Court File and Parties

Ontario Court of Justice

Date: May 27, 2020

Court File No.: Toronto DFO-20-15381

Between:

Giuseppe Panaia Applicant father

— and —

Joanna Alves Respondent mother

Before: Justice Sheilagh O'Connell

Heard on: April 30, 2020

Ruling and Reasons for Decision released on: May 27, 2020

Counsel

Antony Di Batista — counsel for the applicant

Theodora Oprea — counsel for the respondent

O'CONNELL, J.:

Introduction

[1] The Applicant father, who resides in Woodbridge, sought leave to bring an urgent motion for an order that the child of the parties' relationship be immediately returned to his primary residence in Woodbridge, or in the alternative, an order for an equal parenting schedule.

[2] The Respondent mother, in response, brought a motion seeking to traverse this matter to the Ontario Court of Justice at 47 Sheppard Avenue, Toronto, an order that the child's primary residence remain with her in Toronto, and an order for specified access to the father.

[3] The parties have one child, Francesco, now five months old.

[4] As a result of the Covid pandemic, only urgent motions are being heard in this court by teleconference, in accordance with the Court's COVID-19 Pandemic Scheduling Practice Direction.

[5] After reviewing the motion materials, served and filed electronically in accordance with Practice Direction, I determined that the matter was urgent for the following reasons, based on the father's materials:

a. The parties separated on or about March 27, 2020, when the mother left the family residence with the parties' four month old child. The parties were living together in Woodbridge, Ontario at the time of the separation.

b. The father states that the mother "absconded" with the child and is "unlawfully retaining" the child. The mother denies this.

c. The father also alleges that the mother is denying him all access to the child.

d. Some access did occur at the mother's new residence on March 30, 2020, three days after the separation, but the mother's sister called the police and the father was asked to leave. The mother alleges that the father tried to leave with the child.

e. There is no order or agreement in place between the parties.

[6] An urgent motion was therefore scheduled, subject to the following directions by the court:

1. The motion and cross-motion, if any, will be conducted by telephone conference in accordance with the Court's COVID-19 Practice Direction.

2. All evidence and facta shall be filed with the court by delivering them as attachments to an email to the other parties and the Trial Coordinator at 311 Jarvis.ocj.family.trialcoordinator@ontario.ca in searchable PDF format. Any references to case law or statutory material can be made by hyperlinks to contained in the parties' factums or in a separate list of authorities.

3. Counsel having commissioned the affidavits by observing the deponent on videoconference is validated.

4. If an affidavit cannot be sworn or affirmed before a Commissioner for taking oaths (including any lawyer or paralegal licensed to practice in Ontario), the person making the affidavit must participate in the teleconference with the presiding judge and be prepared to swear or affirm the truth of its contents at that time.

5. Service by one party on the other of the materials to date by email is validated. Service by email is permitted so long as the suspension of regular court operations continues.

[7] The motions were heard on April 29, 2020. Both parents and counsel participated by telephone conference call and the matter was heard on the record in the courtroom.

[8] I reviewed the following materials in support of the motions:

a. the father's notice of motion and Statement of Law;

b. the father's Affidavit dated April 13, 2020;

c. the father's Affidavit dated April 21, 2020;

d. the father's Affidavit dated April 24, 2020;

e. the father's Factum dated April 27, 2020;

f. the mother's notice of cross-motion;

g. the mother's Affidavit dated April 16, 2020;

h. the mother Affidavit dated April 25, 2020;

i. the mother's Factum dated April 26, 2020.

Brief Background

[9] The parties were in a relationship for approximately six years. They started living together in Toronto in July of 2018 in a house owned by the father and/or his parents. The parties never married.

[10] For reasons not set out in the parties' motion materials, the father sold the home in Toronto in 2019. The parties moved into the home of the father's parents in Woodbridge, Ontario in May of 2019.

[11] At the time the parties moved into the paternal grandparents' home, the mother was pregnant. On […], 2019, Francesco was born. He is the only child of both parents.

[12] The father is employed full-time in his family's construction or drywall business.

[13] The mother was employed full-time throughout the parties' relationship however, she has been on maternity leave since Francesco's birth.

[14] At the time of the hearing, the father's work had shut down. It is unclear when his work will resume again.

