thunder Bay with an ex parte motion to set aside Wright J.’s order and return Hanna to her. Justice Herald refused this request and adjourned Jessica’s motion to January 24, 2013 as well. Jessica then retained counsel and brought a further motion returnable January 24, 2013 for Hanna’s return.
[4] The matter then came before Shaw J. on January 24, 2013. At that time Justice Shaw indicated he thought it necessary, because of the lack of detail of the suicide attempt, and the conflicting affidavits filed by the parties, to hear vive voce evidence. He thereupon set the matter over to February 4, 2013 for a further hearing. In the meantime he continued the interim interim order of Wright J., but set an access regime for Jessica with Paul and Fay from January 26, 2013 to February 1, 2013.
The Factual Background
[5] Hanna was born January 6, 2011.
[6] At the time of her birth Jessica, (date of birth December 7, 1992) was 18 years old and James (date of birth October 24, 1979) was 31 years of age.
[7] Prior to the birth, Fay had contacted the Children’s Aid Society with concerns about the unstable situation the baby was being born into, and the Children’s Aid Society had written to Jessica offering their services.
[8] Fay and Paul after the birth had offered their services to the Children’s Aid Society to take over the care of Hanna if it became necessary.
[9] Apparently for the first few months of Hanna’s life, Jessica and Hanna stayed at different places, sometimes with relatives, sometimes with James at his home on Mcleod Street in Thunder Bay. Over this period of time the Children’s Aid Society were attempting to monitor the situation as best they could.
[10] In early August 2011, Jessica came to the Children’s Aid Society in a very upset condition indicating she was in a very controlling relationship and needed help. She was referred to the Faye Peterson Transition House.
[11] At this time the Children’s Aid Society indicated that it was not concerned about Jessica’s parenting, but was concerned about the risk apparent due to James’ conduct.
[12] At this time Jessica and Hanna stayed at the Faye Peterson Transition House for about 3 weeks.
[13] Upon her arrival the Faye Peterson personnel began to work on getting Jessica and Hanna their own home and an apartment was found at 1523 Walsh St. in Thunder Bay which they moved into in September of 2011. Jessica still maintains this apartment as her home for herself and Hanna. During the time Hanna and Jessica lived at the Faye Peterson Transition Home, Faye Peterson personnel reported to the Children’s Aid Society that they could see no concerns with respect to Jessica’s parenting of Hanna.
[14] It was around this time that Jessica and the Bruggers, who had been denied access to Hanna since her birth, began to get along, and from August 2011 to June of 2012 Hanna was with the Bruggers almost on a daily basis, to help Jessica with Hanna’s care. Jessica and Hanna even stayed with the Bruggers for several weeks during a period while Jessica was recovering from wisdom tooth surgery. However, unfortunate incidents turned the relationship sour, and no further access occurred for the Bruggers after June of 2012.
[15] In December 2012, referrals started to be made to the Children’s Aid Society about more disruption between Jessica and James. Even though Jessica and Hanna now had their own apartment, Jessica admitted that she and James were still seeing each other and in fact on January 17, 2013 the day she attempted suicide, she was at James’ home on McLeod Street.
[16] As Justice Shaw indicated, the pivotal issue here is the attempted suicide and how this should effect the court’s decision.
[17] It seems that on January 17, 2013, when Jessica was feeling very depressed, in no small part due to a verbal tirade against her by James and a fear that she might lose Hanna, that she took Hanna over to her brother Darren’s home for him to babysit her. It was after this that she swallowed a bottle of Motrin pills and some Aleve pills. Shortly thereafter she vomited up the pills, called Darren to tell him what happened, and eventually the emergency services were called and Jessica was taken to the hospital in the early afternoon. She was discharged from the hospital several hours later with little concern showing in the discharge concerning her mental health. She then returned to Darren’s home where Hanna was staying.
