SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-15-83075-00
DATE: 2015-08-10
RE: VITO ADORNO v. ROCCHINA SORBO ADORNO
BEFORE: LEMON J.
COUNSEL: David Pomer, counsel for the Applicant
Carolyn E. Kovac, counsel for the Respondent
HEARD: July 29, 2015
ENDORSEMENT
The Issue
[1] Mr. and Ms. Adorno seek a ruling with respect to the access to their infant child.
[2] Mr. Adorno seeks:
Overnight access to Mia every Tuesday from 6:00 p.m. until Wednesday at 8:00 p.m. Ms. Adorno will drop off Mia at Mr. Adorno’s parent’s home every Tuesday by 6:00 p.m. and Mr. Adorno or a family member or close family friend will bring Mia back to Ms. Adorno’s home by 8:00 p.m. every Wednesday.
Access every other weekend from Friday at 6:00 p.m. to Sunday at 8:00 p.m. and if Mr. Adorno’s access falls on a long weekend, access shall be extended to Monday at 8:00 p.m. Ms. Adorno will drop off Mia at Mr. Adorno’s parent’s home by 6:00 p.m. on the Friday and Mr. Adorno or a family member or close family friend will bring Mia back to Ms. Adorno’s home on the Sunday by 8:00 p.m. If access falls on a long weekend, Mr. Adorno will deliver Mia to Ms. Adorno on the Monday by 8:00 p.m.
On the week that Mr. Adorno does not have weekend overnight access, access on Thursday evening at 6:00 p.m. until Friday at 8:00 p.m., in addition to the Tuesday night to Wednesday night access. Ms. Adorno will drop off Mia at Mr. Adorno’s parent’s home by 6:00 p.m. on Thursday and Mr. Adorno or a family member or close family friend will bring Mia back to Ms. Adorno’s home by 8:00 p.m. on Friday.
An Order that Ms. Adorno is not allowed to have Mia at any time there is access for Mr. Adorno.
An Order that Ms. Adorno release Mia to a family member or family friend of Mr. Adorno’s choice without incident.
[3] In return, Ms. Adorno seeks:
- An Order permitting Mr. Adorno to have access to Mia:
a) Alternate weekends from Friday at 5:00 p.m. to Sunday at 7:00 p.m.
b) Every Wednesday from 11:00 a.m. to 7:00 p.m. until Mia commences school full time (if Mr. Adorno is not working that day).
c) Each Wednesday from 4:00 p.m. to 7:00 p.m. if Mr. Adorno is working that day.
d) Reasonable telephone access.
An order requiring that the parties ensure that Mia attends all family functions and events of the other party’s family members.
An order permitting Ms. Adorno to telephone Mia on a reasonable basis at least once per day during Mr. Adorno’s period of access.
An order requiring Mr. Adorno to pick up Mia from Ms. Adorno mother’s home at the commencement of the access period and return Mia to Ms. Adorno’s mother’s home at the end of the access period.
An order prohibiting Mr. Adorno from making derogatory comments to Ms. Adorno or about Ms. Adorno in the presence of Mia.
Background
[4] The parties were married December 3, 2011, and separated January 1, 2015. They have one child, Mia, who was born November 1, 2012. Mia is coming up to three years of age.
[5] After separation, the parties were able to work out access as follows:
a) Wednesday from 4:00 p.m. to 8:00 p.m.
b) Friday 11:00 a.m. to 8:00 p.m.
c) Saturday 10:00 a.m. to 8:00 p.m. to be shared by the parties if there is an event.
d) Alternating Sundays from 10:00 a.m. to 8:00 p.m.
[6] Although Mr. Adorno objects to the manner in which that agreement was worked out, that is apparently the history of access from February 6, 2015, until Mr. Adorno’s motion came to court.
[7] On June 26, 2015, Bloom J. ordered that “on a basis that would not prejudice either party” until the disposition of Mr. Adorno’s motion, Mr. Adorno would have access every Wednesday commencing at 11:00 a.m. The drop off of Mia was to be at Mr. Adorno’s residence by Ms. Adorno or one of her family. Mr. Adorno was to return Mia to Ms. Adorno’s residence at 8:00 p.m. the same day.
