SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-365406

DATE: 20130717

RE: Vanessa Duarte, Applicant

AND:

Rodolfo Simoes Ferreira Duarte, Respondent

BEFORE: Stevenson, J.

COUNSEL:
Piotr Szajak, for the Applicant

Jaret Moldaver, for the Respondent

HEARD: July 16, 2013

ENDORSEMENT

[1] The Respondent father has brought a motion seeking an expansion of the time that he currently shares with the parties’ daughter Gabriella who is 6 years of age and will be turning 7 in October. The Applicant has brought a cross-motion seeking inter alia a dismissal of the Respondent’s motion; an order for temporary custody; changes to the existing access regime and orders to deal with what she alleges is the Respondent’s non-compliance with court ordered obligations.

[2] Gabriella currently resides primarily with her mother, the Applicant. Gabriella spends time with her father on Tuesday and Thursday evenings and every Saturday for the day. She also spends time with her father on one Sunday afternoon per month as agreed between the parties. The Respondent now seeks to expand access to include overnights, specifically Fridays overnight for a period of four weeks along with his regular Tuesdays and Thursdays and then an expansion to alternating weekend overnight time sharing from Friday to Monday, Wednesdays overnight along with alternating Monday time sharing.

[3] The Applicant is opposed to the expansion of time that Gabriella spends with the Respondent, including the request for overnights. She argues that it is not in the best interests of Gabriella that overnights take place for a number of reasons. The Applicant contends that Gabriella has benefited from the existing time sharing schedule and that this provides Gabriella with stability and consistency. She also submits that Gabriella has repeatedly told her parents, the OCL and the school social worker that she does not want to spend overnights with the Respondent. The Applicant contends that the Respondent does not respect Gabriella’s viewpoints and feelings and that Gabriella has never spent a night alone with the Respondent.

[4] The Applicant further submits that the Office of the Children's Lawyer ("the OCL") investigator, Ms. Flanagan, indicated that overnight access should not be imposed upon Gabriella by court order and that a precondition to overnight access would be the consent of all parties including Gabriella. The Applicant also contends that the Respondent has not acted in Gabriella’s best interests by ensuring that she attends and participates in her activities to which he has not adequately financially contributed. Additionally, she states that his behaviour has been inappropriate on time sharing transition times and that he has repeatedly made inappropriate comments about the Applicant and treated her poorly along with her other family members. She indicates that this has been relayed by Gabriella to her social worker at school and to the OCL.

[5] The Applicant also contends that Gabriella has experienced ongoing behavioural difficulties at school involving interacting with peers, reading social cues, arguing with teachers and sometimes hitting peers. The Applicant submits that this is another reason why Gabriella requires stability and structure and no changes should be made at this time. Gabriella has made improvements, she is progressing at school and she is comfortable with the current time sharing regime.

[6] The Applicant further submits that the Respondent does not have the best interests of Gabriella at the forefront as he refuses to comply with court orders requiring him to take Gabriella to her activities and he refused to pay for ongoing section 7 expenses. Further, she contends that the Respondent unilaterally makes decisions regarding Gabriella including showing up at her summer camp and removing her and showing up at her school without notice to the Applicant.

[7] Pursuant to the order of Herman J. dated December 15, 2011, the OCL was asked to investigate and a report was completed on June 7, 2012. It is clear from a review of the OCL report that this situation is very high conflict and that Gabriella is tragically caught in the middle of her parent's dispute which is clearly affecting her.

[8] I note in the OCL report that Ms. Flanagan indicates that Gabriella is well aware of the conflict between her parents and that this conflict has had an impact on Gabriella’s social/emotional development that has been exhibited in behavioural outbursts. Ms. Flanagan stated in her report that Gabriella was mad about the way her father treats her mother and that much conflict takes place when Gabriella is going to visit her father. She also indicated in her report that there are times when the Applicant makes comments to the Respondent in front of Gabriella. Ms. Flanagan reported that it was important for the parties not to engage in any altercation during transition times.

