Court File and Parties

Court File No.: FS-09-354422 Date: 2014-07-14 Superior Court of Justice – Ontario

Re: Michelle Ann Ignjatov, Applicant And: Marco Di Lauro, Respondent

Before: Harvison Young J.

Counsel: Michelle Ann Ignjatov, appearing in person Michael J. Stangarone, for the Respondent

Heard: July 8, 2014

Endorsement

[1] This is a case which has been marked by high conflict between the parents of two young girls, Contessa and Scarlett who are 10 and 7 years old respectively.

[2] The parties signed Minutes of Settlement on September 20, 2013 (“Minutes”), as referenced by Czutrin J.’s endorsement of the same date.

[3] The formal order reflecting those Minutes and Czutrin J.’s endorsement has not yet been taken out. There is some suggestion that there has been disagreement as to the content of that order. Mr. Stangarone advises that he expects it to be taken out very shortly. In any event, there is no dispute as to the content of the provisions at issue in this motion, that is, the custody and religion provisions. The mother is to have sole custody. The Minutes provide that the mother will provide the father with written notice of all major decisions concerning the children and she will consult him in relation to such decisions, although she retains the final decision making authority (sections 41, 42).

[4] These sections are expressly subject to “the paragraphs below”, one of which is the one at the centre of this motion, section 53 of the Minutes:

The Mother (Michelle) shall not change the children's religion. The Children are to remain Catholic. The Mother shall consent to the children's participation in First Communion and Confirmation religious sacraments which will be organized by the Respondent. The Mother consents to any preparation necessary to take part in these ceremonies. The Mother shall be entitled to attend the ceremonies. The Respondent shall provide the Mother with the dates of the ceremonies.

[5] The precipitating event for this motion was the Mother’s unilateral cancellation of the First Communion (and attendant celebrations which were to take place over that weekend) the day before the event. Contessa had been preparing for her First Holy Communion for months. The schedule for the preparation and for the event had been sent to the Mother early in January, 2014 through her lawyer at the time. The Father and his family had made significant plans for the event and the weekend. The two girls were scheduled for manicures and pedicures; cake and dress were arranged; and the Father made reservations for 30 at a restaurant. At no time did the Mother ever express any issues with the First Communion date. Through her lawyer, she did express some concern about a “greater issue” to be discussed concerning health insurance. According to the parties’ submissions at the hearing, this issue may have something to do with the delay in obtaining a formal order.

[6] The Father sent several text messages the day before his scheduled weekend to advise that he would be picking up the girls from school. He had taken the day off work and scheduled manicures and pedicures for the girls. When he arrived, the Mother had sent her husband to the school to prevent him from picking up the girls. According to the Father’s uncontested evidence, the Mother removed the children from class placed in the school office.

[7] On the evening of Friday, June 6, 2014 the day before the Communion, the Father received an email from the Mother in which she stated: “I am cancelling your access and invoking my rights on the order”.

[8] The Mother was not represented at the motion, but she did file responding materials including an affidavit and a factum. She did not dispute any of the facts asserted by the Father in his material relating to the circumstances of the planning and termination of Contessa’s First Communion, either in her affidavit or in her oral submissions.

[9] The Father seeks various relief in this motion. First, he seeks a number of orders relating to this incident in particular. Second, he seeks some other relief which he claims are necessary as a result of the Mother’s conduct which includes but is not restricted to the cancellation of the first communion on the basis that it shows a pattern of obstruction of telephone and actual access as well systematic denigration of the Father to the children, and which reflects a continuing attempt to alienate the children from their Father and to marginalize his role in their lives.

[10] The Mother, in opposing the relief sought, made a number of submissions. First, she submitted that as the formal order reflecting the Minutes of Settlement had not been taken out, the obligations contained therein were not enforceable. I disagree. As a matter of law, an order made is effective from the time that the judge makes the order and does not depend on the “formal” order being taken out: see Karkar v. Karkar, 2011 CarswellOnt 5171 (S.C.J.) at paras. 10-11. Moreover, the parties agreed to these provisions and, as our courts recognize, failing to give effect to such minutes could seriously undermine the benefits provided to litigants by the rules pertaining to settlements: Shen v. Shen, 2007 CarswellOnt7292 (Div. Ct.), para. 12.

[11] Second, she submitted that the Father has been in breach of some of his obligations in respect of child support and other issues reflected in the Minutes and indicated that she did not think she should have to comply with the Minutes until he did as well. Again, I disagree. There is nothing properly before the court relating to any other issues, as the Mother acknowledged during oral argument. In any event, it is trite law that a breach of a support (or other financial obligation) does not justify breach of access and related provisions by the other parent.

