Court File and Parties
COURT FILE NO.: 87/14 DATE: 2016-05-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Christopher Natale Calabrese Applicant
Meysa Maleki, for the Applicant
- and -
Joanna Alexandra Calabrese Respondent
Dean J.D. Moldenhauer, for the Respondent
HEARD: April 27 & 28, 2016
The Honourable Justice J.R. Henderson
ENDORSEMENT ON MOTION
INTRODUCTION
[1] The applicant, Christopher Calabrese (“the husband”), brings this interlocutory motion to change the temporary order of Ramsay J. dated November 13, 2014 (“the November 2014 order”) with respect to access to the parties’ son, Domenico.
[2] Pursuant to the November 2014 order, the husband has access visits with Domenico every Monday from 9:30 a.m. to 6:30 p.m., and every Friday from 9:30 a.m. to Saturday at 6:30 p.m. The November 2014 order also provides that the husband is responsible for picking up and dropping off Domenico, and that pick-ups and drop-offs “shall involve a third party such as the applicant’s mother taking the child to and from the respondent’s door.”
[3] As a term of the November 2014 order, Ramsay J. requested an investigation by the Office of the Children’s Lawyer (“OCL”). The OCL clinician, Peter Martyn, has completed an investigation pursuant to s. 112 of the Courts of Justice Act, and has delivered his report dated December 23, 2015.
[4] The OCL report contains numerous recommendations, including recommendations that the husband have access on three weekends out of four from Friday evening to Sunday evening, plus one overnight access visit during each week, plus extended access during the summer months, during the Christmas season, and on Father’s Day.
[5] In the present motion, the husband relies heavily on the recommendations contained in the OCL report, and requests a change to the current temporary order so that the access regime pending trial will resemble the recommendations of the OCL.
[6] The respondent, Joanna Calabrese (“the wife”), contests the husband’s request. The wife submits that the OCL report should not be used as the basis for a change to a temporary order. Further, the wife submits that the husband has not established that there has been a material change in circumstances, and therefore the husband has not met the test for changing a temporary access order.
[7] In response, the husband submits that the court should make the requested changes because those changes would be in the best interests of the child. In the alternative, the husband submits that there are material changes in circumstances that would justify his request.
BACKGROUND
[8] The parties were married in October 2011. They have one child, Domenico, who was born November 2, 2012. The parties separated on November 18, 2013 when the wife left the matrimonial home with Domenico and moved to Mississauga where her family resides. The wife and Domenico have continued to reside in Mississauga since November 2013. The husband continues to reside in St. Catharines.
[9] The separation of the parties was precipitated by an alleged assault by the husband on the wife that the wife deposes occurred on November 17, 2013. The wife also deposes that the husband has a terrible temper, and that the husband has physically assaulted her in the past.
[10] On November 18, 2013, the wife reported the alleged assault to the police. Consequently, the husband was charged with two counts of assault and one count of uttering a death threat. The husband was released on a Recognizance that included terms that he abstain from communicating with the wife except through legal counsel; that he was not to be within 25 metres of the wife; and that he may arrange access to the child through a mutually agreed third party.
[11] Thereafter, several months passed during which the husband did not see Domenico. The wife deposed that she was afraid of the husband. The husband deposed that he had not physically assaulted the wife and the wife had no reason to fear him. The wife proposed supervised access, but the husband requested unsupervised access.
[12] The husband then commenced this court proceeding and brought an urgent motion prior to a case conference. On the return of the motion, Scott J. made an order, dated March 6, 2014, that gave the husband access every Monday from 10:00 a.m. to 7:00 p.m., with access to be supervised by the husband’s mother, Lina Calabrese (“Lina”), and included a term that the husband was to be responsible for picking up and dropping off the child.
