ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3004/14
DATE: 2014-04-09
BETWEEN:
DEREK JASON MAURO
Applicant
– and –
SARAH N. SOLOMON
Respondent
John Paul Paciocco, for the Applicant
Eric McCooeye, for the Respondent
HEARD: April 3, 2014
JUSTICE E. GAREAU
1On April 3, 2014, the court heard the motions at Tabs 3 and 18 in the continuing record. The motion at Tab 3 was commenced first in time, on March 11, 2014. In that motion, the applicant father seeks various relief, including interim custody of his daughter, Madeline, or in the alternative, an order that he and the respondent share the care of Madeline on a 50/50 basis. These are the claims which the applicant advanced before the court on the motion.
2The motion at Tab 18 in the continuing record was commenced on March 31, 2014. In that motion, the respondent mother seeks temporary custody of Madeline and a temporary order that the applicant’s access be at the supervised access facility for a period of three visits, with access to be reviewed thereafter.
BACKGROUND:
3The parties are unmarried and maintained a living arrangement with each other from October, 2008 to February 24, 2014 when the parties separated.
4As a result of their relationship, the parties are the parents of one child, namely, Madeline Beatrice Mauro born July 24, 2010. Madeline is the only child of the parties.
5The parties separated on February 24, 2014. The mother maintains that the separation was a long time coming due to the breakdown in the relationship between herself and the applicant. The respondent attributes this breakdown to deceitful conduct by the applicant, his abuse of alcohol and his viewing of pornography. The applicant father attributes the breakdown in the relationship to the mother’s obsession with her photography career over her family and her obsession with self-improvement promoters such as Anthony Robbins, with the last straw being the mother’s involvement with another man who she met over the internet. The applicant’s view is that the relationship between himself and the respondent could have been salvaged but the respondent chose not to do this preferring her new companion.
6The parties are both employed and the respondent attends Algoma University as well. The respondent’s studies at university are ending in April, 2014 for the semester and during the summer months until September, she will be self-employed at her business, Sarah Solomon Photography. As noted by Ms. Solomon at paragraph 28 of her affidavit at Tab 10 of the continuing record: “At this time, I am studying Monday, Tuesday and Wednesday at Algoma University and when my semester finishes at the end of April, I will start working as a photographer in the spring and summer months.”
7The applicant is employed full-time at OLG. It was represented to the court by his counsel that Mr. Mauro works Monday to Friday and is off from work on the weekends.
CUSTODY AND ACCESS:
8Although this application was commenced on March 12, 2014, the affidavit material filed in the continuing record is extensive. From that affidavit material, it is not difficult to conclude that both parents were full participatory parents in the life of Madeline since her birth. Although each parent is arguing that they have been the primary parent of Madeline since her birth, I conclude on the material before me that the parties co-parented Madeline up until the date of separation, February 24, 2014 and that it was their intention to co-parent Madeline. In October, 2012, the respondent quit her employment at OLG to concentrate on her photography business and stay at home with Madeline. As the respondent states at paragraph 23 of her affidavit sworn on March 24, 2014 at Tab 10 of the continuing record:
“So when it came time for me to go back to work in July, 2011, I knew that my days there were numbered and focused on creating a freelance baby photography business so that I could transition out of my shift work job at OLG and into a stay-at-home mom that could work evenings and weekends instead.”
When the respondent was working evenings and weekends, it was the applicant who was entrusted with the care of Madeline.
9In paragraph 25 of her affidavit at Tab 10 of the continuing record, the respondent indicates that:
“2013 was a year of extreme growth and maturity. I did this all for my daughter. She deserves an amazing life and would not receive that if I was stuck in a toxic relationship. Madeline’s entire childhood so far, she has always recognized that there are mommy days and daddy days. We did not live and do things as a family. We co-parented and lived at the same address, but lived separate lives.”
10At Tab 20 of the continuing record, the applicant attaches Exhibit “C”, a Father’s Day card, that he received from the respondent on his first Father’s Day, which would have been in June, 2011 when Madeline was 11 months of age. In addition to a message from Madeline, written by Ms. Solomon, there is a message from Ms. Solomon herself to Mr. Mauro which reads as follows:
“Derek, I cannot tell you how proud and honoured I am to have you as my life partner and father of our child. Watching you with Madeline every day makes me fall in love with you again on an entire new level. We are on this parenting journey together, and there is no one else in the world I would rather be on it with. Thank you for being so caring and patient. I love you very much and appreciate everything you do (even if I don’t always say it). I hope you know how much you’re loved today and always. Love you so much – Sarah.”