[18] Even though there was no evidence as to the effect of the drugs ingested, they are common non-prescription drugs. Jessica says she did not want to die, just feel better about her situation. I agree with counsel, and the evidence supports this, that this was not a serious suicide attempt.
The Law
[19] The law regarding interim custody pending Trial is difficult to apply. Probably the best statement of the law, in a similar factual situation as the present, was set out by Ashton J. of the Family Court (of Ontario) in Foster v. Foster (44 R.F.L. 5th p. 78) and cited in SAK v. JAK (46 R.F.L. 6th p. 455) as follows:
“…although the status quo arrangement favoured maternal grandparents, they did not inevitably trump a mother’s prima facie right to custody under subsection 20(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. Justice Aston pointed out that the ultimate test is the best interests of the child and, although any person may apply for custody pursuant to section 21 of the Children’s Law Reform Act, statute and case law both support the proposition that parents have a preferred status or preferential claim over others. I agree with this reasoning. Although the child resided with the applicant in the past in a stable arrangement, this does not necessarily trump the mother’s prima facie right to custody. Although continuation of the status quo is an important consideration, it is not the only factor.
[20] Kozak J. of the Ontario Superior Court in White v. White, [2000] O.J. 1862 gives a good explanation as to why maintaining the status quo is an important factor in interim custody/access proceedings. He sets out the following:
Interim relief is temporary relief which is granted in an interlocutory proceeding of the main action. It is intended to remain in effect pending the determination of the custody issue at trial. Interim orders are also intended to address emergency situations which cannot await resolution at a full hearing, which may be some months or more down the road.
As in all questions of custody, the paramount consideration is the welfare or best interests of the child. The Children’s Law Reform Act sets out a definition of best interests of the child, which factors are applicable to interim applications as well.
There is a heavy onus on a parent seeking to disturb the status quo de facto custody in an application for interim custody, Stronger evidence is required to alter de facto custody, on an interim basis, than is required to support an order for custody after a trial on the merits. It is in the best interests of the child not to be tossed back and forth while the court resolves the differences between the parents. (See Papp v. Papp 1969 219 (ON CA), [1970] 1 O.R. 331 C/A)
Discussion
[21] In the White case, Justice Kozak found that the status quo was the situation which existed before one parent had taken over the care of the child when both parents had been sharing custody. Similarly in this case I find that the status quo to be considered is the two years since birth that Hanna has been with Jessica – not the two and a half weeks from January 18 to February 4 that she lived with her Grandparents.
[22] In my review of the Children’s Aid Society records, and in reading the affidavits and listening to the witnesses, I have come to the conclusion that not only did Jessica have reasonable parenting skills, but there was no evidence of Hanna being maltreated by either James Dunn or Jessica. While I do not intend to get involved in the duelling personal affidavits of Paul and Fay on the one side and Jessica on the other, it appears that in some instances the truth was being stretched by the parties, to bolster their side of the case. This is not uncommon in such cases. However, I was unimpressed by the Bruggers hiring a private detective to follow Jessica and try to make much of a few minor incidents. In any event, many of the issues involved in the affidavits of the parties, while they may have been of interest in determine credibility, were not helpful to myself, nor it seems to my fellow judges, in coming to a decision.
[23] So getting back to the main issue, while I do not believe that Hanna was ever in danger during the events of January 17 and 18, it is important to be reassured that such a situation is unlikely to reoccur because such episodes could put her in danger.
[24] In that regard, it appears clear to all that the main source of Jessica’s emotional situation leading to the attempted suicide was the respondent James Dunn. The parties were never married, and never lived in any kind of stable relationship. On top of this already difficult situation, Fay who is James’ mother and the person who must know him best states in her affidavit that Jessica and James have had a “volatile relationship”, that James had a history of violence, and that he had admitted to her that he dealt in drugs,
[25] Sara Laldin, a Children’s Aid Child Protection Worker, was called by Jessica as a witness. She indicated, as have others, that the Children’s Aid Society file, which began when Hannah was born, and then was reopened again in December 2012, was not about violence to Hanna, but violence regarding Jessica’s relationship with James. Recently Jessica has been warned again by the Children’s Aid Society that further contact with James could result in the Children’s Aid Society having to intervene regarding Hanna’s protection. Jessica has told the Children’s Aid Society that her relationship with James is over.
