nan D.I.V. A.D. 1999 No. 219 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA RESPONDENT Gerald B. Heinrichs for S. W. S. W. Timothy Stodalka for C. J. S. respondent JUDGMENT GUNN J. May 3, 1999 [1] S.W.S. and C.J.S. married September 21, 1996 and separated April 19, 1999. They each seek interim custody of their son, W.S.S., born October 10, 1997. [2] Because of the significant contradictions in the evidence filed by S.W.S. and C.J.S. relating to each other and to the other's abilities and shortcomings as parents viva voce hearing was held to assist in determining questions of credibility. [3] S.W.S. alleges that C.J.S. is clinically depressed and addicted to alcohol. He says she attempted to commit suicide on two occasions: May of 1998 and April of 1999. Additionally he says she stays out very late in the bars, attends the Apollo motorcycle gang's clubhouse, and that she uses narcotics including crack cocaine. [4] C.J.S. alleges that S.W.S. is an abusive man with an alcohol problem. She says he drinks regularly to excess, to the point of losing consciousness. She says his abuse is directed at her and at strangers. She says he is also regular user of marihuana. She says S.W.S. and most of his extended family are heavy smokers, to the point that it is not healthy for W.S.S. to be in their home. ISSUESA. Interim Custody/Primary ResidenceB. AccessC. Interim Child Maintenance Re: 1. Interim Custody/Primary Residence [5] C.J.S. is 31 years of age and is employed as unit secretary at the Regina General Hospital. She remained at home with W.S.S. for the first year after his birth and then returned to work at the hospital. Until April 15 of this year C.J.S. worked variety of shifts, but she now works days one week and days the next from 8:00 a.m. to 4:30 pm. [6] C.J.S. suffered from post partum depression following W.S.S.'s birth. She said she was feeling overwhelmed, the marriage was in trouble, she felt hopeless and thought the only way she could get away from S.W.S. was to die. She attempted to commit suicide May 1, 1998. She was under the influence of alcohol at the time, and she parked her vehicle on railway track. She was not injured, but ultimately was convicted of driving while over .08 as result of this incident. She was also hospitalized for approximately weeks in order to receive psychiatric assistance. [7] C.J.S. has received assistance from her psychiatrist, Dr. Beattie who says C.J.S. is now unlikely to have any further suicide attempts in the future. Dr. Beattie says C.J.S. responded well to treatment in hospital and worked cooperatively with counselling. After discharge from hospital C.J.S. attended rehabilitation course at Myer's Centre. Dr. Beattie expressed the opinion that C.J.S.'s psychological state now is quite stable and she is capable of caring for her son. [8] Rod McLeod, medical social worker with the Regina Health District also had the opportunity to work with C.J.S. while she was in hospital and thereafter on periodic basis. He says C.J.S. was able to regain sense of her own self worth and self image during her hospitalization. She came to grips with her alcohol abuse and took advantage of rehabilitation at Alcohol and Drug Services. He said W.S.S. was with C.J.S. almost every afternoon during her hospitalization and he observed strong bond between mother and son. [9] Sally Elliott, perinatal nurse/counsellor employed by the YMCA has known C.J.S. since she began attending prenatal classes in 1997. She is aware of C.J.S.'s post partum depression and says C.J.S. attended their group session for post partum depression. She describes C.J.S. as being honest and forthright concerning her illness and says C.J.S. strives to be the best mother she can be. She has observed C.J.S. with W.S.S. at their group sessions and says their relationship is caring, supportive, stimulating and safe. She sees all the attributes of an excellent parent in C.J.S.. From her observations she says C.J.S.'s illness does not impact on W.S.S.'s quality of life in negative way. [10] C.J.S. has also filed affidavits from her sister L.P. and her friend M.B. who are both supportive of C.J.S. and her parenting skills. C.J.S. says her support network includes her mother and everyone who has filed affidavits in support of her application. [11] In response to S.W.S.'s allegations, C.J.S. denies she spends time at the Apollo clubhouse, denies she uses illicit drugs, and denies she is abusing alcohol. She further denies