Court File and Parties

Court File No.: Toronto D 21243 02A3 Date: 2013-02-28 Ontario Court of Justice

Between: Lydia Evangelista, Applicant

— And —

Domenic Galloro, Respondent

Before: Justice Carole Curtis

Heard on: 19 February 2013

Endorsement released on: 28 February 2013

Counsel:

• Elissa Boyle, for the Applicant
• Robert Shawyer, for the Respondent

CURTIS J.:

Overview

1. This is the decision regarding the father's motion to change the order made 14 April 2009, following the trial regarding access to Adrian Galloro, who was nine years old when the trial decision was released.

2. The 2009 trial ("the trial") was the culmination of many years of litigation between the parents about access to Adrian. In the 19 months before the trial, there had been nine motions to change brought by the parents. The trial was the hearing of all the motions to change brought to change an earlier final order re access to the child made 21 June 2004 by Brownstone, J. The trial decision ordered (among other things) no access for the father and a restraining order preventing any contact between the father and Adrian, his mother and his sister Alyssa (then aged 18 years old, who lived with him).

3. The motion to change was argued on the basis of affidavit evidence and submissions.

Background

4. Adrian is now 13 years old (born 3 August 1999). Both parents have children from other relationships but Adrian is their only child together. The parents lived together for less than two years (until July 2004) and were not married to each other.

5. The father Domenic Galloro is the moving party (born 1 January 1968, now 45 years old).

6. The mother Lydia Evangelista is the respondent to the motion (born 30 October 1962, now 50 years old).

Litigation History

7. The trial was the last chapter in a long and difficult history of litigation that had lasted almost all of Adrian's life to that point. The long history of conflict and acrimony that surrounded Adrian is the context for both the trial and this motion to change. The trial found that the history of the litigation was appalling, divisive, and disruptive.

8. In the six year period between the separation and the trial, there had been 15 substantive court orders made regarding custody, access, and restraining orders, including seven recent temporary orders and four final orders. There had been 11 access orders, that is, 11 separate orders containing specific and detailed terms of access for the father. The four final orders before the trial each contained more than 10 clauses setting out the terms of access.

9. The court had previously ordered no access for the father on four separate occasions. Two of the no access orders occurred after the final court order of Brownstone, J. made 21 June 2004. In addition to the four orders for no access, there was an earlier order that the father's access be supervised by his parents and at their home.

10. There were five restraining orders made against the father, including three final orders with restraining orders.

11. The father appealed the trial decision, however, he did not pursue the appeal, and the appeal was dismissed as abandoned by Paisley, J. on 3 January 2012.

The Parents' Positions at the Motion to Change

12. The father asked that the no access order of 14 April 2009 be changed so that the court order the following access:

    a) 12 visits at a supervised access centre, once per week for one hour;

    b) After 12 supervised visits, exchanges at the supervised access centre, once per week, access to be unsupervised for five hours;

    c) After that, every Saturday or Sunday from 10 a.m. to 6 p.m., unsupervised, with exchanges at a neutral location.

13. The mother asked that the motion to change be dismissed, and that the order for no access to Adrian continue, as there had not been a material change in circumstances since the order of 14 April 2009.

The Issues

14. The issues for the court to decide on this motion to change are these:

    • Has there been a material change in circumstances since the 2009 order that affects the best interests of the child?, and,

    • If there has been a material change, is it in the child's best interests for the father to now have access to the child?

Procedural Issues Regarding the Motion to Change

15. The father started this motion to change in June 2012, asking to change the no access order and the child support order. The request regarding child support is being dealt with separately.

16. The father's motion to change did not even mention material change in circumstances, did not plead material change, and offered no evidence in support of material change in circumstances. At the court's initiative, at the case conference on the first appearance before a judge (on 17 October 2012), the court adjourned the father's motion to change to allow the father to amend his pleadings regarding access, and included a timetable for the serving and filing of his amended material. The father filed an amended motion to change on 6 November 2012, pleading material change in circumstances regarding access.

