Court File and Parties
COURT FILE NO.: F788/17 DATE: 20190322 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Shawn O’Neil Burgess Applicant – and – Emily Nolan Respondent
COUNSEL: Edward Mann, for the Applicant Lawrence Blokker, for the Respondent
HEARD: January 15 and 16, 2019
Raikes J.
Endorsement
[1] The parties are the biological parents of Ivy Marie Nolan-Burgess born June 6, 2015. Ivy is now 3 years old. She is by all accounts a fun-loving, healthy child. She is meeting all of her developmental milestones. She is expected to start junior kindergarten in September 2019.
[2] The parties lived together in 2014 and separated in 2015. They were never married.
[3] Ivy has resided with the Respondent since the parties separated. The Respondent has been Ivy’s primary caregiver. She has arranged and taken Ivy to her doctor appointments. She has been responsible for Ivy’s shelter, food, hygiene and well-being since birth. For reasons that are set out in more detail below, the Applicant has had limited access with Ivy; in fact, he had no contact with her for approximately six months following the birth of his son, Michah in July 2018.
[4] At the outset of trial, it was agreed that the Respondent should have sole custody of Ivy. On the evidence that I heard during the trial, I am satisfied that the Respondent mother should have sole custody of Ivy; that is, it is in Ivy’s best interests that the Respondent have sole custody. I endorsed that the Respondent have sole custody on January 16, 2019 following conclusion of the trial.
[5] The remaining issues are access by the Applicant with Ivy and child support.
[6] This proceeding was commenced on June 12, 2017. The Respondent’s Answer is dated July 21, 2017.
[7] On June 28, 2018, I made an interim consent order that Ivy’s primary residence would be with the Respondent, and the Applicant would have access with Ivy from 2 PM to 4 PM on July 4 and 18, 2017 at the townhouse of the Respondent’s brother who would be present.
[8] On July 26, 2017, Justice Henderson made a further interim consent order – this one without prejudice – pursuant to which the Applicant had access to Ivy as follows:
a. Commencing August 1, 2017, each Tuesday from 10 AM to noon, except on August 15, 2017; b. Commencing September 5, 2017, each Tuesday from 10 AM to 2 PM; c. Commencing October 3, 2017, each Tuesday from 10 AM to 4 PM; d. Pick up and drop off were to take place at the McDonald’s restaurant at the London Mall.
[9] As part of that order, the Applicant was required to ensure that his residence premises were adequate for Ivy.
[10] On October 31, 2017, Justice Korpan ordered, inter alia, that:
a. The Respondent shall have sole interim custody of Ivy; b. The Applicant shall have regular access with Ivy as follows: (1) Commencing November 7, 2017, every Tuesday from 10 AM to 4 PM until the child commences junior kindergarten, at which point the access shall be from Tuesday at 4 PM (end of school) overnight to Wednesday at 9 AM (start of school); (2) Commencing November 25, 2017, each Saturday from 2 PM overnight to Sunday at 4 PM continuing to December 23, 2017, provided the Applicant complied with the terms in para. 3 of her order; (3) Commencing December 23, 2017, every other weekend from Friday at 4 PM to Sunday at 4 PM again subject to compliance with the terms in para. 3; and (4) Such additional access as the parties may agree to.
[11] Paragraph 3 of Justice Korpan’s order included the following prerequisites to overnight access by the Applicant:
a. He have his residence approved for overnight access by a worker from Children’s Aid or the Office of the Children’s Lawyer; and b. He provide an update from his treating psychiatrist or physician regarding any medical treatment he was receiving for his mental health.
[12] Finally, on July 11, 2018, Justice Leitch stayed the overnight access of the Applicant pending a settlement conference and satisfaction of the following:
a. Cooperation by the Applicant with CAS regarding any further inspections of his apartment that it may wish to do; b. Follow through with the recommendations from Orkin Pest Control to have his apartment sanitized for bed bugs and provision of proof of the completed work to the court; c. If Ivy is to be transported, she is not to be transported on or in any vehicle that is not approved for child transportation, i.e. an e-bike; and d. Ivy is not to be left in the care of Jennifer Ford when she is in the Applicant’s care.
