Cinapri v. Fleck, 2015 ONSC 2665

Superior Court of Justice – Ontario

CITATION: Cinapri v. Fleck, 2015 ONSC 2665

COURT FILE NO.: FS-13-78129-00

DATE: 20150422

RE: Angela Cinapri v. James Fleck

BEFORE: WOOLLCOMBE J

COUNSEL: P. Buttigieg, Counsel for the Applicant

G. Joseph and K. Younie, Counsel for the Respondent

HEARD: April 21, 2015

ENDORSEMENT

1The respondent father, James Fleck, brings a motion seeking access to his daughter, Julia Fleck Cinapri, born March 10, 2013. Julia resides with Angela Cinapri, her mother.

Background

2The applicant and respondent are separated and there are a number of issues between them that are proceeding through the court. A case conference was held before Justice Tzimas on October 21, 2013. Justice Tzimas made an order that the primary residence of the child would continue to be with the mother, on a temporary, without prejudice basis, and subject to further court order. Justice Tzimas also ordered that “The parties shall continue to arrange access to the child between themselves, or with the assistance of counsel”.

3A combined settlement conference/trial management conference was held before Justice Bielby on June 24, 2014. Access was not addressed in his order. He made an order that “Any Motions contemplated in regards to access, an assessment or any other issue are to be commenced within 30 days”. No such motion was commenced within the 30 days. The matter was placed on the January, 2015 trial blitz list.

4Unfortunately, the matter was not reached on the January blitz list. It is now scheduled for trial on the May, 2015 trial blitz list.

5The respondent’s motion for access was brought after the matter was not reached in January, 2015.

The applicant’s jurisdictional objection to an access order being made

6The applicant argues before me that given the order of Justice Bielby of June 24, 2014 that any motions were to be commenced within 30 days, and the respondent’s decision to wait some months before bringing his motion, I lack the jurisdiction to make any order respecting access. The respondent’s position is that I have the jurisdiction to make any order that is in the best interests of the child.

7I do not accept that Justice Bielby’s order removes from the court the jurisdiction to entertain any motion brought by either party if that motion was not commenced within the 30 days he set out. Under Rule 3(5) of the Family Law Rules, the Court may make an order to lengthen or shorten any time set out in the Rules or an order. This gives me the discretion to lengthen Bielby J.’s 30 day time period for commencing a motion. The question is then whether I should exercise my discretion to extend time and hear the motion when the respondent did not comply with the time frame that was set in June, 2014.

8There are two reasons why I am prepared to exercise my discretion to entertain this motion. First, Justice Bielby’s order was made at a point in time when it was anticipated that there would be a trial in January, 2015. That did not occur. Second, at the point of Justice Bielby’s order, the respondent was having some access to his daughter and there was no reason to believe that this would not continue. Over the last several months, the applicant has refused to provide access to the respondent other than at a supervised access centre. He was not prepared to have his visits on this basis. Accordingly, he has not seen Julia since September 21, 2014. I am of the view that an access order needs to be made to ensure that the respondent has access to his daughter.

The positions of the parties on access

9The respondent is originally from Ohio. He has lived and worked out of Canada for most of Julia’s life. He remained working in Singapore until December 2014. He has now secured work in Mississauga and received a work permit for employment in Canada on March 4, 2015. As of April 20, 2015, he has rented a house in Mississauga. He indicates that he has chosen his residence because of its proximity to Julia. He seeks very generous access to Julia.

10In her affidavit, the applicant indicates that she fully supports Julia having a relationship with her father. It is her view, however, that such access ought to be supervised at a facility operated by Social Enterprise for Canada in Mississauga. She indicates that she has completed the in-take process at this agency and indicated to the respondent that if he registers, she will ensure that he is provided with access to Julia at that location.

11The respondent’s position is that he should have an opportunity to spend time with Julia without the need for supervision at the facility identified by the applicant.

12It is clear to me that both parties accept that Julia should be able to see her father. It is in the best interests of Julia for her to develop a relationship with her father. Given the passage of time since there have been visits between the respondent and Julia, it seems to me that the visits should be for a relatively short duration for the next few weeks, as the respondent and Julia become re-acquainted. During the hearing of the motion, the parties indicated their agreement with this proposal.

Should the respondent’s access to Julia be supervised?

13In light of the parties’ agreement with my proposal, the only remaining question is whether the visits should be supervised. In my view, the applicant’s concerns do not support an order for supervised access. Furthermore, I do not see a basis for concern that the respondent is a flight risk, particularly given that he has recently secured employment in Ontario and rented a home in Mississauga. In any event, that concern may be addressed with an order that Julia will not be removed by either parent from the jurisdiction of Ontario.

14It is my view that the respondent should be permitted to have unsupervised access to his daughter. While he may wish to invite another family member to accompany him for the time he spends with Julia, I am not going to make this a requirement.

15While I have considered whether it is wise to make an access order so close to trial, I am troubled by the respondent’s lack of access to his daughter since September, 2014 and want to ensure that visits begin as soon as possible. My order is on a temporary, without prejudice basis, and subject to further court order. I appreciate that this matter will be dealt with by the trial judge.

Final Disposition

(a) The respondent shall have access with Julia two times per week for a period of two hours on each occasion. He is to pick Julia up and to bring her back to the applicant’s home at the end of the two hour period. Those visits are to commence no later than 5 days after the release of this endorsement.

(b) The applicant are respondent are to cooperate to identify the two days of the week and the times during which access shall occur, and that schedule ought to be followed regularly. In the event of an extenuating circumstance, such as illness on the part of Julia or the respondent, where access must be cancelled or postponed, notice shall be provided in writing by way of e-mail or text message as soon as possible. The parties should then make efforts to re-schedule the cancelled visit.

(c) Neither party may remove Julia from the province of Ontario without a further court order.

(d) As this is an access case that was not reached for trial in January, 21015, it should receive priority for trial in the May, 2015 trial blitz period.