ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3324/15
DATE: 2015-10-06
BETWEEN:
ALLYSON CHRISTIE NIRO
Applicant
– and –
DOMENIC NIRO
Respondent
B. Pritchard, Counsel for the Applicant
B. Ostroski, Counsel for the Respondent
HEARD: October 1, 2015
varpio, j.
ruling on motion
[1] The Niros married in April 2001 and separated in September 2014. From September 2014 until the summer of 2015, the children resided primarily with their mother while their father had access on Tuesdays and Thursdays as well as alternating weekends. Despite what I will outline below, the children did well at school as evidenced by their report cards which were filed with the Court.
[2] The separation has been acrimonious. Mr. Niro is involved in a relationship with a Mrs. Campbell, who had previously been a family friend. Mr. Niro alleges that Mrs. Niro is involved romantically with Mr. Campbell, an allegation that Mrs. Niro denies. Nonetheless, Mrs. Niro indicates that she and Mr. Campbell maintain a friendship. The Niro’s children and the Campbell’s children see each other at the children’s hockey games and the like.
[3] During the summer of 2015, the parties enjoyed “week about” access. Mr. Niro now seeks to have “week about” access continue through the school year while Mrs. Niro asks that the schedule return to the previous year’s access schedule.
[4] Mrs. Niro alleges that Mr. Niro does not take particularly good care of the children. She indicates that, when the children have stayed with Mr. Niro, they have returned with lice and walking pneumonia. Mr. Niro denies that he does not take adequate care of the children and indicates that he had no idea that the children were infested with lice. Further, he indicates that the file contains no doctor’s report or the like indicating that the children had walking pneumonia.
[5] Mrs. Niro deposes that Mr. Niro is attempting to poison the children as against her. Mrs. Niro also indicates that her daughter is afraid of Mrs. Campbell. Mr. Niro, for his part, indicates that Mrs. Campbell’s presence does not bother his daughter, but that Mrs. Niro’s reaction to Mrs. Campbell causes the daughter’s distress.
[6] Mr. Niro indicates that Mrs. Niro is engaging in a form of parental alienation whereby Mrs. Niro is attempting to poison the children as against their father. Mr. Niro indicates that he attempts to communicate with Mrs. Niro regarding the children and the children’s situation but that Mrs. Niro does not respond and is generally unhelpful.
[7] In March 2015, CAS were called regarding Mr. Niro’s parenting. There was an incident at a children’s hockey game. Upon completing their investigation, the CAS wrote as follows:
I am writing to you to follow up to the Society’s recent investigation concerning the children [their names] being exposed to incidents of conflict between the father and peers. It has been verified that the children were placed at risk of emotional harm; however you and their father are managing this by ensuring the children are accessing support services to assist them in managing the difficult family situation. As there has been no additional protection concern the Society will not remain involved with your family.
[8] In May 2015, CAS apparently investigated the mother’s parenting and found as follows:
I am writing to you in follow up to the Society’s recent investigation concerning the children [their names] Concerns of the children being at risk of emotional harm due to conflict over custody were reported as well as concerns of limited caregiving skills. Based on this investigation the Society is not verifying either concern. The children appear to be experiencing feelings/emotions consistent with the family’s current situation and you appear to be engaging appropriately with the children to help reduce the emotional impact of the situation on them. Further, you are supporting the children in speaking with the EAP counselor in order for them to have someone outside of the family/situation to speak with.
[9] Mr. Niro deposes that the children are afraid of Mr. Campbell. Further, Mr. Niro deposes that “I understand that David Campbell is currently the subject of a police investigation relating to past incidents involving disturbing allegations”.
[10] Mr. Niro was also the subject of criminal charges which were dropped by the Crown. Mr. Niro’s judicial interim release order mandated that he have no contact with Mrs. Niro so I assume that Mrs. Niro was either the complainant or an alleged witness. Mr. Campbell is currently facing charges. Mrs. Niro indicates that Mr. Niro and Mrs. Campbell are the complainants in these matters.
[11] Mr. Niro suggests that Mrs. Niro has an alcohol problem – a problem that Mrs. Niro denies.
