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Justice Sloan of the Ontario Superior Court of Justice recently observed that,

Deciding the custody and access of children is part science and part art.

In Henderson v. Cayuga, Justice Sloan was asked to rule on a motion with respect to the residency schedule of a 4-year-old girl, Sophie.   Sophie’s father expressed serious concerns about Sophie not receiving proper care while in the custody of her mother.  Sophie was residing with her mother Sunday, Monday and Thursday nights, and alternate Friday and Saturday nights.  She was residing with her father on Tuesday and Wednesday nights, and alternate Friday and Saturday nights. Troubling Allegations The father’s allegations about the mother and her living situation included the following:

  • the mother worked shifts from 2:30 p.m. to 11:20 p.m., and Sophie therefore had to sleep at different places with different relatives depending on the night;
  • an affidavit from the mother’s former superintendent revealed that the superintendent had received numerous complaints from other tenants about the mother’s inconsiderate and neglectful behaviour, excessive noise, damage to property, and unsanitary outdoor area;  the mother was issued an eviction notice;
  • the mother was set to move in February 2017 pursuant to the eviction notice but no one knew where she would re-locate;
  • the mother was unable to control her anger, used cocaine and marijuana, and exposed the child to unhealthy behaviour;
  • the mother allowed Sophie’s health card to expire and failed to take her to the hospital when it was required;
  • bedbugs were found at the mother’s residence; and
  • severe and frequent rashes on Sophie’s bottom.

The mother provided the Court with a letter from her employer which described her as a “phenomenal” employee, with no issues of concern.  The mother also denied the drug use and stated that she would change to the graveyard shift at work so that she could put Sophie to bed at night. Little to Calm the Court’s Fears The Court stated that the letter from the mother’s employer did “…little to calm the fears of the court with respect to the residence of Sophie”.  The Court was clearly very concerned about the numerous housekeeping issues at the mother’s home, including garbage strewn about and bedbugs (although they had been brought under control).  Further, it was unexplained and disconcerting that Sophie’s health care had been allowed to expire and that the mother was looking for a new residence. The Court contrasted the living situation at the father’s residence, where the father had a stable home and work schedule that allowed him to be home in the late afternoons and evenings. In Sophie’s Best Interests Deciding custody and access issues may be part science and part art, but the decision is always rooted in the determination of the best interests of the child.  In this case, the Court was convinced that it was in the best interests of Sophie to spend more sleeping time at her father’s residence.  Justice Sloan changed the parties’ original access order so that Sophie would reside at her father’s home except for alternate weekends after day care, and each Wednesday from after day care until 7:30 p.m.  The Court’s order also gave the parties the freedom to increase the mother’s access by agreement. If you have questions about custody and access or any other family law issue, contact the experienced lawyers at Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.

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