SUPERIOR COURT OF JUSTICE – ONTARIO

TORONTO COURT FILE NO.: 02/ FP/2279254FIS
BRAMPTON COURT FILE NO.: FS-12-75585-00
DATE: August 3, 2012

RE: Vito Mezzatesta, Applicant (Father)

AND: Sandra DiMeo, Respondent (Mother)

BEFORE: Ricchetti, J.

COUNSEL:
B. Mignardi, Counsel, for the Applicant
E. Adams-Idode, Counsel, for the Respondent

HEARD: August 2, 2012

ENDORSEMENT

Background

[ 1 ] The parties were married on March 27, 1999.

[ 2 ] The parties separated on April 18, 2002.

[ 3 ] There are two children of the marriage: Matteo Mezzatesta, born September 4, 1999 and Massimo Mezzatesta, born December 7, 2000.

[ 4 ] Upon separation, there was an issue where the children would reside. The parties agreed in writing that the children would live with the Father until the Mother become financially stable. The Mother signed a document to this effect on April 18, 2002. It would appear that both parties were “flexible” with respect to the children’s primary residence until the latter part of July 2002 when the Mother did not return the children to the Father.

[ 5 ] A dispute arose regarding the children’s primary residence in August, 2002. The issue could not be resolved.

[ 6 ] As a result, the Father commenced this application on August 27, 2002.

[ 7 ] On September 5, 2002, the matter came before the court for interim, interim relief. Justice O’Connell made an “interim interim order” granting custody to the Mother, granting access to the Father on specified terms and ordering the Father to pay child support in the amount of $562 per month.

[ 8 ] The Father commenced making child support payments as per the September 5, 2002 order.

[ 9 ] Despite attempts by the Father in late 2002 and early 2003 to move the matter along, the Mother failed to respond to the legal proceeding.

[ 10 ] It is obvious the parties were able to agree on the primary residence and time which each spent with the children.

[ 11 ] In early 2003 the Father started to pay the Mother child support in the amount of approximately $281.00 (approximately ½ the amount ordered).

[ 12 ] No other interim or interlocutory orders were made in this matter until June 2012.

[ 13 ] The Father alleges the children have been living primarily with him since the September 5, 2002 Order. The Father alleges the children have resided with him during the weekdays during the school year and with the Mother on weekends from Friday night to Sunday night. During the summer holidays, the children have resided on a week about basis. This schedule was generally followed at least for the past number of years since the children have been attending school (the “General Routine”).

[ 14 ] The Mother alleges the children have been living primarily with her since 2002 but acknowledges there have been times the children have had significant portions of time where the primary residence was with the Father. The Mother’s counsel admitted in her submissions that, at least in the past 3 years, what the Father alleges has been the General Routine is accurate. However, the Mother’s materials suggest the children lived with her during the school year weekdays and with the Father on the school year weekends. This is a significant inconsistency on the children’s routine.

[ 15 ] On consent of the parties, the divorce was severed from the corollary relief in January, 2011.

[ 16 ] In early 2012, the Father applied for the Canada Child Tax Benefit, which had previously been a credit received by the Mother.

[ 17 ] On May 28, 2012 the Father’s counsel wrote to the Mother advising her that, until the custody issues were resolved, a divorce would not be available. The Father suggested that he have custody and the General Routine be formalized.

[ 18 ] The difficulties between the parties began.

[ 19 ] On June 3, 2012 the Mother refused to return the children to the Father in accordance with the General Routine. The police were called. The Mother, of course, pointed to the September 5, 2002 Order and the police were unable to do anything to assist the Father. As a result, the Father brought the motion on short notice to re-establish the “ status quo ”, being the General Routine. The Mother explained the children wanted to stay with her and not return to the Father for the school week. Given the timing with the Father’s counsel’s letter, the timing of the Mother’s actions is not likely coincidental.

[ 20 ] On June 7, 2012 the Father, on notice, albeit short notice, obtained an order of Justice Mesbur seeking to have the status quo , being the General Routine, reinstated. The Mother did not attend on the return of the motion and has explained her reasons for not doing so. Justice Mesbur granted the Father temporary custody of the children pending the further return of the motion and ordered a case conference on July 20, 2012. This temporary order was to expire on August 2, 2012.

