CITATION: Spironello v. Spironello, 2015 ONSC 2291
COURT FILE NO.: 2947/13
DATE: 2015-04-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA LEE SPIRONELLO
Applicant
– and –
DANIEL ANTHONY SPIRONELLO
Respondent
M. O’Neill, Counsel for the Applicant
J.P. Paciocco, Counsel for the Respondent
HEARD: April 9, 2015
varpio, j.
RULING ON MOTION
[1] Mr. and Mrs. Spironello were married in 2006 and separated in 2013. They have two children, ages 6 and 8. Mr. Spironello suffers from mental health issues such that Mrs. Spironello has been concerned about Mr. Spironello’s parenting abilities. Further, Mrs. Spironello claims that Mr. Spironello has mixed his medication with illicit drugs. Finally, Mr. Spironello was previously charged with criminal harassment as against his ex-wife.
[2] On December 19, 2013, I heard a motion brought by the father for interim access. In that motion, the mother opposed unsupervised access. Despite the mother’s concerns, I granted the father unsupervised access, but not overnight access, so as to maximize the time he spent with his children while minimizing the stress placed upon the father. In the process, I hoped to ensure that the father’s mental health remained strong. I think it is obvious that such a result would be in the children’s best interest.
[3] Today, Mr. Spironello seeks greater access to his children on a “step up” basis leading to week about access. Mrs. Spironello, for her part, opposes said increase. Instead, Mrs. Spironello hopes to spend $16,000 to get a s.30 Assessment pursuant to the provisions of the Children’s Law Reform Act. She wants no changes to the access schedule pending the Assessment or OCL involvement. Mr. Spironello opposes the Assessment request and wants an immediate increase in access.
FACTS
[4] As a starting point, I refer to my December 19, 2013 decision wherein I granted unsupervised access to the father:
It goes without saying that, all else being equal, a strong bond between both parents and children is invariably in the best interests of the children. In this case, however, the father’s behaviour generates some concern with respect to his ability to handle anxiety and depression. I think it is almost axiomatic that stress can aggravate both anxiety and depression and that tending to young children is an inherently stressful function.
Further, I understand the mother’s reluctance to consent to unsupervised access given what she claims has been her personal interaction with the father. Such conduct would undoubtedly affect any mother’s judgment in this regard. The “Texting While Driving” and letter to “Melissa” also betray the father’s emotional state which has some unusual components. Accordingly, I find her position to be reasonable, provided her disputed evidence is ultimately accepted.
Nonetheless, the weight of the medical evidence is powerful. The father has produced considerable medical evidence to suggest that he does not pose a threat to his children were he to have unsupervised access. However, there are portions of the medical evidence wherein the father has acknowledged that the stress of his marital breakup has caused him to make poor choices in regards to his relationship with his wife. This evidence of poor decision-making does cause me some concern in that one could easily see how the stress of extended involvement with his children, coupled with his personal issues, could lead to other “poor decision-making” while the children were in his care. Such a phenomenon could ultimately have some deleterious effect upon the children.
[5] I specifically granted access for the 2014-2015 school year as follows:
I am willing to grant the following interim unsupervised access:
Once school is started, the father should get access every Tuesday and Thursday from after school until 7:30 p.m. and every Saturday from 9:00 a.m. until 5:00 p.m. until a case conference is convened and a further Order of the Court obtained.
In light of the outstanding criminal charges, a mutually-agreed to third party can pick up and drop off the children. It goes without saying that, if the third party perceives a problem with the father’s mental abilities at the time of access, the third party should not leave the children with the father, although the evidence appears to suggest that this is an unlikely concern.
[6] The nature of the written decision made clear, I believe, that my concerns for the children were based upon the notion that the father might not be able to handle the stress caused by raising the children in his care. Equally, the fact that the father was facing criminal charges was of concern.