17. The motion to change was adjourned twice more at the father's request (on 11 and 15 January 2013). Each time, the father was given a further opportunity to serve and file additional affidavit material in support of his motion to change, with a specific timetable set out.

18. The father asked for the appointment of the Office of the Children's Lawyer in the motion to change access. The request was opposed by the mother. The court determined that no such order or request would be appropriate unless and until the father had met the hurdle of establishing a material change in circumstances, and that the request could be renewed, should the court determine that there had been such a change since the order of 14 April 2009.

The Evidence About the Father at the Trial

19. There was a great deal of evidence about the father and his behaviour towards the mother and the children (Adrian, his sister Alyssa (then 18) and the father's son Stephen (then 23)) at the trial. Both Alyssa and Stephen gave evidence at the trial.

20. This is a summary of findings at the trial about the father:

    • The father was demanding, very controlling and violent. He was frequently and repeatedly violent to the mother, during their relationship and afterwards, and was violent to the mother in front of the child Adrian;

    • The father called the mother names in front of the child (names such as "cunt", "whore", "slut", "you're no good", and "you're trash"). The father especially used the name "cunt" for the mother, and used that name for her in front of the child. The father specifically taught the child to call the mother "cunt", and said to the child "say it, say it". The child would repeat the word, and the child did call the mother "cunt" from about the ages of 1½ years to age 5 years. The child called the mother "cunt" at home, in public and in the mall.

    • Adrian used to hit his mother and Alyssa, kick and punch them, and pull their hair. The father taught him that this was okay that "women are garbage", "they're all sluts." That behaviour by Adrian stopped when the child was about four years old;

    • The father was violent and abusive to both Alyssa and to his son Steven. He hit Alyssa across the face when she was 11 or 12 years old, shortly after the mother, Alyssa and Adrian moved in with him. He beat Steven from the time he was about 5 years old, and demeaned, punched, and degraded him. He hit Steven with a hockey stick, when Steven was about 15 years old. He punched Steven in the nose and Steven was bleeding. The mother fears that the father will hurt Adrian;

    • The father abused both alcohol and drugs. When drunk, he abused the mother physically, emotionally and verbally. She had broken teeth from these assaults and bruised ribs. He threw beer at her, and he pulled her hair and threw her against the wall. This violence was constant while their relationship was on-going and continued after they separated;

    • The final separation was caused by a violent assault in July 2002. The father was drinking and was high that night and nearly killed the mother. He punched her and broke her teeth. She was too terrified to call the police that night, but she and the two children (Alyssa, then about 12 years old and Adrian, then almost 3 years old) left the next day. The father was convicted of assault regarding that incident;

    • After the mother, Alyssa and Adrian moved out from the father's home, the abuse was worse. The father still came around to their home, screamed, threw a beer bottle at their windows, climbed the balcony, and banged on the door. Both children were scared. Alyssa tried to keep Adrian away from this behaviour by putting him in her room and talking to him;

    • The father harassed the mother, stalked her, and tormented her, while they lived together and after they separated. Due to the violence of the father towards the mother, the mother called the police repeatedly. She had 60-70 involvements with the police;

    • The father produced letters and affidavits the mother had written in the past, which praised the father, suggested they were reconciling at one point and described him in positive terms. These letters and affidavits, which were not true, had been written as help for the father in his many criminal cases over the years. The mother wrote those letters and affidavits because he pressured and threatened her until she did. It was significant that the father had saved all these documents;

    • The father caused the mother to lose her job on 10 January 2003, due to his harassing telephone calls to her, her lawyer employer, and her co-workers;

    • For the three years before the trial, the father went to the child's school every single day, twice a day, to see the child. He sat in his van and waited for the child to get off the bus in the morning. The child stayed in the van from 8 a.m. until 8.45 a.m. when school started. Then at the end of the day, the child stayed in the van from 3.10 p.m. until the bus came at 4 p.m. to take him to the day-care;

    • The father went to the child's day-care in the summer and unilaterally removed the child from day-care, without either the mother's knowledge or her consent. The father did this even though there was a restraining order from Zuker, J. made 24 February 2003 (on consent) that specifically prohibited the father from removing the child from the day-care;

