Daynard v. Tanner, 2016 ONSC 7651
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIFFANY DAYNARD
Applicant
– and –
RAYMOND TANNER
Respondent
COUNSEL:
K. Whitfield, for the Applicant
HEARD: December 6, 2016
REASONS FOR DECISION
BACKGROUND
1The applicant is Tiffany Daynard.
2The respondent is Raymond Tanner.
3The parties commenced a relationship on or about 1994 and were married on July 10, 2007. They separated on April 4, 2016.
4The parties have five children together, namely Alyssa Daynard, age 18, born November 17, 1998 (“Alyssa”), Victoria Daynard, age 17, born October 22, 1999 (“Victoria”), Emily Daynard, age 12, born October 1, 2004 (“Emily”), Chase Tanner, age 5, born December 31, 2010 (“Chase”), and Jax Tanner, age 4, born September 14, 2012 (“Jax”).
5The applicant’s application was issued September 2, 2016. As set out by the affidavit of the process server sworn September 7, 2016, the respondent was served with the application and other required materials on September 6, 2016 at 11:15 AM at 58 Atwater Street, Sault Ste. Marie, Ontario. The process server left a copy of the materials with the respondent personally.
6The respondent has failed to file an answer and/or any other required documents.
7Applicant’s counsel has not been contacted in any way by the respondent.
8As set out by the affidavit of applicant’s counsel’s legal assistant sworn November 28, 2016, the applicant’s affidavit for uncontested trial sworn November 22, 2016 was served on the respondent by mail on November 22, 2016 to his residence, 58 Atwater Street, Sault Ste. Marie, Ontario.
9Today the application is before the court for uncontested trial. The respondent was paged and he did not respond to the page.
10The applicant relies on her application, and materials filed in support of her application, including affidavit in support of claim for custody and affidavit for uncontested trial. In addition, she testified to provide further evidence.
11In the application the applicant seeks a final order:
That she have custody of the children, Alyssa, Emily, Chase and Jax.
That the respondent have access to all third-party records involving the children.
That the respondent shall have supervised access to the said children through an agreed-upon third-party or through Algoma Family Services supervised access facility.
That the respondent shall pay guideline support to her for the children in accordance with his annual income and the child support guidelines.
That the respondent provide the applicant with a sworn financial statement.
That in the alternative, the respondent shall provide to the applicant notice within 10 days of gaining employment.
For costs on a substantial indemnity basis.
12Today, however, the applicant seeks a final order:
That she have custody of the children, Alyssa, Emily, Chase and Jax.
That the respondent have access to all third-party records involving the children.
That the respondent shall have supervised access to the said children through Algoma Family Services supervised access facility subject to the facility’s availability.
That the respondent shall provide her notice of any and all employment he may obtain within 10 days of gaining employment.
For costs in the amount of $200.
ISSUES AND ANALYSIS
Custody and Access
13The children have been in the care of the applicant since separation. She is a stay-at-home parent and has been the children’s primary caregiver since their births.
14The applicant has a wonderful relationship with the children and she states that they get along well.
15She has attended to all major issues relating to their education, health, and overall well-being. The applicant has been taking care of all of the needs of the children financially, emotionally and physically since separation. She is willing and able to provide the children with guidance, education, necessaries of life and with anything they require for any special needs.
16Currently, the applicant has the children involved in counselling to deal with the separation and lack of access with the respondent.
17Alyssa, Victoria and Emily attend White Pines collegiate and vocational school. Chase and Jax attend Parkland Elementary School.
18The applicant states that Victoria is independent. Victoria has a child with her boyfriend. Victoria is temporarily residing with the applicant. The Children’s Aid Society of Algoma is monitoring the situation. Victoria has some mental health issues. She is hopeful that Victoria, her child and her boyfriend will be in their own home by January of 2017.
19Alyssa, Emily, Chase and Jax have no special needs.
20The applicant and the children live in a three bedroom apartment. She has her own bedroom, Alyssa has the basement, Emily has her own room and Chase and Jax share a room. Victoria, her child and her boyfriend are temporarily using the living room until they move into their own place.
21The Children’s Aid Society of Algoma has no open file regarding the applicant and/or the manner in which she parents her children. There had been a file opened when the respondent and applicant were residing together but it was closed once the parties separated and the respondent was out of the home.
22The applicant has indicated that she has a tremendous amount of support from her mother, Carol Shepard.
23The respondent has not had any access to the children nor has he sought out any access.
24The applicant in her affidavit in support of her claim for custody sworn September 2, 2016 states that the respondent was abusive towards her and the children mentally and physically.
25The applicant has several concerns for the safety and overall well-being of the children while in the care of the respondent.
26The applicant believes the respondent to have unresolved mental health issues, including anger management. The applicant testified that approximately four years ago, the respondent suffered a series of grand mal seizures and at one point was in a coma. After this hospitalization, the respondent was often in a state of agitation, and had difficulties with anger management. The respondent would refuse to see a doctor. At one point, in April of this year, she attended before a Justice of the Peace in an attempt to get the respondent admitted to hospital for care. She was granted relief to have the respondent brought to the hospital but the respondent was released after seeing physicians at the hospital and she did not have an opportunity to speak to the doctors.