[15] On March 27, 2020, the parties separated when the mother and child left the paternal grandparents' home in Woodbridge and returned to Toronto.

[16] The mother moved into her sister's condominium in Toronto. The father had some parenting time with Francesco immediately after the parents separated. The parties agreed to an overnight visit at the father's home in Woodbridge from Saturday, March 28 to Sunday, March 29, 2020. The father returned Francesco to the mother in Toronto on March 29, 2020.

[17] At the mother's invitation, the father returned to the mother's condo on March 30, 2020 for a further visit with Francesco. However, an incident occurred between the parties on that day while the father was visiting with the child. The mother's sister called the police. The police arrived and the father was asked to leave the apartment without Francesco, to which he complied.

[18] The father has not seen Francesco since the incident on March 30th.

[19] The parties disagree about what transpired during the March 30th visit. The parties also disagree about the reasons why the father has not seen Francesco since that time.

[20] The father commenced these proceedings shortly thereafter.

[21] The mother continues to live with Francesco in the condo in Toronto and the father continues to live with his parents at their home in Woodbridge. Initially, the mother's sister was living with the mother and baby but she moved into the maternal grandmother's home so that the mother and baby could live in the home alone, to ensure safe social distancing during the pandemic.

[22] The mother is not breastfeeding. Francesco is bottle fed.

The Father's Position

[23] It is the father's position that the mother left the home without notice and has "absconded with the child", "denying [him] any parenting time with the child", "refusing to return the child to his primary residence" and "threatening parental alienation."

[24] He seeks the immediate return of the child to his "primary residence". In the alternative, the father seeks an equal parenting schedule as follows:

a. With the father: Sunday at 5:00 PM to Tuesday at 5:00 PM;

b. With the mother: Tuesday at 5:00 PM to Thursday at 5:00 PM;

c. With the father: Thursday at 5:00 PM to Sunday at 5:00 PM;

d. With the mother: Sunday at 5:00 PM to Tuesday a 5:00 PM

[25] The father states that he has attempted to negotiate parenting time with the mother and she has refused to negotiate any parenting time. He believes that she is "crossing the line to outright parental alienation."

[26] According to the father, the mother left with the child in the midst of the pandemic and she is now using the pandemic and the court closures to restrict his interactions with the child.

[27] The father also describes the mother as unfit and deposes that the mother has "a dependency of over the counter medication and alcohol" and that he is worried that she is "mixing her medication and alcohol when she is caring for Francesco". The father further deposes that the mother would "frequently wait for the father to help care for Francesco."

The Mother's Position

[28] It is the mother's position that it is in Francesco's best interests to continue to be in her primary care, as he has been since birth, and that the father should have regular parenting time with the child consistent with his age and stage of development as follows:

a. Every Tuesday from 5:00 PM to 7:00 PM at the mother's residence;

b. Every Thursday from 5:00 PM to 7:00 PM at the mother's residence;

c. Every Saturday from 11:00 AM to 3:00 PM at the father's residence;

d. Any other access that the parties may agree upon in writing.

[29] The mother asserts that she has been the primary caregiver for Francesco since the child's birth. The mother has been at home with the child on maternity leave while the father was working full-time and only home in the evenings. According to the mother, although the father was initially helpful during the first week after the child's birth, she observed that he then became resentful would no longer assist when asked when he got home from work.

[30] The mother denies absconding with the child. The mother states that she advised the father that she was leaving the home with the child and that she would be staying with her sister. The father knew that she was leaving. The parties were having difficulties in their relationship.

[31] The mother further denies the father's claims that she refused all parenting time with the child. According to the mother, following the separation, she offered the father regular visits with the child at her home, including one overnight visit at the father's home in Woodbridge. The mother also invited the father to stay in the second bedroom of the condo so that he could have regular and frequent parenting time.

[32] According to the mother, the father is controlling and critical and has brought this motion under the guise of urgency because she will not submit to the parenting schedule that he seeks to impose. She further submits that the claims that she is an unfit parent who abuses alcohol and drugs are baseless.

Legal Considerations

[33] The issues in this case are governed by Ontario's Children's Law Reform Act, R.S.O., 1990, c. C.12 ("the CLRA") and the Family Law Rules, O. Reg. 114/99, as amended.

