Zambito v. Zambito, 2012 ONSC 576

Ontario Superior Court of Justice

Court File No.: 766/05
Date: 20120125

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

LEANNE JOAN ZAMBITO Applicant – and – GIOVANNI ZAMBITO Respondent

J. Hart, for the Applicant
Self-represented

HEARD: January 20, 2012

MILLER, J.

Introduction

1Leanne Zambito brought a Motion to Change the Final Order made August 6, 2006 as amended by the Final Order made November 6, 2007, asking that the Court grant her sole custody of the children and that Giovanni Zambito’s access to the children be supervised. There were also other issues addressed in the Motion to Change.

2A Final Order was made on consent in this case August 2, 2006 by Speyer, J. in which the parties were to jointly parent Giovanni Paul Zambito, Adriano Salvatore Zambito and Francesco Charles Zambito all born December 10, 2004. The children’s principal residence was to be with their mother and their father was to have access as specified in the order.

3November 6, 2007 in accordance with Final Minutes of Settlement, I made an order amending the Final Order of August 2, 2006 with respect to access in the following respects:

The Respondent, Giovanni Zambito, shall have access to the children, namely Giovanni Paulo Zambito, Adriano Salvatore Zambito, and Francesco Charles Zambito, all born December 10, 2004, as follows:

(i) Commencing October 5, 2007 and alternate weekends thereafter from Friday at 5:30 p.m. to Sunday at 6:00 p.m.;

(ii) Commencing October 2, 2007 and every Tuesday thereafter from 5:30 p.m. to 9:30 p.m.;

(iii) Commencing October 12, 2007 and alternate Fridays thereafter from 5:30 p.m. to 9:30 p.m.;

(iv) The Applicant, Leanne Zambito, shall be responsible for taking the children to the Respondent’s home to commence the access visits as set out in paragraphs 1(a)(i)-(iii) above. With respect to the access as set out in paragraphs 1(a)(i) and (iii) above, the Respondent, Giovanni Zambito, shall be responsible for returning the children to the Applicant’s home at the end of the access visits. With respect to the access as set out in paragraph 1(a)(ii) above, the Respondent, Giovanni Zambito, shall be responsible for dropping the children off at the paternal grandparents’ home located at 1216 Tilcroft Gate, Oakville, Ontario at the end of the access visits and the Applicant, Leanne Zambito, shall then pick-up the children from the paternal grandparents’ home.

(v) Commencing immediately, telephone access every Monday and Wednesday between 7:00-7:30 p.m., with said access to be initiated by the Respondent, Giovanni Zambito.

(vi) Such other or further reasonable access as the Parties may agree upon, from time to time. The Respondent, Giovanni Zambito, will advise the Applicant, Leanne Zambito, of any requests for such additional access as soon as he becomes aware of the need for additional access.

4In support of her Motion to Change Mrs. Zambito alleged that Mr. Zambito has been behaving inappropriately with her with respect to access and is not cooperating in any aspect of joint parenting. She further alleged that Mr. Zambito uses inappropriate language around and to the children, including language demeaning her and that he has been violent toward the children. Mrs. Zambito’s decision to pursue this motion was precipitated by telephone messages Mr. Zambito left for her and for her father on September 30, 2010.

5Mr. Zambito alleged that Mrs. Zambito has been depriving him of access to the children in violation of the final order. He further alleged that Mrs. Zambito has effectively shut him out of the children’s lives by failing to consult with him on matters of education and health of the children despite the Final Order requiring her to do so. He denied ever being violent with the children.

6On an interim basis, pending resolution of the Motion to Change, the parties consented to an order, made October 8, 2010 before Coats, J. providing that Mr. Zambito is to have alternate weekend access with the children Fridays at 6 p.m. to Sundays at 6 p.m. and on the opposite weeks, Fridays 6 p.m. to 9 p.m. and Sundays 11 a.m. to 6 p.m. in the presence of Mr. Zambito’s parents, his brother or sister. There was, on consent, some variation to the access schedule in November and December 2010, thereafter reverting to the schedule and terms of the October 8, 2010 order.

7I heard evidence on this matter in March 2011 and delivered a decision on April 26, 2011. I made a number of findings in that decision but found that I was unable, on the information available to me at that time to make a final decision on the custody and access issue. I made an interim order, setting out steps to be taken to assist me in making a final decision and requiring the parties to appear back before me in November 2011.

