McNally v. Hunter, 2014 ONCJ 478

COURT FILE No.: RL-F0-14-000002-00 DATE: 2014-09-15 Citation: McNally v. Hunter , 2014 ONCJ 478 ONTARIO COURT OF JUSTICE BETWEEN: FELICIA MCNALLY Applicant — AND — RYAN HUNTER Respondent Before Justice P.T.

Bishop Heard on July 31, 2014 Reasons for Judgment released on September 15, 2014 Beth Allison White ................................................. for the respondent (applicant in this proceeding) Mark Van Walleghem……….………………………………………………………..for the applicant (respondent in this proceeding) Bishop J.: BACKGROUND [ 1 ] This matter comes before me by way of a motion to change the order of the Honourable Justice D. Fraser dated September 28, 2007 brought by the Respondent father Ryan Hunter.

The Applicant mother (Respondent on these proceedings) opposes the request. [ 2 ] The father and mother are the biological parents of Hailey Ray Hunter DOB October 24, 2004 and Xander Ryan Hunter DOB August 11, 2009. The father wants to have joint custody of the children with primary care being granted to him and the mother having reasonable access upon reasonable notice. [ 3 ] The mother seeks custody of both the children with the father having reasonable access on reasonable notice. [ 4 ] The order of Justice Fraser of September 28, 2007 is as follows: 1.

The applicant Felicia McNally shall have custody of the child Hailey Hunter, born October 24, 2004. 2. The Respondent Ryan Hunter shall have access to the child Hailey Ray Hunter, born October 24, 2004 as follows: a. Every second weekend from Friday at 4:00 p.m. to Sunday at 7:00 p.m. commencing October 5, 2007. b. Thanksgiving: The respondent Ryan Hunter shall have access from Friday at 5:00 p.m. to Monday at 7:00 p.m. commencing October 2008 and alternating each year thereafter. c. Christmas: The Respondent Ryan Hunter shall have Hailey from Friday, December 21 at 4:00 p.m. until December 26, 2007 at 1:00 p.m.

The Applicant, Felicia McNally, shall have Hailey from December 26, 2007 at 2:00 p.m. until January 1, 2008 at 1:00 p.m. with these times to alternate each year thereafter. d. Easter: The Respondent Ryan Hunter, shall have access every second Easter weekend from Friday 5:00 p.m. to Sunday at 7:00 p.m. commencing in 2008 and alternating each year thereafter.

e. May Long Weekend: The Respondent, Ryan Hunter, shall have access on May long weekend from Friday at 4:00 p.m. until Monday at 6:00 p.m. commencing May 2009 and alternating year thereafter. f. Father’s Day: The Respondent, Ryan Hunter shall have access on Father’s Day from 10:00 a.m. to 7:00 p.m. each year where Father’s Day does not fall on a regular access weekend. g. Labour Day: The Respondent Ryan Hunter, shall have access on Labour Day w2008 and alternating each year thereafter. h.

March Break: Once Hailey reaches school age, the Respondent Ryan Hunter shall have access from Friday at 5:00 p.m. until Sunday prior to start of school on odd numbered years. i. Summer: i. The Respondent, Ryan Hunter, shall have access of two weeks in the summer of 2008. The Respondent shall provide the Applicant with his preferred dates on or before April 30, 2008. ii. The Respondent, Ryan Hunter, shall have access for three weeks in the summer of 2009. The Respondent shall provide the Applicant with his preferred dates on or before April 30, 2009; an iii.

Commencing the summer of 2010 the Respondent, Ryan Hunter, shall have access of one month. The Respondent, Ryan Hunter, shall have the month of July in even numbered years and the month of August in odd numbered years. 3. The Respondent Ryan Hunter shall have reasonable telephone access to the child Hailey Ray Hunter, but shall not call past 8:00 p.m. on any given day. 4. The Applicant, Felicia McNally, shall provide the Respondent, Ryan Hunter, with all medical and school reports and assessments in a timely manner. 5. The Respondent, Ryan Hunter, shall pay child support in the amount of $141.00 per month.

The Respondent’s annual income is $16,148.00 per annum. Child support for one child, on an annual income of $16, 148.00 is $141.00 per month. 6. In the event that the Respondent’s income for 2007 is greater than $16,148.00 child support shall be varied retroactively to September 1, 2007. 7. Each party shall be responsible for their own legal costs. 8. A Support Deduction Order shall issue. 9.

Unless the Support Order is withdrawn from the Director’s Office, it shall be enforced by the Director and the amounts owing under the Support Order shall be paid to the Director, who shall pay them to the person to whom they are owed. Payments are to be made to: Director, Family Responsibility Office,, P.O. Box 2204, Station P, Toronto, ON M5S 3E9. [ 5 ] On February 11, 2014 Justice Hoshizaki granted the following order: 1.

