Court File and Parties

Ontario Court of Justice

Date: 2019-12-04

Court File No.: Brantford F87/19E

Between:

Ashley Forsyth Applicant

— And —

Anthony Santinhos Respondent

Before: Justice A.D. Hilliard

Heard on: November 14, 2019

Reasons for Judgment released on: December 4, 2019

Counsel:

• Danica Maslov, Counsel for the Applicant
• Lloyd St. Amand, Counsel for the Respondent

Reasons for Judgment

Hilliard, J.:

Overview

[1] This court heard argument on motions brought by the Applicant, Ms. Forsyth, and the Respondent, Mr. Santinhos, on the same date.

[2] Ms. Forsyth's motion, found at Tab 8 of the continuing record, requests an Order that Mr. Santinhos be found to stand in the place of a parent to one of the subject children, Sarah; an Order that Mr. Santinhos pay child support for Sarah monthly in the amount of $342.00; and an Order that Mr. Santinhos shall meet the children's medical needs while they are in his care, specifically in regards to the children's asthma medication.

[3] Mr. Santinhos' motion, found at Tab 12 of the continuing record, requests an Order that he be awarded temporary custody of the other subject child, Olivia, or in the alternative, that there be an order for joint custody of Olivia, with her primary residence to be with Mr. Santinhos.

[4] Both parties are seeking costs on their respective motions.

Background

[5] There are two children who are the subject of this application: Sarah Maloney, born […], 2015, and Olivia Santinhos, born […], 2017.

[6] Olivia is the biological child of Ms. Forsyth and Mr. Santinhos.

[7] Sarah is not the biological child of either party. She is the biological niece of Ms. Forsyth, being the biological child of Ms. Forsyth's brother, Ron Maloney.

[8] Ms. Forsyth and her grandmother, Tressa Morgan, have joint custody of Sarah.

[9] Ms. Forsyth and Mr. Santinhos were in a relationship from March 2016 until July 2018. They formally cohabited in a residence of their own, with the children, from April 1, 2017 until the date of separation, July 1, 2018.

[10] In March 2019 Ms. Forsyth commenced an Application seeking the following relief: custody of Olivia; a finding that Mr. Santinhos stood in the place of a parent to Sarah; child support for both children, ongoing and retroactive; and contribution to the children's extraordinary expenses.

[11] Mr. Santinhos in his Answer seeks custody of Olivia and access visits with Sarah.

Issues

[12] The issues to be determined are as follows:

(1) Does Mr. Santinhos stand in the place of a parent to Sarah?

(2) If Mr. Santinhos is a parent to Sarah, should he pay child support to Ms. Forsyth and if so in what amount?

(3) Is it in Olivia's best interests for her primary residence to be changed from Ms. Forsyth's to Mr. Santinhos' on an interim basis?

Analysis

[13] The Supreme Court of Canada in Chartier set out a non-exhaustive list of factors to be considered in the determination of whether an individual stand in the place of a parent to a child:

(1) Does the child participate in extended family gatherings?

(2) Does the individual provide financially for the child?

(3) Does the individual discipline the child?

(4) Does the individual represent to the child and individuals inside and outside of the extended family as a parent to that child?

(5) What is the child's relationship with the absent parent?

[14] In applying and interpreting the test set out by the Supreme Court of Canada, courts have also recognized that the threshold to be met must be sufficiently high so as not to impose long-term financial obligations on step-parents who are kind and friendly to their step-children but not really acting as their parent.

[15] I find that Sarah did participate in extended family gatherings and events with Mr. Santinhos. Appended as Exhibit "A" to the affidavit of Ms. Forsyth, at Tab 14 of the continuing record, are photographs, one of which depicts Mr. Santinhos at his wedding being simultaneously kissed by his new wife, Olivia, and Sarah, all of whom are dressed in white.

[16] Implicit in the evidence of Mr. Santinhos is an acknowledgement that during his relationship with Ms. Forsyth, he contributed to their family unit, which included Sarah. In his affidavit at Tab 13 of the continuing record, Mr. Santinhos describes a parenting arrangement wherein he would pick up both Olivia and Sarah from Ms. Morgan's residence at the end of his work day and take the children home and care for them until their bedtime. The home the children went back to every evening was the home in which Ms. Forsyth and Mr. Santinhos were residing and contributing to with their combined financial resources.

[17] Although there is no explicit evidence from either party that Mr. Santinhos was specifically involved in disciplining Sarah, I note that Sarah is not yet 4 years old and discipline is likely not as significant a factor as it would be were Sarah to be a pre-teen or teenager. I also find that in Mr. Santinhos' own evidence he was caring for Sarah on a daily basis without the assistance of Ms. Forsyth or any other family member, for a period of almost one year.

[18] Mr. Santinhos nowhere in his evidence denies that Sarah refers to him as Dad. The pictures appended to Ms. Forsyth's evidence referred to above, also include a picture of a handmade card sent by Mr. Santinhos to Olivia and Sarah, where he refers to himself as "Dadda", as well as a screenshot of a picture posted to Facebook that depicts him with his new wife and both children in a domestic setting. I find that on the evidence before me, despite Mr. Santinhos' protestations that he did not hold himself out to be Sarah's biological or natural father, he did nonetheless present, to Sarah and to individuals inside and outside of the family, as a parent to Sarah.