[ 21 ] On June 27, 2012 the parties agreed to a further temporary order to deal with summer residency of the children and disclosure.

The Motions

[ 22 ] The Father’s motion heard before Justice Mesbur was returnable today and must be dealt with.

[ 23 ] The Mother’s motion dated June 12, 2012 seeks an order which includes:

(a) Setting aside Justice Mesbur’s order of June 7, 2012 and a re-instatement of the September 5, 2002 Order; and

(b) A return of the status quo which the Mother alleges is a week about residence for the children.

[ 24 ] No specific child support remedy is claimed in either of the motions or was argued before me.

The Position of the Parties

[ 25 ] The Father states he has been the primary caregiver for the children for the past 10 years. He seeks a return to what he alleges was the status quo and seeks the following order:

(a) Setting aside or varying the September 5, 2002 Order;

(b) Granting him interim custody of the children;

(c) The residence of the children to be as follows:

• During the school year – with the Father on Sundays from 4:00 p.m. to 8:00 p.m. (depending on the Father’s work schedule) to Friday at the end of school; with the Mother from Friday at the end of school pick-up to Sundays between 4:00 p.m. and 8:00 p.m.; and

• During the summer – week about.

[ 26 ] The Mother seeks an order as follows:

(a) The Mother to have interim custody of the children;

(b) The residence of the children shall be as follows:

• Week about during the school year;

• During the summer, with the Mother and the Father having access on weekends; and

(c) An order prohibiting the children from being removed from the Peel Region.

Analysis

[ 27 ] Both parties now seek an interim order of this court which is different that the interim, interim order of September 5, 2002.

[ 28 ] It is difficult to understand why the parties, who have cooperated for the past 10 years, cannot resolve matters and continue with a routine for the children, which comes with it the occasional flexibility parents need from time to time and still provide the stability and support the children need from both parents.

[ 29 ] While this court is generally reluctant to vary an interim order with respect to children’s custody and access particularly after a long period where the children have become accustomed to a routine, the circumstances of this case are unique and a material change from what was before the court on September 5, 2002:

(a) The September 5, 2002 Order expressly contemplated a further interim order;

(b) Both parties admit that, despite the September 5, 2002 Order, the parties have proceeded with a residence arrangement not set out or contemplated on September 5, 2002;

(c) There was a reasonable basis for the Father bringing the urgent motion before Justice Mesbur – the Mother’s failure to return the children to the Father for the school week;

(d) Both parties seek, and claim to need, an order with specified access with the children, neither of which routines are set out in the September 5, 2002 Order; and

(e) Even the Mother seeks an order varying the interim custody of the children.

[ 30 ] Despite the conflicting evidence which will have to be resolved at trial, I am satisfied that the continuation of the September 5, 2002 Order is no longer in the children’s best interest.

[ 31 ] Both parties recognize the importance of status quo and both seek to have this court make an order which both allege is the status quo. The difficulty is that what both parties allege is the status quo is very different.

[ 32 ] What is in the children’s best interests at this time?

[ 33 ] The children are now 12 and 11 years old. They both have learning disabilities and Massimo also has developmental issues. Both are receiving professional assistance with these issues.

[ 34 ] The Mother suggests the parties “maintained a flexible arrangement where the children resided with me during the school year and with him on the weekends and summer holidays” or the “children residential arrangement was always very flexible...” I am not persuaded that this is accurate. The Mother’s evidence is conflicting, short on detail and not consistent with other evidence of third parties.

[ 35 ] I am satisfied that the General Routine was the residential arrangement for the children, for the past 4-5 years and possibly since 2002. This is consistent with:

(a) By early 2003, the Father reduced his child support payment by approximately ½ of the amount set out in the September 5, 2002 Order. This has continued to date. The Mother has not objected to this. It is consistent with a more equal shared residency as suggested by the Father;

(b) The school registrations have shown each year the children’s residence as being with the Father in Bolton. I have a difficult time understanding how this would be possible if the children resided with the Mother during the school weekdays as she alleges. Further, the Mother admits she has moved a number of times, due to issues with her prior partnering, back and forth between Bolton and Woodbridge. The Mother has also lived in Etobicoke and now lives in Orangeville. The Mother’s evidence is conflicting. On the one hand she says the children resided with her during the school year's school days but, on the other hand, she says the children were with her for the weekend of June 3, 2012 and the children didn’t want to return to the Father for the next week which was a school week. The evidence is much more consistent with the children primarily residing in Bolton with the Father (and their paternal grandmother) for the school year during the weekdays and with the Mother on the weekends; and

(c) The Father reported the General Routine when he applied for the Child Tax Credit, which was done even before this matter became contentious again.

