Court File and Parties
Ontario Court of Justice
Applicant: Ms. S. Venditti
Counsel: Ms. E. Chan
Respondent: Mr. V. Adorno
Counsel: Mr. A. Di Battista
Endorsement
Justice A.W.J. Sullivan
Background and Procedural History
1Today's hearing was conducted via teleconference link due to COVID-19 directions regarding distancing. All parties and counsel were present and the Motion review was argued on the record.
2Today's Motion Review was of my April 2, 2020, order granted to Ms. Venditti without notice on Mr. Adorno. The order granted was temporary without prejudice restraining Mr. Adorno from direct or indirect contact with Ms. Venditti and their daughter, Valentina, born May 7, 2019, and directing that he not be within 500 metres of their Waterbury Street residence or where Ms. Venditti works.
3In granting such without notice orders I am aware of the following when doing so:
a) That the court has only one side of the story and could easily be duped.
b) That such a practice offends the long-established rules of fairness/natural justice; Rule 2(3)(a) ensuring the procedure is fair to all parties.
4Rule 14(14) directs that such without notice orders are to be reviewed, if possible, within 14 days before the same judge. It is my practice to do so as early as possible in order to hear evidence from both parties and limit any prejudice that such orders may impart.
5Today I have Mr. Adorno's affidavit evidence and a final reply from Ms. Venditti.
6Neither party has been cross-examined on this evidence which is not unusual at this stage of the proceedings and as such is a further challenge to the court as much of what is offered is competing versions of events that each has recollected differently or simply deny occurring in their relationship.
Evidence Considered
7The relevant evidence I have considered on this Motion Review that is the basis of my Temporary Order set out below, is as follows:
Ms. Venditti's Evidence
8Ms. Venditti deposed that:
a) They have had a 4-year common-law relationship during which Mr. Adorno has been controlling and verbally abusive.
b) That she fears for her life as Mr. Adorno has escalated in his threats and abuse claiming he told her that he won't be dragged through a second contested separation; that he would simply kill her.
c) That on March 29, 2020, he broke open a locked bedroom door with their 10 month-old daughter in his arms. Ms. Venditti claims she was sheltering from Mr. Adorno's anger.
d) That he physically threw Ms. Venditti out of the house which his 7 year-old daughter witnessed while on an access visit and that he smashed a plastic box out of anger and put his fist through a coffee table. A photo of this damaged table was attached to her reply affidavit.
e) That although on March 29, 2020, the police have asked him to remain out of the home, she has witnessed him driving by the home and cruising the neighbourhood.
f) That in addition he has taken to harassing her extended family and her family doctor who treats her and their daughter. He has been asking her doctor for information about her health records.
g) That on April 1, 2020, while he was under a police escort to retrieve some of his belongings, Mr. Adorno took the time to verbally assault her, scatter their belongings from one room to another and was acting aggressively to the point that the OPP officers in attendance told him to end the process.
h) In a reply affidavit she provides a note from her family doctor, Dr. K. Kale, dated April 2, 2020, indicating she is mentally fit and can care for her children.
i) That Mr. Adorno has for some time not only been verbally hurtful in his language and tone with her but has been so with her older daughter Sophia and in the presence of Mia, his daughter from another relationship that spends access time at their home. Ms. Venditti attached a note dated 07/01/18 from Mr. Adorno to Sophia in which he admits to his anger to the family and in this note he writes (in handwritten print)… "sorry I raised my voice and treated you with disrespect." Later in this letter he states… "I really fucked up with you, mom and Mia today. I'm sorry please forgive me. Vito."
j) Ms. Venditti in her reply affidavit denies she has fabricated Mr. Adorno's behaviour in their relationship in order to keep their daughter Valentina from him or gain advantage in litigation as he argues, and offers access that she feels should be supervised by the paternal grandparents where Mr. Adorno is living, and with exchanges facilitated through her father.
k) She does, however, request that Mr. Adorno be restrained from direct contact with her and that he be restricted from approaching her residence or place of work.