[13] Subsequently, after the case conference, the husband brought a motion for unsupervised and expanded access that resulted in the November 2014 order. On the return of that motion, the wife submitted that the husband’s access should continue to be supervised. She made Ramsay J. aware of her allegation that the husband had assaulted her, that she feared the husband, and that the husband was facing unresolved criminal charges.
[14] With respect to the alleged domestic assault, in his reasons Ramsay J. wrote, “On the affidavit evidence before me I cannot say that domestic violence has been proven on the balance of probabilities. The trial judge, who will have the benefit of viva voce evidence, may not come to the same conclusion”. Ramsay J., however, found that the husband had breached the terms of his Recognizance as he had improperly contacted the wife on two occasions.
[15] Regarding the wife’s request for supervised access, Ramsay J. wrote, “I do not think that access needs to be supervised. Given the age of the child, more frequent but shorter access is indicated. Now that the child is two years old, I think that in addition to Monday access he is ready for overnight access one night a week.”
[16] Since the November 2014 order, the husband has faithfully exercised his access to Domenico in each week without exception. The third party facilitator who has accompanied the husband in picking up and dropping off Domenico has primarily been the husband’s mother, Lina. Further, pursuant to the court order, the husband has provided all transportation for all access visits, both for pick-ups and drop-offs.
[17] On July 17, 2015, the criminal charges against the husband were resolved. The Crown prosecutor withdrew all charges against the husband in consideration of the husband entering into a Peace Bond pursuant to s. 810 of the Criminal Code of Canada. The Peace Bond is to remain in place for a period of 12 months. The terms of the Peace Bond require the husband to keep the peace and be of good behaviour, and not to communicate with the wife directly or indirectly except to arrange for access through email or through counsel.
[18] This matter has now proceeded through a settlement conference and there is a trial management conference scheduled for late May 2016. I accept that a trial will not likely be held until early 2017.
[19] In the present motion the husband requests that periodic access be expanded to three weekends out of four, plus one overnight during each week. The husband also requests periods of extended access during the summer months, during the Christmas season, and on Father’s Day. Furthermore, the husband requests an order that the husband and the wife equally share the transportation for access visits. He also asks that the husband and wife share the responsibility for providing a facilitator for access visits so as to lessen the burden on the husband’s mother.
THE LAW
[20] The wife raises two significant legal issues. First, the wife submits that the OCL report should not be used as the basis for a motion to change a temporary order as the OCL report is intended to be used at the trial. Second, the wife submits that the court should be reluctant to change an existing temporary order unless there has been a material change in circumstances.
[21] Regarding the use of the OCL report, s. 112(3) of the Courts of Justice Act states that the OCL report “shall form part of the evidence at the hearing of the proceeding”, and therefore I accept that it is contemplated that the OCL report is to be used at the trial. I also accept that, at an interlocutory stage, the statements made in the OCL report have not been fully tested by cross-examination, and the court has not yet had the benefit of a full trial with oral evidence. Thus, I accept that at this stage the statements and the recommendations in the OCL report must be treated with some caution.
[22] However, in my view, OCL reports and assessment reports often contain pertinent information about the parties, the child, and the extended family that can be extremely useful in an interlocutory proceeding. Moreover, the OCL clinician is an objective independent assessor who can assist the court by gathering facts that may be difficult to efficiently obtain otherwise. Whether the OCL’s recommendations are implemented or not is usually a matter for trial, but in my view the facts that have been gathered by the OCL clinician are useful at any stage. It is inconceivable that a motion’s judge should be required to turn a blind eye to the facts contained in the OCL report simply because the proceeding has not yet reached a trial.
[23] The concerns about the use of OCL reports and assessment reports have been expressed in a series of court decisions. In Genovesi v. Genovesi, [1992] O.J. No. 1261, Granger J. set out the general principle that an assessment report prepared for trial should not be acted upon until trial except in exceptional circumstances where immediate action is mandated by the assessor’s report. That general principle was followed by Mackinnon J. in the case of Grant v. Turgeon, [2000] O.J. No. 970.