[19] I accept the evidence of Ms. Forsyth that Sarah does not have a relationship of any significance with her biological father. Mr. Santinhos speculates in his evidence that because he believes that Mr. Maloney was living at the home of Ms. Morgan while she was providing child care for Sarah and Olivia, he must therefore have had some interaction and relationship with Sarah. There is no evidence to support such a speculation, and there is no evidence whatsoever that Mr. Maloney ever spent time with Sarah in a caregiving role.

[20] In considering whether there is evidence that Mr. Santinhos stood in the place of a parent to Sarah, the court can consider other evidence of Mr. Santinhos' words and behaviour in assessing his intentions.

[21] Mr. Santinhos made a claim for access with Sarah in his Answer. He has been exercising access with Sarah since the parties' separation, albeit recently on a somewhat more limited basis.

[22] Mr. Santinhos in his affidavit evidence acknowledges that he initially conceded that he stood in the place of a parent to Sarah and it was only after having "discussed the matter more thoroughly with my counsel" does he now indicate, "I am not certain as to whether I stood in loco parentis to Sarah".

[23] At paragraph 43 of his affidavit, Mr. Santinhos denies that he had ever agreed to, or suggested that Sarah be adopted by him and Ms. Forsyth. However, in direct contradiction to that statement, a screenshot of text messages appended to Ms. Forsyth's affidavit at Tab 14, Exhibit "B", depicts a conversation between the parties wherein Mr. Santinhos states, "I asked you multiple times to get the paperwork together for us to take legal responsibility over Sarah in which you did nothing about." He then goes on to ask, "would you be willing to give me custody of Sarah?"

[24] It was submitted by Mr. Santinhos' counsel that the court should take into consideration that the parties only formally resided together for 15 months, a period not long enough to demonstrate a settled intention to act as a parent. I did not find that argument persuasive in these circumstances for two reasons: first, I accept that they were cohabiting and acting as a family unit prior to the parties obtaining their own residences, and second, and perhaps more importantly, the period of time in which Mr. Santinhos has been present and involved in Sarah's life represents almost half of her young life.

[25] I find that on all the evidence before me Mr. Santinhos demonstrated a settled intention to treat Sarah as a child of his family, and that he does stand in the place of a parent to Sarah.

[26] Having found that Mr. Santinhos stands in the place of a parent to Sarah, section 31 of the Family Law Act imposes a positive obligation on parents to provide support for their minor children.

[27] In determining the appropriate amount of support that Mr. Santinhos should provide for Sarah, I am mindful that Ms. Forsyth has joint custody of Sarah with Ms. Morgan. The evidence is that Ms. Morgan receives Canada Pension Plan Disabilities benefits but does not indicate whether Ms. Morgan is eligible for, or receives, supplemental benefits for Sarah as a dependent child.

[28] Given the lack of evidence of what other financial resources may be available for the support of Sarah through Ms. Morgan or Mr. Maloney, I am not satisfied that Mr. Santinhos should be ordered to pay child support for Sarah, at this time, at the Child Support Guidelines amount.

[29] I find that a reduced amount of interim support is appropriate, without prejudice to Ms. Forsyth presenting further and better evidence as to other sources of financial support for which Sarah is eligible.

[30] Counsel for Mr. Santinhos did not strenuously argue that Olivia's primary residence should change on an interim basis from Ms. Forsyth to Mr. Santinhos. I note that Mr. St. Amand conceded his client was aware he was not likely to be granted the relief he was requesting, and rather, submitted that Mr. Santinhos was wishing to be granted additional parenting time with Olivia.

[31] Despite this concession, Mr. Santinhos' motion was not withdrawn and therefore requires this court to address his request for relief.

[32] In determining issues of custody and access on an interim basis, the court must consider what is in the best interests of the child(ren).

[33] Olivia is just over 2 years of age. She has resided primarily with Ms. Forsyth since the parties' separation in July 2018, approximately one-half of her young life.

[34] Mr. Santinhos' plan relies heavily on his new wife to provide childcare for Olivia during the day when he is at work. His own evidence is that each weekday he would be out of the house before Olivia even woke up in the morning.

[35] Very young children require stability and predictability in their routines.

[36] The principle of maximum contact also requires courts to consider the ability for a child's biological parents to provide care for her before considering a step-parent or other relative.

[37] I am not satisfied that at this interim stage, it is in Olivia's best interests to have her primary residence changed from mother's, to father's, which would entail a fundamental shift in the child care dynamic from biological parent to step-parent during the week.

[38] With respect to the submission made on behalf of Mr. Santinhos that he wishes to be granted additional parenting time with Olivia in the event that he is not granted primary residence, I note that this alternative position was not specifically pled in his notice of motion, nor is there a request for the standard "such further and other relief as the Court deems just".

[39] Ms. Maslov on behalf of Ms. Forsyth, argued against the court's ability to consider an expansion of Mr. Santinhos' parenting time as it was not pled in his notice of motion and therefore Ms. Forsyth has not filed any evidence to respond to such a request.

[40] Given that additional parenting time was not specifically requested by Mr. Santinhos in his notice of motion, I find that it would not be fair or just for the court to make an order altering the current parenting schedule without giving Ms. Forsyth an opportunity to file affidavit evidence addressing that issue.

Temporary Order

[41] The Respondent, Anthony Santinhos, is found to stand in the place of a parent to the child, Sarah.

[42] The Respondent shall pay child support in the amount of $200.00 per month commencing January 1, 2020.

[43] The Respondent's motion requesting custody or primary residence of the child, Olivia, is dismissed.

[44] Counsel may send written submissions on costs to my attention in chambers on or before December 20, 2019.

Released: December 4, 2019

Signed: Justice A.D. Hilliard