Mr. Adorno's Evidence
9Mr. Adorno deposed to the following:
a) Ms. Venditti has never stated he is a danger to their daughter, Valentina, born […], 2019.
b) He denies he is a threat or that he has abused Ms. Venditti as she claims.
c) That on March 30, 2020, he had vacated their home voluntarily. He has been living with his relatives and Ms. Venditti failed to inform the court of this when she commenced her Motion without Notice.
d) He has no intention of returning to their home and as such there is no cause for a restraining order.
e) That he had instructed his lawyer to reach out to Ms. Venditti to set up a regime of access. Emails to this effect were attached to his affidavit.
f) That he has another daughter, Mia, age 7, and in a trial decision of June 7, 2019, he was granted joint custody of Mia and an equal parenting plan. The Superior Court Divorce Order of J. Petersen was attached for my review. No reasons were attached as oral reasons were given at trial.
g) Mr. Adorno also noted that Ms. Venditti gave supporting testimony for him at the trial with Mia's mom. This he states should put into question Ms. Venditti's assertion now that he is abusive. He attached a recent emergency motion decision from Justice Petersen from a motion commenced by Ms. Adorno. Apparently Ms. Venditti contacted her with fears of Mr. Adorno's behaviour. It was on this basis that Ms. Adorno brought her motion to restrict Mr. Adorno's access with his older daughter Mia who is 7 years old.
h) J. Petersen asked to review Ms. Venditti's initial affidavit that she filed before me in this proceeding. J. Petersen also had Mr. Adorno's responding affidavit in the Superior Court of Justice motion, which I assume had similar information put before me regarding Ms. Venditti's allegations.
i) Justice Petersen in his Endorsement/Order upholds or maintains Mr. Adorno's access with his daughter Mia and questions Ms. Venditti's allegations that she has an immediate fear of Mr. Adorno…"I have reason to believe that Ms. Venditti's claims are exaggerated." J. Petersen gives the following reasons why:
i. She testified at Mr. Adorno's trial stating that he was a loving and caring father to Mia;
ii. That he has not been harassing her family doctor and noted that the correspondence filed between Dr. K. Kale and Mr. Adorno is the normal back and forth regarding concerns about Ms. Venditti's emotional well-being; and,
iii. That there is no evidence that police removed Mr. Adorno from their home and that he left on his own and this was confirmed in a letter/email from his lawyer of March 31, 2020, to Ms. Venditti's requesting that an access regime be established.
10J. Petersen concludes in paragraph 34 of his endorsement"… although I make no finding of fact in the Ontario Court of Justice proceeding, I have doubts about Ms. Venditti's credibility."
11Mr. Adorno also deposed that he has concerns regarding Ms. Venditti's mental health. He suggests this is in part due to the death of a 16 year-old daughter to cancer and a miscarriage while with Mr. Adorno in 2017 when she was 6 months pregnant.
12He claims that in January 2020 Ms. Venditti threatened to hurt herself and leave their relationship and on March 27, 2020, she threatened to overdose but didn't. He deposed the police were called in January 2020 and Ms. Venditti attended the hospital.
13On March 28, 2020, Ms. Venditti left the home on her own and the police found her a few hours later. In January 2020 and March 2020, Mr. Adorno indicates he phoned the police out of concern for Ms. Venditti.
14Mr. Adorno further states that when Ms. Venditti returned home on March 28, 2020:
…She refused to go to the hospital, she refused me taking our daughter to my mom's home for a bit to let things cool down. In response Stephanie locked herself in the bathroom and she wouldn't answer my calls. I knocked open the door because I feared she would hurt herself. I admit I did damage the bathroom door. The door can be replaced, but Stephanie's life cannot be released (sic). Once again, there was no danger to anyone, except for Stephanie, being a danger to herself. She had a habit of consuming my pain pills, as well as, her pills. I continue to worry that she will overdose one day.