The children, Hailey Ray Hunter, born October 24, 2004, and Xander Ryan Hunter, born August 11, 2009, will be returned to Red Lake to reside with their father Ryan Hunter, on a without prejudice basis to the mother, Felicia McNally, to argue the temporary motion. 2. Felicia McNally will have interim access to the children as follows: (

a) On Friday, February 14, 2014 at 4:00 p.m. until Monday, February 17, 2014 at 4:00 p.m. (

b) On Friday, February 21, 2014 at 4:00 p.m., returning to the residence of the paternal grandfather on Sunday, February 23, 2014 at 2:00 p.m. 3. The balance of the Motion is adjourned to February 27, 2014 at 9:30 a.m. in Red Lake. [ 6 ] On February 28, 2014 a further temporary order was issued as follows: 1. The Applicant, Felicia McNally, shall have temporary access to the children, Hailey Ray Hunter, born October 24, 2004, and Xavier Ryan Hunter, born August 11, 2009 from February 28, 2014 to March 2, 2014 after school or daycare, and from March 14, 2014 to 16, 2014.

The children are to be picked up at Red Lake daycare or Red Lake-Madsen Public School. 2. The children shall be returned to their paternal grandparents in Minnitaki, Ontario, by 2:00 p.m. after each visit. 3. Adjourned to March 24, 2014, at 2:00 p.m. in Dryden for full argument on temporary custody. [ 7 ] On June 24, 2014 a temporary order was issued by Justice Hoshizaki as follows: 1. The status quo to continue with the children, Hailey Ray Hunter, born October 24, 2004, and Xander Ryan Hunter, born August 11, 2009, residing with their father, the Respondent, Ryan Hunter, in Red Lake, Ontario. 2.

The child support pursuant to the order of Justice D. Fraser, dated September 28, 2007, in Paragraph 5, is hereby terminated and should not be enforced. Any payments received by the Applicant, Felicia McNally, from this day forward shall be immediately returned to Ryan Hunter.

3. Adjourned to July 14, 2014 at 2:00 p.m. in Dryden to set a date for trial in Red Lake. [ 8 ] On July 7, 2014 Justice Hoshizaki issued a further temporary order as follows: 1. On consent the applicant Felicia McNally shall have the children Hailey Ray Hunter born October 24, 2004 and Xander Ryan Hunter born August 11, 2009 on the following days during the summer: (

i) July 11, 2014 after daycare until July 16, 2014 by 7:00 p.m.; (ii) August 1, 2014 after daycare until August 8, 2014 by 7:00 p.m.; (iii) August 10, 2014 by 7:00 p.m until August 15, 2014 by 7:00 p.m.; (iv) August 17, 2014 by 7:00 p.m. until August 22, 2014 by 7:00 p.m. 2. The applicant Felicia McNally shall pick up the children at the commencement of her access and the respondent Ryan Hunter shall pick up the children at the end of her access. EVIDENCE OF RYAN HUNTER : [ 9 ] The father is 29 years of age, works at Fountain Tire in Red Lake and earns approximately forty-six thousand dollars per annum..

He has lived in Red Lake for approximately the last three years. [ 10 ] He has had an on-and-off relationship with the mother for approximately ten years. [ 11 ] The father’s main concern is the numerous relationships that the mother has had since separation and how that stability affects the children. [ 12 ] He has always allowed the mother to have the child tax credit and has always paid child support. [ 13 ] The father described the mother’s five last relationships with her current being Mr.

Steven Lappage whom she currently resides with and is pregnant by him. [ 14 ] In between relationships and during the relationship the father would engage in intimacy with the mother. [ 15 ] The mother has been employed off and on as a waitress, a support worker, at a Pizza Hut in Dryden and at the New Starts for Women shelter in Red Lake. [ 16 ] The oldest child Hailey is in grade four at the Red Lake Madsen Public School and the youngest child Xander is in junior kindergarten at the same school. [ 17 ] On one occasion the mother took the children out of the Red Lake public school and moved to Ear Falls with no notice to the father but the children were returned shortly thereafter. [ 18 ] The father wants to be the primary caregiver for the children with the mother having access on weekends and any other times that can be agreed upon. [ 19 ] The father, since being granted temporary custody has encouraged access and has driven the children to Dryden to effect that purpose. [ 20 ] The father was shown digital photos taken by the mother of drugs and drug paraphernalia and is of the view that those photos were staged but admits that he self-medicates with marijuana.

He admitted in entering into a peace bond with the mother as a result of a criminal code charge which was withdrawn. [ 21 ] He takes the children with him to the beach, fishing, biking and some hunting activities.

He enrolled the children in the daycare and attended the school to fill out the forms. [ 22 ] He denied that he ever agreed that the children be returned to the mother once she became stabilized in her new relationship and secured accommodation in Dryden. [ 23 ] The mother would occasionally pay for groceries and they have not been a couple since 2007 although they shared accommodation from time to time. [ 24 ] His evidence was the mother used pot in the past and that he never uses drugs in the car and that his drug paraphernalia is stored in his jacket pocket in the closet. [ 25 ] He states that he does not smoke marijuana in the presence of the children and that the mother is a good mother but that he can provide a more stable home for them.

EVIDENCE OF FELICIA MCNALLY :

[ 26 ] Ms. McNally is 26 years of age and has a relationship with Mr. Hunter since 2007. [ 27 ] The oldest child lived with her from 2007 to 2011 and she gave reasons for the various moves and locations over the period that she was involved with Mr. Hunter. She stated that the father is very accommodating in picking the children up and sometimes herself to effect access. [ 28 ] The father returned to Red Lake in 2007 for employment and she remained in Dryden with the children.