Access
[13] The test for access is the “best interests of the child”: Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am., s. 24(1). In determining the best interests of the child, the court must have regard to and apply subsections (2), (3) and (4). Each case is determined on its own facts.
[14] A parental relationship does not guarantee custody or access: M. (B.P.) v. M. (B.L.D.E.), [1992] O.J. No. 2299 (ON CA). Access is to be ordered where there will be a benefit to the child which is not outweighed by other considerations.
[15] Subsections 24(2), (3) and (4) of the CLRA state:
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and, (i) each person including a parent or grandparent entitled to or claiming custody of or access to the child; (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and the person who is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.
[16] The Applicant seeks unsupervised access with Ivy as follows:
a. Every Wednesday from 10AM to 5 PM; and b. Every weekend from Friday at 6 PM to Sunday at 6 PM.
[17] The Respondent is open to access and feels that it is a benefit to Ivy to know and have a relationship with her father. However, she wishes the nature and times of access to be in her discretion given the concerns she has with his behaviour and circumstances. She is concerned about his ability to parent and the effect that has on Ivy’s safety and well-being.
[18] The parties separated before Ivy was born. At that point they were living in the same rental complex. For the first two months after Ivy was born, the Applicant was a regular visitor to the Respondent’s apartment to see Ivy. He helped with her care.
[19] There was then a two month hiatus where he did not visit. That hiatus ended and he came over frequently to see Ivy and the Respondent. There was then an incident when Ivy was approximately nine months old at the Respondent’s apartment. The parties were arguing. Voices were raised. She told him to leave. He turned around as he was leaving and she was closing the door. He yelled that his foot was caught in the door. He pushed to open the door as she pushed to close it. His arm came up and hit her in the face. Police were called and he was charged with assault. The charge was subsequently dismissed at trial.
[20] After he was charged and until the charge was dismissed, the Applicant did not see Ivy. He was offered the opportunity to do so but did not take it.
[21] Access with Ivy resumed soon after this court process was started. As indicated, the initial two visits were to be supervised by the Respondent’s brother at his home. The applicant was late for the first visit and did not show for the second.
[22] The access issue came back to court and the order of Henderson J. was made. The Respondent transported Ivy to and from the access exchange location. She borrowed her sister’s car to drive to London as she was then living in St. Thomas. When she moved back to London, she no longer had access to a car.
[23] She abided by the order of Korpan J. which permitted some overnight access with the Applicant. In July 2018, access stopped. At first Ivy asked questions about when she was going to see the Applicant, but eventually that stopped. It was not until near Christmas 2018 that Ivy began asking questions of the Respondent about seeing her dad.
[24] The Respondent let Ivy call the Applicant but there was no answer so she texted him to say that Ivy wanted to talk to him. He called back and they spoke. She offered him time with Ivy because Ivy wanted to see her dad. Ivy had a visit with the Applicant between Christmas and New Year’s Day. Thus, the Applicant had one visit with Ivy between July and December 2018.
Jennifer Ford and Michah
[25] The Applicant is currently in a relationship with Jennifer Ford. They have a son, Michah, born July 22, 2018.