[ 36 ] The following factors favour the Father having interim custody with primary residence:

(a) The children have gone to St. Nicholas Elementary School in Bolton (except for 2 months in 2005), where the Father has resided throughout the past 10 years. On the other hand the Mother has resided in Bolton, Woodbridge, Etobicoke and now Orangeville. For much of this time she didn't have a driver's license making it difficult for her to have taken the children to school each day. The paternal grandmother, who has assisted the Father with care giving for the children, appears to have detailed knowledge of the children’s education plans which is consistent with her alleged significant involvement with the children throughout the school year;

(b) These children are still young and need stability and a predictable routine particularly during a school year. Any disruption of their routine is not in their best interests particularly given their education and developmental issues;

(c) The Father appears to have been the primary contact with the children’s school;

(d) The Father appears to have been the person primarily responsible for the children’s medical needs;

(e) The Father appears to been the person primarily responsible for the children’s dental needs;

(f) The Father appears to be more involved in the support services the children receive and was able to identify the individual workers at the Vaughan Wellness Centre and social worker involved with the children;

(g) The Father appears to have arranged and been involved with the children’s extracurricular activities;

(h) Clearly the children have an emotional tie to both parents and with the grandparents who have been involved with their upbringing;

(i) I am satisfied maintaining the status quo is significant for the children. The children have an established a routine where, during the school year, they reside with the Father during the weekdays and the Mother during the weekends and a week about during the summer. There is no compelling need to disrupt this routine; and

(j) The Mother’s life has had some unstable moments arising from a re-partnering. She has had two children with the subsequent partner. This relationship was abusive and it ended in 2010. She is with a new partner and as a result has moved to Orangeville. There is change in the Mother's life, whereas, the Father has continued to reside at the same home with his mother since separation. There appears to be greater stability for the children with the Father.

Conclusion

[ 37 ] I am satisfied that the September 5, 2002 Order should and is hereby varied to provide for an interim order as follows:

(i) The Father shall have interim custody of the children;

(ii) The children’s residence shall be as follows:

• During the school year:

• with the Father from Sunday nights at 7:00 p.m. until Fridays at the end of school; and

• with the Mother from Fridays at the end of school until Sundays at 7:00 p.m.;

• all other times during the school years when the children are not in school during regular weekdays, the parties shall share these days equally as they may agree. These include professional development days, Christmas holidays, March Break, long weekends and so on;

• During the summer holidays – week about.

(iii) There shall be no interim child support but I make this order without prejudice to either party bringing a motion for interim child support if so advised. No relief has been sought for child support before me and therefore, none is granted. Given the change in the children’s custody and residential arrangements, continuation of the September 5, 2002 child support provision would not be appropriate without further proof and submissions; and

(iv) Neither party shall remove the children from the Province of Ontario without he written consent of the other parent or a court order;

[ 38 ] This order is effective immediately.

[ 39 ] I have not made an order requesting the involvement of the OCL as there do not appear to me to be reasons to do so. There are no safety issues. Ascertaining the wishes of young children is, by itself, not a compelling reason to make such an order.

Costs

[ 40 ] Either party may make written submissions within 2 weeks regarding any claim for costs for their attendance before Justice Mesbur and today’s attendance and setting out the quantum sought. The written submissions are limited to three pages with attached Cost Outline and any authorities.

[ 41 ] Responding submissions shall be filed within 1 week thereafter with the same limitation on length.

Ricchetti J.

Date: August 3, 2012

TORONTO COURT FILE NO.: 02/ FP/2279254FIS
BRAMPTON COURT FILE NO.: FS-12-75585-00
DATE: August 3, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: VITO MEZZATESTA APPLICANT (FATHER) - and – SANDRA DiMEO RESPONDENT (MOTHER) ENDORSEMENT Ricchetti J.

Released: August 3, 2012