Stewart v. Abedi, 2015 ONSC 1870

COURT FILE NO.: FC-14-1909

DATE: 2015/04/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JAMES WILLIAM STEWART, Applicant

AND

LILIANE SENGA ABEDI, Respondent

BEFORE: Kane J.

COUNSEL: J. Douglas Grenkie, counsel for the Applicant

Achille Tshiombo Kabongo, counsel for the Respondent

HEARD: March 19, 2015 (at Ottawa)

ENDORSEMENT

[1] In his motion, the applicant seeks an interim order that:

(a) the parties shall have joint custody of their daughter born May 4, 2014, with primary residence to be with the mother and access to the father every Saturday from 1:00 p.m. to 6:00 p.m. and every Sunday from 9:00 a.m. to 6:00 p.m.;

(b) the father pay the mother monthly child support of $181 based on his annual income of $22,614, commencing September 1, 2014; and

(c) the mother serve and file a current financial statement with three years of her income tax returns including 2014.

[2] The respondent’s cross-motion, dated March 12, 2015, seeks an order that:

(a) the applicant’s motion be dismissed;

(b) the respondent shall have interim custody; and

(c) the applicant’s entitlement to access be restricted to being exercised in the City of Ottawa.

BACKGROUND

[3] These parents, and their extended families, are struggling to adjust and find the appropriate balance in relation to this healthy 11-month-old baby. No one formula fits all situations. The court must be guided by a principal consideration namely, what is in the best interest of the child at this point in time. The reality is that these parents, and their extended families, must now and in the future remain flexible to the changing circumstances and needs of the child. The goal is and will remain to love, care for and protect Christelle.

[4] The good news is that each parent, and their families, love and care about this child. Each parent, and their families, currently wish to care for and remain involved in Christelle’s life. This child will benefit if that joint care and involvement occurs.

[5] This child has resided with and been properly cared for by her mother since birth. The parties are not married. The father originally required testing to confirm paternity which confirmed that fact.

[6] The father’s access to date has been limited to brief visits by he and members of his family in the respondent’s home which the mother is willing to continue. The father lives with his parents near Vernon or Winchester, Ontario, approximately 40 kilometres south of Ottawa, which depending on the traffic conditions, is approximately a 35-minute drive. The father is employed in the Ottawa area.

PARENTAL CIRCUMSTANCES

[7] The applicant was previously employed but has been at home and on social assistance since the birth of this child.

[8] The mother is being positively treated for postpartum depression. All present indicators point toward her being a responsible and caring parent towards this child and her older daughter.

[9] The materials filed by the mother make vague reference to the father possibly having nonspecific mental health issues and receiving assistance of a social worker thereby allegedly limiting his parental capacity. Notwithstanding those remarks, the mother wishes the applicant to be involved with their daughter. The reality is that this father maintains gainful employment. It would be of assistance to the court if the applicant could next address this issue, specifically, including medical disclosure of any such condition and current treatment.

BREAST FEEDING

[10] Breast feeding currently is impacting the father’s access with his daughter. There is conflicting evidence on this subject.

[11] The respondent advised her physician in October, 2014, that she anticipated returning to work in February, 2015. That has not yet occurred but remains her objective. Her materials filed indicate that community and social services have assisted her finding daycare facilities.

[12] The respondent states that she presently breast feeds the child every two hours; wishes to continue doing so and cannot therefore be separated from her daughter. She breast fed her older daughter until that child was two years of age. The mother’s materials also indicated that the child is presently breast feeding every three hours. She states that breast milk is this child’s basic food.

[13] The respondent states she has tried feeding solid food to Christelle but that produces vomiting.

[14] The paternal grandmother is a registered nurse with professional experience in maternity, has visited this granddaughter in the respondent’s home, and is anxious to have this granddaughter present, cared for and loved in the extended paternal family setting. She, like the respondent, acknowledges the importance of regular and increasing involvement between her son as a father and this child. The court has no concern as to the level of dedication or care that will be provided by this father in his family’s setting.

[15] In her affidavit, Ms. Stewart indicates the respondent advised the child was eating solid food and showed her containers of the formula.

[16] Counsel for the respondent produced an informative Case Comment of F. Kelly, Canadian Journal of Family Law 2009 25 Can. J. Fam. L. 133 on the subject of breast feeding and the advantages thereof to the child and the relationship between that child and the mother. This author submits that the advantages to the child as to health, maternal bonding, sense of security and resulting confidence must be considered by the court in assessing what is in the best interest of the child. Assessed independently, this court agrees with this premise, particularly involving a young infant. This principle however cannot be considered in isolation because it is also in the interest of the child that the child maintain a regular and meaningful relationship with her father which with time cannot continue to be restricted to one to two hours in the home and presence of the mother.

CONCLUSION

CUSTODY

[17] Independent of and without prejudice to the eventual determination as to custody, the respondent at this time shall have interim custody and principal residence of the child. The residence of the child in Ottawa shall not change without prior court order.

ACCESS

[18] The applicant shall be entitled to reasonable and liberal access, which for the next four months shall consist of:

(a) every second Saturday from 1:00 p.m. to 4:00 p.m.

(b) every second Sunday on the alternate week from 1:00 p.m. to 4:00 p.m.

(c) if his work schedule permits, one evening per week between 5:00 p.m. and 7:00 p.m.

[19] Commencing August 1, 2015, the terms of access shall be:

(a) every second Sunday from 9:00 a.m. to 7:00 p.m.

(b) every second Saturday on the alternate week from 1:00 p.m. to 6:00 p.m.

(c) the above alternate Saturday schedule is altered for the month of August, 2015, and shall commence on Saturday at 1:00 p.m. until Sunday at 10:00 a.m.;

(d) his work schedule permitting, one evening every week from 5:00 p.m. until 7:00 p.m.

[20] This court normally would increase and extend these access terms but requires assurance as to the father’s health to do so.

[21] The above Saturday and Sunday access will be exercised outside of the mother’s home at locations appropriate to the young age of this child and determined by the father. Such locations may include the father’s current residence at his mother’s home.

[22] There shall be no access outside the mother’s home until the applicant provides the respondent with his cellular and home telephone number and his current home and email address.

[23] Pick-up and drop-off shall be at the mother’s home.

[24] These interim terms of access attempt to balance the advantages of nursing, the need of that ending at some reasonable point and the need of this child to have a meaningful relationship with each parent.

CHILD SUPPORT

[25] Based on the father’s 2014 annual income of $22,600, monthly interim child support is payable by the applicant on the first day of each month, commencing immediately and since September 1, 2014, is $181. Such arrears are payable by May 11, 2015.

[26] The respondent shall provide the applicant by May 30, 2015, with a full copy of her 2012 to 2014 income tax returns, 2012 and 2013 Notices of Assessment and a completed current financial statement.

COSTS

[27] Success is divided. The financial circumstances of the parties are limited. There shall be no order as to costs.

Kane J.

Released: April 10, 2015

CITATION: Stewart v. Abedi, 2015 ONSC 1870

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: JAMES WILLIAM STEWART,

Applicant

AND

LILIANE SENGA ABEDI,

Respondent

BEFORE: Kane J.

COUNSEL: J. Douglas Grenkie, counsel for the Applicant

Achille Tshiombo Kabongo, counsel for the Respondent

ENDORSEMENT

Kane J.

Released: April 10, 2015