Court File and Parties
Court File No.: Brampton 1422/11 Date: 2012-04-13 Ontario Court of Justice
Between: Scott Andrew DeCiccio Applicant
— And —
Alexandra Margo Hill-DeCiccio Respondent
Before: Justice P.W. Dunn
Heard on: 29 March 2012
Ruling on Motion released on: 13 April 2012
Counsel:
- Scott Andrew DeCiccio ......................................................................................... on his own behalf
- Kemi L. Palmer ................................................................................................... for the respondent
Endorsement
P.W. DUNN, J.:
[1] Scott Andrew DeCiccio was the applicant, and Alexandra Margo Hill-DeCiccio the respondent. They are the parents of Luca Milton John Hill-DeCiccio, born […] 2009 (Luca). Mr. DeCiccio sought custody, which was opposed by Ms. Hill-DeCiccio. Today was the parties' initial case conference on this application.
[2] Also before the court was the applicant's motion dated 16 February 2012 (Vol. 1, Tab 15) in which he requested custody of Luca. Ms. Hill-DeCiccio did not concur with that claim.
[3] These parties were not strangers to the litigation process, nor were they, I say regretfully, timid about enmeshing police and Children's Aid in their disagreements.
[4] Before examining the plethora of motions the parties brought on their own, without notice, it is important to observe that Ms. Hill-DeCiccio caused charges to be filed against Mr. DeCiccio which were dropped at Ms. Hill-DeCiccio's behest. However, on 13 February 2012, the police charged Ms. Hill-DeCiccio with criminal harassment (x2), dangerous driving (x1), mischief to property (x1), mischief endangering lives (x4). The charges arose from an incident when Ms. Hill-DeCiccio's car collided with Mr. DeCiccio's vehicle, with a child of the parties in the respondent's car. Ms. Hill-DeCiccio is on bail which prohibits her contact with Mr. DeCiccio.
[5] On 13 February 2012, police released Luca and his sister to the applicant where they lived until 16 February 2012, when the children were returned to the respondent. On 19 March 2012, there was a further charge against Ms. Hill-DeCiccio when she was arrested for breach of probation.
[6] Although the parties had separations and reunions, apparently Luca lived with both parties until the last separation in December 2011. From then, he mostly resided with the respondent.
[7] Prior even to the first return date on 23 February 2012 for the application, Ms. Hill-DeCiccio brought a motion dated 12 December 2011 for custody of Luca. Mr. DeCiccio also filed a motion dated 29 December 2011 for a restraining order against Ms. Hill-DeCiccio.
[8] These motions of 12 December 2011 and 29 December 2011 came before Justice Pawagi on 30 December 2011. The applicant's request for a restraining order was not granted because of insufficient evidence. However, Justice Pawagi gave a temporary order that Luca was to live with Mr. DeCiccio on alternate weekends (etcetera) and with Ms. Hill-DeCiccio for the rest of the time.
[9] Then Ms. Hill-DeCiccio brought a motion without notice dated 9 January 2012 in which she requested an order for sole custody of Luca (which she already had pursuant to the orders of Justice Pawagi dated 30 December 2011) but also for a restraining order against Mr. DeCiccio and with him to have no access to Luca.
[10] That motion came before Justice Baldock on 9 January 2012. Her Honour suspended Mr. DeCiccio's access until Peel Children's Aid could approve of access by him. That ruling was then scheduled for a motion review before Justice Baldock on 19 January 2012.
[11] On 19 January 2012, Mr. DeCiccio submitted a comprehensive affidavit to Justice Baldock, including a letter from Peel Children's Aid dated 18 January 2012. The letter was addressed to both parties and stated:
Please be advised that the Peel Children's Aid Society does not have child protection objections to the father, Mr. Scott DeCiccio having access or care of the child [Luca].
In light of the new information provided by Mr. DeCiccio, Justice Baldock granted the following temporary orders, after vacating her earlier orders of 9 January 2012:
Luca is to reside with Mr. DeCiccio on alternate weekends, from Fridays at 5:30 p.m. to Sundays at 6:00 p.m.;
Because of Ms. Hill-DeCiccio's bail conditions, access exchanges could not be between the parties. Justice Baldock ordered that a third party was to facilitate the access exchanges. If the parties could not agree on the identity of the third party, it would be one Deborah Tucci;
The locus of the access exchanges was to be at the residence of Deborah Tucci;
The applicant's overnight access was to be at the home of the paternal grandmother in Oakville;
Luca was to have no contact with Stacia Lamb, nor attend at […] Road, Caledon;
The applicant was to try to avoid Luca coming in contact with Courtney Hofels or David Simpson.
[12] It is to be noted that Mr. DeCiccio has always been self-represented. Ms. Hill-DeCiccio was likewise, until Ms. Palmer began to represent her on 18 January 2012. Hence, Ms. Palmer was not at all part of the history until that date. The motions and affidavits as far as I know were prepared by the parties on their own.
[13] In summary, an initial case conference has been held on Mr. DeCiccio's application. Now to be considered is his motion for custody of Luca, which was dated 16 February 2012 (in Vol. 1, Tab 15). The applicant abandoned his requests for no access to Luca by Ms. Hill-DeCiccio and for a restraining order against her.
