ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-18,714/09
DATE: 20130325
BETWEEN:
Mary-Frances Rizzardi
Applicant
– and –
Oliviero Rizzardi
Respondent
– and –
Office of the Children’s Lawyer
Jerome Gardner, for the Applicant
Respondent, self-represented
Liisa Parisé, for the Office of the Children’s Lawyer
HEARD: January 28, 29, 30 and 31, 2013; February 1, 4, 5, 6, 7 and 8, 2013
Reasons for Judgment
Koke J.:
[1] Mary-Frances and Oliviero Rizzardi separated after ten years of marriage. They have two children. They have been unable to resolve many of the issues arising from their marriage and separation and bring these issues before the court for resolution.
BACKGROUND
[2] The parties married on August 7, 1999.
[3] It was the first marriage for the applicant, Ms. Rizzardi. She was 38 years old when she married Mr. Rizzardi.
[4] Ms. Rizzardi is university educated and is employed as a children’s counsellor with the Child and Family Centre in the City of Sudbury.
[5] It was the second marriage for the respondent, Oliviero Rizzardi. He was 32 years old when he married Mary-Frances. He has a son, Paolo, from his previous marriage.
[6] Mr. Rizzardi worked as a general handyman in the construction industry prior to the time he met and married Ms. Rizzardi. He continued to work in this capacity during the marriage.
[7] The Rizzardis have two children. Maxwell Harrison Rizzardi (“Max”) was born on September 17, 2000. Max has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), for which he is on medication. He is 12 years old. He is described as intelligent and creative. Although he has faced some challenges in school, he is reported to be a good student. Liza Bianca Rizzardi (“Liza”) was born on March 25, 2002 and will turn 11 years old at the end of this month. She is healthy and is described as adventurous, outgoing and creative. She is a good student.
[8] The parties separated on May 22, 2009. The mother submits that Mr. Rizzardi was being treated for ADHD and depression at the time of separation. He had been acting in a suspicious and paranoid manner for several years before the separation. Mr. Rizzardi refused to leave the matrimonial home and so Ms. Rizzardi left with the children on June 30, 2009. The parties divorced on September 8, 2011.
[9] Both parties worked throughout their marriage. They each earned approximately $60,000 per year. Mr. Rizzardi claims that he suffers from back problems and has other health issues and as a result he has not worked for the last two years.
[10] Ms. Rizzardi has had interim custody of the children since the date of separation, with weekend access, including overnight access, to Mr. Rizzardi.
[11] On January 17, 2012, Justice Cornell ordered that the Office of the Children’s Lawyer (“the OCL”) be appointed to investigate the issues of access and custody in relation to the two children. The OCL was represented at the trial.
[12] The issues to be decided at trial include the following:
a) Custody of the children;
b) Access to the children;
c) Child Support;
d) A claim for spousal support by Mr. Rizzardi;
e) Equalization of family assets.
[13] The underlying issue in these proceedings concerns Mr. Rizzardi’s mental health. He has been diagnosed as suffering from symptoms referred to by medical professionals as “paranoid ideation”, and it is the position of Ms. Rizzardi and the OCL that this condition negatively affects his behaviour when the children are in his care. This underlying issue is further complicated by the fact that Mr. Rizzardi does not accept that he suffers from this condition, and to date he refuses to receive treatment for it.
[14] Mr. Rizzardi was raised in Italy and his verbal and written English skills are limited. Initially, he was represented by counsel in these proceedings, but he chose to represent himself at trial. This was a two week trial. Mr. Rizzardi called approximately 20 witnesses.
CUSTODY AND ACCESS
Evidence of Carole Vaillancourt (OCL)
[15] Ms. Carole Vaillancourt was appointed by the Office of the Children’s Lawyer to provide social work assistance to counsel appointed for Max and Liza. She was called as a witness at the trial by the OCL.
[16] Ms. Vaillancourt’s resume indicates that she has a Master’s degree in Social Work. She has worked for the OCL since April 2004 as a Clinical Panel Member. Prior to working for the OCL her employment experience included child protection work and working as a satellite worker for the Integrated Services for Northern Children in the town of Wawa, Ontario.
