Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Eddie Frederick Samuel Henderson – Applicant
AND:
Stacey Rose Cayuga - Respondent
COUNSEL: Sam Garcia - Counsel, for the Applicant
P. Dehm - Counsel, for the Respondent (Duty counsel)
BEFORE: James W. Sloan
HEARD: December 9, 2016
ENDORSEMENT
Endorsement
1This motion is brought by the applicant seeking to change the Order of Justice Mazza dated November 25, 2014, with respect to the residency schedule of their child Sophie Rose Cayuga-Henderson born October 30, 2012.
2Currently the child resides with mother on Sunday, Monday and Thursday nights and alternate Friday and Saturday nights.
3She resides with father on Tuesday and Wednesday nights and alternate Friday and Saturday nights.
4This is one of the many applications/motions which come before the Court without the parties having been cross-examined on their affidavits, which makes it very difficult, if not impossible, to assess credibility and to try to get at the truth of the matter.
5In addition, no facta (while not technically required for a short motion) were filed to assist the Court.
6At the very least this should have been a long motion with facta, if not a trial of an issue so the court could better assess whether or not it is in the best interests of the child to have her residency significantly altered.
Background and Evidence
7When father brought this application in March 2016, the mother was working afternoon shifts from 2:30 p.m. to 11:20 p.m. Father alleged that the child was forced to sleep at different places with different relatives depending on the night.
8He alleged that the child was, depending on the night, at one of the mother’s sister’s boyfriend home, her son’s father’s home or at the mother’s home with rotating care caregivers.
9In mother’s material she states that since August she has changed her shifts and now works the graveyard shift, so she is there in the evening and able to put the child to bed long before she has to leave for work.
10Father also expressed concerns about the mother not properly looking after the child’s health, bedbugs at the mother’s residence, garbage strewn around her residence, and foul odours at the mother’s residence and the mother being evicted from her residence for excessive noise, inability to get along with other tenants and damage to property.
11The father filed an affidavit from the mother’s former superintendent dated December 7, 2016. The affidavit sets out that the superintendent received numerous complaints from other tenants about the mother’s inconsiderate and neglectful behaviour, excessive noise, damage to property, and disgusting state of the mother’s outdoor area. As a result of the above the mother was issued an eviction notice and will be moving out in February 2017.
12Therefore, the father submits that neither of the parties nor the Court know where the mother will be living in February 2017.
13The superintendent attached to her affidavit several pictures showing the garbage around the mother’s property.
14The father also alleges that the mother is unable to control her anger, constantly exposes the child to unhealthy and detrimental behaviour, exposes the child to the mother’s abusive of on and off relationships, that she uses cocaine and marijuana daily.
15With respect to the health and welfare of the child, the father alleges the mother neglected to take the child to the hospital when she should have and upon receiving a text from the mother he immediately went over to take the child and get her checked out.
16When the father tried to obtain a prescription for the child, it was evident that the mother had let the child’s health card expire.
17He complains of rashes on the child’s bottom because her diaper has not been changed regularly and states that the rashes were severe. He also complains that the mother does not send prescription medication with the child when the child comes to his residence.
18The father states that he is able to provide a safer, cleaner and constant environment without bedbugs.
19He further states that because he works days, he would be at home each evening to care for the child.
20The mother denies any use of cocaine and states that she seldom uses marijuana and never at the time when the child is present. She states she has agreed to a drug test at the applicant’s expense.
21She states that the father made a report to the CAS but that they have closed the file, however the father replied that the CAS were requested to close their file, in an effort to enhance the parties chances of getting the OCL to become involved in this matter.
22The mother has attached a letter to her affidavit of April 13, 2016, being a letter from her employer which calls her a phenomenal employee and that he is happy to have her working for him.
Analysis
23There are certainly concern in the court’s mind about how Sophie is being cared for and the surroundings in which she lives.
24When the mother was working afternoon shifts she would have needed other caregivers to look after the child for significant portions of the day including from after day care, dinner and bedtime.
25Because of the mother’s current work schedule of graveyard shifts, she would be available in the late afternoons and evenings but would require caregivers throughout the night and in the morning when the child wakes up, assuming the child would wake up on most occasions before the mother would return from work.
26While the mother has attached a glowing letter of endorsement from her employer, it does little to calm the fears of the court with respect to the residence of Sophie.
27The court is also concerned about the garbage strewn around the yard of where Sophie is being raised. The garbage and the outbreak of bedbugs (although now apparently under control) tends to speak volumes about the mother’s housekeeping abilities which tie in to how Sophie is being raised and possible health concerns.
28In addition, for some unexplained reason the mother allowed the child’s health card to expire.
29In addition, the mother will be looking for a new residence before February 1st of 2017.
30In comparison, the father has a stable residence and work schedule that allows him to be home in the late afternoons and evenings.
31Deciding the custody and access of children is part science and part art. On the facts presented to me on a short motion it appears to be in the best interest of Sophie that she spend more sleeping time at her father’s residence.
Order
32Therefore I make the following order:
A. The child shall reside at the father’s home commencing Sunday, January 1, 2017, except as follows:
B. The child shall reside at the mother’s home on alternate weekends from after day care (or such other time as agreed upon by the parties) on Fridays until Sundays at 7:30 p.m., commencing December 30, 2016
C. The mother shall have access to the child each Wednesday from after day care (or such other time as agreed upon by the parties) until 7:30 p.m.
D. At all other times as agreed upon between the parties.
E. The mother shall be afforded liberal and reasonable telephone or Skype access.
33If the parties are unable to work out the issue of child support, either party may apply to the court.
34The remaining paragraphs of Justice Mazza’s Order dated November 25, 2014, shall remain in full force and effect.
Costs
35I make no order as to costs.
Justice James W. Sloan
Date: December 12, 2016