[7] In the instant motion, the mother has tendered affidavit evidence from both herself and her supporters. The mother states that the children, after returning from visiting their father, have, upon occasion, indicated that the father leaves them unsupervised for extended periods of time. Further, the mother still has concerns about the father’s mental health and potential drug addiction issues.
[8] The mother also indicates that the only way to ensure the children’s safety is to have a s.30 Assessment as per the CLRA. She states that such an assessment will enable the parties to examine the relative strengths of each persons parenting abilities such that an appropriate plan of action can be developed. The mother posits that such an assessment, although expensive, is preferable to a report from the Office of the Childrens Lawyer since the s. 30 Assessment will be undertaken by a psychologist, as opposed to a social worker, (who may or may not have the requisite skills to make sufficiently insightful findings). The mother advises that the children have spoken with counsellors at school. The psychologist will be able to access appropriate records, speak with the counsellor, and craft an appropriate parenting plan. In the alternative, the mother asks for OCL involvement.
[9] The mother indicates that the matrimonial home has been sold and that there is approximately $100,000 being held in trust pending the determination of the matrimonial litigation. The expert contacted by the mother will charge $16,000 for his services (not counting potential trial fees).
[10] For the father`s part, he contends that he ought to spend half the time with the children and he suggests implementing a parenting plan that will build up to such a split. He does not believe that overnight access ought to wait for the results of an assessment or OCl involvement.
[11] The father indicates that the criminal harassment charge was withdrawn by the Crown. The father did not enter into any direct accountability programme or accept responsibility for the allegations in any way. Accordingly, based upon the withdrawal and the lack of any other evidence before me describing the alleged harassment, I must treat the harassment charge as though it were a nullity (i.e. it is not a factor in my assessment of his abilities as a parent).
[12] I also have evidence before me from the CAS. The mother called the CAS regarding the father’s parenting abilities and, in their most recent report (dated April 25, 2014), the CAS stated as follows:
The mother reported to the Society concerns with respect to the father’s possible use of drugs while in a caregiving role. The mother provided a letter written by a friend of the family, who subtly alleged that he had used drugs with the father on several occasions. The letter did not mention the name of the father. The mother also reported concerns about the father not following safety precautions when snowmobiling with the children, and not being able to provide emotional support to the child [name withheld] when the child had a “meltdown” prior to her hockey game. The Society met with the mother and talked to the children, who described the issues pertaining to snowmobiling contradicting the mother’s allegations…
The Society is aware that the parents were going through a very acrimonious divorce and that the mother had opposed overnight visits with the father due to allegations of drug use and mental health issues…
There is no evidence to suggest that the father lacks appropriate caregiving skills. The father has attended to his mental health appropriately and is understanding of the importance of continuing to attend to his mental health needs for his own benefit and the benefit of the children. The mother is unaware that the father is currently taking medication or seeking counselling, therefore assumes that this is not taking place and questions the father’s ability to care for the children at this time, however, in the past, the mother had indicated to the Society that when the father dedicated time to the children while the mother and father were together, he did do a good job.
CPW notes that the courts recently granted increased access, including overnight access, which the mother opposes and the Society believes that the animosity between the parents is a factor in how the mother perceives the father’s ability and commitment to care for the children. [I]n the past, the mother had indicated to the Society that when the father dedicated time to the children while the mother and the father were together, he did do a good job. [sic]
CPW assess that there is no further justification for child protection services to be involved. [Emphasis added]
[13] Interestingly, the CAS erroneously indicated that the Courts had already granted overnight access to the father. The mother indicates to the Court that this error is of such overwhelming magnitude that the entirety of the report, including its conclusions, needs to be rejected.
[14] The father also provided the Court with a letter dated February 12, 2015 from his psychiatrist, Dr. Manar Elbohy, which states:
Mr. Daniel Spironello, a thirty nine-year-old, separated father of two children working for Essar Steel. Mr. Spironello has been receiving treatment under my care at Sault Area Hospital since October 2013-present for treatment of depressive, anxiety symptoms and emotional upheaval in the context of separation conflicts and custody dispute. I have continued to follow him regularly as an outpatient initially for once weekly for six months, then monthly for extra six months. Our follow up appointments were designed to manage his depressive and anxiety symptoms; not for medico-legal assessment. Two detailed reports were previously forwarded to his lawyer. The following report is a summary of findings of his last follow up progress note.