11By the mother’s own admission, she and the father were “co-parenting” Madeline and “on this parenting journey together”. There is no doubt in my mind that the parties shared in the responsibility of parenting Madeline right up until the time they separated and that they worked together in their parental roles successfully.
12There is little doubt that the mother had full confidence in the father that he was able to care for Madeline and meet her needs. There were periods of time set out in the affidavit material that Madeline was left alone in the care of her father while the mother was away, even out of the country. These times were as early as the Christmas holiday season in 2010, when Madeline was just five months of age to as late as December, 2013, two months prior to separation, when the mother was away for a week to a seminar in Palm Springs, California. The particulars of when Madeline was left for lengthy periods of time in the care of the father are fully detailed by him at paragraph 21 of his affidavit sworn on April 2, 2014 at Tab 20 of the continuing record. The applicant states in the last paragraph of that affidavit:
“In each and every single one of those circumstances, the respondent was completely content leaving the child in my sole care and custody knowing full well that Madeline would be safe and well cared for.”
13There is no suggestion or allegation by the respondent mother, in her affidavit material in the continuing record, that prior to separation that there were any concerns with the care that the applicant provided to Madeline while she was with him, even for an extended period of time.
14The care of Madeline by the parties has broken down since the date of separation of February 24, 2014. It is the position of the father that shortly after separation, they saw a counsellor and arrived at an arrangement that they would share the care of Madeline equally. The respondent disputes this and indicates that there was no such arrangement. What the respondent does state at paragraph 35 of her affidavit sworn on March 24, 2014 at Tab 10 of the continuing record is as follows:
“We created a verbal agreement that I would have Madeline February 27/28 and Derek would have her over the weekend March 1/2 and I would pick Madeline up Monday, March 3.”
The applicant states at paragraph 42 of his affidavit sworn March 11, 2014 at Tab 4 of the continuing record that he was to have Madeline again on March 5, 2014 but that “later on in the evening of March 3, 2014 the police showed up at my residence and told me not to contact the respondent or her parents any more.”
15The applicant then did not see Madeline from March 3, 2014 to March 22, 2014. On March 20, 2014, the parties agreed to a temporary order that provided that the applicant would have access to Madeline, supervised by his parents, on March 22, March 24, March 26 and March 27, 2014 from noon to 6:00 p.m. each day.
16Ms. Solomon insisted on Mr. Mauro’s visits with Madeline be supervised due to concerns which she has developed about Mr. Mauro. The concerns are that Mr. Mauro is abusing drugs once again, drinking to excess, especially on weekends, and has displayed behavior which makes her question his stability at the present time. Both parties consented to an order on March 31, 2014 that they submit to hair follicle drug testing although the results of such testing are not yet available to the court. In paragraph 42 of her affidavit, at Tab 10 of the continuing record, Ms. Solomon identifies her concern about Mr. Mauro’s drug use as “the possibility that he may be using drugs again.” Mr. Mauro adamantly denies any ongoing, current use of drugs and there is no compelling evidence presented by Ms. Solomon that Mr. Mauro is now once again using drugs other than her suspicion that he may be doing so. With respect to the allegation of alcohol abuse, Ms. Solomon alleges in paragraph 42 of her affidavit at Tab 10 of the continuing record that Mr. Mauro “has drank every weekend for the past 9 years and I have requested that he not drink in front of Madeline but he continues to do so.” If Mr. Mauro’s drinking was problematic, why would Ms. Solomon entrust the care of Madeline to him when she went out of town for seven-day periods at a time, the last being as recently as December, 2013? Either Ms. Solomon didn’t care about the wellbeing of her child or Mr. Mauro’s use of alcohol is not as problematic as she alleges it to be now that the parties are separated. I prefer to accept the latter. As to the allegation that Mr. Mauro is acting irrationally and unstably, the court must bear in mind that the separation of the parties is very recent and the wounds and hurts that a separation will inflict are still fresh.
17I have no doubt that Mr. Mauro may have texted Ms. Solomon or her boyfriend and may have made comments that he now regrets. In my view, these actions are not uncommon in a separation which has just occurred, especially where there is another partner involved and this usually settles down in time. There is nothing in the affidavit material which would cause me to conclude that Mr. Mauro is suffering from any mental illness or impairment which would place Madeline in any risk or danger of harm if she is left in his care. In paragraph 38 of her affidavit at Tab 10 of the continuing record, the respondent describes an incident in which she alleges Mr. Mauro is texting her and saying things that cause her to fear for the safety of Madeline, such as if she didn’t come to him right now “I’m going to rip Madeline out of her bed and drive drunk and come and find you.” If this threat was made, it was not acted upon by Mr. Mauro and it is interesting to note that none of the text messages which Ms. Solomon alleges were made to her by Mr. Mauro were attached as exhibits to her affidavit as corroboration of her version of events, although such texts would be easily available and obtainable.