27In addition, after separation, based on the children’s discussions with police following a dispute regarding possession of the matrimonial residence, the respondent was charged with uttering threats. These I acknowledge are allegations and have not yet been determined by the court. The respondent, however, as a result, is currently subject to a recognizance of bail which includes a condition not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with the applicant and Alyssa.
28Lastly, having had no contact or access with the children since the separation and April 2016, the applicant believes it is necessary that the respondent demonstrate his commitment to the children and follow a regular schedule.
29These are the reasons for which she seeks an order for supervised access. That being said, she knows and states that the children would like to see the respondent and she is not opposed to this if the access is supervised at the supervised access facility. She does not believe that the respondent is well and hopes that he will get the help that he needs to get well.
30I am satisfied that it is in the best interests of the children to be in the sole custody of the applicant, based on the fact that she has been their primary caregiver since birth; she has a good relationship with the children; she has support to care for the children; she is providing a stable environment for the children; and she is willing and able to apply to provide the children with guidance, education, the necessaries of life, and any special needs of the children. The respondent has chosen at this time to have no contact with the children.
31I am further satisfied that there are concerns for the court to consider in respect of the respondent’s access to the children, if and when he decides to seek same. He has a history of illness and has not contacted the children since the date of separation. It is alleged he has been abusive, physically and emotionally, and that he has been threatening. The respondent did not respond to the application to challenge these assertions. As such, I am satisfied that the best interests and the safety of the children require that at this time, any and all access that the respondent seeks to the children Emily Daynard, born October 1, 2004, Chase Tanner, born December 31, 2010, and Jax Tanner, born September 14, 2012 should be supervised. The current recognizance prohibits contact with Alyssa. If that is changed, I am satisfied access with her should also be supervised, and based on her wishes, given her age.
32Regarding access to third party records, given Alyssa’s age, I am not prepared to make an order that the respondent have access to same.
Child Support
33The applicant is currently in receipt of Ontario Disability Support Plan Benefits.
34The applicant believes that the respondent is in receipt of Ontario Works benefits. The applicant believes that the respondent’s current benefits are approximately $9,600 per year. She states that although the respondent has not provided any specific disclosure to verify his 2015 annual income, she is satisfied that he is in fact in receipt of Ontario Works benefits in the approximate aforementioned stated amount. The respondent’s cousin, Cathy Corbett, who is a friend of the applicant, contacted the applicant personally to ask the applicant to take steps to remove the respondent from the applicant’s benefits so that the respondent could apply for Ontario Works (which the applicant did). The applicant also stated that she is aware that the Ontario Works amount for a single person is a little over $700 per month.
35Based on the evidence, and applicant’s counsel agrees, the respondent is below the threshold income amount and as such no child support is currently payable for child support.
Financial Information
36The applicant is asking for an order that the respondent be required to notify her of any change in his employment status within 10 days. I am satisfied that this is a reasonable request, and is information that the respondent would be required to disclose for purposes of determining any change in child support for the children.
Costs
37The applicant seeks costs of $200. She is the successful party. The issues were not complex but important. It was important given the facts of this case, and in the best interests of the children to have provisions put in place regarding their custody, and regarding access with the respondent. The amount being sought is more than reasonable (in fact low) and easily found as time properly spent on the case, including preparation of affidavit material, and attending court for the hearing. I am mindful of the respondent’s financial circumstances, however, due to the respondent failing to answer the application and/or file any required documents, today’s hearing was required.
38For all of these reasons, balancing same, I am going to exercise my discretion to order the costs sought.
ORDER
39Based on the above, I hereby order on a final basis that:
The applicant shall have custody of the children, Alyssa Daynard, born November 17, 1998, Emily Daynard, born October 1, 2004, Chase Tanner, born December 31, 2010, and Jax Tanner, born September 14, 2012 (“children”).
The respondent may have access to all records for third-parties involved with the health, education and welfare of the children Emily Daynard, born October 1, 2004, Chase Tanner, born December 31, 2010, and Jax Tanner, born September 14, 2012 and the applicant will execute any required documents to give effect to this Order.
On the expiry of, or rescission of any orders prohibiting contact with the child Alyssa Daynard, age 18, born November 17, 1998, any and all access/visits that the respondent seeks to have with the child Alyssa Daynard, age 18, born November 17, 1998 shall be supervised at the Algoma Family Services supervised access facility subject to the facility’s availability and shall be subject to this child’s wishes.
Any and all access/visits that the respondent seeks to have with the children Emily Daynard, born October 1, 2004, Chase Tanner, born December 31, 2010, and Jax Tanner, born September 14, 2012 shall be supervised at the Algoma Family Services supervised access facility subject to the facility’s availability.
The respondent shall inform the applicant about any and all changes in his employment status within 10 days of the change, which information shall include the name of the employer, the address of the employer, particulars of rate of pay/remuneration, and anticipated hours of work.
The respondent shall pay costs of the uncontested hearing to the applicant in the amount of $200 inclusive of H.S.T.
The balance of the issues claimed in the application is dismissed.
Rasaiah J.
Released: December 7, 2016
CITATION: Daynard v. Tanner, 2016 ONSC 7651
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIFFANY DAYNARD
- AND –
RAYMOND TANNER
REASONS FOR DECISION
Rasaiah J.
Released: December 7, 2016