Mr. Spironello presented on October 2013, with both anxiety and depressive symptoms. His symptoms included feelings of sadness, helplessness and hopelessness which started once he realized that there is no chance of reconciling the relationship with his wife. He also reported having difficulty with his sleep, and having excessive worries. At this point of time, we advised Mr. Spironello to follow up once weekly as an outpatient and to join cognitive behavioural psychotherapy once weekly. With regard to pharmacotherapy, he was started on Sertraline up to 125 mg per day in order to control his symptoms. He was in agreement to the treatment plan. Health teaching was done in regard to signs and symptoms of depression and maintaining a healthy balance between solitude and socialization. He has completed a Cognitive Behavioural Therapy course under supervision of Dr. MacPhee.
Throughout the treatment, Mr. Spironello demonstrated good insight into his difficulties, well-motivated to treatment despite his social stressors; he has been able to manage himself in a short period of time. He did respond well and ws compliant with taking his medication. Currently, Mr. Spironello appears to have been stable with respect to his mood and anxiety symptoms. He demonstrates a full remission of his symptoms. Functional psychiatric inquiry revealed no gross mood symptoms suggestive of depression, or any hypomanic/manic disorders. He denies having any OCD symptoms. He denies any concerns or odd behaviours regarding his eating patterns. Mr. Spironello denies having any current active suicidal or homicidal thoughts. He denies street drug use. He denies any other psychiatric issues. His condition is well controlled with no current acute safety risk. At present, he is on the process of weaning off the medication and follow up once every three months. Mr. Spironello maintains that he poses no risk to his children. If I have a concern with regard to his children’s safety, I would contact the Children’s Aid Society (CAS). [Emphasis added]
[15] For her part, the mother indicates that the psychiatrist`s report needs to be discounted since the majority of the evidence described therein is “self-reporting” as opposed to being clinical observations made by the doctor.
[16] As indicated earlier, the mother provided evidence with respect to a couple of incidents where the father left the children unattended. The father disputes some of the allegations and indicates that another incident had to do with miscommunication. Further, the father has provided affidavit evidence from his supporters that contradict the mother’s concerns.
THE LAW
[17] Section 30 of the Children’s Law Reform Act states:
Custody and Access – Assistance to Court
Assessment of needs of child
- (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1).
When order may be made
(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2).
Agreement by parties
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (3).
Consent to act
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4).
Report
(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7); 2009, c. 11, s. 13 (1).
Admissibility of report
(9) The report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9).
Assessor may be witness
(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10).
Directions
(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11).
Fees and expenses
(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12).
Idem, proportions or amounts
(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. R.S.O. 1990, c. C.12, s. 30 (13).
Idem, serious financial hardship
(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. R.S.O. 1990, c. C.12, s. 30 (14).
[18] The parties placed case law before me regarding the test to be used when ordering such an assessment. In Glick v. Cale,[2013] W.D.F.L. 1744 at paragraph 48, Kitely J. listed a variety of factors to be considered when determining when deciding whether or not to order a s. 30 Assessment. Of note, the instant case appears to fit many of the criteria listed including high conflict nature of the separation.
ANALYSIS
Section 30 Assessment / Office of the Children’s Lawyer
[19] Turning first to the question of the s.30 Assessment and/or the involvement of the Office of the Children’s Lawyer, I am not satisfied that a s.30 Assessment ought to be ordered. Firstly, it is clear to me that a $16,000 bill for a report is an expensive proposition for the parties (the father works as a steelworker and the mother owns a shop). Although the parties are not of negligible means, neither are they affluent. As such, the bill associated with the Assessment could certainly cause serious financial strain.
