SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-08-063598-0001
DATE: 20120703
RE: Ann Savitrie Cossetti v. Antonio Cossetti
BEFORE: Fragomeni J.
COUNSEL:
Noel N. da Silva, for the Applicant
Natalie Taccone, for the Respondent
E N D O R S E M E N T
[ 1 ] On January 22, 2010 Justice Baltman made the following Order, on consent, in part:
The Respondent (husband), Antonio Cossetti and the Applicant (wife), Ann Savitrie Cossetti shall have joint custody of the children of the marriage, Marco Joseph Cossetti, born September 13, 2000 (now 9 years old) and Carina Anna Cossetti, born December 22, 2004 (now 5 years old) with primary residence with Ann Cossetti.
Neither Antonio Cossetti nor Ann Cossetti will move his or her permanent residence without providing the other parent with 60 days written notice of the intended move, such notice to include the details of the intended address.
[ 2 ] The consent order also dealt with many other areas including decision making, Hague Convention issues, time sharing, passports, extended travel, non-removal for travel, education, change of name, child support disclosure, life insurance and costs. The consent order was comprehensive and covered numerous areas relating to the children.
[ 3 ] The parties were married on August 28, 1999 and they separated on May 29, 2008.
[ 4 ] There are two children of the marriage, namely Marco Joseph Cossetti born September 13, 2000 and Carina Anna Cossetti born December 22, 2004.
[ 5 ] On April 24, 2012 pursuant to the Order of Justice Baltman, the Applicant mother sent the following e-mail to the Respondent father:
Tony,
To avoid any future verbal abuse, I feel the best form of communication is by e-mail.
There is no need for taking Marco to try-out in Vaughan, as he will be playing in Barrie, it will only be a waste of time and money.
We will be moving to Barrie the end of June 2012. 60 days notice.
The address is: 67 Porritt St., Barrie, Ontario, L4N 6X7, the home number will be 705-812-0704.
As a reminder, as stated in the court document FS-08-063598-00, dated January 22, 2012, section #11.
That I am the one to drop the children off. You were contempt of the court order by picking up the kids on April 5, 2012 by no noticed giving to me. Same can be said for the returning the children into my care.
The order is set for 7 p.m. and you keep bring them at 8, 8:30/9 p.m.
Thank you.
Ann
[ 6 ] On June 14, 2012 the father filed a motion to change the Order of Justice Baltman. He also filed a Form 15A, Change Information Form, Form 13: Financial Statement sworn June 13, 2012, and a Form 35.1, Affidavit in Support of Claim for Custody or Access dated June 13, 2012.
[ 7 ] On June 15, 2012 the father filed a Notice of Motion supported by his Affidavit sworn June 15, 2012, for the following temporary relief:
Urgency
An Order abridging the time for service of this motion and granting leave to the Applicant to bring this motion on short notice.
An Order that this motion be heard on an urgent basis and prior to a case conference and mandatory information program pursuant to Rule 14(4.2) of the Family Law Rules .
Mobility
- A temporary Order preventing the Respondent (mother) Ann Cossetti from moving the primary residence of the children, namely Marco Joseph Cossetti, born September 13, 2010 (now 11 years old) and Carina Anna Cossetti, born December 22, 2004 (now 7 years old) from Brampton, Ontario to Barrie, Ontario.
Office of the Children’s Lawyer
- An Order for the appointment of the Office of the Children’s Lawyer pursuant to Section 89 and 112 of the Courts of Justice Act .
Costs
- An order for costs on a full recovery basis pursuant to Section 24 of the Family Law Rules.
Other
- Such further and other relief as this Honourable Court deems just.
[ 8 ] The mother responded to this motion and filed an Affidavit sworn June 26, 2012. The mother also filed a Form 15B, Response to Motion to Change, a Form 35.1, Affidavit in Support of Claim for Custody or Access dated June 26, 2012 and a Form 13, Financial Statement.