15Mr. Adorno deposed several times in his affidavit that he voluntarily left the home and that in paragraph 33 of his affidavit… "Stephanie knows full well that I would want nothing less than joint custody and a shared parenting of my daughter, just as I have with my other daughter, Mia. She falsely makes these statements in order to get an upper hand in a Court matter…"
16In paragraph 35 he states… "on March 27, 2020, when Stephanie left the home, without our daughter, I was concerned for Stephanie's well-being. I was worried that she would hurt herself again. I called the police. I am not sure what Stephanie told the police, but I listened to advice and left our home on March 30, 2020, to avoid any conflict."
17Mr. Adorno outlines a shared access plan for his daughter Valentina which is a 3/2/3 rotating weekly schedule which he indicates he would exercise while living with his parents in Woodbridge, Ontario.
Discussion and Decision
Judicial Notice and COVID-19 Context
18In my considering the evidence filed in this Motion, I have done so taking into consideration the following:
- that the current COVID-19 health crisis with the Provincial directives to remain isolated as best as possible creates a particularly vulnerable situation for families experiencing domestic difficulties.
19At this time in the province people are not out and about with other eyes in the community observing them as readily as they were in early March 2020.
20Many places that may act as buffers for women and children who are in difficult relationships are not available to them at this time such as work, schools, parks, libraries, shopping malls and neighbours. Currently, normal direct contact with extended family, doctors and protection agencies is strained. This is significant as, more often than not, the difficulties that vulnerable people experience in our communities are often seen/observed by others through that person's presentation, expressions, and demeanour rather than spoken about initially.
21I do not shy away from stating that this current climate is more problematic to women and children within a hurtful relationship, be it physical, emotional or financial harm they are experiencing. I also accept as fact that relationship violence is more likely to occur within the immediate period of post-separation. The above I can take judicial notice of with the following caveats and direction. A court may judicially take notice of facts that are either:
So notorious or generally accepted as not to be the subject of debate among reasonable persons, or;
Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. R. v. Find, 2001 SCC 32, 154 CCC (3d) 97 (SCC).
This is generally used as the test for adjudicative facts.
May be taken of facts so notorious as to be beyond reasonable dispute. A court is not entitled to rely on extralegal data that is unsupported by sworn testimony and therefore lacks the safeguards provided by cross-examination. R. v. Jordan, (1986), 57 Nfld. & P.E.I. R. 320.
A court should ask itself whether such fact would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the fact to the disposition of the controversy. See: R. v. Spence, 2005 SCC 71 at par. 65. This is commonly accepted as the test for legislative or social framework facts.
If something is broadly known, that is enough, even if it is not universally known. It is also acceptable if the fact or proposition is confirmed in commonly consulted sources that are trusted to be accurate. R. v. Cobham, [1994] 3 SCR 360.
Regardless of whether the facts are classified as adjudicative or social context, if they closely approach the central issue which the court must determine, it is unlikely the court will take judicial notice of them. In this sense, the use of judicial notice operates on a sliding scale.
See Justice S. Sherr's paper on Evidence – General.
Prior Court Findings
22In assessing the evidence in this motion, I have also considered Justice Petersen's April 17, 2020, endorsement between Mr. Adorno and the mother of his daughter Mia, Rocchina Adorno.
23In part this was provided to me by Mr. Adorno's counsel so I would take notice of J. Petersen's questioning of Ms. Venditti's credibility and that court's decision to maintain his access with his daughter Mia. Such prior court orders are a further form of information that I may take judicial notice of. Reasons for decision and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders, even in other files. Attorney General of B.C. v. Malik, 2011 SCC 18, 2011 1 S.C.R. 657; Children's Aid Society of Toronto v. I.H., 2017 ONCJ 760. Statements of Agreed Facts are admissions – an exception to the hearsay rule.
Statutory Framework
24In addition, I have considered Section 24 of the Children's Law Reform Act, in my assessment of an individual's request regarding custody and access and in particular Section 24(4) which directs me as follows:
24(4) - In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child.
Analysis of Evidence
25Today's decision is a review of my emergency order of April 2, 2020.
