Court File and Parties

Court File No.: Brampton 1535/10 Date: 2012-09-06 Ontario Court of Justice

Between: Sandro Jose Braga Botelho Applicant

— And —

Mary Julianne Bautista Botelho Respondent

Before: Justice P.W. Dunn

Heard on: 28 August 2012

Reasons for Judgment released on: 6 September 2012

Counsel:

• Anthony Martin, Esq. for the applicant
• Mario Jorge de Sousa Paiva, Esq. for the respondent
• Ms. Yvette Rosenberg for the Office of the Children's Lawyer, legal representative for the children

Judgment

P.W. DUNN, J.:

Background

[1] Sandro Jose Braga Botelho was the applicant and responding party, Mary Julianne Bautista Botelho, the respondent and moving party. Ms. Botelho brought a summary judgment motion (the motion) dated 16 July 2012 in Volume 2, Tab 11. She requested custody of two of the parties' three children, namely Louis Botelho, born 7 June 1999, and Nikolas Botelho, born 6 June 2005. Their third child, Melinda Botelho, born 27 November 1997, resided by choice with the applicant. This motion was supported by the Children's Lawyer, Ms. Rosenberg and opposed by the applicant.

[2] The parties began cohabiting in 1998, married in 2004 and separated in 2010, when Louis was about eleven and Nikolas, five. After the separation, the three children continued to live with Ms. Botelho. When the applicant established his own residence, Melinda and Nikolas went to live with him, and Louis stayed with the respondent.

[3] On 4 February 2011 as part of this court proceeding and pursuant to minutes of settlement, temporary orders were granted for Mr. Botelho to provide the primary residence for Nikolas and Melinda, and Louis would live primarily with Ms. Botelho. On alternate weekends, Ms. Botelho would see Nikolas, and Melinda and Louis would visit with Mr. Botelho. Ms. Rosenberg was not involved at the 4 February 2011 proceeding, but she was from at least May 2011.

[4] A case conference was held on 19 September 2011 and each party sought custody of the three children. The Children's Lawyer made the following recommendations:

Melinda

[5] At age fourteen, Melinda clearly signalled that she wished to live with the applicant. The respondent reluctantly agreed as did Ms. Rosenberg. There was a temporary order for the applicant to have custody of Melinda, with access to the respondent in the child's discretion.

Louis

[6] Ms. Rosenberg advised that Louis should reside with the respondent and have regular access to the applicant. Louis complained that Mr. Botelho treated him differently from his siblings. The respondent in his affidavit explained that this son presented discipline problems at his house, and Louis did not like the correctional actions he took. There was no mention of misbehaviour with the respondent. The temporary orders of 4 February 2011 continued for Louis to live with the respondent.

Nikolas

[7] The Children's Lawyer submitted that Nikolas should move to the respondent's, where he was observed to be very comfortable. He was expressing a clear desire to spend more time with her. When Ms. Rosenberg observed Nikolas on 16 September 2011, he presented as estranged from the respondent, and this was a concern to the Children's Lawyer. The boy had not seen his mother in seven months, and there was an issue whether Mr. Botelho was discouraging this access. Mr. Botelho had not complied with the 4 February 2011 orders that Nikolas see the respondent on alternate weekends. Ms. Rosenberg complained that he would not listen to her advice that access was to be facilitated by him. Mr. Botelho's position was that his son did not want to see his mother, and he did not wish to force him to go. In my 19 September 2011 endorsement, I wrote:

I fear that if Nikolas continues to live with the applicant and not see the respondent, the child will become alienated from the respondent.

I was influenced by Ms. Rosenberg's statement that Ms. Botelho had a history of encouraging Louis to see his father and the Children's Lawyer opined that likely the respondent would promote access by Nikolas to visit the applicant. A temporary order was granted for Nikolas to have his primary residence with the respondent and see the applicant on alternate weekends.

[8] At a case conference on 13 January 2012, Ms. Rosenberg advised that the three children wanted to preserve the custody and access arrangements made on 19 September 2011.

[9] At court on 19 April 2012, the parties agreed on an access arrangement that would permit the children to see each other. There was a consent order for Melinda, Louis and Nikolas to meet each Wednesday at a public place, which was supervised by the parties on an alternating basis.

[10] The Children's Lawyer recommended that the status quo continue regarding custody and access. It was reported that the children were clear and consistent in their residential preferences. Mr. Botelho went on record to state that the three children told him they wished to live with him. Ms. Rosenberg confirmed that Mr. Botelho reported the same belief at the 19 September 2011 hearing. A trial management conference began but did not conclude, because the parties' lawyers had not completed their witness interviews. At issue for a trial were not only the custody and access concerns, but the quantum of child support and arrears claims, as well as requests for special expenses and arrears. Leave was given at that conference for this motion.

Evidence Considered

[11] Prior to hearing argument on this motion, I read:

• The affidavit of Jacqueline Iafrate (clinical investigator for the Children's Lawyer), sworn 15 July 2012 in Volume 2, Tab 9.
• The affidavit of the respondent, sworn 16 July 2012 in Volume 2, Tab 12;
• The affidavit of the applicant, sworn 25 July 2012 in Volume 2, Tab 13.