[24] However, it is clear that this general principle is not a hard and fast rule. In the case of Forte v. Forte, [2004] O.J. No. 1738, Corbett J. wrote the following at paras. 7 and 8:
7 …I agree that an assessment report ought to be approached with caution prior to trial. The court cannot delegate its decision-making authority to an assessor from the Office of the Children's Lawyer. That is trite law.
8 However, I cannot accept that the court is precluded from considering all of the evidence that is available in coming to a determination of the best interests of the children. In particular, in this case, I do not accept that the court cannot consider the statements made by the children to the assessor. It is not the report's recommendations, but its substance and analysis that is of value.
[25] In the case of Bos v. Bos, 2012 ONSC 3425, Mitrow J. wrote at para. 23:
…In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi ….
[26] I accept that the aforementioned statements in the Forte and Bos decisions accurately set out the state of the law in Ontario.
[27] Regarding the second legal issue, I find that there must be some compelling reason for a court to change an existing temporary custody/access/parenting order prior to the trial. However, unlike other types of motions to change, it is not a prerequisite in a motion to change a temporary custody/access/parenting order for a motion’s judge to adhere to a strict material change in circumstances test. The overriding principle in all custody/access/parenting proceedings, whether final or temporary, is that a court should make an order that is in the best interests of the child.
[28] In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.
[29] As Howden J. stated in Osama v. Sayegh, [2004] O.J. No. 3820 at para. 5:
… generally, the custodial status quo will not be changed on an interim custody motion in the absence of compelling reasons indicating the necessity of a change to meet the children’s best interests;
[30] Further, in reference to an assessment report, in the Bos decision, Mitrow J. wrote at para. 27:
It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.
[31] Therefore, I find that in order to succeed on this motion to change an interlocutory custody/access/parenting order the husband must prove that there is a compelling reason to change the order in consideration of the best interests of the child. In doing so, I find that the husband may rely on the facts contained in the OCL report.
ANALYSIS
[32] The husband submits that there are four events that justify a change in the November 2014 order. First, the OCL report provides updated and objective information that was not before Ramsay J.; second, the husband has resolved the outstanding criminal charges against him; third, there has been a passage of 17 months since the November 2014 order; and fourth, the husband’s mother, Lina, has some back problems that create difficulties for her if she were to continue as the primary facilitator on access exchanges.
[33] Regarding the OCL report, I accept that the report contains more detailed and objective information from the husband, the wife, and their extended families. The recommendations of the OCL clinician are based on that information, but again those recommendations and the underlying facts have not been tested at trial.
[34] In this case it is important to note that the information gathered by the OCL clinician has not led to a recommendation that is significantly different from the current access regime. That is, access on three weekends out of four plus an overnight during the week is not significantly different from access every weekend from Friday to Saturday and every Monday. Thus, in my view, the updated information in the OCL report does not, on its own, provide the grounds for a change to a temporary access order.
[35] Regarding the resolution of the criminal charges, I find that this change in circumstances is again a modest one. That is, the criminal charges may have been resolved, but the underlying allegations by the wife with respect to the husband’s conduct, and the wife’s evidence that she fears the husband, remain in issue.
[36] In the OCL report, both the husband and the wife referred to the allegations of the husband’s anger issues. The husband told the clinician that he does not have any anger issue, and that he never physically assaulted the wife or anyone. The wife told the OCL clinician that she still is concerned about the husband’s anger and she still fears him. I note that one of the recommendations of the OCL clinician is that the husband enroll in an anger management program, but the husband has not yet done so.
[37] Moreover, when the husband entered into a Peace Bond, the husband’s lawyer and the Crown prosecutor jointly submitted an agreed statement of fact whereby the husband acknowledged that he had grabbed the wife’s arm causing a bruise, and the husband accepted that the wife feared him on reasonable grounds. The husband continues to be bound by this Peace Bond at the present time.