[26] During his cross-examination, the Applicant testified that:
a. He could not recall when Ms. Ford moved from Toronto to London, where she lived when she moved or whether she lived with him; b. He could not recall if anyone was living with him in his one bedroom apartment in July 2018 including Ms. Ford; c. Later, he indicated that Ms. Ford was living with him at the time of trial and, in fact, she was living with him in July 2018 when Michah was born; d. They had planned for his mother to be there to deliver the baby but he delivered Michah at his apartment; e. He was aware that Ms. Ford had two other children who were apprehended by CAS in Toronto. He had no knowledge why they were apprehended; f. He could not recall if Michah came home from hospital to live at his apartment; g. London & Middlesex CAS intervened and placed Michah briefly in his care and that of Ms. Ford under CAS supervision pursuant to the order of Justice Vogelsang dated July 30, 18 (Ex. 3); h. On August 18, 2018, Michah was placed in the temporary care of CAS pursuant to the order of Korpan J.; i. He could “not recall” why CAS placed Michah in Society care; j. He did not tell the Respondent that Ms. Ford was living with him; k. He did not tell the Respondent that he had a newborn living with him; l. He could not recall if he told the Respondent that he was involved with Ms. Ford and wanted Ivy to meet her; m. He could not say whether the Respondent first learned of Ms. Ford when CAS became involved with Michah; n. He could not recall if CAS asked him to do counselling or parenting programs; o. He did take a parenting program through CAS on his own to show Michah that he loved and supported him; p. He stopped having access visits with Ivy because he had to focus on Michah; q. His failure to see Ivy for six months after Michah was born was because “the mother [Respondent] blocked me off of access”; r. He agreed that he instructed his counsel to send a letter suspending his access visits because he was not getting access and “I had to deal with Michah”.
[27] The Applicant’s evidence was replete with inconsistencies and answers that struck me as disingenuous and misleading. His evidence was largely contradicted by the documents filed, Ms. Ford’s evidence and that of Ms. Gibson, a child protection worker at CAS, and the OCL Report. I find that he was not a credible or reliable witness.
[28] Jennifer Ford testified that:
a. She moved into the Applicant’s apartment in January 2018. By then she was pregnant with Michah; b. She has resided with the Applicant continuously since January 2018; c. She denied that she and the Applicant told the OCL investigator that she and the Applicant were not living together notwithstanding the OCL Report dated June 28, 2018 in which the author, Ms. McHardy, wrote at p. 9:
“Shawn was often less than forthcoming with information and viewed interview questions as irrelevant to the matter at hand regarding Ivy. His relationship with Jennifer Ford was also unclear. Both Jennifer and Shawn reported that she does not reside with him and both indicated they were not romantically involved. Records from Toronto CAS indicated otherwise. Jennifer told her worker in July of 2017 that she was moving to London to reside with her boyfriend at his Proudfoot address.”
d. The Applicant resides in an apartment building on Proudfoot Ave. in London and did in June 2017; e. Michah was born at “home” – in the apartment she shared with the Applicant. She had not done a home birth before; f. She did not disclose to the walk-in clinic that she was planning to do a home birth; g. She denied that the real reason she did a home birth was so that CAS would not know she had a baby; h. They took Michah to the hospital the day after he was born because he was having breathing problems. That is when CAS became involved; i. The hospital wanted to take blood to determine why he was losing weight since he was being fed. She understood that they had overnight to think about whether to permit it. She wanted to think about it because “he was on formula and breast-milk at the time”; j. She understood that CAS apprehended Michah because they did not feel he was safe in their care; k. She and the Applicant go together for access with Michah three days each week. It takes a long time but that leaves the weekends clear; l. She has been on ODSP for 10 years or more; m. She first met Ivy in June 2017 when she was visiting the Applicant from Toronto; n. When Ivy came for overnight visits, Ivy would sleep on a separate bed in the bedroom. She would also sleep in the bedroom and the Applicant would sleep in the living room; o. She and Ivy have never been alone together because the Applicant wants to spend time with Ivy. She believes Ivy would be safe in her care; and p. She does not feel that it would be a big deal if Shawn left Ivy in her care once in a while.
[29] At page 9 of the OCL Report, Ms. McHardy wrote:
“Jennifer was vague about the children in her life. Toronto CAS records indicate Jennifer has 2 children, both of whom are not in her care. Her youngest child was made a Crown Ward in June 2017. Protection concerns related to Jennifer’s marginal parenting skills, homelessness, inability to maintain a safe and sanitary home environment and excessive alcohol use. Given these factors, it would not be wise for Ivy to be left in her primary care.…”
[30] While Ms. Ford was a somewhat better witness than the Applicant, her evidence is concerning. She does not seem to have any insight into or appreciation of the reasons why her children have been apprehended by CAS or her ability to parent. Given that her first two children were apprehended by Toronto CAS, the plan to have a home birth strikes me as an attempt by Ms. Ford and the Applicant to avoid the risk that CAS would once again intervene on the birth of Michah. That decision by them shows questionable judgment.