[12] The central and governing principle at the heart of custody and access is the best interests of the child. A striking feature of both the materials filed by the Mother on the motion and her oral submissions was that she did not refer to the girls and their interests at all, but for the last line of her affidavit which states “I love my girls with all my heart and I see the stress that the continuing on goings of this matter is playing on them. They, as much as I would like this to end peaceful [sic]”.

[13] In the Mother’s factum, the only submission that related to the children at all was the complaint that he “sends neighbors to pick up the children on his afterschool access”. She also alleges that he committed fraud in depositing the insurance reimbursement for dental work completed on Contessa when the Mother had paid for it. The interests of the children are, but for her general statement referred to above, only incidentally referred and no explanation whatsoever is given as to how cancelling this important event could have been in Contessa’s best interests.

[14] Rather, the Mother emphasized the technical argument that the formal order had not been taken out and her submission that she should not be held to an agreement that the Father (in her submission) was himself not respecting.

[15] The Mother’s abrupt cancellation of the First Communion was, in my view, shocking conduct. The evidence suggests, and it is hardly surprising, that this was devastating for Contessa and her extended family on her Father’s side. Her conduct in general is outlined in the Father’s material in detail and most recently included failures to comply with Contessa’s Catechism schedule and continuing problems with the exercise of telephone access. Although the Mother denies interfering with telephone access, I am satisfied on the record before me that there is a pattern of interference with access. Her objection to having a neighbor pick up the children (who is known to the children) from school is a small example of the challenges faced by Mr. Di Lauro at every step of the way.

[16] In summary, the Mother’s conduct in general reflects a systematic attempt to minimize and marginalize the Father’s role in his children’s lives, and to denigrate and degrade him in their eyes, with a lack of consideration of either their best interests or insight into the importance of a strong and healthy relationship with him to their continuing development. The cancellation, at the very last minute without any warning in advance to the Father, of this important milestone in Contessa’s life, is the most recent and most disturbing example of this.

[17] This is also disturbing in the light of the OCL report prepared and filed before the parties entered into the Minutes, because the Mother has been alerted by this to the issues and to the legal and emotional importance to these young girls of maintaining loving relationships with both parents. Her conduct cannot be excused on the basis that she is uninformed as to her obligations to facilitate and support their relationship with him.

[18] If such conduct were to continue unabated, it could give rise to a reconsideration of custody\access arrangements and whether she is able to understand and give primacy to the childrens’ best interests, and in particular, their need to maintain a relationship with their father, and each parent’s need to actively support their relationship with the other parent. It is important to note that the OCL report raised no concerns about the Father.

[19] I will now turn to consider the specific relief sought.

Rescheduling the First Communion

[20] In the course of oral argument, the Mother agreed that the First Communion be rescheduled to take place during the Father’s scheduled access time in July or August. An order will go accordingly as per para. 2 b. of the notice of motion, except that the Mother shall have notice or the date and time of the ceremony.

[21] In the course of argument, the Mother complained that she had not received an invitation to the first event and that she thought she was so entitled on the basis of the Minutes. The Minutes specify that “Michelle shall be entitled to attend the ceremonies. Marco shall provide Michelle with the dates of the ceremonies”. In my view, there is nothing in the agreement that entitles the Mother to a formal invitation. None is required to attend the church services which comprise the First Communion and Confirmation “ceremonies”. All that she requires for this is notice, which she had.

Police Enforcement

[22] The preamble to the Minutes provides:

Whereas the parties in good faith have agreed not to include a police enforcement clause in this Order, in the event of a breach of this Order, either party shall be entitled to return this matter to Court to request a police enforcement clause.

[23] The Father recites the history of this matter which has in the past included a number of unilateral relocations of the children along with, as the OCL report related, a pattern of conduct which seemed aimed at eliminating the Father from the children’s lives. This clause was included as a compromise to settle the matter but the Father submits that the cancellation of the First Communion event illustrates the need for it. I agree. This is necessary, sadly, both to ensure that such an occurrence does not reoccur, and also to demonstrate to the Mother that such actions will be sanctioned. Having said that, I hope that it will not be necessary to invoke the enforcement.

[24] I also note that the preamble was obviously designed to address enforcement of access and has little to do with any other provisions such as child support with respect to which the law provides other enforcement mechanisms.

[25] An order will issue as set out at para. 3 of the notice of motion.

Non disparagement order

[26] The Father also seeks an order “prohibiting the Mother and anyone at her direction from disparaging the Respondent in the presence of the children and from involving the children in adult matters, including but not limited to this allegation”. Both parties agreed in para. 35 of the Minutes not to disparage the other parent and or his or her family members, or to allow or encourage others to do so.

