SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F628/13

DATE: July 15, 2013

RE: Antonio Joao Machado Miranda, applicant

AND:

Christine Diane Miranda, respondent

BEFORE: MITROW J.

COUNSEL:
Cynthia L. Mackenzie for the applicant
Brenda Barr for the respondent

HEARD: July 5 and 8, 2013

ENDORSEMENT

INTRODUCTION

[1] The applicant (“Mr. Miranda”) and the respondent (“Ms. Miranda”), both high school teachers earning similar incomes, have three children, ages 3, 10 and 13. The parties were married in 1998 and separated in early October 2012.

[2] The issues before the court on the motions brought by the parties relate to interim child support and the schedule of time on an interim basis that the children shall spend with each parent.

[3] The nature and effect of the order of Templeton J. dated May 17, 2013 (“the order”) was raised during argument. The order dealt only with the issue as to whether Mr. Miranda’s access to the children should remain supervised and the order required the continuation of supervised access. The supervision requirement was a term of Mr. Miranda’s recognizance on criminal charges laid in early April 2013, consisting of criminal harassment against Ms. Miranda and breach of conditions. The recognizance did provide for the requirement of supervision to be superseded by an order of the Family Court.

[4] Mr. Miranda argued that the order was neither an access order nor a custody order, but merely amounted to a “direction,” being outside the scope of orders authorized under the Children's Law Reform Act, R.S.O. 1990, c. C.12. Despite the resourcefulness demonstrated in advancing this somewhat novel argument, I find that the order, unequivocally, is an incident of access and, as such, is an interim access order.

[5] At the time the motion before Templeton J. was argued, the pleadings before the court consisted only of the recently issued application that contained no claim for a divorce. Although Ms. Miranda subsequently filed her answer seeking a divorce and corollary relief, apparently on the same day as Templeton J. released her endorsement, I find that the order was made pursuant to the Children's Law Reform Act.

[6] Mr. Miranda’s claims under the Children's Law Reform Act are now stayed pursuant to s. 27 of that Act and, therefore, the interim orders sought before me are pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

[7] A significant issue dealt with below is the effect of the order. Ms. Miranda submits there has been no material change since the order was made and that supervised access should continue for now. Ms. Miranda further submits that the separation agreement signed by the parties in late November 2012 creates a status quo and that the childcare schedule contained in the separation agreement should apply on an interim basis (subject to the subsequent requirement of supervision).

[8] Mr. Miranda’s position is that if I find that the order is indeed an “order,” rather than merely a “direction” (which I have), then a material change in circumstances has occurred since the order. He also submits I should adopt a “holistic” approach, as this is the first time that all interim custody/access matters are being argued. He seeks an interim order that, in effect, results in the children spending equal time with each parent but without supervision.

[9] Counsel confirmed during argument that the Office of the Children’s Lawyer has accepted this case. Ms. Miranda submits this is a further reason to make no changes to the schedule set out in separation agreement and to keep supervision in place.

[10] Both parties do concede that the separation agreement, in relation to the summer schedule, is somewhat vaguely worded and, hence, each party has proposed a summer schedule. Mr. Miranda proposes equal time, whereas Ms. Miranda proposes an expanded form of the access schedule employed during the school year.

[11] Interim child support will depend on the childcare schedule and is dealt with below.

DISCUSSION

a. Custody/Access Issues

[12] The relevant background facts can be dealt with briefly notwithstanding the somewhat voluminous affidavit material.

[13] Although the parties did not have legal representation at the time, they nevertheless signed a separation agreement in November 2012 purporting to be a final resolution of property issues, but only a temporary settlement in relation to “custody, access, guardianship and support.”

[14] Pursuant to the separation agreement, Ms. Miranda and the children remained in the matrimonial home (which was close to Ms. Miranda’s school) in London. Mr. Miranda, who commutes to Stratford to teach, moved to a two bedroom apartment in London.