ANALYSIS
[12] Without belaboring the legal analysis, my task is to determine, as best possible, what access regime is in the children’s best interests. I understand that my parens patriae duty demands that this determination of best interests must occur irrespective of the parents’ desires which may or may not have the children’s best interests at heart.
[13] It is clear to me that the parents simply loath each other. The file speaks to their inability to even speak to one another which limits their ability to co-parent. I do not know which party is to blame for this phenomenon (or whether both are to blame), but it is clear that the level of dysfunction in the relationship is such that I cannot believe that the parties are currently capable of working together to parent the children meaningfully.
[14] There is also much evidence before me whose contents I cannot fully consider since the parties dispute its authenticity. For example, there is evidence regarding unilateral enrolment in a hockey school and soccer tournaments that is disputed and, as such, I cannot make any firm determination in those regards.
[15] What is certain, however, is that any form of emotional stability that the children are capable of achieving is paramount in this situation given the high-tension nature of the marital breakdown.
[16] Given their report cards and the May 2015 CAS reporting letter, it is also clear that the children have succeeded to some degree while the former access regime was in place. This speaks to some form of stability. Given the obvious tension in the marital separation, this factor weighs heavily in my analysis.
[17] Further, the CAS report makes clear that the father has, in the past, engaged in conduct that has caused the children emotional turmoil. This factor is also important to my analysis.
[18] The father’s response to the lice accusation (effectively, “I had no idea”) causes me some concern that he may be insufficiently attentive to the children’s needs, although I must discount this concern greatly given the frailties of affidavit evidence and the ability to weigh same without cross-examination.
[19] Accordingly, I find that, based upon the evidence I am able to consider (given the limitations of interim motions), it is in the best interests of the children that they revert to their previous access schedule, that is:
The primary residence is with the mother;
The father have access with the children every Tuesday and Thursday from after school until 9 p.m.; and [1]
The father shall have access on alternating weekends from Friday after school until Sunday night at 9 p.m. If the alternating weekend is preceded or succeeded by a holiday or P.A. Day, that weekend shall extend to the holiday and/or P.A. Day.
[20] The access schedule shall commence Tuesday, October 13, 2015 since I do not know how the parties have arranged their schedules for this week and Thanksgiving. The father’s alternating weekend access shall commence October 16, 2015. Pickup and drop off shall be through a mutually agreed to third party. If the parties cannot agree on such a third party, they may come back to see me.
[21] Given the parties’ inability to work together, the mother shall have interim custody of the children. The mother will solicit the father’s input on parenting decisions via email prior to making those decisions wherever reasonably possible.
[22] Finally, I order that the parents shall not be in the presence of either Mr. or Mrs. Campbell while the children are with them, except while at hockey-related functions (I understand that the children are on the same team). The parents, through their lawyers, have indicated that such a constriction would be very difficult logistically. Despite their assertions, it is clear to me that Mr. and Mrs. Campbell’s presence in the children’s lives causes the children (or the daughter, at least) considerable torment. It is immaterial whether said torment is as a result of the daughter’s reaction to Mrs. Campbell or the mother’s reaction to Mrs. Campbell. The effect on the daughter is identical. As a result, in order to provide the daughter (and likely the son) with as much emotional stability as possible, I Order that the parents shall not be in the presence of either Mr. or Mrs. Campbell while the children are with them (except at hockey-related functions). In this way, I am confident that the children are most likely to have as stable a home life as possible in a very difficult situation even accounting for logistical difficulties that such a stipulation may generate.
[23] The parties will not make disparaging remarks about the other party in the presence of the children nor shall they discuss the litigation with the children or in their presence.
[24] Finally, I have been advised that the OCL is providing a lawyer to the children but may not provide a case worker in this matter. Given what I will describe as obvious and documented concerns for the emotional well-being of the children, I would ask the OCL to please reconsider the need for same.
COSTS
[25] The parties are free to provide me with cost submissions within 30 days of the release of this decision, in no more than two pages.
Varpio J.
Released: October 6, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALLYSON CHRISTIE NIRO
- and -
DOMENIC NIRO
ruling on motion
Varpio J.
Released: October 6, 2015
[1] The affidavit evidence does not indicate the time that mother wishes to have in place but her answer indicates “9:00 p.m.”.