[9] Ms. Flanagan also stated in her recommendations that the parties should consider a program or workshop to assist them with understanding how parental conflict affects children. She also indicated that it will be important that the parents develop strategies for supporting Gabriella to adjust to separation from her mother when she has overnight access with her father.

[10] With respect to the issue of overnight visitation, Gabriella indicated to Ms. Flanagan that she likes the visits with her father. Gabriella indicated that she and her father "play and eat a lot." Gabriella stated to Ms. Flanagan that she is not comfortable sleeping overnight at her father's house but that she is comfortable sleeping at her mother's house because she sleeps with her mother. She also went on to state that no one would hurt her at her father's home.

[11] Ms. Flanagan also stated in her report that Gabriella indicated to her that her mother would not like her to sleep at her father's house. Gabriella further indicated that she feels sad but she likes being with her father. Gabriella also stated to Ms. Flanagan that she was going to sleep over at her father's house when she is older or in a different grade. She further indicated that if she was to sleep at her father's house she would miss her mother. Ms. Flanagan indicated in her report that Gabriella stated to her that her mother does not like her to visit with her father because he is rude to her. Gabriella said it makes her mad when her father is rude to her mother.

[12] Ms. Flanagan also states in her report that Gabriella said she heard her parents arguing about staying overnight at her father's home. She indicated to Ms. Flanagan that her father said he wants Gabriella to stay overnight and her mother said "no" because Gabriella does not want to stay overnight. Gabriella indicated to Ms. Flanagan that nothing can change her mind about sleeping overnight at her father's home. She also stated that she is scared to sleep overnight at her father's home because her mother takes better care of her and because her mother would not be there.

[13] I note that when Ms. Flanagan spoke to Ms. Parihar, the school social worker as part of her OCL investigation, Ms. Parihar indicated to Ms. Flanagan that Gabriella had advised her that she does not want to sleep overnight at her father's home because she sleeps with her mother. She indicated that Gabriella speaks positively about her mother and father and that she has fun with both of them. I also note that Gabriella had reported to Ms. Parihar that Gabriella had witnessed her father not being nice to her grandmother and she saw him push her grandmother. She also indicated that her father said mean things about her mother and she asks him to stop but he starts again.

[14] In her report Ms. Flanagan stated that the access schedule between the Respondent and Gabriella should not be reduced. She also indicated that both parties needed to figure out a way to manage the situation more appropriately. With respect to overnight visitation, Ms. Flanagan concluded that she did not feel that Gabriella was being coached by the Applicant. She further indicated in her report that both parents can bring Gabriella to a point of comfort where she will want to spend an overnight with her father and that the Applicant can continue to encourage Gabriella to sleep in her own bed. Ms. Flanagan outlined in her report that there needed to be an expansion of access between Gabriella and her father to eventually include overnight access. She acknowledged that Gabriella indicated that she was not comfortable with overnight visits but she felt that the parties could work together to bring Gabriella to the point where she feels comfortable.

[15] The recommendation of the OCL investigator Ms. Flanagan was that the Applicant have sole custody of Gabriella given the high conflict and as such she could not recommend joint custody. Ms. Flanagan also recommended that Gabriella share time with her father based on the then current schedule, Tuesdays, Thursdays and Saturdays and that during the summer, if the Respondent and Gabriella were available, the visits could be expanded to include the whole day on these same days. The Respondent’s time with Gabriella was to increase to include alternate Sundays for the full day from 9:00 am to 6:30 pm. Ms. Flanagan went on to further state in her report: “If successfully completed and as agreed upon by all parties then Gabriella’s access to expand to include overnight visits with her father. The first few visits are to take place from Saturday AM to Sunday PM. At this time the access should go to alternate weekends, in order to allow the mother to have alternate weekends.” She went on to further recommend: “If successfully completed and as agreed upon by all parties then Gabriella’s access to expand from Friday PM to Sunday PM on alternate weekend.”