    • The father has a long criminal record for violent offences (including assaults, sexual assaults) and other offences, including breaches of probation. The father was convicted of assault on the mother after the parties separated;

    • The father repeatedly exposed the child to police involvement. He was arrested when the child was with him on several occasions, including an arrest in the child's presence less than one year before the trial. The father had last got out of jail about 4 months before the trial;

    • When the parents lived together, the father grew marijuana in the den and was selling marijuana. It is likely that the father smoked marijuana in the van with the child;

    • The father's own evidence about his criminal convictions was chilling and was shocking. Among the many convictions for violent offences he itemized was a 1997 sexual assault conviction regarding his former girlfriend Charlene. His evidence about the next conviction on his record (after the 1997 sexual assault conviction) was, he said, in 2001, which "would be Lydia's turn." It was stunning that the father would refer to an assault conviction regarding the mother (or indeed, regarding any woman) in this way;

    • The father had never paid child support;

    • The father has never abided by any of the court orders. Even when access was suspended, the father would show up at the child's day-care. The father had been charged by the police for these breaches in the past; and,

    • The father's behaviour towards the professionals involved in the child's life was aggressive, inappropriate and resulted in some professionals refusing to have any contact with him (including the Principal at Adrian's school, the dentist, and the Director and supervisor at Adrian's day-care).

The Legal Framework: Material Change in Circumstances

21. The court shall not make an order that changes a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child (Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended, s. 29, ("the CLRA")).

22. This test is a threshold test, that is, the court does not embark on a consideration of the merits of the motion to change unless and until the threshold test of material change in circumstances has been satisfied.

23. The onus in a motion to change is on the moving party to produce evidence that there has been a material change in circumstances.

Why A No Access Order at Trial?

24. An order for no access is unusual. An order for no access to a child is a last resort: Jafari v. Dadar, 1996 CarswellNB 386, [1996] W.D.F.L. 2455 (N.B.Q.B.). It should only be considered in limited circumstances and when other alternatives have failed: Jennings v. Garrett, 2004 CarswellOnt 2159 (S.C.J.).

25. The court considered several alternatives to a no access order. Nominal access was considered and rejected, as the father had shown, repeatedly, that he had no respect for court orders and would not comply with such an order. Supervised access was considered and rejected, as the father's behaviour demonstrated that he was unsupervisable and that he had no respect for the institutions and the professionals involved in the child's life.

26. There are circumstances where it is not in the best interests of children to have continued contact with one of their parents. This was such a case. For Adrian and his father there were no suitable alternatives.

27. The order for no access at trial was made for these reasons:

    • The then existing order was not working. There was an extremely detailed access order in place for 4½ years, and the father had many chances to make regular, even generous access to the child work. Access to Adrian was not working. If access had been, at one time, in the child's best interests, it was no longer in the child's best interests;

    • The father was not a meaningful and positive force in the life of this child. He was not a suitable role model for Adrian, nor indeed, for any child, especially not for a male child. He was not a suitable influence on the child regarding the way the father treats the mother, and the way he treats women generally. The father has a long history of assault convictions regarding the mother and his previous girlfriends. He called the mother horrible names in front of the child (and in front of his son and her daughter). He taught the child to call his own mother names that are vile, demeaning, and extremely inappropriate;

    • The child had seen the father arrested, and had been with the father when he was arrested. The child knew when the father had been in jail, in part because the access stopped;

    • The proof of the pudding on this issue was in Adrian's behaviour. Adrian had adopted behaviours that he learned from his father, behaviours towards his mother, sister, and others;

    • If access continued, the father would continue to use his time with Adrian to undermine the child's relationship with his mother. He would continue to model inappropriate behaviour to the child;

    • The father's attendance at the school every day, twice a day, was intrusive, invasive, and bullying behaviour. It showed an inability to understand that children have separate needs from their parents. It showed that the father is unable to put the child's needs ahead of his own; and,

    • One cannot be a good parent and offer violence and abuse to the child's other parent. Courts are required to take into account, in determining custody and access, whether a person has committed violence or abuse towards his spouse, the child's parent, a member of that person's household or any child (CLRA s. 24(4)). The father's violent behaviour towards the mother, Alyssa, and Steven qualifies under all the sections of s. 24(4) CLRA. His behaviour was the antithesis of good parenting.

