COURT FILE NO.: D-19,520/11 DATE: 2014-08-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD PATRICK VENDETTI Applicant

– and –

CARRIE LYNN MACKENZIE Respondent

Counsel: Richard Guy, for the Applicant. Rejean Parise, for the Respondent.

HEARD: April 14, 15, 16, 17, and July 7, 8 and 9, 2014.

BEFORE: R. D. Gordon, R.S.J.

Overview

1The trial of this matter was held to determine custody of and access to three young children: Lauryn, born September 7, 2005, Payton, born May 13, 2007, and Madisyn, born November 21, 2008. Child support will be determined based upon my decision in the custody/access issue. In addition, the Respondent has claimed a divorce.

Background

2The parties were married on July 27, 2002 and separated for the first time on November 4, 2008, not long before the birth of Madisyn. They reconciled in May of 2009 and remained together a further 18 months before separating for the final time on November 8, 2010.

3Mr. Vendetti is currently 37 years of age. This was his first marriage and he has no other children. He has a college education and during the marriage worked primarily in the mines. Unfortunately, he suffered a significant shoulder injury while at work and eventually underwent surgery in October of 2008 in an effort to rehabilitate him. The surgery was not effective and he has been unable to return to the mining industry.

4Following his injury Mr. Vendetti received WSIB benefits and underwent retraining. He completed college courses in August of 2013, made a settlement of some of his claims with WSIB, and began work as a process server in Sudbury. It is anticipated that he will buy the business in which he is currently employed. Mr. Vendetti has, since separation, resided with his parents; however he intends to obtain his own home once the custody and access issues have been resolved. He is involved in a stable relationship with Renee Frappier.

5Ms. Mckenzie is also 37 years of age. She graduated from Teacher’s College in April 2003 and works at the Copper Cliff Public School where she teaches autistic children. This was also her first marriage and she has no other children. She is generally in good health. She has remained in the matrimonial home with the children since separation. She is involved in a stable relationship with Paul Laurin.

6Together the parties have three young daughters: Lauryn, Payton and Madisyn. All are healthy and active. By all accounts they are smart, well-adjusted, delightful little girls.

7Although the parties must have enjoyed some good times together, my sense is that their marriage was never an entirely happy one. Things have not improved with their separation. What respect either of them ever had for the other seems to have abated completely. They have a difficult time being civil with one another. Their communication, now limited to e-mail and texts, has devolved into name-calling and taunting. They each have an almost complete inability to empathize with the other.

The Divorce

8Not a great deal of time was spent at trial on the issue of Divorce. However, there is no doubt that the parties have been separated for more than one year. It is crystal clear that there is no chance of reconciliation. There exists no statutory bar to the issuance of a Divorce order and both parties have submitted that it is appropriate that such an order issue. I agree.

9That leaves the issues of custody and access for determination.

The Position of the Applicant

10The Applicant takes the position that the best interests of the children would be served by a joint and shared custody arrangement in which he and the Respondent enjoy the care of the children on alternating weeks. In the alternative, he submits that he should be awarded custody of the children and that the Respondent should be awarded access on an alternating weekly basis. The submission is based upon the following factors:

a) The children should spend as much time as possible with each parent;

b) He is able to provide the children with a stable and loving home;

c) The children wish to spend more time with him;

d) He currently enjoys the care of the children on a week about basis during the summer and it has worked successfully;

e) He enjoys a close and loving relationship with the children;

f) He is willing to foster and promote the relationship between the children and the Respondent;

g) The Respondent’s behaviour can be violent and unpredictable;

h) The Respondent is incapable of fostering and promoting his relationship with the children;

i) The Report of the Office of the Children’s Lawyer is supportive of his position.

The Position of the Respondent

11The Respondent takes the position that the best interests of the children would be served by awarding her sole custody of the children with access to the Applicant reflecting the status quo. Currently, during the school year, Mr. Vendetti has care of the children every second weekend and from 3:00 to 6:30 in the evening on Tuesday of one week, and from 3:00 to 6:30 in the evening on Wednesday and Thursday of the following week. During the summer and school holidays the children’s time is divided almost equally between them. Her submission is based upon the following factors:

a) She has been the primary caregiver to the children since their birth;

b) She is able to provide them with a stable and loving home;

c) She is the parent best suited to ensure the children’s educational success;

d) She has a support network of family who are closely involved in the children’s lives;

e) She has the parenting skills to ensure the children develop necessary social skills;

f) The Applicant did very little parenting of the children prior to separation and has been resistant to the children’s participation in extra-curricular events since separation;

g) The Applicant’s parenting style is not always consistent with the best interests of the children;

h) The children are enjoying much success socially and educationally under the current regime;

i) The Custody and Access Assessment completed by Dr. Perlman is supportive of the status quo.

