Superior Court of Justice

NEWMARKET
COURT FILE NO.: FC-04-20255-02

DATE: 20130604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Brian Cozzi

Applicant

– and –

Miranda Leigh Smith

Respondent

Steven Benmore, for the Applicant

Respondent unrepresented

HEARD: November 20, 21, 22, 26, 27, 28, 29, 30, December 3 and 4, 2012

McDermot J.

Introduction

[1] Micalister Cozzi-Smith is a normal and, by all accounts, pleasant 11 year old boy. For most of his life, his primary caregiver was his mother, the Respondent Miranda Leigh Smith; however, he recently began to live with his father, the Applicant, Peter Brian Cozzi. He participates in sports including swimming, basketball and soccer and he is doing well in school. He has a number of close friends in his school and neighbourhood and he had them over for a sleepover for his 11th birthday party in November 2012. He has step-siblings in his father’s home; he also enjoys seeing his mother’s family in Michigan during summers and holidays.

[2] But Micalister has also suffered losses during his short life. His parents separated in 2004 when Micalister was only three; they have been locked in litigation in one form or another concerning Micalister since 2006. As part of this litigation, Micalister has been poked and prodded both by school authorities and through the psychological assessment process completed by Linda Chodos, which began in 2010 but only completed in 2012. For much of his life, Micalister has observed his parents disagreeing on his education, day care and residential schedule. His mother moved to Kitimat, British Columbia in June 2012. Notwithstanding the fact that he probably deeply misses her, Micalister may now be enjoying the most conflict free period of time that he has had in some time, largely because his two parents, the parties to this proceeding, now live far apart from one another.

[3] Although Ms. Smith moved to British Columbia, she never intended to do so without Micalister. Since at least September 2006, Micalister was in her primary care subject to extensive time sharing with Mr. Cozzi. This litigation shifted from a primary residency case to a mobility case in 2011 when Ms. Smith’s partner moved to British Columbia and a potential move then became a very real possibility. In April 2012, Ms. Smith obtained employment in her field in Kitimat which she says was far superior to anything available in Ontario. Notwithstanding Ms. Chodos’ assessment which recommended that Micalister accompany his mother to British Columbia, a temporary order made in July 2012 confirmed that Micalister would live with his father until mobility was finally determined.

[4] Mr. Benmore, counsel for Mr. Cozzi, was critical of Ms. Chodos’ statement that she was determining the “least detrimental alternative” for Micalister in recommending whether or not he was to relocate with his mother; Mr. Benmore stated that this was not the proper legal test in mobility cases. While he is correct that the legal test in such cases is the best interests of the child, I agree with Ms. Chodos that I must effectively determine what is least detrimental to Micalister; considering the mother’s choice to move to Kitimat, there is no easy resolution to this case, and I must decide where, between Newmarket, Ontario or Kitimat, British Columbia, that Micalister will suffer least. It is common ground that he loves both of his parents and that both parents offer advantages and disadvantages in each of their households. It is also common ground that, notwithstanding the disagreements that the parties had over the years, they had managed together to establish a parenting regime that worked well for Micalister after a fashion. That parenting regime involved extensive and frequent time sharing in both the mother’s and father’s homes and had eventually provided a stable school situation for Micalister. Whether Micalister remains in Ontario or moves to British Columbia, Micalister will suffer the loss of his regular attendance at one of those households.

[5] Each party argues that Micalister would be better off in his or her care and most of the evidence led at trial centred on those issues. Mr. Cozzi proposed a comprehensive access plan should he be granted primary residence; Ms. Smith agreed that were Micalister to live with her in British Columbia, Mr. Cozzi would have similar time sharing with Micalister. Micalister’s education played a large role in the trial; at one point he was diagnosed with ADHD and he struggled in school. Accordingly both parties led evidence to show that each of their positions benefitted Micalister. Both parties have asked that I determine past and ongoing child support based upon the parties’ respective incomes; both parties abandoned any retroactive claims for s.7 expenses.

[6] As noted above, the parties separated in 2004 and the parties agreed fairly quickly after separation, by way of final order dated December 15, 2004 (which was echoed by a separation agreement made two days later) that they would have joint custody of Micalister who would have his primary residence with the Respondent. Although peace reigned for several years, the parties had a serious disagreement over primary residence and the schooling of Micalister. After an argued motion which resolved in favour of Ms. Smith’s position that Micalister remain in her primary care, the Respondent commenced these proceedings on September 18, 2006 by way of a motion to change child support. By endorsement dated September 17, 2008, Perkins J. ordered certain support issues set out in the Respondent’s motion to change child support to trial. These matters ordered to trial included Ms. Smith’s claim for retroactive child support from January 1, 2005 to August 31, 2006 and ongoing child support from September 1, 2006 onwards.