[27] The Father’s uncontested evidence supports such an order. The incidents cited have taken place since the Minutes were signed. For example, the children told the Father that the mother and her husband call him names such as “donkey”.

[28] The requested order also addresses the concern about inappropriately involving the children in adult matters. In the course of her submissions, the Mother stated that she had spoken to Contessa about her concern that she had not received an invitation and asked her to raise it with her father. Contessa reported back that he had said he would think about it.

[29] This is a clear instance of involving children, already aware of the ongoing conflict, in adult matters. It reflects a lack of insight into the fact her conduct in doing so would inevitably been stressful for Contessa as this would have drawn her into the conflict between her parents by asking her to, in essence, be a “go-between”. This is not acceptable. The order will issue as sought.

Firefly Phones

[30] The Father also seeks an order permitting him to obtain “Firefly Mobile” cell phones for the daughters so that they can communicate with him when they are with their Mother. He sets out numerous and repeated instances of days (26 between September 23 and November 19, 2013) when he states that he called and was unable to reach the children. He also states that despite many text messages and voicemail messages, there was no response. He discovered in May, 2014 that the mother had changed the telephone number without any notice to him as to an updated number at which he could reach the children. Para. 44 of the Minutes provides that each parent is entitled to make one brief call to the children at 7.30pm each day that the children are with the other parent, and that the parties are obligated to ensure that the children are available for that call.

[31] While the Mother denies that she has interfered with the telephone access, she does not deny that the telephone number was changed or that she failed to advise the Father of the new number. She submitted in oral argument that this order should not be granted as the girls are too young for cell phones.

[32] I agree that the order sought should be granted as requested at para. 2e of the notice of motion. The phones can be programmed so that the only numbers they can call are those of their parents. Whether the Mother has deliberately impeded phone access or not, it is clear that it has not been working, and the ready availability of these phones for the girls, which are designed for children, should facilitate this.

Costs of the Cancelled Event

[33] The Father also seeks costs in the amount of $1,261.76 from the Mother to cover the costs he incurred as a result of cancelling the festivities of the First Communion weekend.

[34] Invitations were purchased and sent out weeks in advance. Flowers and gifts were purchased. The Father made a 30 guest reservation at the restaurant, Vinnie Zucchini's, for Sunday June 8th which had to be cancelled at the last moment. Food ordered for the family gathering that was supposed to take place at his mother’s residence following the religious ceremony on Saturday evening had to be thrown out. The Father also ordered a custom cake for Contessa which he simply left at the bakery as no celebration took place.

[35] In my view, this is a reasonable amount, given the nature of the event and the festivities that had been arranged. The Mother submitted that she should not be ordered to repay any of these amounts as she has lost her job and cannot afford it. In my view, while unfortunate, that does not address the issue in these circumstances.

[36] I am also satisfied that, given the fact that, as I have found, the Mother’s conduct was a serious and unjustifiable breach of the Minutes, and reflects an unfortunate pattern of conduct on her part, it is important that it be sanctioned and that she understands that such actions will have consequences: Gordon v. Starr, 2007 35527 (ON SC), 2007 CarswellOnt 5438 (SCJ); Taylor v. Taylor, 2005 CarswellOnt 5364 (SCJ). While there may be some dispute about some of the terms of the Minutes which may have affected the time taken to obtain a formal order, these provisions are not among them. The reimbursement sought by the Father is modest and is an appropriate remedy to redress the wrong that was occasioned by her breach of her obligations pursuant to the Minutes and the financial costs which he incurred.

Make up Access

[37] The Father seeks the last week of August as an access week to make-up for his loss of access during the weekend that was to be the First Communion weekend as a result of her cancelation of the event. The Mother states that he is not entitled to a week and will have his regular summer access. She also submits that the children should be at home the week before school starts to get ready for the return to school.

[38] I would order that the father have access for the days of Monday to Wednesday evening inclusive, returning the girls home on Wednesday evening so that they can have Thursday and Friday to prepare for the return to school. If the previous weekend (Aug 23\24) is presently scheduled as time that the girls are with him, then they shall remain with him until Wednesday evening. If it is not, they are to be with him from Monday morning to Wednesday evening.

Disposition and Costs

[39] Orders shall issue accordingly. Consent by the applicant Mother as to form and content is dispensed with. If they are unable to agree as to the costs of this motion, the respondent may file brief submissions along with a costs outline within 30 days, and the applicant is to file her responding material within 14 days thereafter.

Harvison Young J.

Date: July 14, 2014