[15] Pursuant to the separation agreement, during the school year the childcare schedule effectively was as follows:

a) the children are with Mr. Miranda alternating weekends (from Friday at 5:00 p.m. to Sunday at 7:00 p.m.;

b) during the week, the children are with Mr. Miranda every Monday and Wednesday from 5:00 p.m. to 8:00 p.m.;

c) the children are with Ms. Miranda the balance of the time;

d) the separation agreement expressly stated that the primary residence was with Ms. Miranda and that from Sunday night at 7:00 p.m. to Friday at 5:00 p.m., the children will sleep and wake up at Ms. Miranda’s residence.

[16] In early December 2012, Mr. Miranda’s emotional and psychological health was suffering as a result of which he received a leave of absence from his employment. He sought the assistance of a psychiatrist whose notes and records were produced and filed by Mr. Miranda as exhibits.

[17] The report from the psychiatrist’s office, referring to an assessment conducted on January 9, 2013, contained a diagnosis of “major depressive disorder” and “OCD” (obsessive-compulsive disorder). It is the depression diagnosis that is most relevant to Mr. Miranda’s ability to parent. The latter diagnosis has been somewhat long-standing and was described as frequently engaging in rituals such as locking and checking doors, locks and windows. In relation to the depression diagnosis, this report described suicidal ideation starting around mid-December 2012. The “risk assessment” portion of the report recounted Mr. Miranda’s “passive suicidal thoughts” and stated he never engaged in suicide planning, self-injury or self-harming behaviour. The report describes his children acting “as protective factors and deterrents to suicide.”

[18] The psychiatric records contain several other reports of consultations (Mr. Miranda was seen four times by the psychiatrist) and on April 10, 2013 (the date of the last consultation), a report shows sufficient progress such that the psychiatrist discharged Mr. Miranda back to the care of his family physician.

[19] Ms. Miranda’s evidence describes Mr. Miranda engaging in volatile behaviour since the separation that included Mr. Miranda yelling and being in a rage at the matrimonial home requiring police attendance (leading on one occasion to the criminal harassment charge), shouting profanities while at the matrimonial home and scaring the children. She also describes Mr. Miranda waiting in a parking lot late on an evening in February 2013, watching for Ms. Miranda and her male companion to leave a movie theatre. Mr. Miranda was described by Ms. Miranda as being angry and verbally aggressive with Ms. Miranda because she was dating someone.

[20] Ms. Miranda deposed (see her affidavit sworn April 22, 2013, paragraph 62) that Mr. Miranda admitted to her he had feelings of suicide and she alleges he stated to her that he had thoughts of killing her and that he would not be found at fault given his mental illness.

[21] Mr. Miranda denies substantially the allegations put forth by Ms. Miranda. He deposed that he is constrained in giving his full version of events, for now, given the outstanding criminal charges.

[22] The latest recognizance dated April 15, 2013 requires Mr. Miranda to abstain from any contact, association or communication with Ms. Miranda except through legal counsel or through a third party for “child access” or unless pursuant to a Family Court order. In relation to the children, all contact, association or communication with the children must be as “arranged and supervised” through a mutually agreed third party or unless pursuant to a Family Court order.

[23] Subsequent to separation, the parties followed the schedule in the separation agreement. After the criminal charges were laid, the schedule continued except that Mr. Miranda had to rely on others, primarily his family and relatives, to supervise his time with the children. Mr. Miranda deposes that the supervision of his access is very onerous, not necessary and makes it extremely difficult for him to discharge his responsibilities in taking the children to their numerous extra-curricular activities.

[24] The evidence as a whole is very clear that both parties were active, involved parents before and after separation and this included the rather hectic schedules arising from the children’s extra-curricular activities.

[25] Against this background of substantial evidence that was before her, Templeton J. ordered that Mr. Miranda’s access to the children “must continue to be supervised until the Court can be assured that Mr. Miranda has stabilized in the long term.”

[26] A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.

[27] While the principles applicable to interim variation of interim orders have been stated in various ways – the theme is the same and I find that the statement in Greve aptly summarizes the guiding principles.