The Applicable Law

12The law is not particularly complex in cases such as this.

13Section 16 of the Divorce Act governs custody orders in cases where a divorce has been granted. By virtue of subsection 8, I am to take into consideration only the best interests of the children as determined by reference to the conditions, means, needs and other circumstances of the children.

14In considering the children’s needs and circumstances, section 24 of the Children’s Law Reform Act is a useful reference of factors for consideration. In addition, section 16(9) of the Divorce Act provides that I am not to take into consideration the past conduct of a party unless the conduct is relevant to the ability of that person to act as a parent of a child. Finally, section 16(10) of the Divorce Act provides that in making an order for custody and access I am to give effect to the principle that the children of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, I must take into consideration the willingness of each party to facilitate such contact.

15It is generally accepted that an order for joint custody is most appropriate when both parents agree to it. Absent agreement, joint custody may also be appropriate in cases where there is a positive history of co-operative parenting and effective communication between the parties with respect to the children. Joint custody may also be appropriate to preserve a parent’s relationship with the children in cases where the primary caregiver objects to joint custody without just cause and there is a risk that he or she will try to marginalize the other parent’s involvement with the children [see Kaplanis v. Kaplanis, 2005 ONCA 1625, [2005] O.J. No. 275, Ont. C.A.; and Ladisa v. Ladisa, 2005 ONCA 1627].

16In making my decision, I have considered the various principles outlined above in the context of the positions advanced by the parties.

Analysis

Love, Affection and Emotional Ties

17An important factor in determining the best interests of the children is the love, affection and emotional ties between the children and each parent claiming custody, other members of the children’s family who reside with the children, and persons involved in the children’s care and upbringing.

18It is clear to me that the children love and are loved by both of their parents. Indeed, this was one of the few things agreed upon by the parties. That the children share affection with each of their parents is abundantly clear from the testimony of the parties and the photographs which were made exhibits at trial. I am also satisfied that the children share a significant emotional tie with each parent, however, given that Ms. Mackenzie has had the primary care of them since birth, it is reasonable to draw the inference that they share a closer emotional tie to her.

19Although neither of the parties is residing with their current partners, both are involved in serious relationships and their partners spend not insignificant time with the children. In addition, each partner has children who are added to the mix. As further evidence of the parties’ inability to communicate, neither of them have met the other’s partner.

20Mr. Vendetti’s partner is Renee Frappier, who is 28 years of age and a divorced mother of one. Her child is 6 year old Faith. Ms. Frappier is employed full-time and met Mr. Vendetti while they were both attending Cambrian College. They have been seeing one for about 3 and ½ years and by all accounts have a happy and healthy relationship. They do not live together. Faith is in the same age range as the Applicant’s children and, although they have not spent a great deal of time together, seem to get along fine.

21Ms. Mackenzie’s partner is Paul Laurin, who is 38 years of age and separated from his spouse. He has two children: Brooke, who is 8 and Cameron, who is 5. Mr. Laurin is employed full-time and has been seeing Ms. Mackenzie for about 13 months. By all accounts, they too have a happy and healthy relationship but do not yet live together. Mr. Laurin’s children are also in the same age range as the Respondent’s children and they all apparently get along well with each other.

22The children’s love, affection and emotional ties to Ms. Frappier and Mr. Laurin are still in the early stages of development. The relationships with both seem to be positive.

23There are others who are actively involved in the children’s care and upbringing. Mr. Vendetti has been living in his parents’ home since separation and his mother and father are actively engaged in the care of the children. I accept that the children love their paternal grandparents, share their affection with them, and have a close emotional tie to them.

24Ms. Mackenzie’s family is also actively involved in the children’s care and upbringing. Her mother has been a regular care-giver to the children since before the parties even separated. Her father and two brothers also take an active interest in the children, attending many of the children’s extra-curricular activities and enjoying regular family get-togethers with them. I accept that the children love their maternal grandparents and the uncles, that they share their affection with them, and have a close emotional tie to them.

25In summary, these children are most fortunate to share close relationships not just with their parents, but with their extended families. They have a wealth of support available to them.

Child’s Views and Preferences

26The children are quite young and I do not see their views and preferences as being in any way determinative. This was one of the reasons I declined to interview them as requested by Mr. Vendetti. However, that is not to say that their views and preferences should not be considered.

27Mr. Vendetti testified that the children wish to spend more time with him. Although this is confirmed in the Report of the Children’s Lawyer there is some indication that the children were coached to say this by Mr. Vendetti.

28Frankly, I have little doubt that the children would like to spend additional time with their father. The evidence revealed that his parenting style is much less structured than the Respondent’s – for instance, the children do not do as much homework when with him, and he does not require them to engage in their extra-curricular activities if they express a wish not to. They sometimes get to stay up a bit later when with him.