The Child's Residence

[34] In his factum, the father relies upon section 22 of the Children's Law Reform Act to support his claim that the child should be returned to the father's care and residence in Woodbridge.

[35] This was confusing. Section 22 of the CLRA addresses the jurisdiction of a court in a custody or access case where a child either is, or is not, habitually resident in Ontario. This section applies where there is a jurisdictional contest in a custody or access case between Ontario and somewhere else outside of Ontario.

[36] This is not the case here. The child is clearly resident in Ontario and the court has jurisdiction to hear this case. The issue here is whether or not the child's residence is Woodbridge or Toronto, two different municipalities in Ontario.

[37] It could be that the father, in relying upon section 22 of the CLRA, is relying upon some of the principles that have developed in the case law regarding the meaning of a child's "habitual residence".

[38] However, when dealing with conflicting municipalities within Ontario, the issue of residence is governed by Rule 5 of the Family Law Rules. Rule 5(1) (b) of the Rules provides that a custody and access case shall be started in the municipality where the child "ordinarily resides".

[39] The case law that has developed regarding the meaning of "ordinarily resides" is largely a question of fact. See: Mohr v. Sweeney, 2016 ONSC 2248; Neshkiwe v. Hare, 2020 ONCJ 149, per Justice Alex Finlayson; and Van Roon v. Van Roon, 2013 ONCJ 276, per Justice Stanley Sherr.

[40] In Mohr v. Sweeney, supra, Justice Heather McGee tied the child's ordinary residence to that of her primary parent. However, Justice McGee also noted that where a case is started does not ultimately decide a child's primary residence, if contested by the non-residential or non-primary parent, only where the case is to be heard. See Mohr v. Sweeney, supra at paragraphs 10 and 11.

[41] In this case, on the facts before me, the determination of the child's ordinary residence is also informed by section 20(4) of the CLRA which provides as follows:

Where Parents Separate

Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O 1990, c. C.12, s. 20 (4); 2016, c. 23, s. 2 (3).

The Temporary Parenting Order

[42] Sub-sections 24(1) and 24(2) of the CLRA set out that the court must determine custody and access orders on the basis of the best interests of the child. A number of factors are set out in the legislation for the court to consider. These sub-sections state as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

a) his or her spouse;

b) a parent of the child to whom the application relates;

c) a member of the person's household; or

d) any child.

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[43] The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young, [1993] 4 S.C.R. 3, at paragraph 74; Gordon v. Goertz, [1996] 2 S.C.R. 27 at paragraphs 50 and 54.

[44] The best interests of the child have also been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See: Pastway v. Pastway, (1999) 49 R.F.L. (4th) 375 (Ont. General Division).

[45] A child should have maximum contact with both parents so long as it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[46] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.

[47] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. See: Barnes v. Parks

[48] Frequency of contact is particularly important for young children. Where parents continue to reside in relatively close proximity to one another, courts have more options to ensure a sensitive and evolutionary approach to parenting issues. See: Burkholder v. Burkholder, 2019 ONSC 4483.

[49] The status quo is a very important consideration in temporary motions for custody and access. See McEachern v. McEachern, 1994 73.

[50] When parties separate and there is no court order or agreement in place between them, the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. See Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. No 6120, paragraph 28 and Kimpton v. Kimpton, [2002] OJ. No. 5367 (S.C.J.), paragraph 1.

Analysis

[51] The parties filed conflicting affidavit evidence on some, but not all, of the material issues. The evidence has not been tested and the court recognizes that on urgent and temporary motions, the court has to make decisions on the evidence only available at the time.

[52] Nevertheless, there were a number of important material facts that were not in dispute between the parties which will be relied upon in making findings of fact.

[53] Further, the court had significant concerns about the father's evidence for the following reasons.

[54] The father's statement that the mother "absconded" with the child and left "without notice" is completely inaccurate and misleading. According to Black's Law Dictionary and the Concise Oxford Dictionary, the definition of abscond is "1. To depart secretly or suddenly, especially to avoid arrest, prosecution or service of process. 2. To leave a place, usually hurriedly, with another's money or property… 3. To depart secretly. Flee from the law."

[55] The evidence establishes that the mother did not do this. The father implicitly consented to or acquiesced to the mother and infant son leaving his parents' home and returning to Toronto to reside with the child after the parties separated.

