Court and Parties

DATE: December 29, 2023 ONTARIO COURT OF JUSTICE

BETWEEN: Mujica Carelli v Dona Marcano

Endorsement 14 December 2023

Endorsement

[1] Both parents brought motions regarding their two children: Nicole, born 9 May 2011, now 12 years old; and, Maximo, born 10 Feb. 2014, now 9 years old.

[2] The parents were married on 2 May 2009, and separated on 1 May 2019.

[3] The case was started by the mother on 10 March 2023. In the case these temporary orders were made:

• on 6 October 2023 an order by Curtis, J. for:
  • primary residence to mother;
  • father’s parenting time supervised once per week at the Supervised Access Program, parents are to do the Intake promptly;
  • mother and maternal grandmother may also be supervisors, as follows, at mother’s home, Tuesday after school, and alternate Saturdays 2-6 p.m.;
• on 18 October 2023 an order by Curtis, J. allowing the mother to travel with the children outside Toronto without father’s consent, from 13 to 20 November 2023. The trip planned was to Disney World and for a wedding, in Florida, and the father refused consent; and,
• on 3 November 2023 an order by Paulseth, J. that the father is not to attend the children’s school, or mother’s home, or within 500 metres of either location, under s. 28 Children’s Law Reform Act.

[4] On the motions, the mother claimed:

• a restraining order regarding herself and the children;
• that the father does not communicate with the mother and the children;
• that the father does not go to the mother’s work;
• the father does not go to the children’s schools;
• that the father stay 500 metres away from the mother; and,
• no parenting time for the father.

[5] The father claimed an open schedule of visits without supervision.

[6] Neither parent was represented by a lawyer, although they were repeatedly advised by the court to get lawyers. As a result, their claims were jumbled, and the material filed was at times disorganized, confusing, too detailed and difficult to follow. Often there were claims made by the parents in their supporting affidavits which were not listed in their Notices of Motion. The court made every effort to identify and determine those claims, as much as possible. So much material was filed by the parents (particularly by the father) that the court made an order on 14 November 2023 that no further affidavits shall be filed by either parent.

[7] On 18 October 2023 the motion regarding father’s claims for unsupervised parenting time and the mother’s claims for a restraining order was scheduled to be argued on 14 December 2023. The father brought repeated requests for an earlier court date for his motion to change the temporary parenting time order. These requests were refused (3 November, 15 November, 17 November 2023), by two different judges.

[8] The father has a history of mental health concerns. He was diagnosed with paranoia and psychosis in 2016 and was prescribed medication. He had a further mental health episode in 2017 and received services from the Centre for Addiction and Mental Health (“CAMH”), and was under treatment. His behaviour was erratic from 2017 to 2019. From September 2019 to December 2022 he was under treatment for his mental health. In December 2022 he suffered a mental health breakdown. He was involuntarily hospitalized under Form 1 and Form 2 holds for mental health concerns, on two occasions between January and March 2023. The Consent and Capacity Board found the requirements of the Mental Health Act were not met, following a hearing, and the certificate of involuntary admission was rescinded on 4 March 2023.

[9] The father shows up unannounced to see the children. He texts and messages the mother daily and incessantly. He sends inappropriate text messages to the children. He entered the mother’s home without her permission or knowledge, in the night, in October 2023, when one of the children had left the back door open.

[10] The father’s recent behaviour has been out of control. He is aggressive, brash, demanding, and controlling. His behaviour is relentless and insistent, erratic and unpredictable, both regarding the mother and the children, and regarding the court case. He repeatedly insisted that the court hear his matters urgently and immediately, when the claims made did not meet the test for urgency under the Family Law Rules.

[11] The children (now 12 and 9) need stability, consistency and predictability in their lives. They do not have that now. The mother and the children are scared of the father. The father does not understand or perhaps does not care that he is frightening them.

[12] The father needs to take steps to have his mental health evaluated. If he does not have any mental health issues that require treatment (as he alleges), a doctor will write a letter telling the court that. Otherwise, he needs evaluation, and possibly treatment.

[13] It is not in the children’s best interests for there to be contact of any kind with the father. The children cannot continue to be exposed to his behaviour.

[14] It is in the children’s best interests that an order for decision-making be made.

[15] These temporary orders are made:

• orders of 6 October and 3 November 2023 are changed;
• sole decision-making responsibility to the mother;
• primary residence to the mother;
• no parenting time to the father, effective immediately;
• a separate endorsement is made regarding a restraining order; and,
• the father may not bring a motion to change this order without leave, obtained in advance on a Form 14B motion, maximum four pages in support, which request must include a letter from a psychiatrist regarding his current mental health.

[16] The father may want this matter sent to trial promptly. Trial planning can begin at the next court date.

[17] Both parents are strongly urged to get lawyers.

[18] The court staff shall immediately issue and enter all temporary orders made in this case.

[19] Adjourned to 15 January 2024 at 2.45 p.m., in person, for a case conference, with briefs.

Released 29 December 2023

Justice Curtis