Wasik v. Gariepy, 2011 ONCJ 697

Brantford Registry No. F356/10T DATE: 2010·IX·28 CITATION: Wasik v. Gariepy , 2011 ONCJ 697 ONTARIO COURT OF JUSTICE BETWEEN: THOMAS WASIK Applicant — AND — MELISSA GARIEPY Respondent Before Justice Lawrence P. Thibideau Trial heard on March 24/10, March 25/10, September 19/11, September 21/11 Reasons for Judgment on 2 8 September 2011 B. Embree ………………………………………………………………….…….......… for the Applicant P.

Vandervet .…………………………………………………………………...…. for the Respondent THIBIDEAU, J.: [ 1 ] The Applicant is the father and the Respondent is the mother of two children, Hayden Aleksander Alan Wasik, born August 25, 2004, and Kira Rain Ann Wasik, born June 6, 2007. The parents resided together from the spring of 2004 until the separation on or about August 15, 2007.

This case has been lying around in the system without a final order since the application was issued on the August 16, 2007. [ 2 ] The case management court made a variety of orders related to child time with each parent from the October 25, 2007 to the current operative temporary order of September 22, 2010. Except for the time period from November 2, 2007 to January 15, 2008 when the children resided week-about with each parent the children have been primarily in father’s care, having “access” with mother on weekends. The childcare regime that has been in place since the September 22, 2010 is as follows: i.

Primary care to father. ii. Alternate weekends one and three in a four week cycle with mother Friday 7:00 p.m to Sunday 7:00 p.m. iii. Second week of a four week cycle with mother Friday 7:00 p.m. to Saturday noon. iv. Week four children with father. [ 3 ] It is not really disputed that the reasons for primary residence with father at the time of the orders were specifically related to mother’s parenting issues and planning for the children as follows: i. Mother’s significant drug and alcohol abuse issues.

ii. Mother’s mental health and general well-being. iii. The numerous associates or partners of mother problematic to good childcare. [ 4 ] Mother’s concerns over father’s parenting is less defined. She says father is controlling, intent on minimizing her time with the children, and relying on family collaterals to care for the children while she is available full-time. [ 5 ] Father’s position is that mother continues to have the same issues in varying degrees as previously which prevent her from being an adequate primary parent.

Mother’s position is that her parenting ability is now rehabilitated and she should have more parenting involvement. As a result father seeks sole custody and primary residence with him, mother having the children on a modified status quo basis. Mother seeks joint custody with shared week-about residence with each parent. MOTHER’S DRUG AND ALCOHOL ISSUES [ 6 ] This is the easiest issue to deal with.

Mother admitted heavy involvement with various drugs and alcohol was for the period of time after separation in August 2007 until her engagement with a psychiatrist who provided a report dated July 23, 2009 which confirmed substance abuse issues for mother. However the trial evidence was unambiguous that these concerns have resolved so that currently there is no observed drug or alcohol problem for mother. In retrospect it would appear that these concerns were situational in nature, related to mother’s chaotic life after separation.

The father expressed concern that some of mother’s current associates may be involved in the drug culture in Brantford but other than his opinion there was no evidence to support this view. MOTHER’S GENERAL WELL-BEING AND MENTAL HEALTH ISSUES [ 7 ] Mother has had mental and emotional health issues since childhood. While details of her life before meeting father are absent the best information is that mother had an horrendous childhood with emotional, physical and sexual abuse, complete with numerous suicide gestures as a teen to age 17 when she became involved with father.

She had her first child, Hayden, at age 18. [ 8 ] In July 2009 when the psychiatric report was provided she presented with a multitude of probable and fixed diagnoses including: i. Social Anxiety Disorder ii. Sleep Deprivation iii. Symptoms of Bi-Polar Disorder iv. Impulsivity v. Panic Disorder symptoms vi. Obsessive-compulsive Disorder vii. Post Traumatic Stress Disorder viii. Borderline Personality Disorder ix. Substance Dependence [ 9 ] It is noteworthy that mother informed her psychiatrist that some members of her immediate family had histories of problematic behaviour.

Particularly the maternal grandmother was verbally, physically and emotionally abusive to her and was dismissive of sexual abuse allegations made by mother against the maternal grandmother’s partner when they resided together. The result was mother left the home at age 17. Now maternal grandmother is a person mother intends to rely on for her plan of care to parent the children if she has primary residence of them. [ 10 ] By 2011 the landscape changed significantly in mother’s favour. Chiefly through her own initiative she has been able to take

her life in hand and many of the symptoms observed previously are now reduced or absent. The psychiatric report of July 19, 2011 indicates current and notable behaviour or symptoms as follows: i. General anxiety increase ii. Decreased need for sleep iii. Anxiety related to public places such as grocery stores iv. Symptoms of mood instability with no observable or overt psychiatric symptoms. [ 11 ] The positives are that mother is engaged on an ongoing basis with her psychiatrist and is able to seek him out in times of personal difficulty and that she has various disorders in remission.