she attempted to commit suicide in April, 1999. She says she has taken treatment for her psychiatric problems, and is currently taking some medication prescribed by Dr. Beattie. She voluntarily submitted samples of her bodily fluids for an evaluation and she is drug and alcohol free. She also denies that S.W.S. was the primary caregiver for W.S.S. prior to their separation. She says she has been W.S.S.’s primary caregiver, and stayed home with him for the first year of his life. S.W.S. and C.J.S. separated in January 1999 for 11 days, and she says she had W.S.S. for five of those days. When she was hospitalized in May of 1998, W.S.S. spent most afternoons with her at the hospital. Since their separation April 19, 1999 C.J.S. has only been permitted to see W.S.S. on two occasions for total of eight hours by S.W.S.. [12] C.J.S. continues to live in the same apartment occupied by the family prior to separation. If awarded interim custody, or if W.S.S.'s primary residence is with her, she proposes to utilize the services of the Regina General Hospital Daycare and to provide S.W.S. with access on his three days off each week. [13] S.W.S. is 32 years of age and is currently employed at Ipsco on shift work. He works days, nights, has partial sleep day and has days off. [14] He and W.S.S. are currently living with S.W.S.'s parents, P.S. and B.S. B.S. also works at Ipsco, and P.S. works six hours per week with Hallmark Cards. S.W.S. says W.S.S. is very close to P.S. and that P.S. is prepared to care for W.S.S. when he is working. [15] P.S. says she is close to her grandson and is prepared to care for him. She says they have pleasant home and that in their home W.S.S. can maintain the same routine all day. He need not go to babysitters or to other caregivers. [16] S.W.S.'s friend C.K. also attests to P.S.'s care of W.S.S.. [17] S.W.S. denies being an habitual user of marihuana, but admits he is casual user. He denies he has problem with alcohol. Rod McLeod indicated in his materials that when he was working with C.J.S. he attempted to work with S.W.S. too. S.W.S. allegedly admitted to him that he was heavy user of alcohol and drugs, but he did not see this as problem. S.W.S. also apparently acknowledged that he had suffered numerous blackouts. S.W.S. denies having this conversation with Rod McLeod. He does say, however that on couple of occasions he wet their bed—either because of alcohol as alleged by C.J.S. or "possible pulled muscle" as indicated by S.W.S.. (c) Conclusions [18] I have concluded W.S.S.'s primary residence should be with C.J.S.. Based on the information before me I believe C.J.S. has always been W.S.S.'s primary caregiver. She remained at home with him for his first year of life. She says, and I accept that she was responsible for W.S.S.'s day to day needs, his health care, and his child care. S.W.S. agrees that C.J.S. organized the babysitting, but says he was involved as well in W.S.S.'s health care needs. He was, however, unable to name W.S.S.'s pediatrician. [19] W.S.S.'s babysitter, A.F. indicated that in her view C.J.S. was the primary caregiver. She also indicated her view of S.W.S. as being hostile and angry man. She said W.S.S. was always happy to see his mother and he did not exhibit this same emotion if S.W.S. came to pick him up. C.J.S. called regularly during the day to check on his welfare. [20] have no doubt that P.S. is capable of caring for W.S.S. and has indicated her willingness to do so, but she is not to be preferred over C.J.S.. do not accept that S.W.S. has had or will have any significant role in caring for W.S.S.. [21] C.J.S. continues to live in the same home occupied by the parties prior to separation. If it was satisfactory to them as an intact family unit it is satisfactory now. [22] am satisfied that C.J.S. has taken steps to deal with her psychological and psychiatric difficulties. There is independent evidence of this from Dr. Beattie, Sally Elliott and Rod McLeod. note S.W.S.'s total disregard of her well being on the date she did attempt to commit suicide. He acknowledges that he received call from the Regina City Police at 4:00 a.m. to advise him of what had happened. He was told she had been in an accident and was hurt and that she was being held in police cells. His response was to ask if they could keep her until noon. [23] am not satisfied that C.J.S. attempted to commit suicide in April of 1999. She denies that she did. J.P. (C.J.S.'s sister's estranged