The Father's Evidence on the Motion to Change Access

28. In the amended motion to change form, filed 6 November 2012, the father alleged material change in circumstances since the trial order of 14 April 2009, and provided the following unsworn statement of the changes he relied on:

    a) He has not used any form of non-prescription drug, specifically marijuana; and,

    b) There have been no new criminal charges laid against him.

29. These two facts were not contained in sworn evidence anywhere in the father's material, but were set out only in his amended motion to change.

30. This was the entirety of the information regarding material change in circumstances until additional affidavits were filed on 30 January 2013 and 14 February 2013 by the father, with evidence that the father had enrolled in and had attended three sessions of a group parenting program in January and February 2013.

31. The father's evidence sworn 30 January 2013 showed attendance at two sessions of a court-ordered anger management program in 2006, but as this pre-dated the trial order of 14 April 2009, it is not evidence of a material change in circumstances since the trial.

Analysis

32. There has not been a material change in circumstances that affects or is likely to affect the child in this matter.

33. The father provided very little evidence, despite many opportunities to add additional evidence to his material. His evidence was spartan, lacking in details and very brief. He had eight months from the start of the motion to change until it was argued, and was given repeated adjournments with specific leave to file additional evidence each time. He was represented by two lawyers during this time.

34. The father's case was based on these facts, which he said constituted a sufficient change of circumstances regarding access:

    a) The father has not used any form of non-prescription drug, specifically marijuana;

    b) There have been no new criminal charges laid against him; and,

    c) he enrolled in and attended three sessions of a group parenting program in January and February 2013.

35. This evidence (and some of these facts were not in evidence) falls far short of material change in circumstances. In the circumstances of this case, these facts amount to no change whatsoever.

36. There is a great deal of information missing. There was no acknowledgement or acceptance of any fault or wrong-doing in the past by the father regarding his treatment of the child or the mother (or his son Steven, or the mother's daughter Alyssa). The father has no insight at all into the situation he is in. The father thinks what has happened in his relationship with his son is someone else's fault. He accepts no responsibility for this situation.

37. There is no evidence of any change in the father himself, in his attitudes, his behaviour, in his view of the mother, or his view of women.

38. There is no evidence of any counselling for the father.

39. The father is unchanged. Two incidents, in particular, showed that the father has not changed at all since the trial order in April 2009.

    a) In the parenting affidavit filed by the father in support of his motion to change, the father still shows the history of the child's care as jointly in care of the father and the mother from birth to 2009. The father's evidence at trial that he was a joint caregiver for this period was explicitly not accepted by the court. This statement by the father in an affidavit is intentional and misleading; and,

    b) There was a recent incident, on 9 May 2012, in which the mother's current partner and the child were at a gas station and were approached by the father in a threatening manner. The police had to be contacted. The father did not dispute, deny this incident, or provide any details about it.

Adrian, Then and Now

Adrian at the Trial

40. At trial, Adrian (then 9 years old) was a child having difficulty. This is a summary of the trial findings regarding Adrian:

    • Adrian had been exposed to physical violence, verbal abuse, and derogatory messages about his mother. He replicated this aggression in his relationships with his parents, his classmates and with his teachers. He displayed aggressive behaviours with no apparent antecedent (e.g., hitting his mother, stomping his feet, raising his voice), and he frequently used inappropriate language;

    • Adrian had difficulty regulating his behaviour. He used aggressive tactics to pressure others to respond (such as stomping his feet, raising his voice and hitting). These behaviours are directly related to watching the conflict styles of his parents;

    • At school Adrian was aggressive with classmates, including kicking, pushing and calling them names. He had justified calling other children "stupid" because his father swears and hits his mother. He had difficulty regulating his behaviour and displaying appropriate social skills with his peers, and he resorted to negative/unacceptable forms of communication to gain attention; and,

    • Adrian needed counselling to help deal with his aggressive behaviours, and the negative impact of the parental conflict.