29In this context, and given that they see him less than their mother, it is entirely natural that they express a wish to see him more. However, as counsel for the Respondent suggested, their answer might be entirely different if they were asked if they wish to spend less time with their mother.

30In all, as I stated at the outset, I do not see the children’s views and preferences as being a particularly important factor in my determination.

The Length of Time the Children Have Lived in a Stable Home Environment

31Ms. Mackenzie testified about the dynamics of the parties’ household prior to their final separation and said that the role of caring for the children was undertaken almost exclusively by her. This evidence was confirmed by her mother and, to a lesser extent, by each of her brothers. Mr. Vendetti’s evidence was not significantly to the contrary. Accordingly, I accept that Ms. Mackenzie has been their primary caregiver since birth. However, Mr. Vendetti questions the stability of the environment she has provided to them.

32An assessment of a home’s stability warrants a consideration of several factors, including such things as whether the child’s physical home has been constant, whether the presence of parental caregivers within the home has been constant, whether the presence of siblings within the home has been constant, whether the child’s participation in events outside the home has been regular, and whether the emotional environment within the home is consistent.

33The children maintain their primary residence with the Respondent in the matrimonial home, which was acquired about four months prior to separation. It is fair to say that their physical home has been constant. There has been no interruption in the presence of their mother in the home, and no introduction of new parental caregivers. All siblings have remained together at all times. The children’s participation in events outside the home has been largely consistent, although their participation in extra-curricular events has been an issue between the parties. They have continued to attend the same school and their attendance is regular.

34The Applicant has indicated his concern with the emotional environment within the home. When asked what the Respondent’s faults are, his response was as follows: “On her part, Ms. Mackenzie is very violent, abusive, mentally and physically. She’s just out of control.” In support of this viewpoint, he gave several examples:

• While on their honeymoon, Ms. Mackenzie attacked him without provocation or excuse, hitting him with a phone and causing a significant laceration on his head.
• While camping at her cousin’s property in River Valley in 2004 or 2005, she struck him in the face, causing a black eye. This was again without provocation or excuse.
• On November 10, 2008, the date of their first separation, he was getting ready to leave the house to attend physiotherapy when she began throwing things from the refrigerator at him including five or six cans of beer, and some bottles of salad dressing. He was hit in the shoulder and the head. This took place in the presence of Lauryn. The attack was again said to be unprovoked and without excuse.
• On January 30, 2011, he was returning the girls to the home and confronted the Respondent about some papers he had found in their overnight bags concerning fathers and divorce. He says she became violent and grabbed the girls and pulled them into the house, and that they were crying. He says she slammed the door on him and it hit him on the head, leaving a large bump.
• The children are said to have reported an incident between the Respondent and her mother at the McDonald’s Restaurant in Espanola in which they got into an all-out brawl in the bathroom in front of the children.
• On April 25, 2012 he picked the children up at school to find that Payton’s face was bruised on one side and red on the other. He says that Payton told him the Respondent had slapped her in the face and was grabbing her and yelling at her.
• He says that on May 9, 2012 he was attending the children’s dance class and as he opened the bathroom door to take the children in to change, he was punched in the back by the Respondent.
• The children reported to him that on April 1, 2013 (Easter weekend) there was a big brawl among the Respondent and her family in which she and her mother were pulling one another’s hair, and one of her brothers intervened and slammed her into the car.

35In addition to these incidents, he pointed to occasions in which the Respondent has harassed women with whom he had been involved as evidence of her inability to control her anger, an indication from the principal of her school that she experiences difficulty dealing with some of the children with behavioural problems, and excerpts from CAS records and the Report of the Children’s Lawyer confirming the children’s reports of her yelling and being aggressive with them.

36Ms. Mackenzie denies having an anger management problem and, for the most part, denies the incidents alleged by Mr. Vendetti. She acknowledges an incident on their honeymoon but says that both parties had been drinking and both were responsible. She acknowledges having thrown cans of beer at him on the occasion of their first separation but explained that she was under a good deal of stress due to the stage of her pregnancy, potential health issues with her unborn child, the state of their relationship, and his verbal abuse of her. With respect to the incident involving bruising and redness to Payton’s face, she explained that in an effort to get Payton to brush her teeth she held her face, but that no bruising or redness resulted. The photograph of Payton which was filed and purports to show the bruising is not determinative. No bruising was found on investigation by the CAS. She denies that any of the remaining incidents took place and her mother and brothers all deny that there have been any altercations in which they were involved.

