2013 ONSC 2861, 2013 ONSC 2861

Funnell v. Dunford CITATION : 2013 ONSC 2861 COURT FILE NO.: 4892/12 DATE: 2013-05-15 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Joseph Funnell, applicant AND: Tasha Dunford, respondent BEFORE: Mr Justice Ramsay COUNSEL: both parties in person HEARD: 2013-05-15 at Welland ENDORSEMENT [ 1 ] The applicant moves to vary the final order of Henderson J. dated August 16, 2012 to give him sole custody of the child. The respondent cross moves for an order requiring the applicant to return the child to her forthwith. The motions are urgent and both parties want to proceed today.

I give leave for the motions to proceed before a case conference. [ 2 ] The child, a three-year-old girl, was living with her mother, the respondent, in accordance with Henderson J.’s order. The applicant father has bi-weekly access under that order. At the end of April 2013 the mother’s boyfriend, Chris Clayton, with whom she had lived for two years, was arrested and charged with sexually assaulting the 12-year-old daughter of his ex-wife. The respondent did not disclose this fact to the applicant. He found out about it from the ex-wife of the accused person.

The respondent moved to St Catharines with the child and her two older children. They live there with the respondent’s aunt. From time to time they visit the respondent’s mother and the mother’s partner, who have several times in the last few months been the subject of police investigations for domestic violence by the partner against the respondent’s mother. The partner has been in custody at least once for that reason. [ 3 ] The respondent’s boyfriend, Clayton, is now on bail with terms that prohibit him from being in the presence of children unless his surety or the child’s parent is present.

There is evidence before me that the respondent supported Clayton in the bail process. [ 4 ] The respondent’s two older children have been given counselling resources by CAS because of problems they have had with Clayton. The respondent says that she and Clayton are no longer together. Of course, they are not, to the extent that Clayton is obliged to live with his bondsman. I do not accept, however, that the relationship is over.

It is obvious that the respondent thinks that Clayton presents no threat to her child and that she has not given serious consideration to the objective evidence to the contrary. [ 5 ] I think that the respondent is unwilling or unable to protect her children from the influences that she brings into the home. She did not put her child first when she omitted to tell the child’s father about Clayton’s arrest. A responsible joint custodian would have told the other custodian right away. The mother was more interested in her own position than in the welfare of her daughter.

She has also put her relationship with Clayton before the needs of her other children. In these unusual and dramatic circumstances the applicant was justified in hanging on to the child while he asked the court for relief. It is not in the child’s best interest to be in the care of her mother. [ 6 ] The mother’s cross-motion for return of the child is dismissed. On a temporary basis I order that Henderson J.’s order be varied as follows: a. The applicant shall have sole custody of the child; b.

The respondent shall have bi-weekly supervised access of 3 hours to be arranged at her expense; the access shall take place at a suitable facility in Simcoe County; c. Child support payable by the applicant to the respondent is terminated as of May 1, 2013; SDO to issue; [ 7 ] Since the child is now ordinarily resident in Simcoe County, I order the file to be transferred to Barrie. The respondent is ordered to mail the child’s health card, birth certificate and immunization record to the applicant forthwith. J.A. Ramsay J. Date: 2013-05-15