[8] Further, on alternate weekends, commencing Friday, July 3, 2015, Mr. Adorno was to have access commencing Friday at 4:00 p.m. and ending Sunday at 8:00 p.m. Ms. Adorno or one of her family members was to bring Mia to Mr. Adorno’s residence at the start of the access period and Mr. Adorno was to drop off Mia at Ms. Adorno’s residence at the end of the period.
[9] Finally, on the weekends on which access did not occur, Mr. Adorno was to have access from 11:00 a.m. to 8:00 p.m. each Saturday.
[10] Mr. Adorno resides with his parents and Ms. Adorno resides with her parents. The status quo is, therefore, that Mia resides with her mother and her parents.
[11] Ms. Adorno works at home on a somewhat flexible basis. Since the order of Bloom J., Mr. Adorno is now employed as an electrician working approximately 7:30 a.m. to 4:00 p.m.
[12] At present, there is no custody order in place. There is a case conference set for August 27, 2015.
Legal Authorities
[13] In Warcop v. Warcop, 2009 6423 (ON SC), 66 R.F.L. (6th) 438, Gray J. said:
72 This matter arises under the Divorce Act, and the specific issues before me are governed by s. 16 of that Act. The relevant provisions of s. 16 of the Act are as follows:
16.(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, and or all of the children of the marriage
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs, and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child 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, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
73 Is clear, from these provisions, that there is only one applicable standard: the best interests of the child. Indeed, as prescribed by section 16(8), the best interests of the child are as determined by reference to the “conditions, means, needs and other circumstances of the child”. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child.
75 Pursuant to section 16(10), the Court is expressly required to consider the concept of maximum contact with each spouse, but, once again, only to the extent that maximum contact is consistent with the best interests of the child. Furthermore, the Court is required to take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
76 While not directly applicable where the Divorce Act has application, as here, it is useful to have regard for the provisions of s. 24 of The Children’s Law Reform Act. Section 24(2) of that Act sets out a number of specific criteria for the Court to consider in determining the best interests of the child.
Analysis
[14] The affidavits are lengthy and contain the usual conflicting allegations against the other parent. There are many allegations that Mr. Adorno is abusive to Ms. Adorno and neglectful of Mia. There are allegations that Ms. Adorno has not been cooperative arranging access. Both deny those allegations. I cannot make a determination of credibility or find facts on those affidavits. I will use the facts that can be determined from what is agreed or is confirmed by other evidence.
[15] Both agree that the other is a loving parent and it is in Mia’s best interests to have contact with the other parent.
[16] There is a dispute as to whether Mr. Adorno was involved with Mia prior to separation. Be that as it may, as a result of these terms of access, he will be involved with Mia going forward.
[17] There was a dispute as to whether Mr. Adorno should have overnight access. That has now been resolved by the order of Bloom J.. Given the positions of the parties, I need not concern myself with whether there should be overnight access.
[18] Although the parties reside with their parents, the grandparents will have access coincidental to Mia’s parents’ access. The terms that I set out below will require both parties to be involved during the access visits and not leave Mia to others.
Family Functions and Events
[19] Given that the parties cannot agree on very much and, for Mia’s best interests, there is a need for a consistency in her access, I can make no order that takes into consideration other “family functions and events”. If the parties can agree on those events in writing, that is fine. However, my intention with this order is to be certain that Mia will have regular access to her father without interruption by other events. Such terms as “events” and “functions” are vague and will only lead to further litigation.
Pick-up and Drop Off
[20] These terms have already been agreed upon pursuant to the order of Bloom J.; I am certain that the parties can make the necessary sacrifices for the benefit of their child to arrange and share the transportation.
[21] Accordingly, Ms. Adorno will drop Mia off at the start of each weekend visit and Mr. Adorno will return Mia at the end of the weekend visit. No alternates. No other family members unless they want to come along. Mia’s parents will share the transportation.
[22] When Ms. Adorno drops Mia off at Mr. Adorno’s residence, she shall remain in the car except to remove Mia from her car seat. She shall do that only when Mr. Adorno is in sight. She shall then get back into the car and Mr. Adorno shall pick Mia up from outside the car. When Mr. Adorno drops off Mia, he shall remain in the car except to remove Mia from her car seat. He shall do that only when Ms. Adorno is in sight. He shall then get back into the car and Ms. Adorno shall pick Mia up from outside the car.