37As in most situations where the perception of events is jaded by bias, it is likely that the truth of the matter lies somewhere in the middle. Perhaps because Mr. Vendetti perceives Ms. Mackenzie to be violent and out of control, he is unable to appreciate that there may be innocent explanations for some of these events, or that they may not be quite as egregious as he believes them to be. Perhaps because Ms. Mackenzie knows no differently, she is unable to appreciate that behaviour which she perceives to be normal, others may perceive to be less so.

38In all, I am satisfied that Ms. Mackenzie does, from time to time, experience anger management problems. I am fortified in my view by the letter from her family physician that says as much, her having attended an anger management program, and the findings of both Jeannine Denis and Dr. Perlman. It is of some concern to me that she has absolutely no appreciation that this issue exists.

39However, she is far from being out of control; and she is far from being mentally and physically abusive with the children. In fact, as found both by Jeannine Denis and Dr. Perlman, she loves the children, the children love her, and aside from her animus towards Mr. Vendetti, is well able to provide them with the care and guidance they need.

40Accordingly, it is my view that the children have lived in the same, largely stable environment for all of their lives.

The Ability and Willingness of each Party to provide the children with guidance and education, the necessaries of life and any special needs.

41Ms. Mackenzie has, for the most part, both the ability and willingness to provide the children with guidance and education, the necessaries of life and any special needs. I say “for the most part” because she seems unwilling and unable to let go of her animosity towards Mr. Vendetti.

42With respect to Mr. Vendetti, although I do not doubt his ability to provide for the children’s education, his failure to meaningfully participate in their educational pursuits to date leaves some cause for concern. The evidence established that he has not participated in any school events with the children and that his contribution to their homework is inconsistent at best. Ms. Mackenzie, on the other hand, along with her mother, is in regular attendance at the school and actively involved in their studies.

43There can be little doubt that Mr. Vendetti otherwise has the ability and willingness to provide the children with guidance and the necessaries of life and any special needs. However, he suffers from the same inability to liberate his animus for Ms. Mackenzie.

44In her report in May of 2012, Jeannine Bedard wrote:

Mr. Vendetti and Ms. Mackenzie lived through a very turbulent marital relationship that appears to continue to be toxic even after their separation. They disagree on numerous aspects of their lives: custody, access, finances, children’s dancing, telephone calls, the in-laws, discipline, routine and so on. They make allegations against one another by involving the police and the Children’s Aid Society. Even though they have been warned by the Children’s Aid Society that their constant quarrelling is posing a risk to their daughters, they do not seem to be able to find resolution. Both parties continue to blame and accuse the other instead of focusing on the well-being and needs of their children. Unfortunately, their daughters are caught in the middle of their crossfire.

Mr. Vendetti and Ms. Mackenzie need to take responsibility for their actions as well as their part in this dispute and to be conscious of the impact their behaviours have on their children. The children have observed their parents use foul language, which both privately denied in their interviews, heard them argue, call each other names, are aware that they hate each other, spoken with social workers, witnesses police involvement and put in the middle of the conflict. In their situation, it is not the children that need counselling but the parents.

45In her report dated January 30, 2013, Dr. Perlman made the following comments:

They disagree on almost every aspect of their history. They do not share an understanding of the needs of the children. Each of them blames the other for this state of affairs. Neither of them assumes responsibility for their own possible contribution to the conflict…There is no doubt that the girls carry the burden of their parent’s conflict.

46From what I could tell, nothing had changed by the date of trial. Both parties, notwithstanding their professed love for their children, are unable to put the best interests of the children ahead of their disdain for one another. It is a remarkably sorry situation.

The Plan proposed by each Party for the child’s care and upbringing.

47Mr. Vendetti’s plan for the care and upbringing of the children is to share custody with Ms. Mackenzie on a week about basis. He plans to move from his parent’s home and acquire a residence that will meet the needs of the children. If all continues well with Ms. Frappier, it is likely that they will move in together and form a blended family. He says that with this additional time with the children he will be better able to participate in their educational and extra-curricular pursuits. He intends to keep his parents involved with the children and to actively encourage the children’s relationship with their mother and her family.

48Ms. Mackenzie’s plan for the care and upbringing of the children is to maintain the status quo. She submits that the children should be in her care and custody with regular visitation with their father, which she will encourage. She is happy to have his extended family involved with the children and intends to maintain the close relationship the children have with her family as well. She intends to continue to live in the matrimonial home. It seems likely that Mr. Laurin will, at some point, move in with her, and there will be some logistical issues in blending their families.

49Although both parties recognize that extra-curricular activities are good for the children, there is a significant issue concerning scheduling of their activities and it is, again, typical of their complete inability to empathize with the other. Ms. Mackenzie has enrolled the children in several activities, all of which are beneficial to the children, but some of which are scheduled during times when Mr. Vendetti has the children. She fails to appreciate that he may not want to spend his limited time with the children running them to activities, or that the children may prefer to spend time with their father rather than attend their activities.

