SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 30336/08

DATE: 2014-06-20

RE: Salvatore Scrivo, Applicant

AND:

Jacqueline Cynthia Scrivo, Respondent

BEFORE: M.J. Donohue, J

COUNSEL:
Salvatore Mannella, Counsel for the Applicant

Jacqueline Scrivo, self-represented Respondent

HEARD: June 18, 2014

ENDORSEMENT

BACKGROUND

[1] A trial was held in this proceeding solely on the issue of access between Mr. Scrivo and the parties’ youngest son, Brendan.

[2] In my judgment of May 4, 2012, I found Ms. Scrivo was alienating her sons from their father, which was frustrating access.

[3] I ordered therapy for the parties with Ms. Geraldo. She recommended that Ms. Scrivo assume an active role in facilitating contact between Brendan and his father. She recommended Ms. Scrivo transport Brendan for access visits.

[4] The parties returned to court for a review on November 27, 2012. There was still infrequent access. The matter was adjourned to January 21, 2013, to allow further affidavit evidence. However, I ordered a Christmas Eve access with Ms. Scrivo taking Brendan for the visit. The visit did not occur.

[5] I found Ms. Scrivo in contempt of my order of November 27, 2012. The written reasons for that order were provided on April 24, 2013.

[6] After that finding, the parties were before me on May 21, 2013. An access visit was arranged for May 25, 2013, to allow Ms. Scrivo to purge her contempt. That visit did not occur as Ms. Scrivo arranged for her older son to pick Brendan up as soon as he was dropped off at his father’s home.

[7] As a result, Mr. Scrivo’s counsel sought an order suspending child support pending meaningful access.

[8] On June 26, 2013, I ordered Ms. Scrivo to drive Brendan for access visits and ordered three visits to occur by September 30, 2013. Ms. Scrivo did arrange for those visits to occur at a donut shop near her home. Mr. Scrivo was unable to attend one visit. The other two visits were short with Brendan leaving within an hour to see friends.

[9] The matter came before me on September 30, 2013. In my order of October 1, 2013, I stated that, “The Court is encouraged to see even this very modest access occurring; but discouraged by Ms. Scrivo not driving Brendan to his father’s residence in Mississauga for a meaningful visit.”

[10] I gave Ms. Scrivo a further opportunity to “breathe life into the Order for access and purge her contempt of court”. I ordered Ms. Scrivo to deliver Brendan for four visits over the next four months by driving Brendan to Mr. Scrivo’s residence in Mississauga, each to be a six hour visit.

[11] I reserved my decision on the order regarding suspension of child support as I considered my order of June 26, 2013, was not clear as to how I expected Ms. Scrivo to purge her contempt.

[12] The Office of the Children’s Lawyer provided an affidavit March 18, 2014, following an interview with Brendan.

[13] Brendan reported that it would be better if he could make his own plans with his father and not be forced to do so. He does not want a set schedule or be forced to make plans to see his father. The investigator stated that Brendan, “is expressing clearly that he wants to make his own plans for access with his father given his age.”

[14] Brendan stated that it would be okay if his father attended his extra-curricular activities.

[15] Brendan is now 15 years of age. The evidence is that he is finishing Grade 9 in high school and participates in two rugby teams.

[16] There is some undated evidence that Mr. Scrivo has tried three times to contact Brendan by text but has been told by Brendan to stop talking to him and to stop texting him.

POSITION OF MR. SCRIVO

[17] As an alternative to suspending child support payments, counsel for Mr. Scrivo proposes an order that the court sentence Ms. Scrivo to six months probation on terms.

[18] The terms proposed are that Ms. Scrivo engage in counselling or therapy to deal with her discouraging the children from letting their father be a part of their lives; access to continue for five hours a week to be selected by Brendan and facilitated by Ms. Scrivo in terms of driving him to the father’s residence; and that the matter be returned to court prior to completion of probation with a report from the counsellor confirming the dates attended and the results of the counselling.