[7] Mr. Cozzi later brought proceedings to increase time with Micalister by way of Application filed on June 6, 2008. Although there was a claim by Mr. Cozzi against the Respondent for support for Micalister’s step-siblings, Mr. Cozzi has now also abandoned that claim. Both parties also withdrew their respective claims for s. 7 expenses at trial. Finally, on April 2, 2012, Ms. Smith filed her motion to change requesting permission to move Micalister to Kitimat, British Columbia. By order of McKelvey J. dated April 26, 2012, all three proceedings were consolidated into this matter.

[8] The trial took ten days in total. Because the major issue was mobility, Ms. Smith, who was unrepresented at trial, led her evidence first. There were several motions at trial. Mr. Benmore on behalf of the Applicant moved to exclude the assessment of Linda Chodos; that motion was dismissed, as will be noted below, based largely upon s. 30(8) of the Children’s Law Reform Act.[^1] Later, Ms. Smith moved for an order that Mr. Cozzi reimburse her for a portion of past and future witness attendance fees for Ms. Chodos; she relied upon the order of Perkins J. that provided that the costs of the assessment be borne by the parties on an 80-20 proportionate basis in favour of the Respondent. The motion for past witness fees was dismissed because the costs in question were witness attendance fees rather than the costs of the assessment itself and, according to the Trial Management Conference endorsement, Ms. Chodos was being called as the Respondent’s witness. However, I ruled that the $1,400 in witness fees for the coming day be divided as this attendance was for cross examination of Ms. Chodos by Mr. Benmore. Finally, Ms. Smith also brought a motion to exclude an updating expert’s report obtained by Mr. Cozzi which was prepared by an educational assessor, Cory Meretsky. I allowed that report to be entered notwithstanding my serious reservations as to necessity of the report; the Cory Maretsky reports were the only independent assessment of Micalister’s situation after he began residing with Mr. Cozzi and, as will be noted, I gave her reports very limited weight in this proceeding.

[9] The evidence in this trial was completed on December 2, 2012. The parties provided written closing submissions, the filing of which was completed on January 18, 2013.

[10] For the reasons set out below, I have determined that the final order dated December 15, 2004 shall be varied as follows:

(a) The parties shall continue to have joint custody of Micalister.

(b) Micalister shall remain in the primary care of the Applicant, Peter Cozzi, and shall reside with Mr. Cozzi in Newmarket, Ontario.

(c) Micalister shall share time with the Respondent as follows:

i. During the school year, Micalister shall spend all long weekends with the Respondent in Kitimat and shall be removed from school one day prior to the long weekend and shall return to school one day late in order to facilitate transportation to Kitimat;

ii. Micalister shall, in addition, have extended access to the Respondent as follows:

A. Every Christmas and March break for the entirety of those school breaks;

B. Every summer for the entire summer commencing with the finish of school, with Micalister to be returned to his father’s care one week prior to the commencement of the school year.

C. The Respondent may regularly communicate with the child by way of SKYPE and e-mail.

D. In the event that the Respondent comes to Newmarket, Ontario, the Respondent shall have reasonable and extensive time sharing with Micalister as permitted by his school schedule and activities. If the parties are unable to agree on a schedule of access either party may bring a motion for directions on three days’ notice to the other party.

iii. The Respondent shall pay the costs of Micalister’s flights and any unaccompanied minor fee. The Applicant shall accompany Micalister to and from Vancouver as required by the airline, at his own expense.

(d) The parties shall consult with one another respecting important decisions affecting Micalister on the terms set out in paragraph 4.4 of the separation agreement.

(e) Other than as set out herein, all terms and conditions of the said order shall remain in full force and effect.

(f) The Applicant shall pay retroactive child support in the amount of $47,768, which shall be set off against the costs payable by the Respondent under the order of Perkins J. dated February 6, 2008, the costs award of Mullins J. dated September 27, 2012 and subject to any costs of this proceeding that may be awarded. Enforcement of the child support arrears shall be stayed pending determination of the costs of this proceeding.

(g) Child support payable by the Respondent to the Applicant shall be stayed and the parties shall provide written submissions regarding ongoing child support as follows:

i. The Respondent shall provide written submissions regarding ongoing child support within 20 days of the release of this endorsement. In the event that the Respondent wishes to make a hardship argument, she shall provide a Standard of Living calculation as required by s. 10 of the Child Support Guidelines. She must as well provide an updated financial statement with evidence of her maternity leave income, and if she makes a hardship argument, she must provide proof of the income of Mr. Al‑Hamawandy.

ii. The Applicant may provide responding written submissions, including his own hardship argument and necessary Standard of Living calculation within 20 days thereafter.

McDERMOT J.

Released: June 4, 2013

[^1]: R.S.O. 1990, c. C.12.