[23] Ms. Adorno says that Mr. Adorno has not been involved with Mia. Mr. Adorno denies this. I accept his evidence that he will want to be in attendance with Mia as much as humanly possible. Accordingly, he and he alone will return Mia.
Telephone Access
[24] If the parties can agree upon telephone access through their counsel, that would be appropriate. Given Mia’s age, I do not see the benefit to Mia of a further opportunity for these parents to find reason to argue. Subject to agreement as set out below, there shall be no telephone access for either party.
Long Weekends
[25] The parties agree, and I order, that any access falling on a long weekend will be extended to Monday at the same time.
Pre-School
[26] Although Mia attends a pre-school, she is only two and a half years of age. Her contact with her father is more important than time at pre-school. Where the terms of this access order conflict with Mia’s pre-school, the access will take priority.
Bedtime
[27] Mr. Adorno seeks access until 8:00 p.m. Ms. Adorno suggests that it would be best for Mia’s schedule if she were returned at 7:00 p.m. The parties were able to work out a drop off time of 8:00 p.m. in their February agreement. Justice Bloom retained that drop off time. I will follow that history.
Terms of Access
[28] There are some givens for me to use to arrange terms of access.
[29] Both agree that there should be access for Mr. Adorno every other weekend.
[30] Mr. Adorno works until at least four o’clock in the afternoon. He seeks access commencing at 6:00 p.m. I can safely assume that he cannot make himself available before that time on a consistent basis. Accordingly, access should start at 6:00 p.m.
[31] As above, access must end at 8:00 p.m.
[32] Accordingly, access shall be every other weekend commencing August 14, 2015, from Friday at 6:00 p.m. until Sunday at 8:00 p.m. Such access shall be extended to Monday at 8:00 p.m. on long weekends. Conversely, should there be a long weekend when Mia is not with Mr. Adorno, Ms. Adorno can make plans for the entire long weekend.
[33] Mr. Adorno works Monday to Friday, 7:30 a.m. to 4:00 p.m. Accordingly, I must arrange access for evening hours through the week. Again 6:00 p.m. is the necessary start time and 8:00 p.m. is the required end time. Mr. Adorno should, therefore, have access to Mia from 6:00 p.m. until 8:00 p.m. each Tuesday and Thursday commencing August 13, 2015. Justice Bloom’s order will remain in place until that date. Because of the short visit, Mr. Adorno shall pick-up and drop-off Mia at her house for these evening visits. The transfer from the car to the house will be in accordance with the terms set out above.
Going forward
[34] Although there is a case conference set for August 27, 2015, I anticipate that these access terms may be in place for a long time unless otherwise ordered. Mia’s birthday is November 1, and of course there are the, soon to arrive, issues of Christmas access. My hope is that the parties will be able to work out those terms without further difficulties. Barring unforeseeable circumstances, this order shall remain in place until December 1, 2015. If the parties cannot work out Mia’s birthday access, that may well set the background for determining Christmas access.
[35] In order to have a solid record of the interaction between the parties, they may only contact each other by email. That email contact will only relate to terms of access or the welfare of Mia. No other issues will be discussed between the parties by email; they can use their lawyers for that purpose. All emails will be saved for use at any further motions.
Costs
[36] It appears to me that both sides have had divided success. Accordingly, it would seem to me that there should be no order as to costs. Having said that, there may be offers to settle or other factors that might affect my decision.
[37] If the parties seek costs, written submissions from both counsel shall be provided to me within the next 30 days. Each submission shall be no more than three pages not including any offer to settle or bills of cost. I leave it to counsel to work out the order of submissions.
Lemon J.
DATE: August 10, 2015
COURT FILE NO.: FS-15-83075-00
DATE: 2015-08-10
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: VITO ADORNO and ROCCHINA SORBO ADORNO
BEFORE: LEMON J.
COUNSEL: David Pomer, counsel for the Applicant
Carolyn E. Kovac, counsel for the Respondent
ENDORSEMENT
LEMON J.
DATE: August 10, 2015