ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-14-226-00
DATE: 2014-12-23
B E T W E E N:
SAELLE LILLIAN HENDRY
Kristen Bucci, for the Applicant
Applicant
- and -
EDWARD SCOTT HENDRY
Respondent not appearing
Respondent
HEARD: December 18, 2014,
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision
[1] This case proceeded to trial on December 18, 2104 on an uncontested basis. The respondent, Edward Scott Hendry, was personally served with the Application and Form 35.1 Affidavit in Support of Claim for Custody on October 16, 2014 by process server. No answer or Financial Statement has been filed. At the opening of trial, Mr. Hendry was paged with no response.
[2] I made an order at trial, with brief written reasons to follow upon receipt of a revised draft order from counsel for Ms. Hendry.
[3] The Applicant, Ms. Hendry was the sole witness to testify at the trial.
[4] The parties were married July 14, 2007. They separated September 1, 2013. There is one child of the marriage – Hailey Hendry, born April 1, 2009.
[5] Ms. Hendry is in her fourth year of a surgical residency at the Northern Ontario School of Medicine in Thunder Bay. She will complete her residency in June 2016. Her income is approximately $70,000 per year.
[6] Mr. Hendry works at Resolute Forest Products. Although Mr. Hendry has not filed any financial information, I am prepared to impute income to him of $40,000 per year based on Ms. Hendry’s evidence that Mr. Hendry told her that was his income.
[7] Ms. Hendry testified that prior to separation, she was the primary caregiver to Hailey. Since that date of separation, Hailey has remained in her primary care, with exception of the months of January through June 2014 when Ms. Hendry was required to attend in Ottawa for residency training. During that time, Hailey resided with her father. Ms. Hendry came home once or twice a month during those months for a week or more. Ms. Hendry testified that Hailey was upset staying at her fathers during this time. She developed a rash on her vagina that was not properly cared for. Her hair was not brushed. Ms. Hendry noticed that Mr. Hendry on occasions smelled like alcohol and slurred his words. When she confronted him on this, he became angry and verbally abusive towards Ms. Hendry in front of the child.
[8] Ms. Hendry said that prior to separation, Mr. Hendry drank heavily, was very controlling, spent money on alcohol and video games and refused to go to work on the excuse that the parties could not afford daycare.
[9] Hailey presently spends approximately eight days per month with Mr. Hendry. Ms. Hendry is prepared to have the present arrangement continue.
[10] Hailey attends senior kindergarten in the French immersion program at Agnew Johnston public school. Ms. Hendry has made arrangements with her landlady, who lives upstairs for Ms. Hendry’s basement apartment, to care for Hailey when she is at work at the hospital. Ms. Hendry works from 6:00 am to 3:00 or 6:00 pm, Monday through Friday. She is on call every four days.
[11] Ms. Hendry testified that Hailey is doing very well in school, which is verified by Hailey’s report cards, filed as an exhibit at trial. She is involved in dance. Ms. Hendry presented evidence that satisfies me that she and Hailey have a very close, loving relationship, that Hailey lives in a warm, stable environment, that they spend a lot of meaningful time together and that Ms. Hendry is solely responsible for all Hailey’s medical, dental and school related appointments.
[12] I am satisfied that it is in the best interests of Hailey to reside in the sole custody of her mother, subject to reasonable access in favour of Mr. Hendry on reasonable notice to Ms. Hendry.
[13] Mr. Hendry shall pay guideline support of $360.00 per month, based on an income imputed to him of $40,000, commencing September 1, 2014. (The Application was filed August 22, 2014 and served in October 2014).
[14] There will also be an order with respect to sharing s.7 Guideline expenses, coverage for the child under Mr. Hendry’s extended health plan, and provisions that Mr. Hendry name the child as beneficiary under any life insurance policies that he may own, all in accordance with a draft order filed by counsel for Ms. Hendry, which I have endorsed to issue.
[15] I also am satisfied from Ms. Hendry’s evidence that divorce should be granted in accordance with paragraph 7 of the draft order.
[16] A Support Deduction Order shall issue.
The Hon. Mr. Justice D.C. Shaw
Released: December 23, 2014
COURT FILE NO.: FS-14-226-00
DATE: 2014-12-23
ONTARIO
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAELLE LILLIAN HENDRY
Applicant
- and –
EDWARD SCOTT HENDRY
Respondent
DECISION
Shaw, J
Released: December 23, 2014
/nf