Court File and Parties
Court File No.: Brampton 252/07 Date: 2012-04-13 Ontario Court of Justice
Between:
Heidemaria Cosima Hill and Peter John Hill Applicants
— And —
Alexandra Margo Hill-DeCiccio and Scott Andrew DeCiccio Respondents
Before: Justice P.W. Dunn
Heard on: 29 March 2012
Ruling on Motion released on: 13 April 2012
Counsel
Heidemaria Cosima Hill ....................................................................................... on her own behalf
Peter John Hill .................................................................................................... on her own behalf
Kemi L. Palmer ................................................... for the respondent Alexandra Margo Hill-DeCiccio
Scott Andrew DeCiccio ........................................................................................ on his own behalf
Decision
P.W. DUNN, J.:
Background and Procedural History
[1] This is a motion to change dated 22 December 2011 brought by Scott Andrew DeCiccio. He is one of two respondents, but is the sole moving party. The responding parties are Alexandra Margo Hill-DeCiccio as a co-respondent, and the applicants (but responding parties), Heidemaria Hill and Peter Hill.
[2] By way of explanation, Mr. DeCiccio and Ms. Hill-DeCiccio are the biological parents of Gillian Madison Hill-DeCiccio, born 21 August 2002 (Gillian). Mr. and Ms. Hill are the child's maternal grandparents.
[3] On 29 May 2007, Justice Karswick gave final custody of Gillian to Mr. and Ms. Hill. The respondent, Alexandra Hill (as she was then known) was awarded reasonable access. Mr. DeCiccio's access was in the sole discretion of Mr. and Ms. Hill. On the occasion of the 29 May 2007 orders, both Mr. DeCiccio and Ms. Hill-DeCiccio were noted in default.
[4] Gillian resided with Mr. and Ms. Hill until 1 July 2010. At that time, Gillian's parents were cohabiting successfully, and Mr. and Ms. Hill decided it would be best for Gillian to be returned to her parents' custody. This happened, but without any variation to the final orders of Justice Karswick dated 29 May 2007.
[5] Presumably because the only court order gave custody to the maternal grandparents, Mr. DeCiccio brought this motion to change to request that he and Ms. Hill-DeCiccio have joint custody of Gillian. Because Mr. DeCiccio prepared the court papers himself, and because documents for a motion to change are unnecessarily complicated and difficult to prepare, Mr. DeCiccio did not state which party should have Gillian's primary residence.
[6] At the clerk's court on 23 February 2012, both applicants (responding parties) and Mr. DeCiccio and Ms. Hill-DeCiccio attended. The case was adjourned to 29 March 2012 for an initial case conference.
[7] On 16 February 2012 (before the initial case conference) Mr. DeCiccio brought a motion dated 16 February 2012 without notice (in Vol. 2, Tab 4). That motion came before myself on 17 February 2012. I directed that the motion be adjourned to the clerk's court on 23 February 2012, when the clerk would set a date for an initial case conference on Mr. DeCiccio's motion to change and for his motion (for custody) dated 16 February 2012.
[8] Hence, before the court today was a case conference on Mr. DeCiccio's motion to change as well as his motion for custody. Mr. DeCiccio's motion requested an order for sole custody of Gillian, with no access by Ms. Hill-DeCiccio without a further court order. A restraining order against Ms. Hill-DeCiccio was also requested.
[9] Mr. and Ms. Hill filed responses to Mr. DeCiccio's motion to change which were separately dated 16 February 2012 and 15 February 2012. It was the maternal grandparents' positions at that time that Gillian should be "given back" to Mr. DeCiccio and Ms. Hill-DeCiccio, and that "they should work together to raise her". The maternal grandparents anticipated that Ms. Hill-DeCiccio would have the primary residence. Apparently at the time Mr. and Ms. Hill filed their responses (Vol. 2, Tabs 6 and 8), they believed the parents would resolve their differences as mature persons.