[38] Accordingly, in my view, although the resolution of the criminal charges may have helped calmed the relationship between the husband and the wife, the underlying issues that existed in November 2014 remain in place. Those issues will not be fully vetted until the trial.
[39] Regarding the passage of time, I accept that this is a significant factor given the age of the child, Domenico. Domenico’s parents have lived separate and apart for more than half of his life. Furthermore, the current access regime commenced at about the same time as Domenico turned two years of age, and Domenico is now three-and-a-half years of age. These are vulnerable years in a child’s relationship with his parent. Thus, I find that the passage of time in this case is a good reason to take a hard look at the existing access regime.
[40] Regarding the issue of the facilitator, I accept that it is difficult for the husband’s mother, Lina, to travel back and forth from St. Catharines to Mississauga as frequently as she does for the purpose of facilitating access. Lina has been the primary facilitator for approximately one-and-a-half years. In my view, it is appropriate to consider modifying the access regime in order to assist the facilitator.
[41] I find that these factors, when considered conjunctively, provide a compelling reason to make some changes to the temporary access order. I am not going to remove the obligation on the husband to provide the access facilitator. The facilitator is in place because of the allegations of the husband’s anger issues and because of the wife’s fear of the husband. These are unresolved issues, and accordingly, it is essential that a facilitator continue to be in place. Lina will likely continue to be the primary facilitator as both parties seem to accept her involvement, and it is unlikely that the parties will ever agree on a regular alternate. Therefore, the husband should continue to be required to provide the facilitator.
[42] Further, I will not change the terms of the order that require the husband to provide transportation for pick-ups and drop-offs. The wife has provided documentation from her counsellor to the effect that the wife would suffer significant stress and anxiety if she were required to drive with the child to Niagara for access visits. Therefore, I am going to continue to require the husband to provide transportation for all access visits.
[43] However, in order to relieve the strain on the husband’s facilitator I am going to change the access regime so that the weekend access visits will be less frequent, but longer in duration. This should slightly reduce the number of trips back and forth between St. Catharines and Mississauga.
[44] The wife told the OCL clinician that she would be agreeable to access every second weekend, plus one evening during the week, plus shared holidays. On an interlocutory basis, in my view, this would be a better arrangement for this family. I am not going to order access visits on three weekends out of four because this remains a contentious issue that will be decided at trial.
[45] Furthermore, considering that the trial will likely not take place until early 2017 it is appropriate for me to make orders for extended access during the summer months, during the Christmas season, and on Father’s Day.
[46] Therefore, I order that paragraph 1 of the November 2014 order be changed so that the child, Domenico, will continue to reside primarily with the wife, and the husband will have parenting time as follows:
i) Alternate weekends from Friday at 4:00 p.m. to Sunday at 6:00 p.m. commencing on Friday May 20, 2016.
ii) One overnight access visit during the week from Wednesday at 10:00 a.m. to Thursday at 12:00 p.m., or on another weekday as agreed by the parties
iii) When the child starts school in September 2016, the weekday access will be changed so that access will be from Wednesday after school to Wednesday at 7:00 p.m.
iv) In the summer of 2016, the husband shall have the child for two weeks in July and two weeks in August, but those weeks are not to run consecutively. He is to advise the wife of the dates he would like for his summer access by May 30, 2016.
v) Regarding Christmas access in 2016, Domenico will be with his father from December 24th at 4:00 p.m. to December 25th at 6:00 p.m., and the balance of the Christmas holiday is to be shared.
vi) Domenico is to be with his father on Father’s Day from 9:00 a.m. to 7:00 p.m. if this falls on a day when he is not normally in his father’s care.
[47] All other terms of the November 2014 order will remain in place.
[48] If either party wishes to make submissions with respect to costs, they may do so in writing addressed to the trial co-ordinator at St. Catharines, within 14 days of the date of this decision.
Henderson, J.
Released: May 9, 2016