husband), says she called him April 13 to disclose that she had taken an overdose of sleeping pills. There is no telephone record of his call. S.W.S. says the attempt was on April 4/5, 1999. Even so, he did not call Dr. Beattie, or an ambulance, or any other health care provider to assist C.J.S. if this had truly happened. [24] S.W.S. has kept W.S.S. from C.J.S. since April 19, 1999. He has only permitted her to see her son on two occasions for four hours on each occasion. He justifies this by saying that he was concerned for W.S.S.'s welfare, given her recent alleged attempt to commit suicide. However, this concern did not prevent him from leaving W.S.S. with C.J.S. for number of days immediately following this alleged attempt at suicide while he continued working. The courts are always concerned when custodial parent interferes with the access of the other parent. C.J.S., on the other hand, is prepared for S.W.S. to have access for the three days he is off work each week. [25] Despite S.W.S.'s allegations about crack/cocaine, etc. he has no personal knowledge of same and it is denied by C.J.S.. Her laboratory tests confirm that there are no narcotics in her system. [26] am satisfied that it is in W.S.S.'s best interests to be in C.J.S.'s custody. W.S.S. shall be returned forthwith to C.J.S. S.W.S. shall also make arrangements forthwith to return to C.J.S. W.S.S.'s furniture, clothing and other belongings. Re: B. Access [27] S.W.S. shall have access to W.S.S. on the three days each week he is not working. This will include overnight access. S.W.S. shall provide C.J.S. with his schedule for the purpose of arranging access. Re: C. Maintenance [28] I find S.W.S.'s gross annual income to be $48,897.00. find C.J.S.'s gross annual income to be $16,546.00. S.W.S. shall pay to C.J.S. as interim maintenance for W.S.S., the sum of $393.00 commencing May 1, 1999 and payable on the first day of each and every month thereafter until further court order. [29] I find that C.J.S. incurs child care costs in order to maintain her employment. S.W.S.'s pro-rata share of those expenses is 75% and C.J.S.'s pro-rata share is 25%. C.J.S. shall provide to S.W.S. record of the child care costs actually incurred, and S.W.S. shall be responsible to reimburse C.J.S. for 75% of those costs within 15 days of the presentation of the bills.
The parties were married in September 1996 and subsequently separated in April of 1999. The parties both seek custody of their only child born in October 1997. The issues before the court is interim custody and primary residence of the child, access by the other parent and interim child maintenance. The parties filed evidence that was considerably contradictory relating to each other and respective abilities as parent. viva voce hearing was held to assist determining the questions of credibility. The mother aged 31 years of age, is employed as secretary. The mother remained at home during the first year of the child's birth then returned to work. The mother suffered from post partum depression following the child's birth and as result attempted to commit suicide. She was hospitalized for three weeks to receive psychiatric assistance. The psychiatrist who treated the mother states the mother is unlikely to have future suicide attempts and has responded well to treatment. The child was with the mother every afternoon during her hospitalization and the mother bonded with her son. The father is currently employed at Ipsco on shift work and is currently living with his parents. The father has had the child since the separation and the child has had little access with his mother. HELD: The child's primary residence should be with the mother. Based on the information before the Court, the mother has always been the primary caregiver of the child and remained at home with the child for the first year of his life. The mother was responsible for the child's day to day needs, health care and child care. As well the father asserts that he was involved in the child's health care needs but was unable to name the child's pediatrician. The father will have access to the child for three days when he is not working including overnight access. The father's gross annual income is $48,897 which results in a payment to the mother for child maintenance in the sum of $393.00 payable on the first day of each and every month until further ordered by the Court. In addition the father will responsible for 75% of the child care expenses.