The Automobile Collision and Criminal Charges
[10] Around 13 February 2012, there was an automobile collision, whereby Ms. Hill-DeCiccio's car rammed Mr. DeCiccio's vehicle. Serious charges were brought by police against Ms. Hill-DeCiccio, which included criminal harassment (x2), dangerous driving (x1), mischief to property (x1) and mischief endangering lives (x4). The police placed Gillian and her brother Luca (for whom Mr. DeCiccio is also the biological father) with Mr. DeCiccio for four days. Ms. Hill-DeCiccio was released on bail with the condition that she have no contact with Mr. DeCiccio.
[11] Mr. and Ms. Hill asked Mr. DeCiccio to return Gillian to them, but he declined to do so, unless Children's Aid required it. Around 17 February 2012, Mr. and Ms. Hill attended Gillian's school and requested that Gillian be given to them. They showed the valid 2007 order that gave them custody. The principal asked nine-year-old Gillian whether she would like to continue to reside with Mr. DeCiccio and his mother, Linda DeCiccio, or go to live with her maternal grandparents in the very small town of Tamworth near Nappanee, Ontario. Gillian opted for residence with Mr. and Ms. Hill, saying "daddy just spends time with Luca and is mean to me and yells at me". The principal released Gillian to her grandparents.
[12] Mr. and Ms. Hill then changed their positions regarding Mr. DeCiccio's motion to change. In Mr. Hill's affidavit, sworn 21 February 2012 (Vol. 2, Tab 12), he then requested orders that Gillian be placed with himself and Ms. Hill. However, around 24 February 2012, Mr. and Ms. Hill returned Gillian to Ms. Hill-DeCiccio where she resided at present.
Positions of the Parties at the Case Conference
[13] At the initial case conference on 29 March 2012, Mr. DeCiccio withdrew his motion for custody of Gillian and for a restraining order against Ms. Hill-DeCiccio. He also agreed to Ms. Hill-DeCiccio having Gillian's primary residence. Mr. and Ms. Hill also abandoned their request for custody of Gillian and were content that Ms. Hill-DeCiccio have sole custody. The relationship between Mr. and Ms. Hill and their daughter Ms. Hill-DeCiccio and Gillian is close, so they were not concerned about obtaining access from Ms. Hill-DeCiccio.
[14] Ms. Hill DeCiccio filed a Response to Mr. DeCiccio's motion to change dated 14 March 2012, when for the first time in this proceeding, Ms. Palmer's name appeared as acting for Ms. Hill-DeCiccio. The Response requested an order for sole custody of Gillian.
[15] At Ms. Palmer's request, leave is granted to Ms. Hill-DeCiccio to serve and file an Amended Response, wherein she will request Mr. DeCiccio to contribute to Gillian's special expenses.
The Issue Before the Court
[16] The sole issue before the court was whether there should be a temporary order for Ms. Hill-DeCiccio to have sole custody, as Mr. and Ms. Hill and Ms. Hill-DeCiccio requested. The alternative would be a temporary order for joint custody in decision making between Gillian's parents, as Mr. DeCiccio proposed.
Complicating Factors
[17] There are two complicating factors in this case. The first was that Gillian expressed some misgivings about wanting to continue to live with Mr. DeCiccio. Counselling is now involved, and the parties have agreed that Mr. DeCiccio should have some regular access to Gillian.
[18] The second issue was where should Gillian reside if Ms. Hill-DeCiccio is incarcerated. An order for sole custody in Ms. Hill-DeCiccio's favour would likely place Gillian back with her grandparents or possibly Gillian would stay in her residence and be cared for by her maternal uncle and his girlfriend. On the other hand, if the parties have a joint custody order, it is arguable that Gillian would reside with her father Mr. DeCiccio during incarceration for Ms. Hill-DeCiccio.