The negatives are that she refuses to take recommended prescribed medications because of side effects, and more importantly, she sees herself as cured rather than in remission. At one time she saw the psychiatrist as a “pill-pusher”, but she has a good therapeutic relationship with him. However her significant improvement in various categories of illness appears to be more from her own determined effort rather than any particular intervention. Currently there is no evidence of observed psychiatric disorder behaviour symptoms that seriously negatively affect parenting.

ASSOCIATES AND PARTNERS [ 12 ] This issue is more problematic for mother’s case and parenting plan. Post-separation in the summer of 2007 mother entered into a number of relationships, not all sexual or live-in, that demonstrated poor choices for parenting. This was consistent with a relatively transient lifestyle involving several drugs of choice and alcohol. Early on one male partner seriously beat mother with significant injury. The children were not present at the time.

However she lied for that partner for a time to continue the relationship or to deny father knowledge of the relationship so he could not use it in the custody disagreement. Another partner was at least at one time verbally and physically abusive to Hayden when the child was four or five years of age.

Mother did not demonstrate particular protected behaviour at the time and minimized the event subsequently. [ 13 ] Independent community service providers like the police and the Children’s Aid Society were instrumental in promoting father as the primary caregiver for the children at these times within a year after separation directly related to mother’s relationships with one of the male partners. Therefore the various court orders from time to time with father becoming the primary parent.

More recently there is still ambivalence regarding male partner relationships, but they do not appear to be relationships involving overt abuse of mother or the children. [ 14 ] The Office of the Children’s Lawyer investigators report of the May 15, 2008 commented negatively on mother’s choice and number of partners or potential parenting figures for the children. The issue was confusion in the children’s mind and lack of stability regarding parent identity. The issue was also recognized by the Court.

The first temporary court order of October 25, 2007 required that mother be alone without any other adult present on access with the children. [ 15 ] There is a more fundamental problem. Almost from the time of separation until now mother has put forth a plan of care that involves her as primary parent supported by her live-in same sex partner, Vanessa.

By order of June 9, 2009, Vanessa was an adult permitted to be present during mother’s access because mother said at the time Vanessa was her fiancée and intended to reside together and raise the children. [ 16 ] In fact there have been short times of residence together but often than not, not together. Mother stated at trial that she and Vanessa have agreed to have “surrogate” fathers impregnate mother so that she and Vanessa could have children together. One child, Raven, has been born, another is on the way. Mother knows the identity of the unknown child’s father, the father of Raven is one of two people.

In fact the biological father of the unborn child, one of the two putative fathers for the child Raven, is a co-parent figure in mother’s home at present.

[ 17 ] The track record of the relationship between mother and Vanessa is not good – failed attempts to live together and Vanessa not engaged in parenting at all. Despite this problematic history over some four years mother’s plan continues to be co-parenting with Vanessa. The result is mother’s plan is at worst no plan at all and at best fraught with compatibility and commitment issues regarding parenting. OCL REPORT [ 18 ] This report is now two and a half years old. The history related in the report with respect to the family members has not been changed significantly by filed material or Court evidence.

The exception is the numerous allegations of parenting inadequacy alleged by each parent against the other related to day to day childcare. These have faded with time and parenting performance over the last two years. There are exceptions. [ 19 ] There is father’s concern about some of mother’s known associates, his fear of her relapse into poor mental health and drug abuse affecting day to day care. However at present little evidence is offered to support the argument that mother’s day to day care of the children is deficient.

Mother prefers father to have the children in her care when he is unavailable because of work or other commitments rather than relying on the paternal grandmother. She alleges father ignores the medical needs of the children but this is not borne out in fact. However, there is a lack of medical information flow between the parents. The investigators conclusion that both parents want and desire a role in the children’s lives continues to be accurate. The conclusion that the father provides the most stable environment continues to be accurate.

However some of the recommendations in the report, for example, joint custody, temporary supervised access for mother, alcohol and drug prohibition for both parents, should not be followed due to time elapsed and change of circumstance. RESOLUTION [ 20 ] Each parent for some time now has demonstrated a stable regime of day to day childcare that is child-focussed and child- friendly. Mother is described as having her life centred around the children above all else. However there are issues. [ 21 ] Mother still has a different parenting agenda that is not necessarily helpful to her parenting of these two children.

Her commitment to more children for her and Vanessa (how many more?) without a reality based plan of care for all the children risks parenting uncertainty and parenting failure for these two children. Vanessa has not attached to these two children as a parenting figure yet and may never do so. The evidence leads to the conclusion that mother needs these two children in her care for her own well-being more than they need her, given the present risks. [ 22 ] This is not to say the two children do not have a good parenting relationship with their mother – they do.

But the benefits of the mother-child relationship relate to her as a caring mother looking after the children well. The difficulty is mother’s plan for the medium and long term future which is less positive because of its uncertainty and risk of failure. To date there is little fact to indicate ultimate success for mother’s childcare plan. [ 23 ] Mother’s request for joint custody as recommended in the OCL report is not, on balance, in the best interests of the two children. There are several reasons why this is so. Mother has a plan of care that is likely to fail.