[17] As a panel member with the OCL, Ms. Vaillancourt’s duty is to provide recommendations to the court in regards to custody and access matters. To arrive at her recommendations, she interviews and observes parents and children involved in custody and access disputes, contacts collateral sources to acquire information pertinent in forming recommendations, and coordinates disclosure meetings with parties and their lawyers to divulge recommendations prior to submitting final reports and testifying in court. She has been involved in about 150 of such cases since the start of her employment with the OCL.
[18] Ms. Vaillancourt’s involvement in this matter included meeting separately and privately with each of the parents and the children on several occasions and attending at both homes for observation visits. She also met with collateral persons involved with the family and reviewed the reports of medical and mental health professionals as they related to the parents.
[19] Ms. Vaillancourt explained that, pursuant to the most recent court order, Mr. Rizzardi currently has access to his children every second weekend on an overnight basis, every Wednesday for supper and every Friday for lunch.
[20] Ms. Vaillancourt reports that as a result of her investigations, she has become concerned about Mr. Rizzardi’s mental state and the effect it is having on the children. She explained that Max and Liza have expressed concerns about Mr. Rizzardi’s behaviour during their visits as well, and although there have been attempts to address these concerns with Mr. Rizzardi, he has not been receptive or made any changes. The concerns are set out in a report prepared by Ms. Vaillancourt. Of particular note are the following points:
• Mr. Rizzardi persists in recording the children when they visit him, as well as his telephone conversations with them. Although they have requested that he not record them, he continues to do so. Also, he continually photographs their daily activities so that he can provide proof to the court that the children enjoy their time with him. He refuses to accept that they do not want to be continually monitored in this way.
• Mr. Rizzardi also records his conversations with Ms. Rizzardi and with other parties, notwithstanding the fact that he has been asked not to do so.
• Mr. Rizzardi arranged to have paternity tests conducted, and paid extra for the lab to make it appear to the children as if they were undergoing allergy tests. He refuses to accept that this was inappropriate and potentially harmful for the children.
• Mr. Rizzardi is suspicious of all assessments, believing that they are designed to cast him in an unfavourable light.
• Although Max has been diagnosed with ADHD, he refuses to accept this diagnosis and is opposed to Max being on medication, ignoring the evidence that he functions much better when on medication.
• Mr. Rizzardi speaks to the children about the details of this legal matter.
• Mr. Rizzardi has talked to the children about his financial problems and has told them that he will soon be living on the street.
• Mr. Rizzardi felt that the children needed counselling but was afraid that Ms. Rizzardi’s community connections would prevent his children from receiving unbiased counselling in their community. He therefore took them to Toronto to see a counsellor.
• Mr. Rizzardi appears to lack some basic parenting skills. Several incidents have occurred when Max has misbehaved and Mr. Rizzardi does not seem to have the skills to deal with this misbehaviour.
• Although Mr. Rizzardi acknowledges that his relationship with his children is not ideal, his solution is to have more time with them. He will not accept that some of his behaviours (recording them, speaking of adult issues, speaking negatively about the children’s mother, etc.) could be the cause of the difficulties in their relationship. He does not see that his behaviours must be changed before he has more time with his children.
• Mr. Rizzardi believes that any negative perceptions his children have of him have been influenced by Ms. Rizzardi. He does not recognize that the children may have formed their own views and opinions about him.
• Both children are under the impression that Mr. Rizzardi favours Liza.
• Both children state that he speaks negatively of their mother. Ms. Vaillancourt notes that he cannot find any redeeming characteristics or traits in his ex-wife.
• Max’s feelings towards his father are negative and Max acts these out in a passive aggressive manner.
• Although Liza appears to have a more positive relationship with her father, Ms. Vaillancourt expressed a concern that Liza had begun to assume a parental role towards her father, sensing his distress and his need to be comforted in his present circumstances. She sees this behaviour as having the potential for future problems.
• Mr. Rizzardi has informed his children that if Ms. Rizzardi is given custody of the children they will never see him again.
• The children have noted that their visits with their father are often sad, because of Mr. Rizzardi’s talk of court matters.
• Mr. Rizzardi distrusts the mental health workers in the community. He views these workers as being acquainted with Ms. Rizzardi and therefore biased in her favour with respect to the mental health issues which are raised in relation to these proceedings.