Judicial Analysis
[19] It is important to observe that Mr. and Ms. Hill have been witness to the various ups and downs of both Mr. DeCiccio and their daughter. Both parents showed significant failures at times on a personal level and in the example they were giving their children. Mr. and Ms. Hill have provided a reliable and safe place for Gillian to live during parental disruption. However, on 1 July 2010, Mr. and Ms. Hill did place Gillian with both parents. As late as February 2012, Mr. and Ms. Hill were still prepared to countenance a placement with Mr. DeCiccio and Ms. Hill-DeCiccio. It seems that around that time the relationship between Mr. Hill and Mr. DeCiccio broke down, and Mr. and Ms. Hill then exclusively supported their daughter's position.
I find the relationship between Mr. DeCiccio and Ms. Hill-DeCiccio to be significant. There were elements of favourable concern by Ms. Hill-DeCiccio for Mr. DeCiccio and for his relationship with Gillian (and Luca). I say that because there were assault charges brought against Mr. DeCiccio early in this year. On 2 February 2012, Ms. Hill-DeCiccio wrote the Crown's office to say she wished to withdraw her allegations against Mr. DeCiccio. In the letter she wrote:
I truly believe with the proper counselling for myself, [Mr. DeCiccio], and our children, you will never see any of us again in the court system.
Ms. Hill-DeCiccio was referring to the criminal court system. She also put in the letter:
These proceedings carrying on is not in mine or the kids' best interest anymore emotionally, health wise and mostly the separation of the kids and their father.
(emphasis added)
Here, Ms. Hill-DeCiccio could well have been referring to this civil court (as well as the criminal court).
[20] It is appropriate that Mr. DeCiccio potentially have a say in Gillian's future, especially if Ms. Hill-DeCiccio is unable to make immediate and direct decisions about Gillian because of her incarceration.
Orders
The following orders will issue:
Temporary order for Scott Andrew DeCiccio and Alexandra Margo Hill-DeCiccio to have joint custody of Gillian Madison Hill-DeCiccio, born 21 August 2002.
Temporary order for Scott Andrew DeCiccio to have access to Gillian Madison Hill-DeCiccio one Saturday a month between 9:00 a.m. and 6:00 p.m., together with such other access as Gillian Madison Hill-DeCiccio may request and with which request Scott Andrew DeCiccio and Alexandra Margo Hill-DeCiccio agree.
Temporary order for access exchanges to Gillian Madison Hill-DeCiccio to occur in the parking lot of the Canadian Tire store at 99 McEwan Drive East, Bolton, Ontario, L7E 2Z7, or at such other place the parties may agree upon. Facilitators for the access exchanges for Alexandra Margo Hill-DeCiccio shall be Ms. Kristin Echlin or Mr. Joseph Hill, or as the parties shall otherwise decide.
Temporary order for Scott Andrew DeCiccio to pay child support for Gillian Madison Hill-DeCiccio in the amount of $563. per month from 1 January 2012 and regularly monthly thereafter. Payments to the Family Responsibility Office. A Support Deduction Order to issue.
This order is based on the respondent's acknowledged annual income of $61,845. and the Guidelines for one child are $563. a month.
In the child support order for the child Luca, there was reference to Scott Andrew DeCiccio receiving a one time credit for $700. paid in child support. He should receive this credit, if he has not already done so.
Order for Scott Andrew DeCiccio by 17 May 2012 to serve and file a sworn up-to-date financial statement, together with his notices of assessment or reassessment for the last three years and his current pay stub.
The court finds that there are no arrears of child support owing by Scott Andrew DeCiccio for the child Gillian Madison Hill-DeCiccio.
Administrative Matters
[21] Henceforth, Ms. Hill-DeCiccio shall be known in the court files as Alexandra Margo DeCiccio.
[22] I waive approval of these orders by Mr. DeCiccio and Mr. and Ms. Hill, to be taken out by Ms. Palmer.
[23] I thank Ms. Palmer for her learned advocacy on behalf of Ms. Hill-DeCiccio.
Released: 13 April 2012
Justice P.W. Dunn