[28] Mr. Miranda faces the onus of demonstrating a change in circumstances since the order resulting in compelling reasons to eliminate supervision.

[29] Approximately four days after the order was made, Mr. Miranda initiated the process to return to work. Soon thereafter, Mr. Miranda obtained a medical clearance from his family physician dated May 22, 2013, clearing Mr. Miranda to return to work. Mr. Miranda relies heavily on this new medical evidence (being five days after Templeton J.’s order). Mr. Miranda tendered an affidavit sworn June 19, 2013 from the head of his department, confirming that Mr. Miranda resumed the fulltime duties of his employment on May 28, 2013.

[30] Templeton J. found she was not satisfied on a balance of probabilities that the risk assessment of January 2013 is not still applicable to Mr. Miranda. She added:

It is clear that Mr. Miranda deeply loves his children and that supervision is causing a logistical nightmare for him due to the many activities in which the children are involved but given his conduct within the last few weeks, I am of the view that more time is needed for Mr. Miranda’s emotional and mental health issues to resolve such that when the children are with him, the issue and trauma of the breakdown of his relationship with their mother will not be a factor in his care of them.

[31] As indicated, there was substantial affidavit evidence before Templeton J. She was clearly aware of the logistical problem faced by Mr. Miranda with the imposition of supervision.

[32] Very soon after returning to work, Mr. Miranda commenced his motion seeking to vacate the order. The current motion was argued approximately seven weeks after the order. Mr. Miranda submits, forcefully, that the Divorce Act stipulates expressly the principle that a child should have as much contact with each parent as is consistent with a child’s best interests (see s. 16(10) of the Divorce Act and see also Folahan v. Folahan, 2013 ONSC 2966, [2013] O.J. No. 2450 (S.C.J.)).

[33] Mr. Miranda further submits that supervised access is the most restrictive form of access. It should be temporary and time-limited and not permanent: M.A. v. J.D., 2003 52807 (ON CJ), [2003] O.J. No. 2946 (C.J.) at paras. 24-25 and relying on Montgomery v. Montgomery, 1992 8642 (ON CA), [1992] O.J. No. 2299 (C.A.).

[34] I find that the changes in circumstances relied on by Mr. Miranda do not amount to compelling reasons in the children’s best interests to eliminate the supervised access in its entirety. Given the allegations and disputed facts, and the extent of the record that was before Templeton J., insufficient time has elapsed such that I can be satisfied that Mr. Miranda’s health has stabilized in the long-term sufficient to eliminate all supervised access.

[35] There was some concession by Ms. Miranda when she agreed that Mr. Miranda could attend a banquet with one of the children without specific supervision. Also, I take into account that Mr. Miranda has shown some progress by returning to work. I decline to find, as urged on me by Ms. Miranda, that Mr. Miranda returned to work only because he saw this as a way to eliminate supervision.

[36] Ms. Miranda has also agreed that she is prepared to resume electronic communication with Mr. Miranda restricted solely to access arrangements. This will promote an easier juggling of the children’s schedules particularly during the summer to accommodate extra-curricular activities.

[37] I find there is sufficient evidence to relax somewhat the access restrictions, as reflected in the order below.

[38] During the school year, the parties followed the separation agreement. That is the best evidence as to what each party thought was in the children’s best interests. There is no compelling reason to disturb that status quo. For the summer months, I find that it is in the children’s best interests to expand somewhat the schedule agreed to during the school year.

[39] There is some weight to be ascribed to Mr. Miranda’s submissions regarding the restrictive nature of supervised access. Accordingly, the parties through counsel are encouraged to work towards reducing, or eliminating, the need for supervision. Mr. Miranda, in consultation with his counsel, needs to consider whether it may be appropriate for him to engage in counselling or attending community based programs such as those at Merrymount Children’s Centre.