The Permanence and stability of the family unit with which it is proposed that the children will live.

50The permanence and stability of Ms. Mackenzie’s family unit was considered above. Insofar as Mr. Vendetti is concerned, the permanence and stability of his home may be affected somewhat by the proposed move to a new home if he is provided with week about care of the children. Should he move to a new home with the children, the dynamic of having his parents in the same home while he has the children will change. If, as seems likely, Ms. Frappier and Mr. Vendetti begin to live together at some point, a new parental caregiver will be introduced into their lives. It seems likely to me that if Mr. Vendetti has the care of the children on a week about basis, his objection to having them participate in extra-curricular activities will lessen and their participation will become more consistent.

The Ability of Each Person Applying to Act as a Parent.

51Although volumes could, and have, been written on what it is to “act as a parent” it is my view that a good parent is one who is willing to undertake the care of the children, is able to recognize what is in the children’s best interests, and, to the extent reasonably possible, act in the best interests of the children even when those interests may conflict with their own.

52I have no doubt that both of the parties are willing to undertake the care of the children.

53I am also confident that both are able to recognize what is in their best interests.

54With respect to most issues, I am content that both parties will be able to put the children’s needs ahead of their own. However, I remain troubled by the parties’ inability to overcome their disdain for one another and their inability to appreciate the effects of their conduct on the children. Both see the other as blameworthy. Neither accepts any responsibility for their actions.

55Based upon the evidence I heard, neither party has conducted themselves any better than the other. Both need to put the past behind them and build a new relationship based upon what they continue to have in common: their love for the children and the children’s best interests.

Past Conduct

56As indicated above, in determining what is in the best interests of the children, the conduct of a party shall be considered if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

57I have already referred to the inability of both parents to offer the other even a modicum of respect. I consider this to be conduct relevant to their ability to act as a parent, but neither has been shown to be any better or worse than the other.

58I have also already considered the Respondent’s anger management issue, which may be relevant to her ability to act as a parent, but to date seems not to have impacted her relationship with the children or placed them in any jeopardy. Although she has high expectations of the children, and is much more a disciplinarian than the Applicant, the view of the two assessors is that her actions have not been harmful to the children and that they continue to enjoy and warm and close relationship.

The Report from the Office of the Children’s Lawyer

59Pursuant to Section 112 of the Court of Justice Act, the Office of the Children’s Lawyer caused an investigation to be made concerning custody of and access to the children. A report, authored by Jeannine Denis, was filed with the court outlining the findings and recommendations made.

60Ms. Denis has a Masters in Social Services and an Honours Bachelor of Arts in Psychology. She has been the Program Manager with the Child and Family Center in Sudbury since December of 2007, and before that was a clinician with the Center for some nine years. She has worked with the Office of the Children’s Lawyer since May of 2004 as a Clinical Investigator and has prepared over 300 reports on its behalf.

61She became involved with these parties on or about January 16, 2012, conducted her investigation over a period of about two and a half months, and met with the parties and their counsel in April 13, 2012 to disclose her findings and recommendations. Her investigation involved interviews with the parties, observation of the children while in the care of each parent, interviews with the children, and contact with various collateral sources including Mr. Vendetti’s parents, but excluding members of Ms. Mackenzie’s family. She also reviewed court documents and correspondence provided by counsel for both parties.

62Ms. Denis comments upon the toxic nature of the parties’ relationship, their inability to accept any responsibility for the situation, and how the children are being caught in the cross-fire. However, she also notes the love each party has for the children and that the children know they are loved. She sums up her findings on page 12 of the report as follows:

In all of this chaos, there is no doubt that Mr. Vendetti and Ms. Mackenzie love their children and what is encouraging is that their children know it. The children have a very close bond with each parent. Mr. Vendetti and Ms. Mackenzie show love, affection and support to each of their daughters. They have three beautiful children that appear to be at their appropriate stage of development. The girls have excellent language skills, are expressive, friendly, active and well-behaved…The girls clearly expressed that they want equal time with each parent as they love and need them. They are mainly in their mother’s care who has denied Mr. Vendetti further access. There is no apparent evidence to indicate that Mr. Vendetti is a danger to his daughters or that it would upset the children. To deny further access to Mr. Vendetti is to deny the children of their time with their father. In addition, the conflict would only be prolonged.

63She then goes on to recommend a joint and shared custody arrangement in which the parties would have care of the children in alternating weeks and communicate through the use of a communication log-book or text messaging.