Motion Granted
[14] The motion will be granted for these reasons:
Mr. DeCiccio has had a close relationship with Luca up to the time of the parties' separation;
Mr. DeCiccio has a stable living situation, with no criminal charges against him and he holds a responsible job and has done so for many years;
Ms. Hill-DeCiccio may face incarceration. It would likely be her plan that if that happens, Luca would continue to live in her residence and be cared for by her brother and his girlfriend who also reside in that home. Because of the possibility of the respondent's incarceration, it would be preferable for Luca to be placed now in a home where there will not be any disruption in caregivers, and where he is cared for by a parent and not an uncle and his girlfriend.
Ms. Hill-DeCiccio has three children living with her. There is Luca and his sister Gillian (nine years old, for whom Mr. DeCiccio is also the biological father) and Christian (aged 12, for whom David Simpson is the biological father). In addition, Ms. Hill-DeCiccio is expecting her fourth child to be born in two months. The respondent's household is busy. On the other hand, if Luca is placed with Mr. DeCiccio, he will be the only child in the residence, and the applicant could focus exclusively on this little boy's needs. Mr. DeCiccio is aided in Luca's care by the able assistance of his mother, who will attend upon Luca at times when Mr. DeCiccio is at work.
Temporary order is to issue for Mr. DeCiccio to have custody of Luca Milton John Hill-DeCiccio, born […] 2009.
Access Exchanges
[15] The parties agreed on provisions for access exchanges. Temporary order as follows:
Access exchanges for Luca shall occur at the parking lot of the Canadian Tire store, 99 McEwan Drive East, Bolton, Ontario, L7E 2Z7. Exchanges on behalf of Ms. Hill-DeCiccio shall be by Kirsten Echlin or Joseph Hill, or as the parties may otherwise agree.
Respondent's Access
[16] The parties agreed on the access for the applicant if the respondent was to retain custody of Luca. The same provision should apply for the respondent's access when the applicant has custody.
Temporary order for the respondent to have access to Luca on alternate weekends, provided the respondent is not incarcerated, between Saturdays at 9:00 a.m. to Sundays at 6:00 p.m. The access may commence on Fridays at 6:00 p.m., if Ms. Echlin's or Mr. Hill's and Mr. DeCiccio's schedules allow for their availability at that hour.
The respondent may have such further access as the parties may agree upon.
Vacation of Previous Restrictions
[17] The temporary orders of Justice Baldock dated 19 January 2012 provided that Mr. DeCiccio would reside with Luca during access with the paternal grandmother in Oakville during overnights. Luca was to have no contact with Stacia Lamb and not attend at […] Road, Caledon. The child's contacts with Courtney Hofels and David Simpson were to be avoided. The respondent wished no contact with these individuals because of an alleged sexual assault on Luca occurring at […] Road, Caledon East. There was no evidence about any irregularities actually occurring, and I can trust Peel Children's Aid to take steps if there are any real protection concerns. I can also trust Mr. DeCiccio to keep Luca safe, and he certainly has the confidence of Peel Children's Aid. All of the above restrictions in paragraphs (7) to (10) inclusive, which I numbered and are on page 5 of Justice Baldock's hand written endorsement of 19 January 2012, are vacated.
Order to vacate paragraphs (7) to (10) inclusive on page 5 of Justice Baldock's hand written endorsement of 19 January 2012:
(7) The child shall reside with the father and spend overnights at the home of the paternal grandmother in Oakville during access.
(8) The child shall have no contact with Stacia Lamb.
(9) The child shall not attend at […] Road, Caledon.
(10) The applicant father shall do all things reasonable to prevent contact between the child and either Courtney Hofels or David Simpson, but if contact is unavoidable he shall ensure that the child is not left alone with either of them.
Child Support
[18] With respect to child support:
Temporary order for the applicant to pay child support for Luca Milton John Hill-DeCiccio, born […] 2009, of $563. per month payable only on 1 January 2012, 1 February 2012 and 1 March 2012. No child support for Luca Milton John Hill-DeCiccio is payable after 1 March 2012. Payments to the Family Responsibility Office. Support Deduction Order to issue.
The applicant is to receive a one time credit for $700. he paid in child support since 1 January 2012.
This order is based on the applicant's annual income of $61,800. and the Guidelines for one child are $563. per month.
The court finds that there are no child support arrears owing by the applicant for any child before 1 January 2012.
Respondent's Name
[19] Hereafter the respondent's name shall be referenced in court documents as Alexandra Margo DeCiccio.
Request to Add Parties
[20] The respondent requested that her parents Peter Hill and Heidemaria Hill be added as parties in this case, file 1422/11. There will be no order in this regard. I do not find that either party requires the additional legal involvement of the maternal grandparents.
Adjournment and Further Directions
[21] Adjourned to 10:00 a.m. on 13 December 2012, courtroom 210.
[22] ADMINISTRATION IS DIRECTED FORTHWITH TO TAKE OUT JUSTICE BALDOCK'S ORDERS OF 19 JANUARY 2012. ANY AND ALL APPROVALS FOR THESE ORDERS ARE WAIVED.
[23] I waive approval of orders by unrepresented parties to be taken out by Ms. Palmer. I might add that Ms. Palmer represented the respondent very well. The respondent's case was argued as competently and completely as possible. However, Ms. Palmer had to take the respondent's case as she found it at the time of her involvement. Because this matter became so litigious very fast, adding to the complexity and confusion in the parties' positions, the following order will issue:
No motions may be brought by either party without leave of the court.
The parties need to learn that rather than coming to court so frequently, they must try to resolve their issues as other mature and competent parents learn to do.
Released: April 13, 2012
Justice P.W. Dunn