Citation: Vidal v. Terejko, 2017 ONSC 6183
COURT FILE NO.: FS 16-373
DATE: 2017October17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sheena Marie Sylvanna Vidal, Applicant
AND:
Benjamin James Terejko, Respondent
BEFORE: The Honourable Justice R. J. Harper
COUNSEL: Lisa DeLong, Counsel, for the Applicant
Birkin Culp, Counsel, for the Respondent
HEARD: October 13, 2017
ENDORSEMENT
Issues
[1] This is a motion for temporary custody and access.
[2] The Respondent Benjamin James Terejko (Benjamin) seeks:
A temporary order for joint custody of the child Bo Win Terejko, (Bo) born, February 9, 2015 (2 years 7 months).
An order to have the child reside with him from Thursdays at 5 p.m. until Mondays at 9 p.m.
Benjamin states that he is “prepared to accept” some alternate schedule to break up the week, so long as Bo is in each party’s care for an equal amount of time and with exchanges to take place at Tim Horton’s on Colborne St., Brantford or the child’s day care.
An order that neither party shall relocate from the City of Brantford.
Background
[3] Sheena and Benjamin were married on July 26, 2013. They separated on October 14, 2016. Benjamin has resided at his parents’ home since that date.
[4] The child has resided with Sheena since the date of separation. At first Sheena and the child lived in the former matrimonial home. The mother moved to an apartment.
[5] When the matter first came before me I issued written reasons on September 8, 2017. Neither parent presented any evidence about the living environment of the child when in their respective care. They have since updated their evidence to include such evidence.
[6] The father has had the child residing with him every Saturday from 4 p.m. until Sundays at 4 p.m. as per the Order of Justice Thompson dated December 16, 2016.That order was made on consent. Parties have followed that court order with no deviation for the past approximately 8 months.
[7] Since September 7, 2017, the OCL has decided to conduct an investigation pursuant to Section 112 of the Courts of Justice Act. Mr. Ian DeGeer has been assigned to conduct this investigation. I am advised that the investigation should take approximately 90 days to complete.
[8] The child has primarily resided with the mother. Her updated affidavit contains pictures of her apartment and child’s bedroom. She describes her daily routine with the child. Her routine includes gymnastic lessons that the mother claims started in September 2017. She claims that the lessons are from 4:30 to 5:30 p.m. and that she always attends with Bo. Sheena states in her more recent version of her evidence that she stopped working at the body rub parlor, Steeles Royal Body Rub in February 2017. This would allow her to attend the gymnastics just referred to.
However, Benjamin’s affidavit of October 5, 2017 provides evidence that Sheena continues to work “to this day”. He provides copies of a web site for “Steeles Royal Obsession Intermodel” day shift schedule that shows that Sheena, who works at that establishment under the name “Madison”, is still on the day shift schedule from 10 a.m. until 5 p.m. The schedules provided are to and including March 30, 2017.
[9] Given the inconsistent and conflicting evidence provided by Sheena relative to her working at this establishment, I find that she does not have any credibility relative to her availability for her child on Thursday evenings.
The conflicting evidence of adequate accommodations for the child
[10] Both parents’ evidence is replete with statements that are totally negative about the other party’s accommodations. The father attaches pictures of what he represents as the poor state of the mother’s previous apartment. This is countered by the mother with pictures of a clean and appropriate apartment.
[11] The mother describes the father’s residence as an inadequate basement apartment in his parents’ home that also has 5 other siblings living in that home. She also asserts that the father’s accommodations are inadequate and unsafe.
[12] The father counters by providing pictures of his own apartment showing a living area that is appropriate. He also states that his siblings have moved out of his parents’ home and much more space is available for living with his child.
[13] The Children’s Aid Society worker has visited the father’s home and did not note any concerns for the child.
[14] At this stage of the proceedings it is not possible to sort out the conflicting evidence. Neither counsel made submissions relative to the concerns about the other parent’s residence that was reflected in the evidence. I expect that the OCL investigation will deal with a review and analysis of both parent’s living arrangement.
[15] The only argument that was advanced by counsel was whether or not the father’s time with the child should be increased or changed to different dates to accommodate the changing schedules of the parents.
The Position of the father
[16] Benjamin submits that the mother continues to work in Brampton on Thursdays. He relies on the posted schedules on the web site of Steeles Royal that shows her listed as working on Thursdays from 10 a.m. until 5 p.m. at least until March 30, 2017. He suggests that the mother is further unavailable on Saturdays as she is in school all day and attends voice lessons on Saturday evenings.
[17] The father submits that his schedule is flexible. This is corroborated by a letter from his employer that is filed as part of his evidence.
[18] He argues that the increase in the time that he is proposing allows for the child to be with a parent while the other parent is not available and is consistent with the principle of maximized contact with each parent.
The Position of the Mother
[19] The mother submits that she has not worked at Steeles Royal since February 2017. She filed a letter from a manager at that institution to corroborate this fact. She argues that the fact that she was still posted as part of the schedule was simply a mistake.
[20] The mother agrees that she is in school every Saturday and at voice lessons events on Saturday nights. She submits that the father’s access should therefore be changed from Saturdays at 4 p.m. through Sundays at 4 p.m. to Fridays at 7 p.m. to Saturday evenings at 7 p.m. The mother also argues that if the father’s schedule was so flexible he should have changed it by now.
Analysis
[21] I must consider only what is in the best interest of the child.
[22] I do not find, on the evidence before me, that either parents’ home is inadequate. I also find that the parents must have felt the same way when they agreed in December of 2016 to have the residency scheme that they chose.
[23] I find that the father has the ability to adjust his schedule to be available for the child during the times when the mother is not available. I also find that the mother is not available on Saturdays during the day and in the evening.
[24] At this stage of the proceedings it is important not to tip the balance in favour of one party unless there is evidence that warrants it. The custody and access issues are presently subject to an OCL investigation.
[25] I find that it is in the best interest of the child to spend as much time with the father as possible and that he is able to meet the child’s needs when the child is with him.
[26] I cannot determine at this stage whether the mother is still working at Steeles Royal. Although she represents she is not, her evidence was inconsistent on this issue in previous affidavits. As a result I will not make an order increasing the access of the father to include Thursday evenings. However, I do order that the mother is to be with the child on Thursday evenings and nights as she represents that she is.
[27] The father shall have his access extended, however, from Fridays at 7 p.m. until Sundays at 4 p.m. until further order of the court.
[28] My previous order that neither party shall move the child from the City of Brantford shall continue.
[29] I decline to make an order for custody of the child at this stage.
COSTS
[30] The applicant submitted an outline of costs from September 29, 2017 to October 13, 2017. Total fees claimed $2,600.00 plus disbursements and HST for a total amount claimed of $3,041.28.
[31] The respondent’s outline claims fees of $1,677.50 plus disbursements and HST for a total of $1,911.44.
[32] The applicant served an Offer to Settle that included custody to her, and access every Wednesday 4 p.m. to 7 p.m. and either every Friday at 6:30 p.m. to Saturday at 7 p.m. or alternating weekends from Friday at 6:30 p.m. to Sunday at 6:30 p.m.
[33] This offer was dated June 19, 2017. The offer was prior to my September 8, 2017 order requesting an OCL investigation. At this stage, neither party was granted custody.
[34] The respondent was partially successful in expanding his access. The respondent shall receive costs from the applicant on a partial indemnity basis in the amount of $1,433.58.
The Honourable R. J. Harper, SCJ
Date: October 17, 2017