18It is not difficult to conclude on the evidence before the court that prior to the separation, the mother had confidence in the care that the father was providing and could provide to Madeline. There is nothing in the evidence that would persuade me that Mr. Mauro cannot at this time provide good care to his daughter. The same can be said of Ms. Solomon. Although Mr. Mauro alleges that Ms. Solomon’s focus may be on her photography business or her new partner, there is no evidence that Ms. Solomon is not a good mother or that she is incapable of providing good care to Madeline. In my view, both the father and the mother are loving parents who are equally capable of providing good care to Madeline.
19I am also of the view that prior to February 24, 2014, Mr. Mauro and Ms. Solomon co-parented Madeline and that it is in Madeline’s best interest that they continue to do so. Prior to separation, Madeline knew her parents as fully participating in her care and the activities of her life and this should continue to be Madeline’s experience. I am aware that it is the law of Ontario that there must be a high level of co-operation and communication between parents if shared parenting is to be a viable option consistent with the best interest of a child. I am aware that Kaplans v. Kaplans 10 R.F.L. (6) 373 is still good law in Ontario and I have applied my mind to the comments and principles set out in that case. Notwithstanding the difficulties that the parties have had in determining what is best for Madeline since they separated, the fact remains that they co-parented Madeline prior to separation and that they did so successfully. It was acknowledged by the respondent in her affidavit material that Madeline was used to a routine where she would have “mommy days and daddy days”. Madeline was undoubtedly the better for having both her parents being fully involved in her life.
20I see the recent difficulties in the interaction of the parties as temporary and I am confident that their difficulties will dissipate once a regular routine for the care of Madeline is established by the court.
21My intention is to optimize the time that Madeline can have with each parent in view of the present time that each parent has available. This is keeping in mind that Madeline is not yet in school with her earliest possible entry into school being in September, 2014.
22Accordingly, there shall be a temporary order that the parties share in the care of their child, Madeline Beatrice Mauro born July 24, 2010, with the respondent mother having the care of Madeline from Sundays at 6:00 p.m. to Thursdays at 6:00 p.m. The applicant father shall have the care of Madeline from Thursdays at 6:00 p.m. to Sundays at 6:00 p.m. This schedule will allow Madeline to be in the care of her mother when Ms. Solomon is available to care for her and allow Ms. Solomon to concentrate her efforts on her photography business at the busiest times – on the weekend. Similarly, this schedule will allow Madeline to be in the care of her paternal grandmother one day a week, as she was prior to separation (Fridays) and in the care of her father when he is off from work on the weekends.
23The aforementioned schedule will be altered on Mother’s Day, May 11, 2014 when Madeline will be in the care of her mother commencing at 10:00 a.m. that day. My intention is that this schedule will remain in effect to be reviewed in September, 2014 when Madeline commences elementary school. The schedule is also reviewable upon the drug testing results being obtained if such testing indicates drug use by either parent and upon a report being generated by the Office of the Children’s Lawyer if that office decides to become involved in this matter pursuant to the order granted on March 31, 2014.
24The aforementioned schedule will commence as of Thursday, April 10, 2014 with Madeline going to the home of her father, Derek Mauro, on Thursday, April 10, 2014 at 6:00 p.m. Mr. Mauro will pick up Madeline from Ms. Solomon’s home at 6:00 p.m. on Thursdays and Ms. Solomon will pick up Madeline from the home of Mr. Mauro’s parents at 6:00 p.m. on Sundays.
25The applicant claimed costs of his motion at Tab 3 of the continuing record. There is no claim for costs made in the respondent’s motions at Tab 18 of the continuing record. In my view, each party should bear their own costs with respect to the motions at Tabs 3 and 18 of the continuing record. The parties had divided success. I did not form the impression that either parent was motivated by anything other than what they perceived was the best interest of Madeline and I do not intend to penalize either party with an order for costs given their limited financial means. Accordingly, no costs of these motions at Tabs 3 and 18 of the continuing record are ordered.
Justice E. Gareau
Released: April 9, 2014
COURT FILE NO.: 3004/14
DATE: 2014-04-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DEREK JASON MAURO
Applicant
– and –
SARAH N. SOLOMON
Respondent
REASONS on motion
Released: April 9, 2014