Mondello v. Mondello, 2015 ONSC 1466

CITATION: Mondello v. Mondello, 2015 ONSC 1466

COURT FILE NO.: FS-09-65257-00

DATE: 2015-03-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GUILLERMO ANTONIO MONDELLO

Aaron M. Mastervick, for the Applicant

Applicant

• and -

JESSICA MONDELLO

Jared Persaud, for the Respondent

Respondent

Price J.

Costs Endorsement

Context of Endorsement

1Seppi J. made an order on April 12, 2013, on consent, following the partial trial of an acrimonious custody proceeding between the parties, at which a child psychiatrist, Gerard Kimmons, testified as to his findings concerning the best interests of the parties’ child, Matthew William Mondello, born June 27, 2000. The essence of his findings was apparently that Ms. Mondello had undermined Matthew’s relationship with his father. Justice Seppi’s order provided that the parties would have joint custody of Matthew and that his day-to-day residence would be at Ms. Mondello’s home, but that Matthew would be in the custody of Mr. Mondello at specified times, during which Ms. Mondello was not to communicate with Matthew at all, including by phone, texting, face book, e-mail, or otherwise.

2The conclusion of Justice Seppi’s order hung a sword of Damocles over the threshold of the parties’ door, in the following terms:

16. [Ms. Mondello] shall comply with all terms of this order, failing which Matthew shall be placed in the immediate care and custody of [Mr. Mondello] and [Mr. Mondello] shall have sole custody and primary residence of him. [Ms. Mondello] may thereafter be consulted on decisions affecting Matthew’s health, education, residency and religious worship, but the final decision on such matters rests with [Mr. Mondello]. Access to Matthew by [Ms. Mondello] shall be at [Mr. Mondello]’s discretion as to time, duration and supervision. If [Ms. Mondello] does not agree that she has breach any of the terms of this order she can bring a motion on notice to [Mr. Mondello] for a court to determine if she is in contempt and there shall be a presumption to be rebutted by the respondent that custody of Matthew should remain with the applicant father. Costs of the motion shall be awarded to the successful party on a substantial indemnity scale plus $30,000 and HST thereon for costs thrown away as partial indemnity on the trial of this matter, commenced in the Superior Court of Justice before the Honourable Madam Justice Seppi on August 6, 2013 in this within application. [Emphasis added]

3The sword fell on June 30, 2014, when Mr. Mondello retained custody of Matthew, taking the position that Ms. Mondello had breached the non-communication order. Among the text messages that Mr. Mondello produced was one dated June 3, 2014, in which Ms. Mondello was alleged to have told Matthew, “Don’t me [nervous] all of this shit will be over really soon. I promise just think your 14 now he can’t do shit.” And another, “Just think of me there with you I’m there to protect you.”

4Ms. Mondello made a motion dated September 12, 2014, to change the order of Seppi J. by varying para. 16. Although 2 ½ months had passed since Mr. Mondello had begun withholding access to Matthew, Ms. Mondello sought to have her motion heard, on grounds of urgency, before a case conference or a meeting with a Dispute Resolution Officer, both of which steps are normally required before such motions are heard. She also scheduled the hearing on a date when Mr. Mondello’s lawyer was not available.

5As circumstances of urgency did not exist that justified dispensing with a case conference, I held the conference that day, with the parties’ consent. Ms. Mondello took the position that her breaches of Justice Seppi’s order had been “trivial”, and that neither the parties nor Justice Seppi had intended para. 16 of the order to be used to terminate all contact between Matthew and his mother, which Ms. Mondello argued was not in Matthew’s best interests.

6In the course of the conference, I asked Mr. Mondello’s counsel what his client’s intentions were regarding Ms. Mondello’s access to Matthew. He replied that Mr. Mondello sought a 12 month “cooling off” period, from June 30, 2014, when he had begun to withhold access, so that he could restore his relationship with Matthew. I recommended to Ms. Mondello that she consider that proposal as an alternative to the outcome of a hearing before Justice Seppi to determine whether, as it appeared, she had breached Her Honour’s order.

7At the conclusion of the conference, I adjourned Ms. Mondello’s motion to be heard by Justice Seppi on October 23, 2014. In the meantime, I ordered Ms. Mondello’s internet service provider to produce the records of her text and e-mail messages since the date of Justice Seppi’s order on August 12, 2013.

Mr. Mondello’s motion for costs

8Following the adjournment, Ms. Mondello withdrew her motion to change Justice Seppi’s order, and Mr. Mondello brought a motion for the payment of his costs. He seeks his costs on a full recovery basis in the amount of $20,156.25 inclusive of HST and disbursements. As Justice Seppi was apparently not available on October 23, 2014, the matter came before MacKenzie J. who ordered that, because I had presided at the case conference, I would make the necessary determination as to the costs of the withdrawn motion.

ANALYSIS

9Having reviewed the matter, I have concluded that the best course is to adjourn the matter to a date, following June 30, 2015, when the issue of costs can be addressed, together with the issue of access to Matthew. In this way, the outstanding costs can serve as an incentive to both parties to work toward a resolution of the access issue, in the interests of achieving a healthy relationship of Matthew with both his parents.

CONCLUSION AND ORDER

10Based on the foregoing, it is ordered that:

1. Mr. Mondello’s motion for costs of Ms. Mondello’s withdrawn motion to change is adjourned to a date before me after June 30, 2015, to be arranged by either party, in consultation with the other, with the trial office, and in consultation with my judicial secretary, sherry.mchady@ontario.ca.

2. Neither party need file further submissions on the costs issue. Either party may deliver further evidence regarding developments in connection with access, and an up-dated report from Dr. Kimmons.

3. Mr. Mondello shall ensure that Dr. Kimmons has access to Matthew for the purpose of ascertaining his preferences and making recommendation as to what future parenting arrangements would be in his best interests.

Price J.