Analysis of Applicant's Arguments

[12] The following were the applicant's arguments on the motion:

1: The boys told Mr. Botelho they wish to live with him. This should be explored in a trial.

[13] It is very common for children to tell a parent what they know the parent wishes to hear. However, a child's views and preferences are best determined by a trained objective observer, such as Ms. Iafrate. Louis and Nikolas consistently told that investigator and Ms. Rosenberg they wanted to live with the respondent. I can observe that Louis, at age thirteen, could have engineered a move to the applicant's if he had wanted. A trial is unlikely to reveal any more of the children's preferences.

2: There has not been a lengthy status quo arrangements where the boys have resided with the respondent.

[14] I cannot concede that point. Louis has been under the respondent's care since birth. Nikolas was also with her except for the eight months he lived with the applicant. Given these children's young lives, this amounts to a lengthy status quo. There was nothing to dispute that the respondent was providing a stable home environment and that there was permanence and stability in her family.

3: The applicant requires cross-examination in a trial of the respondent's and Ms. Iafrate's affidavits.

[15] Ms. Iafrate's affidavit contained observations and statements by the children. It was just what Ms. Iafrate saw and heard. Nothing is to be gained by rehashing those observances and utterances.

[16] Paragraph 30 in Ms. Iafrate's affidavit set out the recommendations of the Children's Lawyer. Mr. Martin could have asked Ms. Iafrate or Ms. Rosenberg about their recommendations at any time, either in or out of court.

[17] Regarding cross-examination of the respondent's affidavit, statements there set out Ms. Botelho's perceptions and beliefs, which understandably were biased in her favour. There was no objective truth in Ms. Botelho's affidavit, just as there was none in the applicant's. I cannot see that the court would be any further ahead in learning what would be in the boys' best interests by cross-examining the respondent on her affidavit but it would give a lengthy extension to trial time.

4: The trial could proceed in about two months time, so proceed with the trial and not the motion.

[18] This trial would be lengthy with some nine witnesses. There is also the possibility it would not conclude in the scheduled time, and would have to resume in the next sittings which would be several months away. The purpose of a summary judgment motion (assuming there is no genuine issue for a trial) is to avoid the financial cost and emotional stress for the parties and the uncertainty for the children in the course of a trial.

Decision

[19] This motion will be granted. My reasons for doing so are:

1. The children spend quality time in each household. The evidence about their best interests is already available through the reports by the Children's Lawyer. That office has had extensive and continuing involvement with the children and the parties, and the positions of Mr. and Ms. Botelho are already known.

2. Nothing new of significance on the issues of custody and access for the boys is likely to arise in a trial.

3. Louis' and Nikolas' consistent preferences are unlikely to vary.

4. Because of the length of this litigation to this point, Nikolas' and Louis' future should be decided as soon as possible. The fact of a trial occurring with their parents testifying at length would only add more stress to these boys' lives.

5. It is improbable that a court would order changes in custody for Louis and Nikolas. In Louis' case, at age thirteen, his residence preference would almost certainly be honoured. As for Nikolas, the fact that the applicant did not facilitate access to the respondent for eight months does not auger well for a placement with Mr. Botelho.

[20] The respondent's motion is granted.

Final order to issue for custody of Louis Botelho, born 7 June 1999, and Nikolas Botelho, born 6 June 2005, to the respondent.

Although the respondent requested an order for non-removal of the children from Ontario, there was no argument on the point so there will not be an order unless the request is pursued.

Access and Other Matters

[21] The motion was silent on the issue of access. The lawyers met and made good progress in deciding some incidents of access. Much would continue "as is", because the boys are at an age where their preferences are close to being determinative. Because flexibility in access arrangements is needed, and it appeared the parties can cooperate, no orders for access will be made at this time. Mr. and Ms. Botelho need to be encouraged to make decisions on their own, in consultation with the boys.

[22] I observe that there is only a temporary order for the applicant to have custody of Melinda. I should expect the parties would want to finalize that arrangement.

[23] There are still the issues of child support and arrears thereof and likewise for special expenses, and possibly some access issues.

[24] Audit and trial dates have already been set. I will set a date to resume a trial management conference on the above issues. Because they are of a financial nature, I think only a minimal trial time will be needed, if at all. Adjourned to 18 September 2012 at 10:00 a.m. in courtroom 210 for trial management conference.

[25] I thank Mr. Martin, Mr. Paiva and Ms. Rosenberg for their very careful arguments.

Costs

[26] The motion requested costs. Any request for costs must be served and filed with the Justices' secretary, Ruth Evans, by fax at 905-456-4839, by 28 September 2012. An Answer to a request for costs must be served and filed in the same manner by 19 October 2012. If a party requesting costs wishes to reply to an Answer, the Reply must be served and filed by 2 November 2012.

Released: 6 September 2012

Justice P.W. Dunn