Applicant’s Apartment
[31] The Respondent testified that during the time she lived together with the Applicant, he regularly went through the garbage and waste from the building to find things that he would bring back to their apartment. He did not clean or fix them with a view to selling them. Rather, he simply accumulated items discarded by others with no apparent purpose. Their apartment was cluttered as a result.
[32] An inspection was conducted by CAS of the Applicant’s apartment to ensure its safety for Ivy. Although the Applicant denies this was the case, the inspection revealed that he had bags of garbage and other items stacked on the balcony. The inspector was concerned that Ivy might climb up and fall off the balcony. The Applicant’s apartment is on the 12th floor of the building.
[33] As indicated, the Applicant denies that his apartment is untidy or that there were items stacked on the balcony that could pose any risk to Ivy. From his testimony, it appears that he believes that the inspector could not have seen the balcony; she did not go out onto the balcony. From his point of view, she was biased against him.
[34] The Applicant has admitted mental health issues. It is those issues that render him unable to work. I find that the Applicant’s habit of picking things up that others have discarded and bringing them to his apartment means of that his one-bedroom apartment is at times filled with what some might call junk. The result is a cluttered apartment.
[35] In addition to concerns about his balcony and the risk it posed to Ivy, the Respondent noticed that Ivy was coming home from her visits with the Applicant with red marks on her body. They seemed to her to be bite marks. She raised concerns with the Applicant about bedbugs. The Applicant suggested in his evidence that there was a doubt about whether the bite marks came from the Respondent’s home. He denied the presence of bedbugs.
[36] An inspection was done by Orkin Pest Control of the Applicant’s apartment. The inspection report dated February 1, 2018 indicates that the entire unit was inspected. There was “low activity found in Shawn’s bedroom. On bed frame and baseboard.” The live bedbugs were killed at the time of service. The inspector recommended vacuuming and cleaning of areas with activity and “bed bug treatment to ensure activity doesn’t persist”.
[37] Despite that recommendation and the order of Justice Leitch, the Applicant could “not recall if” he engaged Orkin or anyone else to apply a bedbug treatment. He later indicated that he did not have Orkin back after February 1, 2018. The Applicant takes the position that notwithstanding the clear recommendation and findings in the report, he does not have a bedbug problem.
E-Bike Transportation
[38] The Applicant owns an e-bike. On at least one occasion, he admittedly transported Ivy on that bike without a helmet. He testified that at the time he did not know that she needed to wear a helmet. My sense is that he did not regard that decision as wrong or inappropriate. He received a telephone call from CAS who told him it was unacceptable. He testified that as soon as he was told that, he ceased doing so, and purchased a bus pass. He is prepared to undertake not to put Ivy on an e-bike without proper restraints and equipment.
Applicant’s Mental Health
[39] The Applicant produced a consultation note by Dr. P. Gangdev, a consulting psychiatrist, dated March 3, 2014 and a further letter from Dr. Gangdev dated November 26, 2018 (Ex. 8 and 9). Dr. Gangdev’s letter of November 26, 2018 makes clear that the Applicant is not an active patient; he saw him once on March 3, 2014 upon referral by his family physician.
[40] The consultation note dated March 3, 2014 indicates that the Applicant “presented with vague account of psychological distress but at present there is no clear-cut evidence of anxiety, mood, psychotic, or obvious cognitive disorder. Neither his presentation nor any obvious treatment goals were clear. Furthermore, he was not interested in pharmacotherapy.” Dr. Gangdev noted that psychiatric follow-up was not entirely clear. He left it to the Applicant to follow-up with him in future. He indicated that he is not willing to provide an updated psychiatric report as a term of getting access with Ivy.