[56] As noted earlier, section 20(4) of the CLRA specifically provides that when parents separate and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or court order otherwise provides.

[57] The mother deposed in her responding materials that the father knew that she and the child were returning to Toronto and moving into the sister's condominium given the difficulties that they were experiencing.

[58] The father does not dispute this. When asked directly by the court during the oral submissions at the hearing, the father acknowledged that he knew the mother and child were leaving his parents' home on March 27 and that they were moving to the sister's condo in Toronto.

[59] In fact, the undisputed evidence is that immediately after the move to Toronto, the mother agreed to an overnight visit at the father's home in Woodbridge and the father picked up and returned the child to the mother's care at the condominium the following day (March 28 to 29). At the mother's invitation, the father then visited the child at the condo again the very next day, (March 30). The parties discussed what the parenting schedule would look like going forward on March 29, 2020.

[60] Both parties set this out in their affidavit materials.

[61] The father also does not dispute that the mother invited the father to the condo to visit the child and even invited him to stay in the spare room to facilitate more time with the child shortly after the move. The father references this in his reply evidence.

[62] Further, I note that the father commenced his urgent application for custody in Toronto, not Woodbridge, and he did not request that the case be transferred to Woodbridge.

[63] It is very concerning that the father would repeatedly describe the mother as "absconding with the child" and "denying him any parenting time" and "threatening parental alienation" in support of his request for an urgent motion.

[64] The father may have changed his mind after the parties separated and the mother returned to Toronto with Francesco. However, it is clear upon a complete review of the evidentiary record and upon hearing submissions that there is no evidence to support the father's very serious allegations that the mother absconded with the child.

[65] As Justice Marvin Kurz stated in Alsawwah v. Afifi, 2020 ONSC 2883 at paragraph 108 of this decision:

"Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties' materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel."

[66] The father's evidence that the mother is "denying him any parenting time with the child" is also not credible.

[67] In carefully reviewing all of the evidence, and considering the submissions made on behalf of the father, the court finds that the father is only prepared to have parenting time with the child on his terms. The father's approach is not child-focused, but rather focused on his "rights" as a father.

[68] The mother has offered parenting time and a detailed proposal. However, it is not the schedule that the father wants. The mother has been attempting to communicate with the father about a parenting schedule but he will only entertain a "50/50" schedule.

[69] During oral submissions at the hearing, it was the father's position that he gets "equal parenting" or "the child goes right back to his care in Woodbridge." [Emphasis added.]

[70] Following the separation, the father was immediately offered an overnight visit in his home with the child. The mother then offered a further visit the very next day at the condominium on March 30, 2020 and the father attended that visit.

[71] Unfortunately, the incident that led to the police involvement occurred on that day.

[72] According to the mother's evidence, the sister called the police when the father tried to leave the condo with the child. The father denies this and states that the mother and sister were not offering him enough time with the child and he wanted to stay longer with the child.

[73] Since that incident, the parties have been at an impasse. The mother deposed that the father has refused parenting time at the mother's home unless his parents can accompany him or the mother agrees to an equal parenting schedule.

[74] The mother does not feel comfortable allowing the father's parents to visit her home with the father because she would be home alone with the child. She is afraid that the father and his parents will make up false accusations against her. The mother also has concerns that the father and his family were not taking the Covid19 pandemic seriously when they were living together and did not practice social distancing or self-isolation.

[75] The mother has set out her own proposal in her affidavit evidence, referenced earlier, which provides more frequent and shorter visits during the week between the father and child, with a view to expansion. The father has rejected this proposal.

The Status Quo and the Best Interests of the Child

[76] In determining the status quo prior to the parties' separation, the undisputed evidence establishes that the mother remained at home with the child while on maternity leave while the father worked full-time outside of the home until shortly before the separation.

[77] The father acknowledges this in his evidence, however, he describes the mother as unfit and deposes that she has "a dependency of over the counter medication and alcohol" and that he is worried that she is "mixing her medication and alcohol when she is caring for Francesco". The father further deposes that the mother would "frequently wait for the father to help care for Francesco."

[78] The court finds this evidence highly suspect. If the father truly believes that the mother is unfit and drug and alcohol dependent, then one wonders why he believes that an equal, shared parenting arrangement is in the child's best interests.

