ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: Milton 30336/08
DATE: 2012-05-04
B E T W E E N:
Salvatore Scrivo c/o […] Road Etobicoke, On […]
Salvatore Mannella, for the Applicant Salvatore Manella Professional Corporation 600 – 3700 Steeles Avenue West Woodbridge, ON L4L 8K8
Applicant
- and -
Jacqueline Cynthia Scrivo […]Drive Oakville, ON […]
Self Represented
Respondent
Office of the Children’s Lawyer 393 University Avenue, 14 th Floor Toronto, ON M5G 1W9
Virginia Da Costa
HEARD: March 28, 29, 30, April 2, 2012
REASONS FOR JUDGMENT
Justice M.J. Donohue
[ 1 ] This is a dispute largely over access with the youngest son Brendan and some missing belongings of Mr. Scrivo since the parties separated.
Consent Matters
[ 2 ] In the course of the trial a number of matters were concluded on consent of the parties.
[ 3 ] The parties agree that the retroactive support owing by the applicant is $980.00.
[ 4 ] The parties agree that the 2011 section 7 extraordinary expenses owed by the applicant to the respondent total $1,245.00.
[ 5 ] The parties agree that the respondent shall have custody of the children of the marriage, namely, John Anthony Scrivo and Joseph Fergus Scrivo, both born […], 1994 and Brendan Mac Scrivo, born […], 1999.
[ 6 ] The parties agree that the applicant shall be entitled to make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, rugby coaches or others involved with the children.
[ 7 ] The respondent agrees to arrange for an email account for Brendan to help the applicant with communication.
Access
[ 8 ] Mr. and Mrs. Scrivo were married May 14, 1993. Their twin sons were born in 1994 and their youngest son Brendan was born in 1999. The couple separated in 2001 but had a workable separation agreement by 2002. Mr. Scrivo had access with the boys every other weekend as well as holidays and special times. In late 2005, he moved into the residence with Mrs. Scrivo and the boys. He left that home in May 2007. Access became a problem and this application was filed in February 2008. Three court orders for interim access have been in place since then.
[ 9 ] Despite the orders, access by phone and in person has been sporadic and at times non-existent. At best it has been very limited and subject always to the boys' schedule and to the boys' option as to whether they wished to see their father. Mrs. Scrivo's position is that the access must be subject to the children's wishes. Mrs. Scrivo noted that the boys would phone their father on the Thursday night before access and say no thank you. In later years, on access nights Mr. Scrivo testified that he drove across town to see the boys and no one answered the door. Naturally, the father/son relationship has severely diminished in the last four years as he was less and less a part of their lives. Mrs. Scrivo pointed out that he does not know what awards they have received or the names of their teachers.
[ 10 ] The evidence and history of this case show it to be a high conflict relationship between husband and wife. By February 18, 2010 (Exhibit 2), Mr. Scrivo sought an order of this court to ensure that he could call the boys between 7:30 and 8:30 p.m. and Mrs. Scrivo was not to answer. Mrs. Scrivo was also to cease text messaging the applicant.
[ 11 ] The applicant and his girlfriend, Michelle Samms, both testified to weekly and nightly phone calls which the applicant made to the children. Frequently, he got no answer. The respondent, Mrs. Scrivo, testified that often they were out but if they were home she would leave it up to their choice whether they answered or not.
[ 12 ] Ms. Samms testified how upsetting this was to the applicant and to her. She said she listened once to the respondent's answering machine message playing a mocking rendition of Frank Sinatra's “I did it my way.”
[ 13 ] Not surprisingly, the difficulty in reaching the boys by phone was discouraging to the applicant. (It appears this has since improved with texting to the older boys.)
[ 14 ] It is not disputed that Mrs. Scrivo sent multiple harassing messages to the applicant, which she now regrets. The evidence is that the messages would be repeated through the night and involved name-calling, were vulgar and demeaning. Print outs of the extensive messages were referred to by all parties but not filed with the court by either party.
[ 15 ] The respondent put into evidence several facebook messages that she printed from the twins' computer. The messages were largely between Ms. Samms and the twins. Michelle was writing to the boys saying how much their father loves them and wishes to see them. She was critical of the boys not seeing their dad and suggested that money mattered more to them than their father.