8I made findings that Mrs. Zambito had, in fact, deliberately withheld certain information regarding the children’s health from Mr. Zambito. I also made a finding that it is not in the best interests of the children to continue to be exposed to Mr. Zambito’s vitriol towards their mother. Mr. Zambito was able to articulate that he recognizes that his behaviour when he gets upset is not appropriate (although he maintained he does not act that way with the children). Mr. Zambito was able to recite the coping mechanisms he learned in counseling, but he seemed to be unable or unwilling to employ those mechanisms.

9I was of the view that it remained in the best interests of the children to have significant contact with their father, but with supervision to ensure their safety and to ensure that Mr. Zambito does not behave inappropriately when with the children.

10In the result, I ordered that Mr. Zambito was to continue to exercise access to the children in accordance with the October 8, 2010 order of Coats, J. on an interim basis.

11I was not persuaded that it was impossible for the parties to communicate regarding the health, general well-being, education and religion of the children. I was of the view that both parents have the best interests of the children at heart and should be able to communicate with each other regarding the children if there is no direct contact.

12Both parties gave evidence that they have access to the Internet and could communicate by e-mail. Both parties have cellphones with text capability that could be used in circumstances where there is some urgency to the communication.

13The interim steps were as follows:

(a) I ordered that the parties not communicate in person or by telephone unless a telephone is used for texting. All communication between the parties shall be in writing, by mail, e-mail or texting (including, if they choose, instant messaging). Exchanges of the children shall occur with a third party so there is no direct contact between Mr. and Mrs. Zambito.

(b) On the re-appearance the parties were each to present to me copies of their written communications from April 26, 2011 to their re-appearance before me. This was to include any letters, e-mail communications and text messages.

(c) I appointed the Ontario Children’s Lawyer to conduct an investigation and report to me.

(d) I ordered, pursuant to s. 150 of the Courts of Justice Act, that Mr. Zambito attend for and co-operate with a re-assessment of his mental health as a follow-up to his diagnosis in January 2006.

(e) I ordered that Mr. Zambito attend, participate in and complete a parenting course and to present to me on the re-appearance a report as to his progress in the course.

(f) I ordered that if Mr. Zambito was able to arrange counselling, he might attend with one or more of the children and without a supervisor as long as the counselor is present with Mr. Zambito and the child or children. Mr. Zambito was to have a third party supervisor with him while transporting the child or children to and from counseling appointments. Mrs. Zambito was to make the children available for such counseling appointments even outside of Mr. Zambito’s scheduled access as long as Mr. Zambito had advised her of the appointment at least 24 hours in advance.

(g) I ordered that Mrs. Zambito keep Mr. Zambito fully informed with respect to the children’s education. She was to advise him, in advance, of any parent teacher meetings and of any special activities the children will be involved with through school. Mrs. Zambito was also to provide a copy to Mr. Zambito of any progress reports and report cards and any other documentation from the children’s school.

(h) Mrs. Zambito was ordered to provide Mr. Zambito with a schedule of any sports or other of the children’s extracurricular activities as soon as any such schedule was available to her. Mrs. Zambito was to give Mr. Zambito the opportunity of attending those activities on an equal basis with herself – but not at the same time.

(i) It was ordered that Mrs. Zambito is to advise Mr. Zambito, at least 24 hours in advance, of any scheduled appointment any of the children have with any health care provider, counselor or therapist. Mrs. Zambito is to advise Mr. Zambito, in writing, within 24 hours of any such appointment, of the results of the appointment, including any advice given by said health practitioner, counselor or therapist. Mrs. Zambito is to advise Mr. Zambito immediately, and in any case no later than 24 hours after any medication is prescribed for any of the children.

(j) Each party was to advise the other immediately, and in any case, no later than 24 hours after any child has had an unscheduled attendance on a health care practitioner, the circumstances leading to that visit and the results.

(k) Mrs. Zambito was to provide to Mr. Zambito a copy of Giovanni’s autism assessment as well as the name and contact information for the investigator.

(l) Mrs. Zambito was to provide to Mr. Zambito a copy of Adriano’s ADHD assessment as well as the name and contact information for the investigator.

Background

Background

14A detailed background and the evidence I heard in March 2011 is set out in my decision of April 26, 2011.

(continued exactly as in the source)