SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-14-1012
DATE: 2014/07/21
RE: SHANNON DIANA BROWN, Applicant
AND
TREVOR BARY DUBEAU, Respondent
BEFORE: Kane J.
COUNSEL:
Paul Jakubiak, counsel for the Applicant
Richard R. Marks, counsel for the Respondent
HEARD: July 17, 2014 (at Ottawa)
ENDORSEMENT
POSITION OF PARTIES
[1] The applicant mother commenced this application on May 7, 2014.
[2] The respondent father on July 15, 2014 brought an emergency motion returnable July 17th seeking immediate joint custody and/or joint parenting access pursuant to which the child would spend alternating weeks with each parent, with the other parent to have three day early evening access between 5:30 p.m. and 7:45 p.m. during their non-parenting week. The child under this scenario would sleep seven continuous nights at the home of each parent.
[3] The applicant mother brought a cross-motion seeking sole custody with the father to have early evening access every Tuesday and Thursday from 5 p.m. until 8:30 p.m. and alternate weekend access from 8 a.m. until 3 p.m. on Saturday and Sunday, with the child sleeping every night at her mother’s home. The applicant also sought child support and contribution towards section 7 expenses.
[4] These parents started a relationship in 2009. They married one another on August 21, 2010, and lived at the residence of the mother until the father moved out in January, 2011. They thereafter continued to see one another. The applicant became pregnant by the respondent in the fall of 2012. Their daughter was born on August 29, 2013, and is now 11-months-old.
[5] The parties despite counseling did not reconcile their matrimonial issues.
[6] There is conflicting evidence on the point, however it appears that the applicant not infrequently following the birth of the child thereafter would spend the evening and overnight with the respondent at his residence.
[7] The applicant announced that the relationship with the respondent was over in May of 2014, thus giving rise to the current issues.
[8] Communication between the parties since May of 2014 evidences their willingness to the child on occasion staying overnight with the respondent in his residence.
[9] The applicant agrees the child should have regular contact with the father. She is no longer willing to include overnight access to the respondent for a number of reasons, all of which existed and were known to her when she was offering limited overnight access in May and June, 2014.
[10] The parties have limited financial resources. Their respective annual incomes are $68,000 in the case of the respondent and $42,000 in the case of the applicant. The applicant has been off work on maternity leave and is just now about to resume employment at this compensation level.
[11] The respondent has not since May, 2014, or before, paid child support.
CUSTODY, PARENTING AND ACCESS
[12] Mr. Dubeau clearly loves his daughter. The evidence suggests that he has a warm and nurturing personality towards his children, including this daughter. He has a history however of consuming not insignificant quantities of alcohol. That said, he has been successful in his employment and his former wife in her affidavit provides reassurance as to his capacity as a parent.
[13] The evidence indicates that the respondent regularly, and perhaps daily, consumes marijuana. There is affidavit evidence that the respondent is not “addicted” to alcohol or drugs.
[14] The court is dealing with the best interests of an 11-month-old baby, not the respondent’s 17 and 19-year-old sons who live with their mother.
[15] The issue is not heating of the respondent’s home by a woodstove. The issue is the allegation of a former adult resident in that home that:
(a) some of the electric baseboard heaters did not work;
(b) she on occasion would awake in the morning during the winter to very cold conditions in the house because the respondent did not have sufficient funds to purchase firewood;
(c) there were holes in the floor of the residence permitting occasional entry by rodents.
[16] The affidavit evidence contains a picture of the inside of the bathtub in the respondent’s residence which either has a rusted floor in it or accumulated encrusted debris.
[17] The respondent is asking this court to disregard the above conditions of his home and assume any risk resulting therefrom in relation to an 11-month-old child.
[18] The respondent alleges that the applicant also uses drugs, occasionally drinks excessively and frequents the local bar scene. Despite those allegations, the respondent does not submit that this child is at risk with her mother or should spend less than 50% of the time with her.
ANALYSIS
[19] The court needs more evidence or the existing evidence tested as to drug and alcohol consumption and the condition of the respondent’s home prior to materially altering the status quo that this child who is 11-months-old has been with her mother every day since birth. There is contested evidence as to how frequently the father was with this child since birth.
[20] The age of the child and the above questions, without better or tested evidence, necessitates caution and avoidance of a material change at this point in time.
[21] On an interim and without prejudice basis, this court orders that:
(1) The primary residence of this child shall be with the mother,
(2) The mother shall provide the father immediately with any medical opinion and evidence thereof as to the condition of the child upon receipt of the same. The father shall be notified of any medical appointments and is entitled to attend such appointments. The father is entitled to obtain complete disclosure of treatment or recommendations from providers of medical service regarding the child. The mother and father shall consult and discuss any proposed medical treatment for the child. In the event of their dispute, the mother shall have the final say as to such treatment.
(3) The parties are to consult regarding selection of daycare provider. In the event of conflict, the mother will have final say.
(4) The father is to provide documentary evidence as to the condition of his residence and a reply to the allegation of very cold early a.m. temperatures prior to any further motion in this action.
(5) Each parent prior to any further motion in this action shall file an affidavit providing full disclosure as to their frequency and level of consumption of alcohol and drugs. In the interim, neither parent shall consume alcohol or drugs while the child is in their home.
(6) Commencing the week of July 21, 2014, this child shall be with her father;
(a) During week one, Tuesday and Thursday from 5:30 p.m. until 7:30 p.m. and Saturday from 9 a.m. until 4 p.m.
(b) During week two, Monday, Wednesday and Friday from 5:30 p.m. until 7:30 p.m. and Sunday from 4 p.m. until 7 p.m.
(7) Notwithstanding the above, the child should be with her father on August 29, 2014, from 5:30 p.m. until 7:30 p.m. The child shall be with her mother during that time on August 29, 2015.
(8) Commencing August 1, 2014, the respondent shall pay to the applicant child support on the first day of each month in the amount of $621, based upon the respondent’s line 150 income in the amount of $68,000. Section 7 expenses in the form of daycare costs can be dealt with by the next court order once the amount and frequency of such costs are better known after the applicant’s return to work.
(9) If available through employment, each parent shall provide proof to the other parent as the availability of medical health insurance coverage for this child and agree as to which parent shall maintain such coverage and for what period of time prior to their next court appearance.
[22] Given the yet untested conflicting allegations, there will be no order as to costs.
Kane J.
Date: July 21, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: SHANNON DIANA BROWN, Applicant
AND
TREVOR BARY DUBEAU, Respondent
BEFORE: Kane J.
COUNSEL: Paul Jakubiak, counsel for the Applicant
Richard R. Marks, counsel, for the Respondent
ENDORSEMENT
Kane J.
Released: July 21, 2014