[41] The Applicant is not taking any medication and is not presently undergoing any psychiatric treatment or counselling nor is there any cogent evidence that he requires same. While the Respondent expresses concerns about the Applicant’s judgment when Ivy is in his care, there is no suggestion that he suffers from an underlying psychological or psychiatric illness that presents a danger to Ivy. His judgment, good or bad, is not connected to his mental illness, whatever that might be or, at least, the evidence does not show such a connection.
Applicant’s Plan for Access Care
[42] The Applicant wishes to have Ivy stay overnight with him every weekend. She will sleep in the bedroom on a bed for her. If Michah is returned to the care of the Applicant and Ms. Ford, the one bedroom apartment will be crowded. Ms. Ford indicated that they would make it work.
[43] Ms. McHardy made 11 recommendations regarding custody and access which are found at page 10 of her report (Tab 6 of the Trial Record). The Applicant indicated that he has concerns with them as they are geared to him and are not mutual. Even if mutual, he does not agree that they are reasonable. He is agreeable to a term that Ivy not be left in Jennifer Ford’s primary care if he had to step out for any reason.
Evidence of CAS Worker
[44] Holly Gibson is a child protection worker with the London & Middlesex CAS. She has been employed there for 11 years. She holds a Masters of Social Work degree.
[45] She first became involved with the parties regarding Ivy in May 2018. She was initially engaged to look into whether the concerns expressed by the Respondent about the Applicant were valid; in particular, whether his home was safe for Ivy and transporting Ivy on his e-bike. To that end, she met with the Respondent, and with the Applicant and Jennifer Ford at his apartment.
[46] She witnessed the Applicant and Ivy get off a city bus. She also inspected his apartment on June 27, 2018. On that visit, she observed no safety concerns. The apartment was untidy with a lot of belongings, but the balcony was fine.
[47] Ms. Gibson’s next involvement was July 23, 2018. She responded to a call from the Food Bank that a newborn child was being carried in a salad bowl. The parents were asking for supplies and diapers. She saw a video which showed the Applicant and Ms. Ford at the Food Bank with Michah as described.
[48] She attended the Applicant’s residence with police. She called the Applicant and told him that she was at the apartment with police. He hung up. She called back and a woman with a strong Jamaican accent claimed that the child was hers and that she was going to Toronto. Police entered the unit but could find no child. They observed a used diaper. There were a number of large garbage bags filled on the balcony that posed a safety hazard. There was a motorcycle in the kitchen and the place was in general disarray. She left the apartment without speaking to the Applicant.
[49] The next day, she attended at the hospital. She testified that there was a big team involved. The baby, Michah, was receiving IV fluids only. The family was not consenting to the child being fed formula. A decision is made to separate Ms. Ford from the Applicant. She interviewed Ms. Ford who was unable to articulate why the baby could not be fed formula except to say that their religious beliefs did not permit Michah to receive medical care or treatment. She eventually got consent from Ms. Ford.
[50] With respect to the condition of the apartment, she indicated that there was a dramatic difference between how it appeared on June 27 and how it appeared on July 23. What she observed on July 23 would raise safety concerns for Ivy.
[51] Following the birth of Michah, the visits with Ivy stopped so the CAS file for Ivy was closed. If the Applicant wishes to exercise a future access with Ivy, Ms. Gibson prefers that the Respondent first contact CAS. In cross-examination, she indicated that there would need to be a reassessment of the home and a look at all of the information that the Society has that suggests that the Applicant cannot safely parent Michah. That would bear on their assessment of his ability to parent Ivy. She agreed that one way to address that concern would be supervised access.
[52] Ms. Gibson was an excellent witness. Her answers were direct, succinct and careful. She had notes of her dealings which she used to refresh her memory of specific details. Her evidence was consistent throughout.
Evidence of the Respondent
[53] Ms. Nolan testified as to her concerns for Ivy’s safety when in the care of the Applicant. I found the Respondent to be a good witness. She was frank and forthcoming about her own addiction and mental health issues for which she is receiving ongoing treatment. She has tried to facilitate ongoing access between the Applicant and Ivy despite some of the challenges inherent in doing so. She wants Ivy to know and have a close bond with her father; however, she is troubled by the Applicant’s living conditions, the poor judgment he shows when Ivy is in his care and the inconsistency in his commitment to Ivy.
