ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-06-057465-00
DATE: 20120918
B E T W E E N:
Brenda Lee Perino
Self-represented
Applicant
- and -
Vito Perino
S. Majic, for the Respondent
Respondent
Other counsel: C. Burns, court-appointed counsel for Marisa Perino; and I. Mang, proposed counsel for Mariso Perino
ENDORSEMENT
K. van Rensburg J.
[ 1 ] On January 12, 2012 Corbett J. released his trial judgment in these proceedings. The judgment addresses the parties’ claims to custody of and access to their daughter Marisa Perino, who is a cognitively impaired young adult. In September 2009, Corbett J. had appointed Clare Burns as counsel for Marisa in these proceedings, and Ms Burns retained social worker Stephen Cross to assist her. Ms Burns represented Marisa’s interests at the trial.
[ 2 ] In his judgment, Corbett J. declined to make a general custody order at that time, and he directed Marisa’s primary residence to remain with her father. He ordered specific access between Marisa and her mother, from whom Marisa had become alienated as a result of the father’s conduct. Corbett J. made other orders, including, at para. 8(f), that Marisa’s counsel, in consultation with Mr. Cross, facilitate the process for initiating, reporting and monitoring access and the other terms of the order with a view to: (i) ensuring that access takes place as ordered; (ii) recommending changes to increase access between the mother and Marisa incrementally; and (iii) making additional recommendations to facilitate the ongoing relationship between Marisa and both her parents.
[ 3 ] Corbett J. directed Marisa’s counsel to write to the Regional Senior Justice to request the appointment of a judge to supervise the implementation of the judgment. I was appointed to that role several months ago.
[ 4 ] Vito Perino (“Vito”) has initiated an appeal of Corbett J.’s judgment. The judgment is not stayed; accordingly, it remains my responsibility to supervise the implementation of the judgment according to its terms. The parties are bound by the findings of Corbett J., unless they are reversed on appeal.
[ 5 ] This is the third occasion the parties and counsel have attended before me on this matter. There were two reasons for this attendance: first, to receive a report on access and to determine whether any adjustments are required to ensure compliance to the extent possible with the letter and spirit of Corbett J.’s judgment, and second, to hear Ms Burns’ motion, originally returnable in April, and adjourned from the last attendance in May. Ms Burns sought her removal as court-appointed counsel for Marisa and her replacement by Ian Mang for the purpose of the obligations at para. 8(f). Ms Burns also sought approval that Mr. Cross be excused from any further responsibilities as Marisa’s social worker in the context of these proceedings.
[ 6 ] The reason for the motion is that, shortly after the judgment of Corbett J. was released, Mr. Mang advised that he had been retained by Marisa, and there was an apparent unwillingness on Marisa’s part to continue to work with Ms Burns and Mr. Cross. Ms Burns’ motion was supported by Mr. Mang on behalf of Marisa, and opposed by Brenda Perino (“Brenda”).
Access
[ 7 ] With respect to access, in keeping with my directions on the last occasion, I received a verbal report from Brenda, Ms Majic, on behalf of Vito, and Mr. Mang, based on his communications with Marisa.
[ 8 ] The access visits between Marisa and Brenda have been occurring consistently, and for the most part adjustments to the schedule to accommodate Marisa’s needs and interests have been worked out between the parties. Marisa has been enjoying the visits. According to Mr. Mang, Marisa enjoys her time with her mother. She wants “out of the conflict” between her parents and she would like to have a more “adult to adult” relationship with her mother.
[ 9 ] Marisa attends a program at Connect Learning Centre for six hours Mondays and Wednesdays and she works at Giant Tiger for three hours Tuesdays and Thursdays. Vito asked that the access day on Thursday be changed back to Wednesday or Monday, since he is not always able to pick up Marisa and sometimes he has to rely on a neighbour’s assistance. Brenda is not agreeable to changing the schedule, as that would reduce the number of hours she is able to spend with Marisa. After some discussion, it was agreed to leave the access schedule the way it is currently. Brenda is prepared to help out when she can, to drive Marisa home if Vito is unable to do so.