26Today's motion is to establish a holding order that could be further changed after a case conference in this matter.
27Today Ms. Venditti has agreed that Mr. Adorno should not be restrained from contact with his daughter Valentina, age 1, but that his access be in the presence of his parents with whom he lives.
28She also seeks that he not be permitted to contact her directly and that he stays away from where she lives and her workplace when she is there.
29In my assessment of the need for a continued restraining order I find the following evidence relevant.
Credibility and Prior Court Findings
30In J. Petersen's decision he dismisses Mr. Adorno's suggestion that his daughter Mia's reluctance for the past while to attend access at his home that he had shared with Ms. Venditti was because his former spouse, Mia's mom, Ms. Rocchina Adorno, was poisoning Mia and involving her in litigation. Mr. Adorno deposed that Mia's mom is upset that she "lost the trial" …upset that "child support is reduced" and "upset that he started a Small Claims action against her in January 2020."
31To this, J. Petersen states in his decision the following:
31c. I reject Mr. Adorno's submission that Ms. Adorno has orchestrated or manufactured a rift between him and Mia. Based on the preponderance of evidence, I find that Mia's reluctance to spend weeks at her father's residence is the result of escalating conflict in that residence that was creating a toxic environment for her. Mr. Adorno did not effectively shield her from that conflict. However, he has now moved out of the residence that he shared with Ms. Venditti…
32As noted earlier, although Justice Petersen did question Ms. Venditti's credibility, he did not comment on the evidence filed before me nor make findings of fact regarding the affidavits filed in the Ontario Court of Justice.
Uncontested Evidence
33I have before me the following uncontested evidence:
34Mr. Adorno admits to breaking down the bathroom door which he states needs to be replaced (Ms. Venditti indicated it was her bedroom door). He suggests he did this as he was concerned for Ms. Venditti's mental health.
35I do not accept this as a possible explanation. When one steps back and considers the force that it would take to damage the door such that it is required to be replaced, based on his own evidence, such use of force is disproportionate to the emotional difficulties that Mr. Adorno suggests Ms. Venditti has had for some time. Also, on that day the police escorted her back home and there is no evidence that the police had any concern regarding Ms. Venditti's behaviour to herself or others.
36I was provided with nothing after the admission of force used to break the door open. I am told that Mr. Adorno did so as he was concerned for Ms. Venditti. I was provided with nothing as to what he said to her or did for her. I am left with Mr. Adorno breaking into a room where she says she was sheltering from his aggression. It is little wonder Justice Petersen says the atmosphere in this household was toxic.
Mental Health Allegations
37There was no medical evidence provided that Ms. Venditti was or is suicidal. She deposes that she takes anti-depression medication and a pain blocker due to a car accident. She also stated that in 2018 she voluntarily attended a therapy program.
38Ms. Venditti did provide a note from 2018 written by Mr. Adorno to her older daughter Sophia in which he apologized for what appears to be verbally abusive behaviour to her and to others in the household.
39Although submitted in Ms. Venditti's reply affidavit and therefore could be excluded, it was done in a direct reply to Mr. Adorno's statement that he is not abusive in any way during their relationship. This evidence indicates that at times he has been. This evidence cannot be excluded given my responsibility pursuant to section 24(4) of the CLRA as noted above.
Voluntary Departure from Home
40I also do not accept Mr. Adorno's suggestion entirely that he voluntarily left the home on March 29, 2020. He indicates in his affidavit that he accepted the advice of others in doing so. I am not certain whose advice he accepted as he does not say. I did receive evidence that his lawyer wrote to Ms. Venditti indicating that it was his advice to Mr. Adorno to do so. Also, Ms. Venditti deposed that when she returned home on March 28, 2020, after leaving for a while taking a drive in the community to be on her own, that when the police escorted her home, it was the police who initially encouraged Mr. Adorno, as did his lawyer, to relocate. I accept there is no evidence that the police escorted or ordered Mr. Adorno to leave.
