Windego v. Kenequanash, 2014 ONCJ 190

COURT FILE No.: FO-13-00006-00 DATE: 2014-04-15 Citation: Windego v. Kenequanash , 2014 ONCJ 190 ONTARIO COURT OF JUSTICE BETWEEN: JADE WINDEGO Applicant — AND — SKYE KENEQUANASH Respondent Before Justice P.T. Bishop Heard on April 2, 2014 Reasons for Judgment released on April 15, 2014 Mark Van Walleghem ........................................................................................ for the applicant(

s) Kylee Ronning ................................................................................................. for the respondent(

s) BISHOP J.: [ 1 ] This matter comes before me by way of an Application for custody of the child Taytum Raine Sianna Windego, date of birth October 24, 2009. The Applicant and the Respondent are the parents of this child. The Respondent claims custody and child support for Taytum as well as Camryn April Rayna Windego date of birth April 1 2011.

BACKGROUND : [ 2 ] The parents began to cohabitate in 2008 and separated in 2010. [ 3 ] They subsequently made a verbal agreement that the child reside with the father in Sioux Lookout. [ 4 ] On November 23, 2012, the parties made an agreement that the child would visit the mother in Weagamow Lake (Round Lake) and she would return the child. [ 5 ] The child was not returned to the father. [ 6 ] There is another child born after the parties separated and blood tests prove that the Applicant is the also the father of that child although no claim is being made for custody of that child by the father. [ 7 ] A Settlement Conference was held on October 28, 2013 with both parties seeking custody of Tatyum, and there was no resolution. [ 8 ] It was agreed that the father would give his evidence in Sioux Lookout on December 13, 2013 and the mother would give her evidence in Weagamow Lake on March 13, 2014 and reply evidence in the trial concluding on April 2, 2014.

EVIDENCE OF DIANE RACHEL BURKE : [ 9 ] Ms. Burke has worked at the Sioux Lookout Child Care Centre for approximately nine years. In 2012 she was involved with Taytum who had some language delays and experience temper tantrums. She was a little behind in the preschool screen but got along well with other children. Overall she described Taytum as a happy girl, with regular attendance and she saw the father every day who was very easy to contact. [ 10 ] Taytum had difficulty focusing and over the course of her involvement with the child, her temper tantrums diminished and there was no unusual behaviour.

EVIDENCE OF JADE WINDEGO :

[ 11 ] Mr. Windego is thirty three years of age and has lived in Sioux Lookout and Bearskin Lake but was brought up in Fort Frances and Sioux Lookout. [ 12 ] He met the mother in 2008 and they began cohabiting and are the parents of Taytum. [ 13 ] The mother wanted to visit her family in Weagamow Lake and he became concerned that she was doing drugs and he did not want Taytum exposed to that. [ 14 ] In July of 2010 the mother got a job with Musselwhite Mine when Taytum was one year old and it was a fly-in/fly-out work place with the mother being gone for two weeks at a time.

He cared for the child when the mother was working at the mine. [ 15 ] He had no difficulty with the mother taking the child to Weagamow as long as she was clear of drugs. [ 16 ] The mother became pregnant and he did not want another child and asked for her to get an abortion.

That did not happen and he had little or no access to Taytum when he was in Thunder Bay re-educating himself. [ 17 ] In the summer of 2012, he relocated to Sioux Lookout and they agreed that Taytum would go to school in Sioux Lookout and the mother would go back to Weagamow Lake with the new child, Camryn. [ 18 ] The father is of First Nation decent and encourages aboriginal activities, such as rabbit snaring, skating and hockey.

Anytime the mother was in Sioux Lookout a visit would be arranged. [ 19 ] The child went for a visit in Weagamow and was not returned and the father subsequently learned that the mother had a new partner. He had little or no access to Taytum for about fourteen months.

He became concerned about the mother’s behaviour, past drug use and the number of people living in her home but concedes that he had no real relationship with Camryn although he wants to build a bond with her. [ 20 ] At trial he was waiting for employment insurance from his job at Sioux Mechanical and he earned approximately $12,080.00 from June to November, 2013. [ 21 ] In cross-examination, he stated that the final separation took place in August of 2010 and that the second child Camryn does not call him “Dad”. [ 22 ] He would try to talk to Taytum once a week but that was difficult and he did not know where the child was living in Weagamow. [ 23 ] The father has two children from another relationship, one of whom reside with him fifty per cent of the time.

They are much older than these children. [ 24 ] He has attended counselling for anger management and admitted to abusing alcohol when in the relationship with the mother. [ 25 ] He has sent clothing to the mother in Weagamow for the child and was concerned that Taytum’s speech was behind and wasn’t getting proper dental care. EVIDENCE OF ALANA MAY VINCENT : [ 26 ] Ms. Vincent is the former partner of the Applicant and they have two children, one aged seventeen and the other is thirteen.

She shares the youngest child who lives with her a week on and a week off and this relationship works out very well. [ 27 ] Through the children Ms. Vincent has confirmed that there are no disciplinary or anger issues with the father and she considered him a good Dad. EVIDENCE OF SKYE KENEQUANASH : [ 28 ] She is twenty-five years of age and has two children with the Applicant, Taytum who was born October 24, 2009 and Camryn who was born April 1, 2011. [ 29 ] She described her relationship with Mr. Windego as being on-again-off-again and separated before Camryn was born.

Taytum was eight months old at the time. [ 30 ] She confirmed that the father looked after Taytum when she was working at Musselwhite and she looked after this child when the father was in Thunder Bay re-educating himself. [ 31 ] She was concerned about the father’s drinking and Taytum became scared and wet the bed. [ 32 ] There are communication problems between the parties as she was living in Weagamow and the father was living in Sioux Lookout.

