Court of Appeal for Ontario

Date: 2019-08-07 Docket: C65483 Judges: Hourigan, Paciocco and Fairburn JJ.A.

Between

Bruno Rigillo Applicant (Appellant)

and

Maria Rigillo Respondent

Counsel

Michael Stangarone and Stephen Kirby, for the appellant

Harold Niman and Kristen Normandin, for the respondent

Heard: June 26, 2019

On appeal from: The order of Justice J. Scott McLeod of the Superior Court of Justice, dated May 3, 2018.

Reasons for Decision

[1] This court allowed the appeal in Rigillo v. Rigillo, 2019 ONCA 548. At the conclusion of the appeal, the court indicated that the order from trial will be varied. The parties were asked for written submissions on two issues:

1. The allocation of parenting time; and
2. The allocation of decision-making responsibilities in a parallel parenting arrangement.

[2] The parties' submissions have been received and reviewed by the court.

[3] The mother argues that this court should not decide the issues without the benefit of additional fresh/new evidence because the original order was made over a year ago. We disagree.

[4] A fresh/new evidence application was brought on the appeal proper. Detailed affidavits were provided by both parents. The information was up-to-date and extensive. We admitted the proposed fresh evidence on appeal, but only to the extent that it confirmed the continued existence of conflict between the parties. There was little in either affidavit that truly pertained to the issues to be resolved. We have reviewed that fresh evidence again for the purposes of these reasons and are satisfied that we have sufficient insight into the parties' and child's current situation, such that we are able to make the variations required.

[5] The parties are largely in agreement about the allocation of decision-making responsibilities. We agree with their mutual approach on that issue. Even so, there are a few matters that require explanation.

[6] First, the parties agree that before exercising their independent authority in a parallel parenting arrangement, they should first strive to achieve consensus on all important decisions relating to the child's education and medical/dental needs. They differ on the amount of time that they should be given to achieve that consensus. We agree with the mother that the 60 day period proposed by the father is too long. It is in the best interests of the child to have decisions made efficiently and in a timely manner. Accordingly, we would impose a consultation period of no more than 14 days, after which the decision will fall to the parent who has the assigned authority to make the final decision in the absence of consensus.

[7] As it relates to the child's education, we agree with the father's suggestion that, despite the mother's authority to make final decisions on that aspect of the child's life, both parties should be permitted to attend all school functions and attend parent-teacher meetings either together or, if the school agrees, individually.

[8] Equally, we agree with the mother that despite the father having the ultimate decision-making authority on non-emergency health/dental care, the mother should remain meaningfully involved in that aspect of the child's life. Accordingly, we order that each parent shall be responsible for taking the child to her medical/dental appointments during his or her time with the child.

[9] It is also in the best interests of the child to provide clear guidance to the parties in relation to any emergency medical decisions that may be required. In the event of such emergencies, we order that either party may make the decision and must notify the other as soon as possible.

[10] As for where the child resides, the father proposes various schedules that translate into roughly 50 percent of the child's time with him. The mother maintains that each of the father's proposals would substantially increase the child's commuting time during the school week and that this is not in her best interests. Although the record reveals some dispute on the matter, it appears that the child's school is about an hour's drive from where the father resides.

[11] The mother's position is a compelling one. The child is only six years of age. While the mother moved out of the father's jurisdiction, the parties have responsibly agreed that the mother shall remain the primary decision maker when it comes to matters of education. They also agree that the child will remain in her current school, close to the mother's home.

[12] Accordingly, there is a tension between ensuring that the child benefits from spending as much time with her father as possible and ensuring that, at such a tender age, the child is not commuting more than necessary to school.

[13] As the mother correctly points out, all decisions must be based on the child's best interests. The maximum contact principle does not necessarily require equal parenting time. One of the mother's proposed schedules keeps the child's schedule during the week largely unaltered from the existing order, but at the same time significantly increases the child's time with the father by adding a Friday night overnight with him on the weekends that she is otherwise with her mother, and adding a Sunday night overnight on the weekends that the child is with the father. That maximizes her time with her father, while at the same time minimizing additional commuting time during her school week. This proposal appears to us to be the most child-focussed way in which to honour the maximum parenting principle in the circumstances of this case.