41To suggest that he voluntarily left is, I believe, not necessarily entirely accurate when considered in the above-noted context. I also note that he did not do this the next day but took his time over the course of a day.
Pattern of Behaviour and Litigation Motivation
42I also find it interesting to note Mr. Adorno's choice of words when he accuses his former spouse of manipulating his daughter Mia.
43Justice Petersen's finding that the atmosphere in the home that he shared with Ms. Venditti was toxic to the welfare of Mia is of serious concern to me when I consider the following as well.
44Mr. Adorno presented to me a picture of Ms. Venditti as being mentally unstable without some reasonable evidence even at this stage of the proceedings.
45Indeed, I received a note from Ms. Venditti's doctor, Dr. Kale, dated April 2, 2020, that indicates that Ms. Venditti is mentally and physically fit and is able to care for her children.
46I pointed out to counsel for both parties during submissions that a doctor would have a positive obligation under the Child, Youth Family Services Act to report Ms. Venditti if indeed she was having the level of difficulty that Mr. Adorno suggests she has.
47I have no evidence to this effect but rather I do have the note from Dr. Kale which states the opposite.
48I also find quite interesting and telling Mr. Adorno's statement in paragraph 33 of his affidavit before me when he states that… "Stephanie knows full well that I would want nothing less than joint custody and shared parenting of my daughter, just as I have with my other daughter. She falsely makes these statements in order to get the upper hand in a court matter which should be a nonstarter in the first place…"
49I question when Ms. Venditti would have known of his litigation position? I can assume it might have been part of the toxic atmosphere leading up to his damaging the door with his 10-month-old daughter in his arms and maybe sometime after his 2018 note to the child Sophia apologizing for his behaviour.
50I cannot ignore that it is Mr. Adorno who commenced litigation with Mia's mother in January 2020 (Small Claims) and also, he apparently informed Ms. Venditti before he left their home of his position in their pending separation from her. He freely, however, suggests that it is both of his former spouses that are motivated to gain the upper hand in litigation and that they are acting on unfounded and created circumstances.
Restraining Order Findings
51Given the above findings and the early context and reference points that I have taken into consideration, when assessing the request that Mr. Adorno be restrained from approaching Ms. Venditti at her home or workplace, I find that such a request is reasonable at this time.
52I agree with Mr. Adorno that the evidence does not show he has physically hurt Ms. Venditti or his daughter. Ms. Venditti states she fears for her safety. This is her subjective belief. However, emotional and aggressive behaviour is abuse and is harmful.
53On a balance of probabilities based on my findings of fact, I find that Mr. Adorno has recently behaved in both ways such that a restraining order shall be granted in the circumstances.
Access Arrangements
54With regards to an access order both parties agree that access should occur.
55They also both agree that they require the assistance of a third party with or without the above restraining order.
56Ms. Venditti proposed her father as a person who could facilitate pick-up and drop-off.
57This was agreed to during the motion by Mr. Adorno.
58The issue is the length of access and format. Valentina is almost 1 year old, born […], 2019. She has only been cared for at her current home with either parent when they resided together.
59Ms. Venditti deposed she did most of the childcare and wakes during the night to feed her daughter although is not breast feeding.
60Mr. Adorno deposed he has assisted in Valentina's care and has cared for Mia. Both children normally spend time together. He is caring for Mia while living at his parents' home where he intends to remain for the next while.
61It was noted that given Valentina's age, 1 year, that overnight access might not be recommended but rather shorter frequent visits, while Mr. Adorno would also like frequent visits and suggests that longer overnight visits would be appropriate.
62I was not given much more evidence regarding Valentina, other than one visit to Sick Kids Hospital in 2019 where it was discovered that she is allergic to milk. I have no evidence regarding her overall development, her moods, sleeping habits and her developing likes and dislikes for a one year old. It is a given that she requires the full attention of a parent while in each of their care.