64At trial Ms. Denis was questioned further on her reasons for making these recommendations. She said that her position was formulated primarily on the relationship the children shared with both parents. She was of the view that the children shared a close bond with each parent, that there was no apparent reason to decrease the contact they should have with each parent, and accordingly there was nothing to prevent a joint and shared custody arrangement. Although the wishes of the children played a role in her determination it was a relatively minor one.

65She acknowledged that this is a difficult case and that reasonable people could disagree on how it should be resolved. The major complaint the Respondent had with Ms. Denis’ investigation was her failure to interview the maternal grandparents and the Respondent’s siblings. Ms. Denis explained that the Applicant had advised that she has the full support of her family, there was no reason to disbelieve her, and accordingly, nothing to be gained by interviewing them.

The Report of Dr. Perlman

66By way of consent dated July 12, 2012, the parties agreed to engage in a custody and access assessment pursuant to section 30 of the Children’s Law Reform Act, by a child psychologist. It was provided that the cost of the assessment would be borne by the Respondent alone, without ability to claim reimbursement at any future time. The agreement provided that the assessment would be completed by either Dr. Nitza Perlman or Dr. Particia Ross and eventually it was determined that Dr. Perlman would complete the assessment and report. In accordance with section 30, Dr. Perlman was to assess and report to the court on the needs of the children and the ability and willingness of the parties to satisfy those needs.

67Dr. Perlman has a Ph.D. in Psychology (Developmental & Social). She has worked extensively with children and families and has as her primary interest attachment issues between children and their caregivers. Her work history includes various positions at the Surrey Place Centre in Toronto and The Circle for Children in Care. She has had a consulting practice since 2005 and has also prepared several hundred reports of this nature.

68Dr. Perlman conducted interviews of the parties and several collateral sources between November 27, 2012 and January 24, 2013. Although she did not interview the children, she observed them in the company of each party, and with both their maternal and paternal grandparents. She too reviewed documentation supplied by counsel for each of the parties.

69Concerning the state of conflict between the parties, Dr. Perlman summarized as follows:

There is no doubt that Ms. Mackenzie and Mr. Vendetti love their children and that the children love them. The parents are embroiled in a difficult custody and access conflict. Ms. Mackenzie wants to have sole custody with access to the father. She wants to maintain the status quo. Mr. Vendetti wants to share custody and access on an equal time basis. They disagree on almost every aspect of their history. They do not share an understanding of the needs of the children. Each of them blames the other for this state of affairs. Neither of them assumes responsibility for their own possible contribution to the conflict.

70She goes on to relate that notwithstanding that the children carry the burden of their parents’ conflict, they seem to be doing very well. She finds that they are “…bright, expressive, curious, and have good social and communication skills. The teacher and babysitter report that most of the time they are easy to get along with and their mood is good. This is particularly impressive in view of their parents’ poor relationship and the children’s exposure to it. They are resilient. One must also assume that at least so far, they have been supported in a way that enables them to feel secure, cope and to be free to attend to their developmental tasks.”

71Dr. Perlman identifies three options in her report: (1) To award custody of the children to the Respondent with access to the Applicant along the same lines as currently exists. The benefit of this option is what she terms the “known existing outcomes”. By this, she means it is known that the children are doing very well under these existing circumstances. (2) Award joint and shared custody as requested by the Applicant. She indicates that this would require major adjustment for the children and the parties and that to work, the parties would have to put aside their differences. (3) To have joint custody so that both parties participate in the decision making process but with the Respondent remaining the primary care provider and the main advocate for the children. She viewed this as a means of providing stronger protection for the relationship the girls have with their father and the paternal grandparents while leaving the current structure intact. She recognized that cooperation between the parties in decisions affecting the children would be a challenge and would likely require ongoing mediation.

72In the end, she recommended that the Respondent remain the primary caregiver of the children and that steps be taken to protect their relationship with the Applicant by increasing his involvement in making decisions which relate to them. She was of the view that to introduce significant changes to the children’s lives when they are doing so well under the current regime would present an unnecessary risk, and one which ultimately may not be in the best interests of the children.

73Mr. Vendetti’s main concern with the report was Dr. Perlman’s failure to interview the children to determine their needs and wishes. Dr. Perlman testified that interviewing the children was unnecessary in light of her observations of them with each of their parents. That observation allowed her to conclude that they love each parent, want to be with each of them, and do not want to displease either of them. As she put it: “The voice of the child should be heard, and can be heard through their communication, affect, behaviour and coping skills and abilities.”

The Video

74The Applicant tendered into evidence a thumb drive containing a video he recorded on an occasion when he took the children to dance. According to him, it was during his period of mid-week access, before the required return time of 6:30. He was with the children in his vehicle in the parking lot of the dance studio when the Respondent opened the door to the vehicle and asked Lauryn to join her to go into dance class. Lauryn responded that she did want to go to dance and what followed was an unhappy confrontation involving both parents and the child.