[ 10 ] There have been some difficulties with communications. Brenda has consistently attempted to communicate with everyone by email. Vito has not always responded; according to his lawyer, he is often too busy to check his email. The best and most reliable method for communication about Marisa’s schedule and her needs and wishes, continues to be through email. The parties have agreed to communicate in this way and to check their email daily.
[ 11 ] Corbett J. ordered unfettered telephone access between Marisa and her mother. There are still some problems with telephone access, as Marisa is not responding to messages Brenda leaves at the house and Marisa and Brenda have not been able to figure out how to retrieve messages on Marisa’s cell phone. If Vito is unwilling or unable to assist Marisa in this regard, Mr. Mang should ensure that someone else (perhaps someone at the Learning Centre) helps Marisa to learn how to retrieve her messages.
[ 12 ] Brenda lives with her partner John, and to date he has been absent from the home for each of Marisa’s access visits. In his decision of January 12, 2012, at paras. 256-257, Justice Corbett anticipated that steps would be taken by counsel representing Marisa to address the issue of John’s involvement. The time has come to reintroduce John into Marisa’s visits with her mother.
[ 13 ] Prior to the court attendance in May, Brenda circulated a proposal for counselling to re-establish contact between Marisa and John. The counselling will be at Brenda’s expense. A copy of the proposal was forwarded to Mr. Mang in July. Mr. Mang responded that he would speak with Marina and get back to Brenda, however he did not do so. He indicated that he had not had the opportunity so far to speak with Marisa about this issue. Mr. Mang indicated that the counselling proposal appeared to him to be reasonable in its scope and purpose, however he was unable to agree without having a discussion with Marisa. Brenda reported on a conversation with Marisa where Marisa had spontaneously suggested that John could attend her birthday celebration.
[ 14 ] During the summer Marisa missed several weeks of her twice weekly program at the Learning Centre, and her fees are currently in arrears. In court Vito suggested that she missed the program because he could not afford to pay, however the Centre has confirmed that Marisa has never been turned away because of payment problems. The Centre believed she missed her program because she was on vacation. There are currently arrears of $1,000.
[ 15 ] Time missed at Marisa’s program is troubling. Her continued involvement in such programs as well as other activities and opportunities that will enhance her independence must be encouraged and supported. This includes Marisa’s work at Giant Tiger. Arrears of fees for her program are also of concern. According to Vito’s affidavit all of Marisa’s ODSP payments are used for her education. If that is the case, it is difficult to understand why there are arrears of fees owing to the Centre. Brenda also indicated that Marisa never has spending money when she comes to visit. Vito must address this issue, which is consistent with his stated goal of helping Marisa to become more independent.
[ 16 ] Brenda expressed some concerns about what may be some stress-related symptoms Marisa has displayed in her presence, as well as other concerns about proper follow-up with an optometrist. Vito responded that Marisa was going to the kidney specialist that day and that her future sister in law was taking her to the appointment. Pursuant to the judgment of Corbett J., Brenda is entitled to full information about Marisa’s health, among other things. Both parents are equally entitled to be involved in Marisa’s health care, to the extent that parental involvement is required.
[ 17 ] After some discussion, a number of issues were resolved on consent as follows:
Each parent will obtain a photocopy of Marisa’s OHIP card;
Vito will schedule an optometrist appointment for Marisa and will take her to the appointment;
Brenda will schedule an annual physical with Marisa’s family doctor and will take her to the appointment;
The parties will communicate by email and will each check their email at least once a day;
Mr. Mang will consult with Marisa, and if she agrees, Brenda will transport her to a weekly social program Tuesdays from 7 to 9 pm.
[ 18 ] I also direct as follows (but not on consent):
If for any reason Marisa does not attend at her program or her employment, Vito must advise both Brenda and Mr. Mang the same day by email;
If Vito is unable to transport Marisa to an appointment with a doctor, dentist or other health care provider, Brenda must be given the opportunity to take her before relying on any other family member or friend;
The counselling proposed by Brenda as per the letter from Ms Barclay attached to Brenda’s Proposed Plan for Access dated May 18, 2012, may commence. It will be up to Mr. Mang to explain the counselling program to Marisa and to ensure that the appointments are arranged for a time that is convenient for her;
Mr. Mang shall communicate all aspects of this order to Marisa.