[ 9 ] In response to the mother’s Affidavit the father filed a further Affidavit sworn June 28, 2012. As the motion was scheduled to be heard on June 28, 2012 the mother did not have time to respond to this further Affidavit by the father.
[ 10 ] The motion was heard by me on June 28, 2012 as the intended move to Barrie by the mother is imminent. The home she was living in with the children has been sold with the sale to close on July 6, 2012.
[ 11 ] The Affidavits filed by the parties set out the history of this matter and their respective positions on what is in the best interests of the two children.
[ 12 ] The Affidavits have not been the subject matter of questioning and the Affidavits are conflicting in many respects. Without a further evidentiary record it is difficult, on this record, to resolve those differences.
[ 13 ] In her Affidavit sworn June 26, 2012, the mother states the following at paragraphs 60 to 71:
Pursuant to the Final Order of Justice Baltman, dated January 22, 2010, I am required to provide the Respondent with 60 days notice of the intended move. It does not state that I have to seek the permission of the court prior to arranging for the move. Had the Respondent notified me of this opposition to the intended move prior to bringing the within motion, I would have sought the court’s guidance immediately.
In response to paragraph 26, the children have friends and family in Barrie. Further, neither the Respondent nor his family live in Brampton, and as such the children are not being uprooted from them. Changing the children’s primary residence to be with the Respondent would be a major disruption in their lives as I have been the primary custodial parent since separation. The children and I enjoy a close, loving relationship and strong emotional ties. The Respondent’s proposal is not in the children’s best interests.
The children also enjoy a close and loving relationship with Ray.
I will continue to foster the children’s relationship with family and friends in Brampton.
In response to paragraph 27, it is not in the children’s best interests to be uprooted to Maple to live with the Respondent as they do not have any family or friends in Maple.
In response to paragraph 28, I have fully considered the impact of this move and the impact that it will have on the children of the marriage. This move will be in the children’s best interests as I will be able to save money for their education and because they will receive the benefit of having a double parent home.
In response to paragraphs 30, 31, and 32, I will no longer be working in Toronto as I have secured a job at RI-GO Lifting for the position of Service Coordinator. My new job at RI-GO Lifting is located in King City which is close to Barrie.
I have also informed my new employer of my responsibilities as the children’s primary custodial parent and have received confirmation that I will have the flexibility to accommodate my children. As such, I will always be available on short notice to pick up the children from school in the event of an emergency or illness.
In response to paragraph 31, I have every intention of seeking employment in Barrie in my field and I am in the process of doing same.
In response to paragraph 33, although I have been dating Ray for only two years now, I have known him for 5 years and during this time we have built a strong friendship. Ray has also been a major part of the children’s lives for the last few years.
In response to paragraphs 34 and 35, Ray’s daughters live with their mother in Maxwell, Ontario. Ray has access two weekends a month. Carina will be sharing her room with Ray’s younger daughter namely Elizabeth twice a month when she visits. Carina is very excited to start having these weekend sleepovers with Elizabeth as they have become very close and are inseparable when together.
Ray owns a very spacious three bedroom house.
[ 14 ] The father sets out the following, in part, in his initial June 15, 2012 Affidavit at paragraphs 19 to 25:
The children have family and friends in the community where they currently reside. Ann is proposing to move the children from their social network to move them into the home of her boyfriend of two years in Barrie where he resides with his two daughters.
This move will significantly impact on my time and the children. It will double the distance between my home and Ann’s new home. Currently, our homes are approximately 30 kilometres away from each other but after the move, based on Ann’s proposed home in Barrie, our homes will be 60 kilometres from each other.
Currently, it takes me 30 minutes to drive from my home to Ann’s home, which results in a one hour round trip. Based on the traffic on Highway 400 north and south between Vaughan and Barrie, I estimate it will take between one (1) and one and a half (1.5) hours each way between my home and Ann’s proposed home (a round trip of two to three hours). It will likely take up to two (2) hours each way on Fridays and Sundays during the summer.
In addition to greatly increasing travel time, this distance will make my monthly mid-week visit and weekly mid-week visits in the summer virtually impossible, thereby further restricting my time with the children.