75Each party argued that the video reflected poorly on the other. Both are correct. What is troubling is that neither party seems to recognize their own poor conduct. Neither recognizes that altercations such as this should be discussed between them in a civil manner and perhaps outside of earshot of the children. Ms. Mackenzie apparently lacked the foresight to determine that her approaching Mr. Vendetti’s vehicle, uninvited, while they were in the midst of a custody battle, might lead to an altercation. Mr. Vendetti was apparently unable to appreciate that threatening to call the police on the mother of their children, in the presence of the children, might be upsetting to them.

76The video is an indictment of the ability of either of them to put their anger with one another ahead of the best interests of the children.

Discussion and Conclusion

77As Ms. Denis testified, this is a difficult case, and one upon which reasonable persons might readily disagree on the outcome.

78These children have the very fortunate circumstance of loving and being loved by both of their parents and their extended families. They have the very unfortunate circumstance of having parents who cannot tolerate one another.

79Ms. Mackenzie, whether she is prepared to admit it or not, has a problem controlling her anger, particularly insofar as Mr. Vendetti is concerned, and this cannot but have some negative impact on her relationship with the children and the relationship they share with their father. However, it is clear that the children love her, are not afraid of her, and under her care and guidance have developed into delightful young children.

80Mr. Vendetti, whether he is prepared to admit it or not, cannot let go of his disdain for Ms. Mackenzie, and this too cannot have but some negative impact on his relationship with the children and the relationship they share with their mother. However, it is clear that the children love him, are not afraid of him, and that he has a significant and legitimate contribution to make to their upbringing.

81What Mr. Vendetti proposes, and what is recommended by Ms. Denis, is a shared custody regime under which the children would share their time equally with both parents on an alternating weekly basis. Although this would have the effect of maximizing the amount of time spent with Mr. Vendetti, an admittedly important goal, it is my view that this would introduce significant uncertainties into the lives of the children which would not be in their best interests.

82I understand completely the position being taken by Mr. Vendetti. One might reasonably question why, given his obvious love for his children, their reciprocation of that love, and his apparent ability to care for the children and provide for their needs, he should not share equally in their care. However, the decision to be made in this case is not about what is fair to him. If that were the issue I would not hesitate to find that fairness requires a shared custody arrangement. What is required of me is a determination of what is in the best interests of the children. In my view, their best interests will be served by remaining under the primary care of Ms. Mackenzie, for the following reasons:

1. Ms. Mackenzie has been the primary caregiver of the children since their birth and under her care have met or exceeded all expected milestones;
2. Mr. Vendetti has not made any significant effort to participate in the children’s education;
3. It is unclear where Mr. Vendetti would reside with the children, as he has indicated an intention to obtain his own home but has not yet done so.
4. Assuming Mr. Vendetti were to move to his own home, his care of the children would then be undertaken without the assistance of his parents with whom he has been residing for almost four years.
5. Mr. Vendetti’s work and work hours are, to a certain extent, unknown. Although I accept that his current employment allows him the flexibility to be available to the children when required, it is proposed that he purchase the business by which he is currently employed. Mr. Vendetti has not operated this business and has never operated his own business. I am not sure he can fairly say what commitment its successful operation will require and how that may impact his ability to care for the children.
6. Ms. Mackenzie and Mr. Vendetti share little in the way of parenting philosophy;
7. Ms. Mackenzie and Mr. Vendetti are basically unable to effectively communicate.

83I might add that I do not find either party to bear any greater responsibility for their inability to communicate. Both are at fault and both seem incapable of taking any positive steps to address the issue.

84These children are quite resilient and have demonstrated an ability to develop normally notwithstanding the strife between their parents; however, I am troubled particularly by Ms. Mackenzie’s inability to recognize and deal with her anger towards Mr. Vendetti and the effect this is likely to have on the children in years to come. Were the children not currently prospering to the extent they are, I might well have been inclined to agree with the position taken by Mr. Vendetti. To Ms. Mackenzie, this should indicate two things: (1) That she needs to seek professional assistance to deal with the anger she feels towards Mr. Vendetti; and (2) That if she fails to do so, and if the development of the children and their relationship with their father declines, she may well find a court making significant changes to the decision I have made today.

85I am aware of the difficulties that have existed between the parties relative to the children’s extra-curricular activities. I can fully understand Mr. Vendetti’s frustration with having to take the children to activities during the limited periods of time he has to spend with them. In my view, this issue can be resolved not by restricting the activities in which the children participate, but ensuring that Mr. Vendetti has sufficient time with the children outside of these activities. This can be achieved by extending his current time with the children to an overnight visit during the week, as set out below.

