Court of Appeal for Ontario

Date: June 28, 2019 Docket: C65483

Judges: Hourigan, Paciocco and Fairburn JJ.A.

Parties

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

Hearing

Heard and released orally: 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] The order under appeal arose from a trial in which the appellant (father) sought joint custody and shared parenting of the couple's six-year-old child on a two-two-five schedule.

[2] The trial judge ordered that the child's primary residence continue to be with the respondent (mother), with the father receiving only one overnight with the child per week and alternating weekends. In addition, while a joint custody order was made, the trial judge ordered that if the parties are unable to agree upon matters relating to the child's physical, emotional and educational well-being, then "ultimately" those decisions are to be made by the mother.

[3] We find that the trial judge erred in failing to address the "maximum contact" principle set out in s. 16(10) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). That provision states:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [Emphasis added.]

[4] As noted by L'Heureux‑Dubé J. in Young v. Young, [1993] 4 S.C.R. 3, at p. 53, dissenting in the result, the goal of maximum contact will only be overtaken to the extent that contact with a parent conflicts with the child's best interests. See also: B.V. v. P.V., 2012 ONCA 262, at para. 15.

[5] There is no reference to the maximum contact principle in the reasons for judgment. In light of the trial judge's findings of fact, it is difficult to see that principle at work in the result. For instance, the trial judge found as a fact that, while the father had overstated his role on the day-to-day care of the child up to the date of separation, the child has a "loving and strong emotional tie to both parents"; prior to the events resulting in the couple's separation, the parties "were a 'team' and effectively parented" their child; and the father's conduct post-separation was "not, in and of itself, a reason to ignore the contribution he made in raising" the child.

[6] Based upon the trial judge's findings of fact, we see no reason why the maximum contact principle would not apply in this case.

[7] The trial judge's decision, resulting in unequal contact with the child, appears to have been premised on the assumption that the respondent was entitled to remain the child's primary caregiver, an arrangement that had arisen from a without prejudice consent order granted a few years prior. The order specifically noted that it was made "without prejudice to either parties' claim with respect to custody and access".

[8] Despite the finding that the child had "enjoyed the benefits of effective parenting in which both parties participated" from the time of the child's birth, the trial judge concluded that there had been an "undisturbed pattern of care" in place since the time of separation. While the trial judge found as a fact that both parties had engaged in "inappropriate behaviour" since separation, he said that he did "not intend to interfere with the existing parenting schedule except to ensure that adequate provision is made during holidays and special times" in the child's life.

[9] This demonstrates an erroneous approach. Not only did the trial judge fail to advert to the maximum contact principle, statutorily embedded in s. 16(10) of the Divorce Act, but he proceeded on the basis of the status quo that had developed as a result of an interim without prejudice order. Indeed, despite saying that the "existing parenting schedule" should prevail, the trial judge decreased the father's time with the child by one hour every other weekend and by one hour every Wednesday.

[10] The trial judge erred by failing to advert to and apply the maximum contact principle without providing any reason for departing from it, and by proceeding on the basis of a status quo that had developed as a result of a without prejudice order. Given the trial judge's findings of fact, particularly the finding that, while both parties had misbehaved, the child had enjoyed the benefits of "effective parenting" by both, it was an error to make an order that departed significantly from equal parenting time.

[11] The appellant father also says that the trial judge erred by failing to grant the parents equal decision-making authority with respect to the child. Although the appellant acknowledges that the trial judge ordered "joint custody", he says that this order was in "name only" given that, when the parties are unable to come to an agreement about the child's physical, emotional and educational well-being, the ultimate decision-making power resides with the mother. The trial judge made this order despite his observation that an order for sole custody in the mother's favour "would marginalize the degree to which [the father] participates in the important decisions" affecting the child's life.

[12] Decision-making authority assists in ensuring that a parent's relationship with his or her child is not marginalized. In light of our conclusion that the trial judge erred in failing to consider and apply the maximum contact principle, the order about decision-making must also be set aside and reconsidered alongside the issue of parenting time. There is nothing in the record or the trial judge's findings of fact that would suggest that anything other than an order granting both parties meaningful decision-making authority is appropriate. Given the parties' history of conflict, which appears to continue to today, some form of divided parallel decision-making should be ordered.

[13] In the result, we admit the proposed fresh evidence, but only to the extent that it confirms the continued existence of conflict between the parties.

[14] The appeal is allowed. The orders respecting parenting time and decision-making will be varied. We will require written submissions from the parties on the following two issues: 1) the allocation of parenting time; and, 2) the allocation of decision-making responsibilities in the parallel parenting model. The appellant will provide written submissions of no more than 10 pages within the next seven days. Within seven days of receiving the appellant's submissions, the respondent will provide responding written submissions of no more than 10 pages.

[15] The trial judge's costs order is set aside. The costs issue will be resolved in conjunction with the two outstanding issues.

"C.W. Hourigan J.A."

"David M. Paciocco J.A."

"Fairburn J.A."