[ 16 ] The respondent confirmed that the message at the bottom of Exhibit 10 on December 27, 2008 at 5:53 p.m. was written by her. She writes:
You fucking BITCH stay out of our lives. You have now harassed my sons, OH YA Its me. THE only reason they responded to your bullshit crys for the FATASS (AS HES KNOWN HERE) is because you are pathetic...
[ 17 ] Other evidence of the unpleasantness between them occurred at a rugby game of the twins in 2008. Mr. Scrivo brought Ms. Samms to watch the game. Mrs. Scrivo was upset and came at them yelling abuse to Ms. Samms and calling Mr. Scrivo a “deadbeat dad”. Mr. Scrivo stated he did not want his boys to hear this and be embarrassed. He and Ms. Samms left.
[ 18 ] On another occasion, when the applicant came to exercise access there was disagreement and Mrs. Scrivo threw an egg at his car. The visit did not occur.
[ 19 ] Not surprisingly, the boys have felt the animosity and hostility of their parents. Exhibit 9 is a facebook page by Joey Scrivo which the respondent filed stating:
You probably don't know what its like to grow up in a war Zone where your mom's on one side and your dad's on the other, and three kids are in the middle calling “Cease fire, you fucking morons”.
[ 20 ] Similarly, in Exhibit 8 his twin brother Johnnie Scrivo wrote:
...as my brother said its a warzone and im a POW(prisioner of war)”.
[ 21 ] The impact on the children of them being unable to have a normal healthy relationship with their father is obvious and will be long lasting.
[ 22 ] Mrs. Scrivo, the custodial parent, has in all other respects been an excellent parent to her twins and younger son Brendan. She is an organized, disciplined woman and raised her sons to be good students, responsible members of the community and competitive athletes.
[ 23 ] It is in the aspect of access that I find Mrs. Scrivo has not fostered the father/son relationship due to the animosity she felt to Mr. Scrivo. This is a very important part of being a good parent, where she fell short.
[ 24 ] Mrs. Scrivo is bright and capable and clear in the presentation of her case. She testified to being strict and scheduled with her boys with bedtimes, meals and routines. All three boys are enrolled in rugby, have advanced in the sport, and Mrs. Scrivo has herself volunteered in the rugby club. The boys appear to be obedient. Mr. Reid, the consultant on behalf of the Office of the Children’s Lawyer (OCL), testified that the boys were more serious, quiet, and stoic while in the presence of their mother.
[ 25 ] Mrs. Scrivo testified that she has encouraged and facilitated all the access; the boys simply chose often not to go and she respected their choice.
[ 26 ] If Mrs. Scrivo was “encouraging” access, this appears to be the only area of their lives where they have not followed her lead.
[ 27 ] I reject this aspect of her evidence. The language used to describe the father of her children alone is evidence of hostility and lack of encouragement of the father/son relationship. There is no justification for such conduct by the mother no matter how she felt about her former husband.
[ 28 ] The evidence is that Mrs. Scrivo has been conscientious in signing the boys up for worthwhile activities and ensuring they attend and excel. She appears demanding of her sons, in a good way. But when it comes to priorities, the relationship with their father has slipped to the bottom of the list. In fact, she has made it an option only.
[ 29 ] I conclude that the boys’ choice to not see their father has been heavily influenced, either consciously or unconsciously, by the extreme animosity the respondent felt for the applicant.
[ 30 ] With the passage of 4½ years with so little face to face contact between father and sons, there is certainly a divide that developed such that he formed such a small part of their lives.
[ 31 ] Rather than access being fostered between father and sons from the combined action and inaction of all the family, this relationship has been discouraged and frustrated. Leaving it to the choice of the boys has left it lacking.
[ 32 ] Mr. Reid interviewed the boys with their father as well. The boys’ preferences were to see their father if they wished to. His impression was that, as a group, they were amiable, humorous and playful with one another. He could not find a good reason why there was not regular consistent access occurring.