[20] Secondly, it is also clear to me that this matter could well go to trial regardless of whether an Assessment is made. The strong possibility exists that the parties will be paying for the assessor to attend at trial and, as such, the cost for such an endeavour will multiply quickly.
[21] Thirdly, it is clear that a number of professionals have been in contact with the family including the father’s psychiatrist, his psychologist and the CAS. These professional services have all provided an opinion (of some sort) regarding the father’s parenting abilities. As such, this is not the kind of case where there is a dearth of professional information regarding the parties. In fact, a considerable amount of opinion exists and there appears to be a consensus. As such, I question how much the Assessment would assist the Court since the Court is already in possession of considerable medical and professional evidence.
[22] Therefore, when I examine the potential benefit that an Assessment might provide, it is mitigated. Equally, the price for said Assessment is substantial relative to the parties’ means. I will not, therefore, order the assessment, especially in a situation where the Office of the Children’s Lawyer may yet become involved.
[23] As for the involvement of the Office of the Children’s Lawyer, I believe that their input would be invaluable given the acrimonious nature of the relationship. I ask that they consider becoming involved. The children have been seeing counsellors regarding the marital split and, as such, it is clear that someone needs to speak with the children and their support providers so as to ensure that the children’s needs are met. Having dealt with the Office of the Children’s Lawyer on several occasions, I am confident that their services can provide the Court with the information it needs.
Overnight Access
[24] With respect to the evidential issues, I reject the mother’s position that CAS records and the psychiatrist’s letter have to be discounted substantially. I agree that the CAS note contains a material error. I also agree that much of Dr. Elbowy’s letter contains “self-reporting” by the father. However, both the CAS and Dr. Elbowy come to the same conclusion: That they have no safety concerns with respect to the father’s parenting abilities. While the evidentiary concerns raised by the mother’s counsel might cause a Court to question the conclusions reached by each of the authors (and thus reduce the persuasiveness of their individual conclusions), the combined effect of these reports is powerful and cannot be ignored.
[25] I accept that the mother may have heightened concerns for her children that were driven by the father’s past behaviour. However, the father has provided affidavit evidence that contradicts much of the mother’s evidence. Further, independent, knowledgeable third parties have stated (either tacitly or overtly) that the father is capable of looking after the children. There is no objective and/or professional evidence to suggest that the father is incapable of exercising overnight access. Although the parties may differ with respect to the father’s parenting abilities, the professional consensus is clear: the father is not an inadequate parent.
[26] As such, I hereby award the father the following interim access effective April 24, 2015:
a. Tuesdays after school to Wednesday mornings. The father will be responsible for dropping the children off at school; and
b. Every second weekend from after school Friday to Sunday evenings at 7. The father will be responsible for the pick-ups and drop-offs.
[27] I believe that such a schedule is in the children’s best interest since it both provides for meaningful overnight access while not constituting too radical a change to the children’s current situation. The children thus maintain stability. While it is possible that the mother’s concerns are well-founded, such a result appears unlikely given the professional evidence before the Court. Equally, I do not propose that the father get week about access during the school year so as to minimize stress on all concerned.
[28] I am also content to adopt the parenting plan presented by the father as it pertains to interim holiday access and interim vacation access. Thus, I Order (on an interim basis) that the parties adhere to the Holiday Access described in paragraphs 1.3 and 1.4 of Volume 2 Tab 15 Schedule A “Parenting and Interim Access Plan”. No argument was heard regarding the other subparagraphs in the plan so I refrain from making an Order in that regard.
COSTS
[29] The parties are free to provide me with cost submissions within 30 days of the release of this decision, in no more than 3 pages (not counting exhibits).
Varpio, J.
Released: April 21, 2015
CITATION: Spironello v. Spironello, 2015 ONSC 2291
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELISSA LEE SPIRONELLO
- and -
DANIEL ANTHONY SPIRONELLO
RULING ON MOTION
Varpio J.
Released: April 21, 2015