Analysis
[54] I turn now to the factors in subsections 24(2)(3) and (4) of the CLRA set out above.
Love, Affection and Emotional Ties
[55] It is clear to me that the Applicant loves his daughter and she has bonded with him. She was hurt and disappointed when he stopped seeing her after Michah was born. She took the initiative to ask her mother if she could see the Applicant at Christmas time. It was the Respondent who reached out to the Applicant.
[56] I do not see any attachment between Ivy and Ms. Ford. While they have spent time together with the Applicant, there is no evidence that there is any emotional bond between them. As of the date of trial, Ivy had not met Michah.
[57] The Applicant’s focus since Michah’s birth has been on Michah and Ms. Ford. Ivy was put aside as a result. It is troubling that the Applicant did not at least make an effort to maintain contact with Ivy even if only by phone.
[58] There is no evidence that Ivy has formed any bonds or attachments to the Applicant’s extended family.
Child’s Views and Preferences
[59] Ivy is too young to ascertain her views and preferences.
Time in Stable Home Environment
[60] In terms of access, Ivy has previously spent time in the care of the Applicant including at his apartment. Their time together has been intermittent for reasons detailed earlier in this decision. In short, there have been periods of regular time spent together but those periods have been interrupted by significant periods of no contact.
[61] The Applicant and Ms. Ford have been a couple since at least January 2018. They are engaged in litigation with CAS regarding Michah. That litigation is expected to go to trial later this year. There is uncertainty whether Michah will be part of their future family unit.
Guidance, Education and Necessaries
[62] The Applicant has ongoing mental health issues. It does not appear on the evidence that he is in any treatment program. He has not demonstrated any interest in or ability to guide or provide for Ivy. The Respondent, as the custodial parent, will have primary responsibility for providing Ivy with guidance, education and the necessaries of life. I have significant doubt that the Applicant will be of much assistance in this regard.
Plan
[63] Frankly, the Applicant presented no real plan for access. He simply wants to have access. He did not, for example, outline what kinds of activities he wanted to do with Ivy. Insofar as her accommodation during visits, he wants to take her to his apartment. She will sleep in the bedroom. No evidence was given by him as to what he would do if Michah was in his care at the same time.
Permanence/Stability of Family Unit
[64] It appears that the Applicant and Ms. Ford are in a relationship of some permanence. The family composition is uncertain at this point.
Ability to Parent
[65] I find that the Applicant’s parenting abilities are very limited; in particular, he lacks judgment in recognizing and appreciating the risks of harm to a child. The following are some examples:
a. Delivering a baby at home by himself b. Carrying a newborn baby in a salad bowl; c. Refusing to permit blood to be drawn or the baby to be fed formula at the hospital when the child was in distress; d. Taking Ivy on an e-bike without a helmet; e. Failing to have his apartment treated to remove bed bugs; and f. Allowing garbage to accumulate on the balcony of a 12th floor apartment.
[66] I find that he tidied up the apartment and removed the garbage for the June 27, 2018 inspection, but then allowed the apartment and balcony to revert to its prior condition after the inspection was done. He does not appear to understand or accept that Ivy’s needs must come first, and paramount to those needs is her safety.
[67] There is nothing in the evidence of Ms. Ford or the other witnesses that provides any measure of reassurance that notwithstanding the Applicant’s lack of care, there are other safeguards present. Ms. Ford testified that she did not think there would be any problem if he left Ivy in her care if he had to step out. Her ability to parent and care for children is dubious.
[68] I recognize that Ivy did have overnight access with the Applicant in the past and was not injured apart from the bed bug bites. There is nothing in the evidence to satisfy me that that was more than good luck.
[69] I am also mindful that the Applicant has taken a parenting course through CAS. That is a positive step forward. I encourage him to continue with additional programming to build his parenting skills.
[70] In summary, I have serious concerns about the Applicant’s ability to parent Ivy when and if in his care.