[16] The recommendation of the OCL contemplated that there would be a movement to overnights but no timelines were suggested. This recommendation assumed that the parties could cooperate in moving towards an agreement on overnights and work together in the best interests of Gabriella. This may have been somewhat optimistic on the part of the investigator as she most likely felt that the parties would be able to move forward after her recommendations and move away from the conflict. Unfortunately this has not come to fruition and the situation remains high conflict.

[17] The Respondent makes allegations of parental alienation against the Applicant and he is concerned that any further delay regarding overnights and an expansion of access will only cause further problems as he feels the Applicant has been “coaching” Gabriella. I cannot determine at this stage based on the conflicting evidence whether there is any attempt being made by the Applicant to alienate Gabriella from her father and I acknowledge that the Respondent is in fact seeing Gabriella on a frequent basis.

[18] However, I am concerned that Gabriella at almost 7 years of age is not enjoying overnight time with the Respondent. The recommendations of the OCL anticipated that the parties would be able to come to agreement and move towards overnights. Gabriella was 5 at the time of the investigation and another year has passed. I see no compelling reason based on the evidence before me to deny Gabriella the opportunity to spend some overnight time with her father pending a full determination of the issues at trial. It is in Gabriella’s best interests that she be able to spend overnight time with her father and move towards a more regularized time sharing regime allowing her to spend meaningful time with both parties. There is no trial date set and neither party provided me with an indication of when a trial may be heard. The applicant appears content to revisit the issue in another 3 to 6 months at a settlement conference. Counsel for the applicant suggested that this would allow the respondent an opportunity to improve upon his behaviour and allow Gabriella to maintain the stability and consistency that is currently in place as she is doing well. Counsel further submitted that this motion is premature as there are issues in previous orders that have been left unresolved.

[19] I agree with the Respondent's submission that there is no reason to delay overnights further. The Applicant deposes that Gabriella continues to express to the school social worker that she does not want to spend overnights with her father. I note that no Affidavit from the social worker was filed for these motions. From a review of the report of the OCL of over a year ago, it appears that Gabriella was not frightened of the Respondent or had any other serious concerns but rather she was struggling with the fact that she would be away from the Applicant if she spent overnights with her father and she was comforted by the fact that she was able to sleep with the Applicant. At that point she felt that her mother was better able to care for her and she perhaps felt more secure. I also note that in the OCL report it is stated by Ms. Flanagan that Gabriella enjoys her time with her father. It is clear that they have a loving bond as is evidenced by the time they share together presently.

[20] Although the evidence filed on these motions is highly conflicting, and the OCL report is only one piece of the evidence, there is nothing in the evidence that suggests to me that it would be inappropriate for Gabriella to spend overnights with her father. I see no risk to Gabriella in expanding the time she shares with the Respondent but only a benefit to Gabriella of being able to enjoy additional time with her father to include overnights. I am concerned that without this order being made at the present time, the matter of overnights will continue to drag on which will clearly not be in Gabriella's best interests. Given her age it is appropriate for her to now enjoy overnights with her father.

[21] The fact that Gabriella spends frequent time with her father presently also leads me to believe that there is no compelling reason for the access not to progress to the next stage as contemplated by the OCL report. It is unfortunate that timelines were not put in place in the OCL report, however, it was clearly anticipated that the parties would be able put the conflict aside and do what was in Gabriella's best interests by working together to make her comfortable with overnights. Unfortunately this appears impossible at present as the matter remains so high conflict that the court must intervene and allow Gabriella extended time with her father. I am not confident that the expansion to overnights will proceed in the future without a court order, as there appears to be reluctance on the part of the Applicant to move towards overnights.