[19] As of my decision July 12, 2013, Mr. Scrivo had been seeking costs of $24,829.63 on a partial indemnity basis. There have been two attendances since that time such that his costs submitted, even on a partial indemnity basis, exceed $25,000.

POSITION OF MS. SCRIVO

[20] Ms. Scrivo asks the court to order access in accordance with Brendan’s wishes now that he is 15 years of age. She assures the court that she will encourage and facilitate access that he and his father arrange between them.

[21] Ms. Scrivo submits that she cannot afford the cost or time of counselling and that it is not needed. Her evidence is that she only makes ends meet with the child support payments for her three boys. (The two eldest are adult university students) She deposes that Mr. Scrivo is three months in arrears of his child support for the three boys.

ACCESS SINCE OCTOBER 1, 2013

[22] Ms. Scrivo did not promptly comply, but four visits did occur by March 8, 2014. She made the arrangements and ensured that Brendan was available for a six hour visit. He attended and spent time with his father. Mr. Scrivo returned him home earlier than the six hours but no reasons were given.

CONCLUSION

[23] It must be remembered that the finding of contempt was with respect to the one visit of December 24, 2012. Given the above, I am satisfied that Ms. Scrivo made genuine efforts and succeeded in having the access occur. On that basis, and considering the visits in the summer of 2013, I find that Ms. Scrivo has purged her contempt.

[24] As she has purged her contempt, I find it is not appropriate to order a suspension of child support.

[25] Access must change and adapt with the changing dynamics of the family.

[26] As Brendan is now 15, I find it appropriate to order that access be arranged directly between Brendan and his father. It is up to the two of them as to how long the visits will be and when. They can arrange the visits to include any members of Mr. Scrivo’s second family if they both agree.

[27] Any access arranged between Brendan and his father are to be facilitated by Ms. Scrivo in terms of driving Brendan to his father’s residence or other nearby location that the father and son choose.

[28] Ms. Scrivo is to encourage and promote the importance of the father and son relationship in her discussions with Brendan and explain to Brendan that he should make time to be with his father.

[29] Ms. Scrivo is to email to Mr. Scrivo a schedule of the extra-curricular activities that Brendan is attending so that Mr. Scrivo is informed of the events that he could attend. Ms. Scrivo is do so on the 1st of the month commencing July 1, 2014; until Brendan turns 16 years of age. Thereafter Brendan and his father may discuss such schedules directly.

COSTS

[30] Since my judgment of May 2012, there has been very minimal access arranged and only with the heavy hand of the court insisting when and how it occurs. Before the trial, when Ms. Scrivo was insisting that access occur at the wishes of Brendan, there was almost no access occurring.

[31] I find that Ms. Scrivo to be a bright, efficient and dedicated mother. She could well have honoured the judgment of May 2012, and ensured that Brendan saw his father regularly (even monthly) over the last two years. Instead it required four court attendances from Mr. Scrivo’s counsel plus preparation of extensive materials to obtain the access that was achieved.

[32] In light of my finding of contempt, although purged, I consider the unreasonableness of a party’s behaviour, per Rule 24(11)(b) of the Family Law Rules O. Reg. 114/99, when looking at an order for costs. As noted, Ms. Scrivo’s conduct was the reason for these additional costs to get access after the trial decision.

[33] Under Rule 24(11) of the Family Law Rules, O. Reg. 114/99 I may consider any other relevant matter, with respect to costs. In this case, I do consider the financial circumstances of Ms. Scrivo as set out in her materials. I understand that she claimed personal bankruptcy when Mr. Scrivo sought to enforce his trial costs award.

[34] I have reviewed the detailed costs outline that Mr. Scrivo’s counsel has provided as of June 26, 2013, on a partial indemnity basis. It is in line with the extensive affidavit material and books of authorities he has provided to the court up to that date. Additional detailed materials were provided for the hearings of September 30, 2013, and June 18, 2014.

[35] I find it appropriate, in all the circumstances to award costs to Mr. Scrivo on these contempt matters up to this date in the amount of $20,000 to be payable at the rate of $100 per month until satisfied.

M.J. Donohue, J.

Date: June 20, 2014