[26] Since January 18, unlike in the past, Ms. Laldin indicated that she has had no trouble contacting Jessica, and has seen her three times. Jessica seems to have taken responsibility for her actions. Ms. Laldin has only seen Hanna and Jessica interacting once since January 18, but this interaction was very positive.
[27] Jessica has also been in recent contact with the Faye Peterson Transition House personnel. In that regard, Tina Camarotto gave evidence that she has known Jessica since August of 2011 when Jessica sought help for her situation and when she stayed at the Faye Peterson Transition House for three weeks. She explained that Faye Peterson Transition House was a residential program for women and children in abusive relationships. She indicating Jessica had been involved from September 2011 to January 2012 with a program known as “From Pregnancy to Six Year Old”. She had recently signed up for a sixteen week group course called “Journey Beyond Abuse”. Faye Peterson Transition House also offers one to one counselling when required. In such a situation as we have here, the Children’s Aid Society and Faye Peterson Transition House stay in touch with each other particularly if any abuse was spotted which would have to be reported to the Children’s Aid Society.
[28] Jessica testified on her own behalf. She explained her relationship with James and confirmed the relationship was over. She indicated that since the incident of January 17/18 she has been in close touch with the Children’s Aid Society, Faye Peterson Transition House, and supportive family and friends. She says the event was a “wakeup” call for her. She is continuing with her aesthetics course at Everest College in hope of bettering herself, and has arranged for City subsidized daycare for Hanna. She feels that she would never put herself in the position that she was in on the night of January 17 again because her daughter needs her “to be strong and healthy for her”.
[29] Many of Jessica’s brothers and sisters testified on her behalf, and indicated their on-going support for she and Hanna – which support has been evident in the past, and which would be helpful.
[30] Finally the Bruggers. In my estimation, the Bruggers are fine, well intentioned people who should be providing a key element in the support system that Jessica and Hanna will need into the future. As was pointed out by Fay, when Jessica and the Bruggers were getting along not only did they live together in harmony for a lengthy period of time they saw Hanna every day for nearly a year from August 2011 to June 2012. Why this excellent relationship ended over what appears to be an unfortunate dispute over Hanna’s ear piercing is beyond my understanding. In any event, I think the Bruggers are in the best position of anyone to assist Jessica in the upbringing of Hanna, so I hope that they stay involved and that their assistance is accepted.
Conclusion
[31] For all of the above reasons, I believe that Hanna will be safe if she is returned to the custody of her mother and that on an interim basis this is in Hanna’s best interests. But it is also important that Fay and Paul have appropriate access to Hanna as well: so an order is to issue as follows:
(1) The Applicant Jessica is to have interim custody of the child Hanna Brea Dunn-Casmey, born January 26, 2011;
(2) The Respondents, Fay and Paul, are to have interim access to Hanna as follows:
(a) every second weekend, on an overnight basis, from Friday at 4:00 pm to Sunday at 7:00 pm;
(b) Tuesday and Wednesday of each week for a three hour period;
(c) Access to commence Friday, February 15, 2013;
(d) Transportation for access visits to be provided by Fay and Paul.
[32] The Respondent has asked for, and leave is granted, for late filing of an Answer until February 28, 2013.
[33] No costs arguments were presented to me. Costs, if any, are reserved to the Justice hearing the Application.
The Hon. Mr. Justice J. F. McCartney
Released: February 11, 2013
COURT FILE NO.: FS-13-0015-00
DATE: 2013-02-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Fay Brugger et al.
Applicants
- and –
Jessica Casmey et al
Respondents
DECISION ON MOTION
AND CROSS-MOTION
McCartney J.
Released: February 11, 2013
/mls