[22] There were also allegations made by the Respondent that the Applicant had contacted the school principal and a teacher to advise them that the Respondent was not allowed on school property to attend events at the school other than on his specified time with Gabriella. Again, there is conflicting evidence with respect to this allegation and counsel for the Applicant indicated that there was a difficulty with the Respondent showing up at camp or the school unannounced and without notice to the Applicant to remove Gabriella. While certainly the Respondent should not be attending to remove Gabriella without the Applicant's knowledge, there is no difficulty with the Respondent and the Applicant both attending all school functions pertaining to Gabriella and all school events. Neither parent should be precluded, and Gabriella should have the benefit of having both parties present on these very important occasions.

[23] It is clear that there is much conflict during transition times between the parties and this has caused much stress to Gabriella. There should be an attempt to minimize the contact between the parties but I am not prepared to order that the transitions take place at a supervised access centre as suggested by the Applicant. This will no doubt add further delay to the process and place Gabriella in a situation that may be unnatural and uncomfortable to her. I agree with the submissions of counsel for the Respondent that as many transitions as possible should take place at the school to avoid conflict and interaction between the parties which causes so much stress to Gabriella. During the summer these transitions should either take place at any camp Gabriella attends or at the Centennial Park playground as has been the practice of the parties. Additionally, it is in the best interests of Gabriella that the transition to more overnights should be taken somewhat slowly to allow Gabriella time to adjust to the new situation.

[24] I am not prepared on this motion given the conflicting evidence to make an order for custody. Gabriella continues to reside primarily with the Applicant and custody needs to be fully canvassed at trial where the parties will have the benefit of cross-examination.

[25] I note that the parties were able to resolve issues concerning section 7 expenses and the issue of severing the divorce from the corollary issues.

[26] I order the following:

i) Order to go in accordance with the draft order filed severing the divorce from the corollary matters in this proceeding and the Applicant shall proceed to obtain a divorce order on an uncontested basis;

ii) On consent, the Respondent shall reimburse to the Applicant the sum of $686.65, within 14 days, which sum represents the Applicant's account of the net amount owing to her for section 7 expenses (the Applicant has claimed for soccer, swimming, ballet and summer camp). The payment is made on a without prejudice basis and subject to an accounting if requested by the Respondent for the aforementioned expenses;

iii) The Respondent's time with Gabriella Violeta Duarte born October 1, 2006, shall be increased as follows:

Stage 1: For the first twelve weeks of the new schedule, the Respondent shall share time with Gabriella as follows:

a) Every Tuesday and Thursday, from after school (with pick up from school) until 8:15 p.m., with the drop off exchange to occur at the Centennial Park playground ("park"); and

b) Every Friday, from after school (with pick up from school), until Saturday at 8:00 p.m., with drop off exchange to occur at the park;

Stage 2: Thereafter, the Respondent shall share time with Gabriella as follows:

a) Every Wednesday, from after school until the start of school on Thursday, (with pickup and drop-off at school);

b) Every other weekend, from Friday after school, until the start of school on Monday morning. If Monday is a holiday, the time will extend to the start of school on Tuesday morning (with pickup and drop-off at school).

iv) The parties shall share equal time with Gabriella during the holidays once Stage I has been completed;

v) The Applicant shall facilitate and promote the Respondent's telephone access to Gabriella daily and shall facilitate and promote Gabriella communicating with the Respondent as she wishes without interference from the Applicant;

vi) Both parties shall be entitled to attend all school functions and events;

vii) The Respondent shall be provided with the right of first refusal if the Applicant is unable to care for Gabriella for an extended period of time, specifically any period of time over 24 consecutive hours;

viii) The parties shall arrange for a settlement conference to take place prior to the end of October 2013;

ix) I urge the parties to agree on costs; however, if the parties are unable to agree, any party seeking costs shall do so by filing written costs submissions, not to exceed two double-spaced pages within 20 days, along with a Bill of Costs and any Offers to Settle. A party wishing to respond shall do so by filing written costs submissions, not to exceed two double-spaced pages, 14 days thereafter.

Stevenson, J.

Date: July 17, 2013