There is substantial evidence to indicate that each parent sees every day ordinary childcare events as ordinary when looking at their own conduct, but extraordinary and negative when looking at the conduct of the other parent and their collaterals. The lack of shorts for a child for a soccer game event detailed by various witnesses at trial should have been a situation giving rise to a joking atmosphere, mild concern at best. Instead it became a source of shouting, anger and not so veiled threats of physical harm among several participants in front of the children.

The best evidence, that of father and the maternal aunt, is that the fuse was lit by mother’s previously documented confrontational attitude and words, events proceeding from there. This is something that cannot be removed from the mother-father dynamic despite mother’s mental health improvements. [ 24 ] Father’s record of parenting, both short term and long term, has been consistent. Short term care is consistent with his long term plan. The physical needs of the children are regularly met, despite a sometimes messy home, despite unfounded allegations of neglect of health care brought by mother.

Father has engaged the children in the community, church and school, and has co-operated with sports activities as reasonably well as possible, given the father-mother relationship issues that arise from time to time.

[ 25 ] Father’s parenting plan is more traditional than mother’s, mother is more free-spirited. The real difficulty is not the different approaches to parenting, but the more chaotic nature of mother’s plan which she has not implemented in four years of trying. Mother is not living with her intended partner. She has lived in her current residence for some six months.

She has a new six month old daughter and a new child on the way, living in a situation where the parenting figures for all children are likely to be confused and problematic. [ 26 ] In short mother demonstrates social ambiguity and emotional transience which is ongoing. Mother’s request for equal time with an equal responsibility for the children risks that other persons will be involved with the children as parenting figures on a come and go basis. [ 27 ] The children are progressing satisfactorily in father’s care, a situation of some four years.

He has provided a plan which is physically and emotionally stable and which is in accord with his circumstances. He provides appropriate alternate care for the children, primarily through the paternal grandmother. [ 28 ] If a joint custody order was made there would be the risk that mother’s innate suspicion of father and her need to have the children with her for her own emotional and mental well-being will lead to accusations against father as previously that were found by the Children’s Aid Society investigators to be “unfounded and malicious”. [ 29 ] Finally, mother has described herself as child-focussed.

She is with respect to her interactions with the children on a day to day basis but not in her interactions and relationships with others in her life, believing there is no connection between parenting and those relationships.

The argument that serial relationships are okay is not accepted because of the resulting parent identity confusion and continued change in mother’s living circumstances. [ 30 ] All of this will be a source of friction between mother and father because the uncertainty, the changes of live-in partners, the changes in the number of children in mother’s care and changes in identified parent figures for these two children will be emotionally and perhaps physically destabilizing for the children. All of this will be contrary to father’s position with respect to stability.

The stress of living in such circumstances will create for mother risk of emotional and mental health relapse issues. All of this coupled with mother’s observed poor impulse control and quick temper will unduly undermine a good parental working relationship necessary for co- parenting. This will not be alleviated by a simple primary residence with father order. [ 31 ] For these reasons father should have custody of the children in order to ensure an ongoing stable positive parenting program for them.

Mother should have as much time with them as reasonably possible but not be involved in the decision making process because her personal priorities are at odds with good decision making for the reasons set out. Mother should have access to all the usual child related information both for the well-being of the children and so that she does not feel totally excluded from the parenting process. [ 32 ] For these reasons an order will issue as follows: 1. The Applicant father shall have sole custody of the children, Hayden Aleksander Alan Wasik, born August 25, 2004, and Kira Rain Ann Wasik, born June 6, 2007. 2.

The children will reside with the father unless residing with mother. 3. The children will reside with mother as follows:

a) The first three weekends of each month from Friday at 7:00 p.m. to Sunday at 7:00 p.m.;

b) For four weeks during the summer school vacation period, no more than two weeks consecutive at a time upon 60 days notice to father;

c) Alternating Spring Break with mother to have the entire Spring Break with the children in odd-numbered years only;

d) A minimum of seven days during Christmas vacation and significant time on each children’s birthday as agreed between the parents, failing agreement by determination by the Court;

e) On Mother’s Day, if the children are not in mother’s care, from 10:00 a.m. to 7:00 p.m.; the children will not be with mother, regardless of normal access regime, on Father’s Day between 10:00 a.m. and 7:00 p.m. when they shall be with father.

f) Such other times as agreed between the parents. 4. Mother shall have reasonable telephone access between herself and the children and father will have reasonable telephone access between himself and the children as agreed between the parents in advance. 5. Parents will make use of a communications book in order to communicate with respect to time with the children and other children’s issues as much as possible. In the event that the communications book is not used, communication by electronic means such as Facebook is encouraged. 6.

Mother shall have the right to obtain information directly from service providers for the children including doctors, dentists, school personnel and to have direct communication with all such providers for the children and to receive copies of documents such as report cards and notices of school events. Father will not change the health care or dental care providers for the children without notice to mother in advance. [ 33 ] Costs can be addressed by written submission within 21 days of the date of this judgment. Dated at Brantford, Ontario This 28th day of September, 2011 Signed: “Justice L. P.

THIBIDEAU” The Honourable Mr. Justice L. P. Thibideau