The Christmas holiday in 2013 did not go as planned. [ 33 ] She confirmed from November, 2011 to February, 2014 the father had no access to Taytum. [ 34 ] The fact that the father denied paternity of Camryn caused stress for the mother and Taytum. She would like Camryn to know her father. [ 35 ] She is presently living with Darryl Kakakeyash for the last one and one-half years in a home with three bedrooms. His

children go back and forth to his former partner’s home. [ 36 ] The entire extended family in Weagamow is supportive and there is a great deal of love and interaction between Darryl’s children and his extended family and the mother’s extended family. [ 37 ] She described communication problems with phone calls being a hang-up. [ 38 ] She has received no financial support from the father for either child but from time-to-time he buys things. [ 39 ] She confirmed that she had abused Percocet for a short period of time and confirmed that there were some programs in Sioux Lookout that Taytum was enrolled in. [ 40 ] With respect to the visits she did not send the child back because of concerns about the father’s discipline and she was of the view that the agreement to return the child was only on temporary basis. [ 41 ] Taytum attends the Native Sena School in junior kindergarten from 8:45 a.m. to 3:45 p.m. full days and has only missed eight days. [ 42 ] Her partner and family do not use drugs and they are all involved in the Suboxone program. [ 43 ] She has taken Taytum to Sioux Lookout for dental surgery.

EVIDENCE OF DARLENE QUEQUISH : [ 44 ] Ms. Quequish is Taytum’s maternal grandmother. She sees the girls every day and is supportive in promoting the Ojibway culture. [ 45 ] She describes Skye as a good mother and is proud of her and a good parent who provides meals and other necessities. [ 46 ] She also provides care for both Camryn and Taytum when the mother is away. The family is extremely close.

Taytum is more vocal than Camryn. [ 47 ] She was concerned that the father did not appear for the Christmas access visit. [ 48 ] After the child came back from a visit with the father, she was crying and began wetting the bed. Now Taytum clings to her mother and does not want to go too far away from her. [ 49 ] Both Taytum and Camryn call Darryl “Dad”. REPLY EVIDENCE : [ 50 ] Mr. Windego gave reply evidence with respect to his income and has been working limited hours.

As of April 3, 2014 he has not yet received his T-4 slip. [ 51 ] He has confirmed that he has not paid any support for the children and described his method of discipline for Taytum and his other children. [ 52 ] He has not been able to exercise access because the airfare is seven hundred dollars and he simply does not have the funds. [ 53 ] He requested access to Taytum for the Little Bands Hockey Tournament and he paid three hundred and fifty dollars and picked her up at the airport.

The child was happy and called him “Daddy” although there were some nervous moments at the beginning. [ 54 ] The father is concerned that the mother is still using pull-ups with a four year old. He arranged for Taytum to have Facetime with his mother and always takes the initiative for telephone access. [ 55 ] He collected four bags of toys, etc. to take back to the children in Weagamow.

DECISION : [ 56 ] Having heard all of the evidence I am granting a joint custody order for Taytum and Camryn with the day to day care and control to be with the mother in Weagamow. [ 57 ] This is not a situation where the mother has created a status quo to the exclusion of the father. Geography is at play and there were real concerns about the child’s behavior expressed by the mother and the extended family.

She also gave evidence about her understanding that this is a temporary agreement and that evidence was accepted by the court. [ 58 ] The childrens’ native heritage is best served by being raised by the mother and her extended family in Weagamow. [ 59 ] I am finding that it is in the best interests of these children, Taytum and Camryn, not to separate them. The father has shown little or no interest in Camryn notwithstanding that he is the biological father of that child. He has paid no support for either child and that reflects negatively on him.

There is a very strong bond between the mother and the grandmother, the two girls and the extended families in Weagamow. The mother, her family and her partner have all addressed their drug dependency problem by attending the Suboxone program with absolutely no relapses.

[ 60 ] The agreement to return the child was a temporary agreement which has lapsed with the passage of time. [ 61 ] Neither party has the funds to have transportation from Weagamow to Sioux Lookout and that will be reflected in the Access Order. [ 62 ] It reflects negatively on the father that he has not paid any support for either of these children and may be advancing his custody claim to avoid child support. [ 63 ] I am finding that it is in the best interests of the children that the father have access to Taytum as follows:

i) Once a month with the parties sharing the transportation costs. The parties should agree on which extended weekend will result in the visits and any extended school holidays so that the March school break will be shared in alternating years with the Father to have March school break of 2015; ii) Shared Christmas holiday with the Father to have Taytum from the end of school in December, 2014 until Christmas Day with the child returning on Boxing Day and the Mother to have the remaining school Christmas Break.

This will be altered in the following years; iii) Unlimited telephone access to the child; iv) At least three continuous weeks in the summer vacation with the Father to give six weeks’ notice to the Mother;

v) Any other time that can be agreed upon by the parties. [ 64 ] With respect to support I will order the father to pay support in the amount of $256.00 per month retroactive to the commencement of this proceeding, namely February 1, 2013, payable on the first day of each month and thereafter. [ 65 ] A Support Deduction Order will issue [ 66 ] The Applicants income is $17000.00 per annum and the table amount for two children is $256.00 [ 67 ] All Support payments shall be made to the Director Family Responsibility Office who shall pay to the person owed. [ 68 ] Post Judgment interest clause [ 69 ] Financial disclosure clause [ 70 ] There shall be no order as to costs.

Released: April 15, 2014 Signed: “Justice P.T. Bishop”