41. The mother produced a selection of the child's report cards from 2004 to 2010, during most of which time the child was seeing his father. This is a summary of the findings of his teachers in this period:

    • Adrian had a very hard time staying focused in class. This behaviour interfered with his ability to achieve his highest level of success;

    • He was aggressive towards his classmates;

    • He was very easily distracted;

    • He was distracting to others during lessons;

    • He had difficulty sitting still for prolonged periods of time;

    • He was not co-operative, well-behaved, polite or helpful to others;

    • He did not interact positively with others;

    • He did not focus his attention on lessons;

    • He did not use appropriate ways of resolving conflict;

    • He did not take responsibility for his own personal actions;

    • He did not listen to and consider differing opinions when working in groups; and,

    • He did not respect the viewpoints of others.

42. In September 2010 an individual education plan was devised for Adrian, as he needed special services and programs in receptive language skills, listening, organizational skills, math reasoning skills, and reading comprehension skills.

Adrian, Now

43. There was extensive evidence from the mother about how Adrian is doing now.

44. Following the trial decision Adrian asked the mother frequently if anyone would be able to force him to visit with the father. He asked this with fear. The prospect of being forced to spend time with the father caused the child to experience a lot of stress and anxiety. Many times the child said that he did not want to see the father, as he was terrified of the father, and afraid of what the father might do, especially as the father lived alone and there would be no-one there to protect the child in time of need. The child expressed concern he would be beaten, as he was exposed to the father's violent behaviour to the mother and to the father's son Steven.

45. It took Adrian approximately one year to fully adjust to not having visits with the father. The child seemed very confused and unsure how to conduct himself. He experienced a lot of stress and anxiety. He was unsure how to lead a normal life. He never asked about the father, and never asked to see the father.

46. It took several years for Adrian to stop exhibiting the behaviours that the father had taught him. He no longer asserts himself with aggressive behaviour.

47. It took some time following the trial decision for Adrian to be able to feel secure enough to go out with friends, have sleepovers, go to a movie, or venture not too far away from his home in general. The child was hesitant as he thought he would encounter the father at some point. The child is terrified at the prospect of being forced to spend time with the father.

48. In June 2011, it was determined that Adrian had met his goals and no longer required occupational therapy through the school health support services program. He completed the program and was discharged from the Community Care Access Centre in October 2011.

49. Adrian is doing well in school. His report cards for this period (2009 to 2012) show the following findings by his teachers:

    • Adrian has worked really hard to improve his conflict resolution skills;

    • He works well with others, to resolve conflicts and build consensus to achieve group goals;

    • He responds well to teacher support and direction;

    • He accepts various roles and an equitable share of work in a group;

    • He responds positively to the ideas, opinions, values, traditions of others;

    • He is progressing well in many areas (language, French, math, science and technology, and history);

    • He is taking on leadership roles;

    • He advocates for himself; and,

    • He asks for help at appropriate times.

50. There have been tremendous changes in Adrian in the past four years. He has grown up to be very loving, affectionate child who is respectful to others, helpful and responsible. He is experiencing less anxiety. He is more outgoing. He does not experience the stress, anxieties and insecurities he used to experience. He is a very active healthy child, who enjoys the outdoors and is involved in sports. He lives a more normal life for a child of his age. He stressed that he was content, safe and secure at home.

Orders

51. The father's motion to change regarding access is dismissed.

Costs

52. If the mother is claiming costs of the motion to change regarding access, written costs submissions may be submitted, to a maximum of five pages, not including a summary of the costs and any offers to settle, with the use of a Form 14B motion. This is the timetable for costs submissions:

    a) Mother's submissions to be served and filed by Friday 22 March 2013;

    b) Father's response to be served and filed by Friday 5 April 2013; and,

    c) Mother's reply, if any, to be served and filed by Friday 12 April 2013.

Released: 28 February 2013

Justice Curtis