She came to Red Lake in November of 2011 as her father had a heart attack and needed her assistance. [ 29 ] She described working in Red Lake at the New Starts for Women but for the most part she cared for the children. She arranged for all of the appointments and bought groceries and clothing for the children from time to time. [ 30 ] She acknowledges that she entered into a relationship with Mr. Jason Fletcher, but that did not work out and she separated from him in December of 2013.

The father had financial issues and wanted her to pay for hydro and groceries and cable which were a factor in bringing the children back with her to Dryden as he could not properly provide for them financially. [ 31 ] She was living at Thunder Lake and told him she was not going to return the children because of his financial issues and his inability to provide the necessities for the children as it was winter and the hydro was going to be cut off. [ 32 ] Since February of 2014 there has been a great deal of contact with visitation almost every weekend. [ 33 ] At one time the father told her he would give the children back to her once she became stabilized and she has had access for the whole month of August. [ 34 ] She states that the marijuana photos were not staged.

The drugs and paraphernalia were left out in the open for anyone to see, one tray on a dresser, another tray on the kitchen table and a pipe laying around. [ 35 ] She stated that Mr. Hunter smokes marijuana every day, one to two times a day, and in front of the children. [ 36 ] She is concerned that if Mr. Hunter were to drive an automobile with the children present that would put them at risk. [ 37 ] The children have told her extended family in her presence that the father smokes green stuff. [ 38 ] The mother admitted to smoking marijuana one time approximately nine years ago. [ 39 ] Ms.

McNally is living with Mr. Steven Lappage and they are expecting a child in the near future. [ 40 ] She is currently working for Austin and Austin a real estate firm in Dryden as a receptionist. In the past she has had jobs at Pizza Hut, Kuppers Restaurant and the Mohawk gas station. [ 41 ] She was very concerned about a bogus phone call from the father stating that the child Xander had health problems, was admitted to the Red Lake hospital and then flown to Thunder Bay. That turned out to be not true and caused her a great deal of unnecessary stress. EVIDENCE OF MR. STEVEN MATTHEW LAPPAGE : [ 42 ] Mr.

Lappage is 30 years of age and lives with the mother in his brother’s cabin on the Northshore Road Thunder Lake, Ontario. They have had a relationship since January 2014. Mr. Lappage is a guide at a fishing camp and feels that he has a good relationship with the mother. DECISION : [ 43 ] Having heard all the evidence I am of the view that there should be a joint custody order with the primary residence of the children to be with the mother for the following reasons:

(1) Both parties acknowledge that the other is a good parent. A major concern for the court is that the father is engaging in criminal activity in the presence of the children with no comprehension of what that may do to his person or his social status. He has already been banned from Goldcorp for working underground as a result of a failure of a random drug test. He appears to take this very casually as though it is normal behaviour. It is not, it is criminal behaviour.

(2) The other major concern is the false statement that the father made to the mother about the child Xander having health problems and being admitted to the Red Lake hospital and then flown to Thunder Bay. He did not deny this allegation and I am finding that he in fact made it. This reflects very negatively on him as a parent as the mother cannot trust him to tell the truth. The danger of course is that if there is a health problem the father is ill equipped to protect the children and advise the mother who has been an equal caregiver.

(3) There has been a history of sharing the child care responsibilities for these children and it is acknowledged that the children have been physically present in Red Lake for the approximately the last three years but the mother has had a major role in caring for them and only left Red Lake in January of 2014 and since that time has had a great deal of access.

(4) The father has been accommodating and I accept that he agreed at one time to return the children to the mother once she became stabilized and then he reneged on that promise. [ 44 ] For all of the above reasons there shall be a joint custody Order with the mother having the primary care and control and the father having access as follows:

(

a) Every second weekend from Friday at 4:00 p.m. to Sunday at 7:00 p.m. commencing September 19, 2014 and thereafter; (

b) Thanksgiving weekend to be with the father from Friday at 5:00 p.m. to Monday at 7:00 p.m. commencing October of 2014 and alternating each year thereafter; (

c) The father shall have Christmas access from the termination of school until Wednesday, December 24, 2014 at noon with the mother having access from December 25, 2014 at 1:00 p.m. until December 31, 2014 at noon with the father having access from December 31, 2014 at 1:00 p.m. until January 4, 2015 at 4:00 p.m.; (

d) Any other time that is agreed upon by the parties. [ 45 ] The father shall pay child support in the amount of $ 695.00 based on an income of $46,000.00 with the Guideline amount for two children being $695.00 commencing the first day of October, 2014 and payable on the first day of each mother thereafter. [ 46 ] A Support Deduction Order shall issue. [ 47 ] All support payments shall be payable to the Director of the Family Support Plan who shall pay them to the person that they are owed. [ 48 ] There will be a post-judgment interest clause. [ 49 ] There will be a sharing of financial disclosure clause. [ 50 ] If costs are an issue it can be spoken to Released September 15 2014 Signed: Justice P.T.

Bishop