63Considering the overall evidence provided, the poor communication and COVID-19 limitations, it will be best to establish less back and forth for everyone at this time and in the child's best interest. I also find that one overnight per week will provide Valentina time with her father on a regular basis. This will maintain her bond with her father and strengthen the same. This temporary order will be discussed and reviewed at the Case Conference with the plan of expanding and adjusting the timing considering Valentina's development and the parties' co-operation as well as the ever-evolving COVID-19 health crisis.
Temporary Order
This court's April 2, 2020, CLRA order is vacated and replaced with the following:
That the principal residence of the child, Valentina Vita Adorno, born May 7, 2019, shall be with Stephanie Venditti in Bolton, Ontario.
That Vito Adorno and his daughter Valentina, born […], 2019, shall have access/parenting time once per week from Friday at 4:00 p.m. through to Saturday at 4:00 p.m. to commence Friday, May 1, 2020, and each week thereafter.
The pick-up and drop-off shall be arranged through a mutually agreed to third party. Presently that person is the maternal grandfather and he will arrange with Mr. Adorno a location for the exchange of Valentina.
All parties are to assure that Valentina is transported in an approved infant car seat that is properly installed.
Ms. Venditti and Mr. Adorno shall use a communication log to update each other on Valentina's needs and care, such as her feeding schedule, foods type and texture, illness and medication and a brief update of her sleeping patterns the day before access and during access. This log is not to be used for any other purpose to communicate between the parties and is to be available for the court to review and is not to be destroyed or pages removed.
All parties and their extended family assisting in Valentina's care are to assure that they continue to exercise all current updated Ontario Ministry of Health COVID-19 directions at home, work, when this recommences, and in the community.
Mr. Adorno is to exercise his access (overnight time) with his daughter at his parents' home such that Valentina is to sleep at his parents' home in a bed safe for a child of her age. Mr. Adorno is at liberty to go out with his daughter in the community as he deems safe and necessary such as the park for a walk and outings, shopping, or to obtain medication and the like. Mr. Adorno shall be the primary caregiver to his daughter during this parenting/access time stipulated in this order.
If either parent moves or intends to move from their current homes, they must advise the other 14 days in advance.
Both parties shall have the same right to communicate directly with any service providers who provide service to the child (i.e. doctors). The consent of the other parent for such communication or for the service provider to release information, documentation or records to the other parent, shall not be required. This order shall be sufficient authorization for said release.
In the event of an emergency involving the child, the parent who has care of the child shall provide the other with details of the nature of the emergency and the location where the child is. If the child is in hospital the parent who does not have the child in his or her care shall have the right to see the child.
If the parties are required to change the pick-up and drop-off time as set out above to accommodate work schedules, they should attempt to do this via their counsel who may file a consent variation via a 14B to my attention and they may also do so on any other aspect of this order, if required.
The Applicant and Respondent via counsel shall assure that by June 15, 2020, their pleadings, Application, Answer are amended/updated with the consent of the other to assure all claims are before the court and any financial statements and amended pleadings exchanged and filed well in advance of the case conference date noted below.
64The next event in this matter shall be a case conference to be held on July 14, 2020, at 10:00 a.m. Parties are to look for the courtroom number on the main docket board on the ground floor of the courthouse on the morning of the conference. Case Conference briefs and one 17F are/is to be exchanged and filed.
65Ms. Venditti's counsel shall have the approved draft order emailed to my assistant at within 7 days of today for my review.
Restraining Order
This court's April 2, 2020, restraining order is vacated and replaced with the following:
Mr. Vito Adorno shall not communicate directly with Ms. Stephanie Venditti except through his family law counsel and/or with her counsel.
Mr. Vito Adorno shall not be within 500 metres of […] Street, Bolton, ON and 500 metres of Ms. S. Venditti's place of employment, […] Road Mississauga, ON.
This Restraining Order remains in effect until a further order of this court.
Court Administration staff are to have this restraining order prepared by April 29, 2020, sign and issue same and send to counsel by fax or email and mail a copy to the Applicant and Respondent.
April 28, 2020
Justice A.W.J. Sullivan