The Motion for Removal of Counsel
[ 19 ] Ms Burns’ motion was supported by Mr. Mang on behalf of Marisa and opposed by Brenda. Vito did not oppose the motion.
[ 20 ] The motion was supported by the affidavits of Stephen Cross and Ian Mang. The motion was originally returnable in April and was adjourned to the next attendance in May. On that date Mr. Mang was unable to attend court due to another pressing court matter. Additional information was required respecting the circumstances of the retainer, what was described as a “capacity assessment” of Marisa, and the legal aid certificate that was issued to her.
[ 21 ] All of these issues were addressed at the attendance on September 4th.
[ 22 ] Essentially, Ms Burns contends that it has become impossible for her and Mr. Cross to carry out the responsibilities under para. 8(f) of the judgment as a result of Mr. Mang’s retainer and Marisa’s desire to have different representation. In the past, Marisa could not obtain a legal aid certificate; now, Ontario Legal Aid has provided a certificate to permit her representation by Mr. Mang.
[ 23 ] Brenda opposed the motion for Ms Burns’ removal, emphasizing the positive relationship that she observed between Marisa and Ms Burns, and the helpful role Ms Burns had played in representing Marisa in the trial and after the trial in monitoring and reporting to the court on access. Brenda was suspicious of how Mr. Mang came to be retained and Marisa’s sudden change of heart with respect to an assessment, after she had refused to undergo an assessment in the course of the proceedings.
[ 24 ] The circumstances of Mr. Mang’s retainer have been fully explained to the court. It appears that Mr. Mang, who has many years of experience acting for persons with disabilities, is prepared to represent Marisa. Mr. Mang assured the court that he is acting for Marisa and on her instructions. He has satisfied himself that Marisa is capable of giving him instructions. In this regard he required a “capacity assessment” (which was in fact an assessment for personal care), that was arranged by Ms Cooper of the Connect Learning Centre. The legal aid certificate is for family law issues, and Mr. Mang indicated to Vito that he would not accept any retainer from him or his family.
[ 25 ] In my endorsement on the last attendance I directed Mr. Mang to monitor the access between Marisa and her mother and to provide a verbal report. He has done so, although unfortunately he had not discussed with Marisa the proposed counselling sessions. I requested further information about the legal aid certificate, and this was provided. Ms Burns obtained clarification from the Connect Learning Centre about the circumstances surrounding Marisa’s capacity assessment.
[ 26 ] On the last occasion I expressed concern about the proposed dual role of Mr. Mang – that is, his original intention to represent Marisa in her father’s appeal of Corbett J.’s judgment, and the proposal that he step into the shoes of Ms Burns for the purposes of para. 8(f) of the judgment. At this stage Marisa is not a party to these proceedings or to the appeal. Mr. Mang confirmed that the legal aid certificate he is acting under is a general family law certificate and not for any specified purpose. At this point there is no real or apparent conflict in Mr. Mang’s role; he is willing and able to undertake the responsibilities of Marisa’ counsel required by Corbett J.’s judgment. The circumstances may change; if they do, it may become necessary to revisit this question if and when a conflict becomes apparent.
[ 27 ] There is really no alternative to the removal of Ms Burns as counsel and Mr. Cross as Marisa’s social worker, in circumstances where Marisa is unwilling to communicate with them. Marisa now has a legal aid certificate and the assistance of counsel, and I am satisfied that Mr. Mang is willing and able to fulfill the role of counsel for Marisa. I am also satisfied that Mr. Mang’s original intention, to represent Marisa in her father’s appeal, is at this point secondary to his commitment to represent Marisa under the order of Corbett J.
[ 28 ] Accordingly, I grant an order removing Ms Burns and Mr. Cross and appointing Ian Mang as Marisa’s counsel for the purpose of para. 8(f) of the judgment.
[ 29 ] There will be no costs in connection with the motion and the parties’ attendance on September 4th.
[ 30 ] The next attendance, for the purpose of receiving a verbal report on access and to provide any further required directions, will take place on December 18, 2012 at 8:30 a.m.
K. van Rensburg J.
Released: September 18, 2012
COURT FILE NO.: FS-06-057465-00
DATE: 20120918
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Brenda Perino Applicant - and – Vito Perino Respondent ENDORSEMENT K. van Rensburg J.
Released: September 18, 2012