Familial Relationship
[71] It is undisputed that the Applicant is Ivy’s father by blood.
Past Conduct
[72] The Applicant was acquitted of the assault charge involving the Respondent. On her description of the incident, it is unclear that there was an intent to injure. This is not a case involving previous domestic abuse or violence. The incident she described appears to have been an isolated event of marginal relevance to the issue of access. The parties are able to communicate and cooperate to facilitate access, if ordered.
[73] Having regard to all of the above, I find that it is in Ivy’s best interests that she have access with her father on the following basis:
a. Supervised access through Merrymount Children’s Centre or in the presence of a mutually agreed upon third party to take place twice a week for two hours each until June 30, 2019; b. Unsupervised access thereafter in the discretion of the Respondent provided that, i. Ivy will not be left in the primary care of Jennifer Ford at any time; ii. The Applicant’s premises shall be inspected by CAS before unsupervised access commences at his residence and any recommendations made by CAS related to safety are implemented; iii. The Respondent shall be entitled to satisfy herself that adequate and appropriate living and sleeping arrangements are in place for any overnight access; iv. If Ivy is to be transported by the Applicant, she is not be transported on or in any vehicle that is not approved for child transport; for example, an e-bike; c. The Applicant will be responsible for pick up and drop off of Ivy unless the parties agree otherwise.
[74] Ordinarily I would fix a schedule for access visits including overnight stays. However, I am not satisfied at this point that the Applicant can safely parent Ivy nor do I have any confidence that he will make the effort to do so in future. For that reason, I find that it is best to provide the Respondent mother with the right and responsibility to determine when and how much unsupervised access Ivy has with her father.
Child Support
[75] According to the Applicant’s financial statement made December 12, 2017, his income is $15,411. He is on ODSP and has been for more than 10 years. The same financial statement shows that his expenses are $13,848 leaving a difference of roughly $1,500. No updated financial statement was filed even though he now shares his apartment with Ms. Ford who is likewise on social assistance.
[76] The Respondent asks for ongoing child support payable in accordance with the Ontario Child Support Guidelines. The Applicant asks that he pay nothing and be required to notify the Respondent if he becomes employed. If so, he will provide the details of that employment and his income.
[77] I agree with the Respondent that child support should be paid in accordance with the Guidelines. The Applicant shall pay to the Respondent monthly child support for the child, Ivy Marie Nolan-Burgess born June 6, 2015, in the amount of $97 commencing February 1, 2019. In addition, the Applicant will immediately notify the Respondent of any employment he obtains and provide to her the details of same including the name of his employer, his hourly wage, hours of work and any benefits provided by his employer.
Conclusion
[78] I order as follows:
The Applicant shall have access with Ivy Marie Nolan-Burgess born June 6, 2015 on the following basis: a. Supervised access through Merrymount Children’s Centre or in the presence of a mutually agreed upon third party to take place twice a week for two hours each until May 30, 2019; b. Unsupervised access thereafter in the discretion of the Respondent provided that, i. Ivy will not be left in the primary care of Jennifer Ford at any time; ii. The Applicant’s premises shall be inspected by CAS before unsupervised access commences at his residence and any recommendations made by CAS related to safety are implemented; iii. The Respondent shall be entitled to satisfy herself that adequate and appropriate living and sleeping arrangements are in place for any overnight access; iv. If Ivy is to be transported by the Applicant, she is not be transported on or in any vehicle that is not approved for child transport; for example, an e-bike; c. The Applicant will be responsible for pick up and drop off of Ivy unless the parties agree otherwise.
The Applicant shall pay to the Respondent monthly child support for the child, Ivy Marie Nolan-Burgess born June 6, 2015, in the amount of $97 commencing February 1, 2019.
The Applicant will immediately notify the Respondent of any employment he obtains and provide to her the details of same including the name of his employer, his hourly wage, hours of work and any benefits provided by his employer.
[79] If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days hereof.
Original signed by Raikes, J. Justice R. Raikes
Released: March 22, 2019