[40] The involvement of the Children’s Lawyer should hopefully provide the parties with additional focus in moving towards less restrictive access. Accordingly, the order below incorporates a provision to allow for a review of this interim order.

b. Interim Child Support

[41] Mr. Miranda will pay the table amount of child support effective July 1, 2013. The parties agreed in advance that the table amount should be $1,744 per month if the court orders child support to be paid pursuant to s. 3(1)(a) of the Guidelines.

[42] The order below reflects also the parties’ agreement regarding s. 7 expenses. Counsel will attempt to resolve that issue, failing which that matter will be placed back before me.

ORDER

[43] An interim order pursuant to the Divorce Act shall issue incorporating the terms set out below:

1. The primary residence of the children shall be with Ms. Miranda;

2. During the school year, Mr. Miranda shall have access to the children:

a) every Monday and every Wednesday from 5:00 p.m. to 8:00 p.m.;

b) Alternate weekends from 5:00 p.m. Friday to 7:00 p.m. Sunday;

3. During the balance of the school summer vacation for 2013, Mr. Miranda shall have access to the children:

a) every Monday and every Wednesday from 10:00 a.m. to 8:00 p.m.;

b) alternate weekends from 3:00 p.m. Friday to 8:00 p.m. Sunday;

4. When the children are not with Mr. Miranda during access, the children shall be in the care and control of Ms. Miranda;

5. The interim order of Templeton J. dated May 17, 2013 requiring that Mr. Miranda’s access shall be supervised is continued except as follows:

a) supervision is not required while Mr. Miranda is attending a child’s extra-curricular activity;

b) supervision is not required while Mr. Miranda is with the children in a park or playground, a shopping mall or a public movie theatre, and in addition, provided that Ms. Miranda consents, Mr. Miranda may be with the children in such other community setting where members of the public are present;

c) regarding subparagraph b), Mr. Miranda shall provide Ms. Miranda with at least 24 hours’ written notice as to when and where he intends to exercise access with the children;

d) Mr. Miranda shall have reasonable telephone access to the children and there is no requirement for this telephone access to be supervised;

e) Mr. Miranda may communicate with the two oldest children by text message or email, but only on the condition that all his emails and text messages are copied simultaneously to Ms. Miranda;

f) notwithstanding the above, supervision is required during any time that Mr. Miranda is in a motor vehicle with the children;

6. Through counsel, the parties shall agree on the list of Mr. Miranda’s relatives and others, who can supervise his access and, unless otherwise ordered, these persons shall include his sister Ana, his mother and his brother Eric, and if there is any dispute as to the access supervisors, then counsel shall bring that matter back before me at 9:30 a.m. on a date set by the trial coordinator;

7. The parties are at liberty to agree to additional access, to change the access times to accommodate the children’s schedules and to increase unsupervised access time;

8. Ms. Miranda and Mr. Miranda may communicate directly with each other via text messages or email, restricted to making or changing or providing details regarding access visits including any matters incidental to arrangements for access;

9. Mr. Miranda shall pay child support to Ms. Miranda for the three children in the amount of $1,744 per month, pursuant to s. 3(1)(a) of the Federal Child Support Guidelines, S.O.R./97-175, based on an income of $94,936 (less $1,330 for union dues), commencing July 1, 2013 and this order is without prejudice to any claim Ms. Miranda may have for child support prior to July 1, 2013;

10. Ms. Miranda’s request for an interim order for s. 7 expenses is adjourned sine die returnable before me on ten days’ notice if the parties, through counsel, are unable to agree as to their respective obligations regarding s. 7 expenses;

11. Any further motions in this case shall be made returnable before me;

12. The applicant shall forward forthwith to the Office of the Children’s Lawyer a copy of this order and endorsement, and the Office of the Children’s Lawyer is requested, to the extent possible, to expedite the appointment of counsel or a social worker in this matter;

13. The issue of whether Mr. Miranda’s interim access should continue to be supervised may be reviewed after September 15, 2013 at the request of either party on motion returnable before me.

[44] If the parties cannot agree on costs, written submissions shall be forwarded to the trial coordinator by August 9, 2013, not to exceed three pages plus copies of any offers or authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: July 15, 2013