[14] Accordingly, in accordance with the mother's proposed schedule three, the order will be varied to add an extra Friday night overnight with the father to the weekends that the child otherwise spends with the mother as well as adding a Sunday night overnight to the weekends that she spends with the father.

[15] The father also requests other relief, none of which was argued on appeal. Accordingly, we decline to grant that additional relief.

Court Order

[16] The court orders that:

The May 3, 2019 order of McLeod J. shall be varied as follows:

Paragraph one shall be deleted and replaced with the following:

(1) The parties will have joint custody of Chiara. Major decisions affecting Chiara's health, education and religious upbringing shall be made as set out below:

(a) As the parties agree that Chiara will continue to be raised in the Roman Catholic faith, both parties shall be entitled to attend and participate in all important events in her religious upbringing, including but not limited to her First Communion and Confirmation.

(b) Decisions about Chiara's education will be made in consultation with Chiara's teachers, principal(s) and counsellors. Chiara shall continue to attend St. Luke Catholic Elementary School in Mississauga, Ontario. Maria shall have the authority to make final decisions about any major issues relating to Chiara's education, extra-curricular activities and summer camps, over which the parties are unable to agree after a consultation period of 14 days. Both parties shall be permitted to attend all school functions regardless of the parenting-time schedule and shall attend parent-teacher meetings individually, if permitted by the school, or together if both parties consent. Each party shall obtain his or her own school calendar and both parties shall assist Chiara with the completion of homework when she is in their care.

(c) Decisions about Chiara's major, non-emergency health/dental care will be made in consultation with her Family Doctor, dentist, or other responsible health provider(s). Chiara shall continue to attend for therapy with Dr. Kelly Katsuras as needed and shall continue to attend appointments with her optometrist on a once annual basis, or otherwise as recommended by her optometrist. Both parties shall ensure that Chiara wears her prescription eyeglasses as needed. Bruno shall have the authority to make final decisions about any major issues relating to Chiara's non-emergency health/dental care over which the parties are unable to agree after a consultation period of 14 days. Bruno shall keep Maria informed of all medical/dental appointments. Each parent shall be responsible for taking Chiara to her medical/dental appointments during his or her time with her.

(d) In the event that an emergency medical decision is required, either party may make that decision and shall notify the other as soon as possible.

Paragraph 3 shall be deleted.

Paragraph 4(a)-(c) shall be deleted and replaced with the following:

Regular Schedule:

Chiara shall reside with Maria and with Bruno in accordance with the following schedule:

With Bruno as follows (and otherwise with Maria):

a. Every Tuesday from pickup after school (or at 3:00 p.m. on the days when Chiara is not in school) to Wednesday at 7:00 p.m. when Bruno shall return Chiara to Maria's home;

b. Alternate weekends from pickup after school on Fridays (or at 9:00 a.m. on the days when Chiara is not in school), to drop off at school on Monday morning (or until 3:00 p.m. on the days when Chiara is not in school); and

c. On the weekends that Chiara is staying with Maria, Bruno will pick her up after school on Friday (or at 3:00 p.m. on the days when Chiara is not in school) and drop her off at Maria's home on Saturday mornings at 9:00 a.m.

A new paragraph shall be added as follows:

The party who does not have Chiara in his or her care pursuant to the foregoing schedule shall be entitled to have telephone contact with her at 7:00 p.m. on a daily basis.

Costs

[17] The costs order from trial was previously set aside by this court. In light of their divided success at trial we would order that the parties bear their own costs. The parties agree that between the fresh evidence application in this court and appeal, costs in the amount of $21,000 inclusive of HST be granted to the appellant.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"Fairburn J.A."