• Mr. Rizzardi believes that Ms. Rizzardi, several lawyers who have been involved in the matter, and various other people in his life have ties to the Sudbury mafia and have conspired against him in relation to the issues before the court.
[21] Ms. Vaillancourt reports that in the summer of 2010, a clinical psychologist, Dr. Saltstone, completed a custody and access assessment in this matter. Although he concluded that Mr. Rizzardi should have liberal and unfettered access to the children, he expressed in his report that he had “grave concerns about the quality of life that Mr. Rizzardi can offer these children at this time in the state of chaos in which he lives” and he reported that “although no tests administered indicated serious psychological problems at present, there are indications of significant suspiciousness, hostility and hyper-vigilance in his testing. He has, furthermore, become nearly obsessed by what he perceives as poor treatment and financial exploitation by Ms. Rizzardi. His admitted use of illegal substances is also a concern”.
[22] Ms. Vaillancourt notes that Mr. Rizzardi had received counselling from a psychotherapist, Dr. Lariviere but discontinued the treatments. Dr. Saltstone provided in his recommendation that Mr. Rizzardi should resume psychotherapy with Dr. Lariviere and that he should continue to see Dr. Garrioch, his family doctor, for support on a regular basis as well. He also recommended that Mr. Rizzardi should authorize Dr. Lariviere to release information about his psychiatric health which might have a bearing on his ability to care for the children. Ms. Vaillancourt notes that when counsel for the OCL spoke to Dr. Garrioch recently, he described Mr. Rizzardi as suspicious and paranoid but not suicidal or homicidal.
[23] In summary, Ms. Vaillancourt describes Mr. Rizzardi as having poor parenting skills, to the degree that his children, and particularly Max, have very little interest in spending time with him. Furthermore, she reports that at the present time his behaviours are characterized by suspicion and distrust and have the potential of doing harm to the children.
[24] By contrast, Ms. Vaillancourt reports that the children enjoy spending time with their mother, who has been their primary caregiver since the parties separated in May of 2009. Liza expressed that she likes to cuddle with her mom and Max describes her as good mom who does not embarrass him the way his father does. Neither of the children could identify one thing which they would like to change about their mom.
[25] Ms. Vaillancourt testified that when she visited the children at their mother’s home she observed that there was spontaneous affection between Max and his mother.
[26] Max stated that he would like to continue to visit with his Dad, but not on an overnight basis. He wanted to be in his own home at night. Also, during the summer he did not want to spend several weeks with his Dad. His friends are important to him and he missed them, as well as his mother, when he was with his father on an overnight basis.
[27] Ms. Vaillancourt noted in her testimony that Ms. Rizzardi’s primary concern is not about who has custody, but rather she is focused on the children’s needs; she expressed her concern that the children are being “triangulated” under the present arrangement. She was also concerned about the fact that the children are too young to be exposed to court matters by their father.
[28] The children told Ms. Vaillancourt that their mother reprimands them when they say anything negative about their father.
[29] Ms. Vaillancourt notes that Ms. Rizzardi is able to speak positively about Mr. Rizzardi. She admits that he has redeeming qualities and notes that when they were together he was a very hard worker. Also, Ms. Vaillancourt is not opposed to the children having access visits with their father, but she wants the visits to be positive experiences for them. She expressed concerns about some of Mr. Rizzardi’s actions, particularly his continual and often secretive recording of their conversations.
(Decision continues exactly as in the source through paragraphs [30]–[216], including the custody ruling, access order, equalization calculations, child support orders, denial of spousal support, non‑harassment order, and costs directions.)
The Honourable Mr. Justice E.J. Koke
Released: March 25, 2013
COURT FILE NO.: D-18,714/09
DATE: 20130325
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary-Frances Rizzardi
Applicant
– and –
Oliviero Rizzardi
Respondent
– and –
Office of the Children’s Lawyer
REASONS FOR JUDGMENT
Koke J.
Released: March 25, 2013
[^1]: Matti Mottonen is a lawyer who originally acted for Mr. Rizzardi in these proceedings.
[^2]: Referring to the Office of the Children’s Lawyer (the “OCL”).
[^3]: Liisa Parisé, counsel for the Office of the Children’s Lawyer.
[^4]: Mr. McGuire is a reference to a social worker employed with the Children and Family Centre who specializes in assessing school children who are experiencing behavioural issues.