[ 33 ] The position of the OCL is that, if an order is given that leaves it up to the choice of the boys to attend like the previous three court orders, the access will not occur or will be negligible. The OCL also seeks police enforcement of the order, if required, and counselling to repair the rift in the family.
[ 34 ] The respondent does not dispute that the applicant loves his boys and that they love him. The respondent is critical of the applicant in not reaching out to the boys, not trying harder, not being more organized and that he has not established a relationship with them “on his own”. It is ironic that, while being critical of him not attending their rugby games and church confirmation suggesting he does not care about his sons, this trial had to be held to obtain court ordered access rather than on consent.
[ 35 ] I agree with the evidence of Mr. Reid that action must be taken promptly involving counselling to assist in rebuilding the connection between the boys and their father. On review of the curriculum vitae of the social worker, Lourdes Geraldo, proposed by both the OCL and by the applicant, I am satisfied with her qualifications.
[ 36 ] A detailed order for access must be made to ensure that all the family treat this matter as a priority.
[ 37 ] Such an order would be in keeping with the access provisions of the Divorce Act , section 16(10):
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[ 38 ] In this case, I find paragraph 9 of Tremblay v Tremblay , 1987 147 (AB Q.B.) especially apt:
I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she has abused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To be denied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse.
[ 39 ] Counsel for the applicant quoted Justice Mossip in Reeves v. Reeves [2001] O.J. No. 308 . Further, counsel referred me to paragraph 38 of Justice Mossip's decision in Reeves :
Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrated the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist's or doctor's. It is the responsibility of good parents to manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.
[ 40 ] I propose to make the access as requested by the applicant and supported by counsel for the OCL to make it clear that this is a matter of the first precedence.
[ 41 ] As will become apparent from my order, I am remaining seized of this matter and it will come back before me for review. I am extremely troubled by the stress these three children have been under. The court is only concerned with the best interests of the children. If it is found that best interests are not served by the present custodial arrangement then the court is always able to change same. Having a meaningful and healthy relationship with both parents is always in the children’s best interests.
[ 42 ] I order that:
The respondent shall have custody of the children of the marriage, namely, John Anthony Scrivo and Joseph Fergus Scrivo, both born […], 1994 and Brendan Mac Scrivo, born […], 1999.
The applicant shall have access to the child, Brendan Fergus Scrivo, effective immediately, as follows:
(a) Alternate weekends from Friday at 6:00 p.m. overnight to Monday morning, at which time the applicant shall take the child to school. In the event there is no school on Monday, the child shall be returned to the respondent at 9:00 a.m.
(b) Mid-week access on Tuesdays following the non-access weekend from 7:00 p.m. to 9:30 p.m.
(c) One week each summer. The applicant shall inform the respondent by May 15 th each year as to the week he will be with the child during the summer.
(d) March break and Christmas holidays shall be shared equally.
(e) Father’s Day from 9:00 a.m. to 7:00 p.m., if Father’s day does not fall on the applicant’s access weekend.
Pursuant to sections 141 of the Courts of Justice Act and section 36(2) of the Children’s Law Reform Act , the Sheriff of this Court’s jurisdiction, the Halton Regional Police, the Ontario Provincial Police and the Royal Canadian Mounted Police, and all enforcement officials to whose attention this Order is brought shall assist, if required, for enforcing the provisions of this Order, and shall specifically take all such action as is required to locate, apprehend and deliver the child to the applicant, as provided herein, including the power of search and entry at any time.
The applicant shall be entitled to make inquiries and be given information by the children’s teachers, school officials, doctors, dentist, health care providers, summer camp counsellors, rugby coaches or others involved with the children.
The applicant and respondent shall within 30 days from the date of this Order attend and engage the services of Lourdes Geraldo, M.S.W., R.S.W. for family therapy involving all three children by entering into the Family Treatment and Intervention Agreement attached hereto as Schedule “A” for the following purposes:
(a) To facilitate the implementation of the access schedule referred to herein;
(b) To restore adequate parent functioning, parenting and roles;
(c) To restore and/or facilitate contact between the children and the applicant;
(d) To work with each parent and the children toward the goal of identifying and separating each child’s needs and views from each parent’s needs and views;
(e) To assist the parents to fully understand the needs of each child and the negative repercussions for the children of severed and/or compromised relationship with a parent in their young lives and as adults;
(f) To work with each family member to help them form more appropriate parent-parent and parent-child roles and boundaries;
(g) To assist the applicant and respondent to resolve relevant parent-child conflicts;
(h) Any other goals or purposes as recommended by Lourdes Geraldo.
