CITATION: Rinella v. Rinella, 2015 ONSC 5737
COURT FILE NO.: FS-15-83635-00
DATE: 2015-09-04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CESIRA RINELLA, Applicant
v.
GIROLAMO ANTHONY RINELLA, Respondent
BEFORE: FAIRBURN J
COUNSEL: Steven M. Fehrle, counsel for the Applicant
Cindy Vergara, counsel for the Respondent
HEARD: September 3, 2015
ENDORSEMENT
[1] The parties were married on October 7, 2000. They separated on March 16, 2015. They have three children ages 6, 9 and 11. Both parents continue to reside under one roof in the matrimonial home.
[2] It appears that the breakdown in their marriage has been a difficult one. The mother alleges that the father has been involved in an extra-marital relationship. The father alleges that the mother attempted to sully his reputation by sending inappropriate letters to his employer, friends and family. There are accusations and denials, none of which can or should be resolved on this motion. What is clear on the motion, and what all parties agree upon, is that the relationship between the parents has become a caustic one.
[3] As they currently live under one roof with their three impressionable children, all of whom are in the formative stages of their lives, it is important that the bickering in front of the children end. Indeed, the children themselves are asking for this. The respondent’s affidavit makes reference to the fact that the children place sticky notes in the window with the words “Stop Fighting” on them. The applicant does not dispute this fact.
[4] It is clear that the parties should not continue to reside in this home together. To do so will compromise the best interests of their children. While the mother filed material suggesting that it is not appropriate for the father to have joint custody of the children, her counsel fairly and properly acknowledged in oral argument that temporary orders are not designed to change the status quo such that they prejudice either party’s position on a go-forward basis.
[5] Based on the materials filed, it is clear that both parents love their children. It is also clear that they are both in a position to provide for their physical and emotional well-being. While the father acknowledges he used to smoke marijuana, he does not do so now.
[6] In oral argument, the applicant suggested that if the court does not accept her principal position, that she should receive primary custody of the children, there are two possibilities that address the best interests of the children while, at the same time, ensuring that neither side is compromised in the ongoing litigation: (1) the court may issue a nesting order, such that the kids stay in the matrimonial home and the parents rotate in and out of the home on a seven-day cycle; (2) the mother move to her parents’ Etobicoke home and have the children with her at that location, again on a seven-day cycle. The applicant intends to move into another income property owned by her parents when it becomes available.
[7] The respondent takes the position that if the mother wishes to leave she can do so, but that the children should stay in the matrimonial home. He is prepared to entertain access to the mother on weekends. He says that the nesting order should not issue because it will tie up his financial situation and preclude him from moving toward equalization and buying the mother out of the matrimonial home.
[8] It is premature to be thinking in terms of equalization. Both parties acknowledge that there is a great deal of work left to be done in this case. Things are so premature that the Office of the Children’s Lawyer has not even provided an answer with respect to whether they may get a lawyer involved in the case. This answer is expected within the next short while.
[9] It seems that there are two options available. Either the children’s bags will be packed every seven days or the parents’ bags will be packed. The school where the children attend is close to the matrimonial home. It is in the best interests of the children that they not have to move every seven days. Sadly, it would appear that the children have already been through a great deal. Perhaps with the parents out from under the same roof, it will allow some clarity of mind in terms of the vulnerability of their young ones and the need to focus on and place them first.
[10] I order on a temporary and without prejudice basis that:
a. The children will continue to reside within the matrimonial home.
b. The parents will rotate in and out of this home every seven days.
c. On Wednesdays, from after school to 8:00 p.m., the non-resident parent for the week may have access to the children. On Wednesday, the children will be picked up from school or another location that is agreed upon by the parents. If the parents come to an agreement as to a pick-up location other than the school, the agreement will be put into writing (which may include an electronic format) by no later than Tuesday at 9:00 p.m. After the Wednesday evening visit, the children will be dropped off at the matrimonial home.
d. Neither parent, nor their families or friends, will be disparaging toward or critical of the other parent in the presence of the children.
e. Neither party shall remove the children from the Province of Ontario.
[11] While the respondent brought a cross-motion seeking an adjournment of the proceeding, this was not required. As the children are about to commence school, it was important to hear and dispose of the application relating to temporary custody, access and residence issues. Any delay in the matter could have caused disruption to the school year. As such, the adjournment application was dismissed.
[12] Finally, both parties are urged by the Court to move forward in a positive manner. They may have serious differences, but their issues with one another should not overshadow or impact on the very best interests of their children.
FAIRBURN J
DATE: September 4, 2015
CITATION: Rinella v. Rinella, 2015 ONSC 5737
COURT FILE NO.: FS-15-83635-00
DATE: 2015-09-04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CISERA RINELLA V. GIROLAMO ANTHONY RINELLA
COUNSEL: Steven M. Fehrle, counsel for the Applicant
Cindy Vergara, counsel for the Respondent
ENDORSEMENT
FAIRBURN J
DATE: September 4, 2015