I have a very close bond with Marco and Carina and I am actively involved in their schooling and extra-curricular activities. I care deeply for my children and want what’s best for them.
Currently, I am able to attend parent-teacher interviews and school events, as well as Marco’s hockey practices (which were in Vaughan during last season) and Carina’s ballet lessons and recitals in Brampton and support my children in these activities.
A change in the children’s primary residence from Brampton to Barrie is a significant change. Ann ought to have known that a change of this nature would affect the timesharing schedule and transportation for access and should have sought the permission of the court prior to arranging for the move.
[ 15 ] The father also sets out many other reasons why he opposes the mother’s move to Barrie.
[ 16 ] It is important to articulate at the outset that the best interests of the children is the paramount consideration in this matter.
[ 17 ] The Order of Justice Baltman dated January 22, 2010 was a Consent order. Both parties were represented by counsel. Paragraph 9 of the order only requires a party to give the other party 60 days written notice of an intended move, such notice to include details of the intended address. The mother did that in her April 24, 2012 e-mail to the father. There is no requirement in paragraph 9 of the Order that the other parent consent to the move or that a court order is required before such a move can be made. There are also no restrictions in that paragraph with respect to distance, location, province or otherwise. Of course as a practical matter a change in residence could affect the timesharing agreed to by the parties. If that was to occur then that would be seen as a change in circumstances and the issue of timesharing would have to be revisited.
[ 18 ] The father lives in Maple, Ontario. The mother’s move is to Barrie, Ontario. The father states that currently it takes him about 30 minutes to drive from his home to the mother’s home in Brampton. The father sets out that with the mother’s move to Barrie and based on the traffic on Highway 400 north and south between Vaughan and Barrie, he estimates a round trip of 2 to 3 hours. In addition to this, the husband states that the distance will make his monthly mid-week visit and weekly mid-week visits in the summer virtually impossible.
[ 19 ] Pursuant to paragraph 11 of Justice Baltman’s Order the mother is responsible for driving the children to Maple on the Friday and the father transports the children back to Brampton on Sunday. In her submissions, the mother advised the Court that because of the increased distance to Barrie she is prepared to reduce the child support payments by $100 per month to take into consideration the father’s increased travel costs.
[ 20 ] I am satisfied in all of the circumstances and on the evidentiary record before me that the father’s motion cannot succeed. The father’s motion is, therefore, dismissed.
[ 21 ] Firstly, the move to Barrie by the mother and the children will not significantly or materially change the timesharing arrangements now in place. The parties may be required to discuss and implement additional time, to take into account the additional driving that will be required by both parties. It may take a few times to see exactly how much more time is needed at which time the appropriate adjustments can be made. If the parties cannot agree on the appropriate time sharing adjustments the matter can be returned to court for a judicial determination of the issue.
[ 22 ] I am prepared to reduce the amount of child support by $100 per month as suggested by the wife to take into account any additional transportation costs the father will have to incur as a result of the mother’s move to Barrie.
[ 23 ] I am not satisfied in the circumstances of this case that the appointment of the OCL is warranted and I agree with the mother’s position on this issue that there is no proposed material change in the access time with the children that requires the involvement of the OCL at this time.
[ 24 ] Temporary Order to issue as follows:
The father’s Notice of Motion is dismissed;
The basic child support monthly payment shall be reduced from $689 per month to $589 per month effective July 1, 2012 and paragraph 25 of the order of Justice Baltman dated January 22, 2010 is varied accordingly;
The parties shall file written submissions on costs within 30 days.
Fragomeni J.
DATE: July 3, 2012
COURT FILE NO.: FS-08-063598-0001
DATE: 20120703
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Ann Savitrie Cossetti v. Antonio Cossetti BEFORE: Fragomeni J. COUNSEL: Noel N. da Silva, for the Applicant Natalie Taccone, for the Respondent ENDORSEMENT Fragomeni J.
DATE: July 3, 2012