The cost of the family therapy shall be considered a section 7 expense and shall be paid by both the applicant and the respondent on an equal basis.
The case shall be reviewed and this court remains seized of this matter and the review date before me shall be on August 9, 2012 at the courthouse in Milton or at such other time as agreed to by the parties or as otherwise ordered by the court. It is ordered that seven days prior to that time, each of the parties shall file affidavits relative to the events which have transpired since the making of this Order, and which will be relied upon by the parties in any submissions made relative to its variation or extension or the suspension of child support payments.
I order that the respondent communicate politely in writing regarding the upcoming important dates for the twins’ graduation and for their rugby.
The applicant and his girlfriend Michelle Samms have a young two year old son together. Pending the counselling and a return of this matter to me, I order the applicant to not expose Brendan to either Michelle Samms or her child.
The respondent submitted that she does not have funds to pay for the counselling retainer and so I order the applicant to pay the past support of $980.00 and the section 7 expenses payment of $1,245.00 directly to Lourdes Geraldo to ensure that the counselling and assessment proceeds. These two amounts only shall not be enforced through Family Responsibility Office.
I order that the restraining order of September 19, 2008 remain in place but be reduced to 25 metres so that the applicant can more easily attend rugby matches.
Part/Tools/Household Items
[ 43 ] Exhibit 5 is a list of items which the applicant left at the respondent’s residence upon his departure in May 2007. The evidence from both parties is not strong. The respondent testified that she had an Atlas moving truck load up all the applicant's belongings and deliver them to him in September 2007. The applicant confirmed that he received the delivery but the items of Exhibit 5 were missing.
[ 44 ] The respondent advised that she messaged the applicant to pick up the rest of his things before “Big” garbage day in Oakville. When he did not arrange a convenient date she put the balance of his things in the garbage.
[ 45 ] The respondent testified that she paid $2,000.00 for the listed armoire, old fridge, sofa set, patio set and sound system. Certainly, money was paid to the applicant. Both confirmed a payment was made by the respondent's father of $5,000.00. The respondent claimed $2,000.00 of the $5,000.00 payment related to these items. The applicant testified that this was in recognition of the extensive work and costs he incurred to put the respondent's house into liveable condition.
[ 46 ] The respondent is a precise and organized woman who clearly did not wish to have the applicant's things around and I accept her evidence that she does not still have the household items apart from:
Armoire
(Estimated) $ 800.00
Couch and loveseat
1,500.00
One of three TVs claimed
133.00
Patio set
1,500.00
Sound system
500.00
Total
$ 2,433.00
[ 47 ] The values appear to be roughly estimated by the applicant and they approximate the $2,000.00 value that the respondent stated. Although I did not hear evidence from her father with respect to that payment, I accept her testimony because her memory of the dates, events, and costs overall was so exact.
[ 48 ] In contrast, the applicant testified that, when he received the Atlas truck delivery, he sent a truck load of its contents to the dump as garbage.
[ 49 ] The tools/parts listed total $11,250.00. These appear to be the items the respondent most likely put out in the “Big” garbage day. The applicant did not have receipts or photos in evidence. He estimated the values. In light of the uncertainty of whether some of the items might have gone in the Atlas van and my concern of the values of such used items, I would discount the total by two thirds. I order the respondent to pay $3,712.00 with respect to these items to the applicant.
Costs
[ 50 ] If the parties wish to seek an order for costs, I ask for written submissions of three to five pages or less, not including offers to settle, to be submitted to me within 15 days of this order. Any response is to be provided within 15 days thereafter. There shall be no right of reply.
Justice M. J.Donohue
Released: May 4, 2012