[79] The mother does not believe that an equal parenting schedule is in the child's best interests at this time. The child is only five months old and the mother has been his primary caregiver since birth while on maternity leave.

[80] The court agrees with the mother.

[81] This is not a situation in which both parents were actively and equally involved in the care of the child before separation. Even when the father returned home at the end of the day, he was not as actively involved.

[82] It is the mother's evidence that the father initially helped out during the first week of the child's birth, but then appeared to resent being asked and did not assist. The court prefers the mother's evidence over the father's evidence on this issue.

Conclusion and Order

[83] Francesco is a five month old infant who has been primarily cared for by his mother since birth. The parents unfortunately have not yet demonstrated that they can communicate effectively about his needs. A baby's needs are best met if parents and caregivers can communicate with each other about the baby's routine and habits and the baby has consistent and stable care.

[84] At this time, it is in the child's best interests to maintain the stability and consistency of his primary caregiver while developing and supporting his relationship with his father. This can best be achieved by creating a schedule that provides regular and frequent contact with the father, including an opportunity to engage in all caregiving activities, while at the same time maintaining the stability of his primary care.

[85] The mother's parenting proposal better achieves these goals.

[86] I therefore make the following temporary order:

1. The child's primary residence shall remain with the respondent mother in Toronto.

2. Commencing Saturday, May 30, 2020, the father shall care for the child at following times:

a. every Saturday from 11:00 AM to 3:00 PM at the father's residence;

b. every Tuesday from 4:00 PM to 7:30 PM at the father's residence;

c. every Thursday from 4:00 PM to 7:30 PM at the father's residence;

d. any other access that the parties may agree upon in writing.

3. Following a period of four weeks, commencing Saturday, June 27, 2020, the father's care of the child shall be increased such that the father shall have overnight visits on Saturdays from 11:00 AM to Sunday to 2:00 PM. The Tuesday and Thursday visits shall continue as set out in paragraph 2 above, unless otherwise agreed upon by the parties.

4. The father shall pick up and return the child to the mother's residence. The father shall remain in the lobby of the mother's condominium building when facilitating exchanges of the child.

5. The father shall ensure that he has the appropriate government approved infant car seat in his vehicle.

6. The mother shall ensure that the child has a diaper bag and bottles for travel with the father and the father shall return these items upon conclusion of his parenting time.

7. The parties' communication shall be primarily electronic. In addition, the mother shall prepare a communication log to travel with the child. The book will set out the child's eating, sleeping, including food and waking cycles, diaper (elimination) routine, health, development and attainment of milestones. The father will add to the book while the child is in his care, also noting any relevant information for the mother.

8. Both parents shall ensure that their comments in the communication log are positive, civil and child-focused. The communication log shall be evidence in this proceeding, if necessary.

9. The parties must respect physical distancing measures. They must do whatever they can to ensure that neither of them nor the child contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by the child. This includes social distancing, regular handwashing, and sanitization measures. Neither party shall do anything that will expose themselves or the child to an increased risk of contracting the virus.

10. This parties will return before me for a case conference at a date after July 18, 2020, to review the above parenting order. The parties can canvass this date with the trial coordinator. The issue of the transfer of this case to 47 Sheppard can be canvassed at the case conference, along with other parenting issues.

11. In the circumstances of the Covid-19 emergency, this endorsement shall be deemed to be an order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

[87] It is important to emphasize that a parenting arrangement for such a young child naturally changes in accordance with a child's age and developmental needs, and will be regularly reviewed, and hopefully expanded. Infants change and learn at a rapid rate. The better the parents can communicate moving forward, the better the child can form strong relationships with both parents.

[88] The parties have separated in the midst of a pandemic which has no doubt added further stress and anxiety to what is already a very stressful experience for any couple. I am hopeful that the parents will move past their very challenging and difficult separation, which has been very recent, and work together towards a parenting plan that will continue to evolve in the child's best interests.

[89] The parties and counsel are encouraged to resolve the issue of costs. If not, then any party seeking costs shall serve and file written submissions electronically no later than Monday June 8, 2020. The other party will then have until June 18, 2020 to respond. The submissions are not to exceed three pages, not including any offers to settle or bills of costs.

Released: May 27, 2020

Signed electronically: Justice Sheilagh O'Connell