86It is also important that Mr. Vendetti’s voice be heard and considered when important decisions are made concerning the children. To ensure that Ms. Mackenzie makes decisions for the children based upon what is in their best interests and not her anger with Mr. Vendetti, it is my view that certain decisions shall not be made by her unless she has obtained his agreement in writing, namely: (a) The place of residence of the children if it is proposed to move them to a location outside the City of Greater Sudbury; (2) Changes to the School Board the children attend or the language in which they receive their education; and (3) Changes to the religion or religious training of the children.

Child Support

87Mr. Vendetti currently pays child support for the three children at the rate of $1,177 per month, based upon an annual income of $60,000. The evidence established that this is very close to his actual income. Accordingly, it is appropriate that child support continue to be paid by him at this rate.

88Ms. Mackenzie’s income is approximately $80,600 per annum or 57.3% of the parties’ combined incomes. Mr. Vendetti’s percentage of combined income is 42.7%. They shall share expenses defined in section 7 of the Federal Child Support Guidelines according to these percentages. The Respondent shall not incur any such expense for the children without first giving the Applicant at least 60 days written notice, such notice to include: (a) what the expense is for; (b) why it qualifies as an extraordinary expense; (c) the amount of cost to be incurred; and (d) the Applicant’s proportionate share of that cost.

Conclusion

89There shall be a final order issue on the following terms:

1. The parties shall be divorced, with the divorce becoming final 31 days hereafter.
2. The Respondent shall have custody of the children Lauryn Vendetti, born September 7, 2005, Payton Vendetti, born May 13, 2007, and Madison Vendetti, born November 21, 2008. Notwithstanding this order of custody, the Respondent shall not: (a) change the usual residence of the children to a location outside of the City of Greater Sudbury, (b) change the school board under which the children receive their education or the language in which they are educated; or (c) change the religion or the religious training of the children, without first obtaining the consent in writing of the Applicant or an order of the court permitting same.
3. The Applicant shall have access to the children as follows: (a) Every second weekend from Friday evening at 3:00 p.m. to Sunday evening at 6:30 p.m. In the event such access falls on a long weekend or a weekend which is joined by a professional development day, such access shall be expanded to include the additional day. (b) In each week on Wednesday from 3:00 p.m. until he delivers them to school on Thursday morning. (c) The provisions of (a) and (b) will be suspended for the school Christmas break, the March Spring break, and for the months of July and August. (d) During the school Christmas break, for the first half of the break in odd numbered years, and for the second half of the break in even numbered years. (e) During the months of July and August, alternate weeks the first of such weeks to begin the first Sunday of July at 6:30 p.m., provided always that the children shall be returned to the care of the Respondent three days prior to the commencement of school in September. (f) During the March Spring break, from the commencement thereof until the Sunday before school resumes at 6:30 p.m. in odd numbered years.
4. Each party shall have the right to be fully advised of the children’s school progress (including the right to have direct communication with all school authorities and to receive copies of report cards and notice of school events) and to be advised by the other party and by all health practitioners about the health and general welfare of the children, and to obtain the children’s medical records. The parties shall have equal entitlement to all school and health reports or information from the source of the information. Each parent may meet with education or health service providers without the consent or presence of the other.
5. To facilitate travel with either party, any passport obtained for the children shall be in the name of the child (rather than being on the passport of a party). Each party shall give any consent required for such a passport. The passports shall be kept by the Respondent but shall be given temporarily to the Applicant when reasonably necessary for travel with the children outside of Canada.
6. The Applicant shall pay to the Respondent for the support of the three children, the sum of $1,168 per month, payable on the first of each month beginning September 1, 2014. This is the amount prescribed by the Federal Child Support Guidelines for three children with the payor parent earning taxable income of $60,000 per year.
7. The Respondent shall be responsible for and shall pay 57.3% of expenses defined in Section 7 of the Federal Child Support Guidelines and incurred for the children, and the Applicant shall pay 42.7% of such expenses provided that the Respondent shall not incur such an expense unless she has first given the Applicant at least 60 days’ notice in writing, such notice to include: (a) What the expense is for; (b) Why is qualifies as a section 7 expense; (c) The amount of the cost to be incurred; and (d) the Applicant’s proportionate share of that cost and when it is to be paid.
8. If the parties are unable to agree on the issue of costs, they shall make written submissions limited to five pages plus attachments, to be filed within 45 days of this decision being released.

R. D. Gordon, R.S.J.

Released: August 22, 2014

COURT FILE NO.: D-19,520/11 DATE: 2014-08-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RICHARD PATRICK VENDETTI Applicant

– and –

CARRIE LYNN MACKENZIE Respondent

REASONS FOR JUDGMENT