Salinas v. Sorto, 2014 ONSC 7462

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-14-0891-00
DATE: 2014 12 24

RE: EVAN R. SALINAS v. RAQUEL SORTO

BEFORE: LEMON J.

COUNSEL:
Paul C. Buttigieg, for the Applicant
Abby Vimal, for the Respondent

HEARD: December 23, 2014

ENDORSEMENT

The Issue

1Mr. Salinas seeks further access to his child. Ms. Sorto says that there needs to be a longer period of phasing in.

2Mr. Salinas seeks access:

i. Every Tuesday from 8:00 a.m. to 7:00 p.m.

ii. Every Friday from 6:00 p.m. until Sunday at 6:00 p.m.

iii. Father’s Day, from 9:00 a.m. to 7:00 p.m. (which is already covered under ii, above); and

iv. On December 25, 2014, from 11:00 a.m. until December 26, 2014, at 12:00 p.m.

3In response, Ms. Sorto says that access should be:

i. Daytime access on December 28, 2014 from noon to 3:00 p.m.

ii. Bi-weekly on Tuesdays and Wednesdays commencing January 13, 2015 and January 14, 2015 from 9:00 a.m. to 5:00 p.m.

iii. One weekend, daytime access on Saturday and Sunday from noon to 6:00 p.m. (preferably on the 2nd or 3rd weekend of every month).

4In my view, both are overreaching and it is left to me to make the determination.

The Background

5The child in issue is Elena, born March 22, 2012; she is just over two and a half.

6At present, Mr. Salinas has access to Elena pursuant to the order of Justice Price dated May 27, 2014. According to that order he has access for a minimum of two days each week for a period of two hours.

7That access is supervised. The reports of the supervision centre have been filed on this motion and they show a positive relationship between Elena and Mr. Salinas.

8Although an order was made for the Office of the Children’s Lawyer to be involved, that office has declined to be involved. A case conference has been held. While a settlement conference date has not been set, both parties seem to agree that it is too early to set one pending the phasing in of the access process.

9The parties set out a number of photographs and emails which look badly on both. Ms. Sorto is concerned about Mr. Salinas’ use of drugs or, at least, his connection to the gang culture. Mr. Salinas denies that connection and says that his comments in emails that would suggest that he has such a connection were simply lies. In any event, they date back to 2012. He also points to evidence that she has the same connection.

10Mr. Salinas seeks to have access overnight on Christmas Eve. Ms. Sorto simply says that “I am unable to facilitate additional access prior to January 13, 2015 as my family has already made plans to be out of town for the Christmas holidays”. No other details are provided.

Analysis

11As can be seen, the parties agree on unsupervised access and that it should be increased. They disagree about Christmas access. They also disagree about the pick-up and drop off.

12It appears that there is a healthy bond between Elena and Mr. Salinas.

13I have serious doubts about Ms. Sortos’ statement that she has other plans for Christmas. She has proposed access on December 28, 2014 so whatever her holidays plan may be, it appears that she can be in the Brampton area without difficulty. However, Elena, at this age, likely does not know the difference between December 26 and December 28. Access shall therefore be December 28, 2014 from noon until 6:00 p.m. Ms. Sorto’s suggestion of only three hours is too short in these circumstances. Mr. Salinas’ submission that there should be immediate overnight access is too abrupt at this time.

14Mr. Salinas is employed at his home. Ms. Sorto is employed Monday to Friday; she proposes access on Tuesdays and Wednesdays from 9:00 a.m. to 5:00 p.m. I can therefore presume that she can make the full day access transfers without imperiling her employment.

15As a next step, Elena should have regular, certain and longer visits. Ms. Sorto will need to ensure that the child attends the visits. Mr. Salinas will need to ensure that he attends all of the visits.

16Commencing Tuesday, December 30, 2014 and each Tuesday, Thursday and Saturday thereafter, Mr. Salinas shall have access to Elena from 9:00 a.m. until 5:00 p.m.

17No doubt, if all goes well, overnight access will be the next step of the phasing in process, but that is too early at this time.

18I was not asked to consider the second phase however, presuming that all goes well, I would anticipate that the above schedule should be increased in three months’ time.

19Ms. Sorto asks that pick-ups and drop offs be at the Tim Hortons at Airport Road and Bovaird Drive in Brampton. She gives no reason for that request. The parties reside approximately eight houses away from each other. There appears to be no good reason for Elena to be bundled and unbundled between vehicles in an Ontario winter. The transfer shall occur in front of Ms. Sorto’s residence. Mr. Salinas shall pick-up and drop off the child at the commencement and end of each access visit.

20Further, Mr. Salinas shall advise Ms. Sorto, at the commencement of each visit and in writing, his plans for the day and contact numbers or emails so that he may be contacted in case of an emergency.

Costs

21If the parties cannot otherwise agree upon costs, written submissions may be made to me. Since it is unclear to me as to who has been successful, I leave it to the parties to determine who shall provide their costs submissions first and the process thereafter. In any event, each submission shall be within 15 days of each other and the submissions shall be no more than three pages, not including any offers to settle or bills of costs.

Lemon J