CITATION: May-Iannizzi v. Iannizzi, 2010 ONCA 519
DATE: 20100722
DOCKET: C50376
COURT OF APPEAL FOR ONTARIO
Rosenberg, Goudge and Rouleau JJ.A.
BETWEEN:
Suzanne Marie May-Iannizzi
Applicant (Appellant)
And
Michael Anthony Iannizzi
Respondent (Respondent in Appeal)
Gary S. Joseph and Michael Stangarone, for the appellant
Patricia Lucas, for the respondent
Heard: June 18, 2010
On appeal from the order of Justice Raymond Harris of the Superior Court of Justice, dated March 27, 2009.
By The Court:
[1] The appellant mother appeals from the judgment of Harris J. ordering joint custody of the couple’s two children. The appellant submits that the trial judge erred in several respects. First, in ordering joint custody in the face of evidence that the parents were unable to co-operate or communicate. Second, in failing to take into account the history of domestic violence. Third, in failing to incorporate a dispute resolution mechanism. And fourth, in providing that the respondent have a minimum of 50 percent of the time with the children. For the following reasons, the appeal is dismissed.
Joint Custody
[2] The appellant’s principal submission that joint custody was inappropriate focused on a portion of the trial judge’s reasons where he said that there was “a realistic hope that these parties will be able to work together for the benefit of their children and without the difficulties of rules and demands”. The appellant relies upon decisions from this court such as Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373, at para. 11, holding that joint custody is inappropriate where there is merely a “hope” that communication between the parties will improve. These cases indicate that there must be an evidentiary basis for belief that joint custody will be feasible.
[3] In our view, there was an evidentiary basis in this case for the joint custody order. The facts are somewhat unique. For most of the period prior to the trial, because of an allegation of domestic abuse, the respondent was under a court order preventing him from communicating directly with the appellant. In the result, communication concerning the children was largely carried out through written messages and between the appellant and the respondent’s mother. The use of the term “realistic hope” must be seen in that context. There was evidence, which was accepted by the trial judge, from which he could conclude that with the termination of the court orders the parties would be able to effectively communicate and that joint custody was in the best interests of the children.
[4] In that respect, we do not agree with the submission that the trial judge placed undue emphasis on the report of the Office of the Children’s Lawyer clinical investigator favouring joint custody. The trial judge took the report into account but there is no basis for the submission that he delegated his decision making to the investigator or gave the recommendation undue weight.
Domestic Abuse
[5] The appellant submits that the trial judge erred in failing to consider the respondent’s abusive conduct towards the appellant. On July 6, 2007, the parties became involved in an argument over the appellant’s threats to prevent or restrict the respondent’s access to the children. Exactly what occurred was a matter of considerable dispute. Almost two weeks later, after another argument, the appellant complained to the police and the respondent was charged with threatening. Many months later, the charge was withdrawn and the respondent entered into a peace bond.
[6] The trial judge was in the best position to determine the importance of this incident and the several other incidents of bad behaviour alleged by both parties. His conclusion on those incidents is summarized in this paragraph:
Small matters, idiosyncrasies, and immature conduct, at trial, [were] made to look large and destructive but after all the evidence was completed the picture of this couple [is that they are] relatively balanced ... emotionally and to my mind, quite capable of working this matter through on a joint custody with equally shared access.
[7] This was a conclusion that the trial judge was entitled to reach on the evidence. The appellant has not shown a basis for interfering with the trial judge’s decision. See Ursie v. Ursie (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18 and 19.
Dispute Resolution Mechanism
[8] Paragraph 6 of the Judgement provides as follows:
- The parties shall have joint decision making in the important issues like health, education, extracurricular activities etc. In the event that the parties disagree, as most parents do from time to time, they shall have to work it through like others do or alternatively hire a mediator.
[9] The respondent was not represented by counsel at trial and it does not appear that either he or the appellant’s counsel raised the issue of a dispute resolution mechanism. Without submissions or evidence on this issue, the trial judge was not in a position to provide for a dispute-resolution mechanism, such as giving each of the parties the final decision on various matters. Similarly, we do not have the necessary evidence or information to impose any kind of mechanism. In the circumstances, if the parties do reach an impasse over an issue, they will have to apply to the Superior Court of Justice to vary the Judgment. The answer is not for this court to impose a solution in the absence of a proper record.
Access
[10] The appellant raises the valid point that the Judgment is awkwardly worded in providing that, although the children were to have their primary residence with the appellant, the respondent was to have “at a minimum, 50% of the time with the children”. In other words, the access term seems inconsistent with the primary residence term. That said, the balance of the Judgment sets out the access schedule in considerable detail, and does not appear to give the respondent more than 50% of the time with the children. We can see no basis for interfering with how the trial judge exercised his discretion.
Disposition
[11] Accordingly, the appeal is dismissed with costs fixed at $7,500 inclusive of disbursements and G.S.T.
RELEASED:
“MR” “M. Rosenberg J.A.”
“JUL 22 2010” “Stephen Goudge J.A.”
“Paul Rouleau J.A.”