Court File and Parties

COURT FILE NO.: 3390/15 DATE: 2017-04-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JASON NACCARATO Applicant – and – BARBARA NACCARATO Respondent

Counsel: Heather-Ann Mendes, Counsel for the Applicant (Jason Naccarato in the main case) R. Skeggs, Counsel for the Respondent (Barbara Naccarato in the main case)

HEARD: April 27, 2017

VARPIO J.

Reasons on Motion

[1] This is a motion brought by the Mother. While the motion seeks a variety of relief, only those matters dealing with the child Karmyn’s First Communion were argued before me. The remainder of the motion is adjourned to May 11, 2017.

Background

[2] The parties participated in a three week trial in May 2016. In that trial, I permitted the Mother to move with the children to Windsor, Ontario. Prior to the trial date, the parties agreed to an access schedule whereby, in the eventuality that the children were permitted to move to Windsor, the father would be entitled to access three weekends per month. The relevant parts of the Access Order read as follows:

6. This holiday access schedule is in addition to the regular access schedule above, and overrides the regular access schedule in the event of conflict with the exception that the respondent Barbara Naccarato shall be assured at least one weekend each month with the children. (The regular access schedule and the holiday access schedule are collectively referred to as the “schedule”). 6(e) The Applicant Jason Naccarato shall be entitled to select the Victoria Day weekend each year as part of his parenting period.; 7(b) Parenting times shall only be altered if both parties agree in writing; 7(e) Neither party shall arrange activities for the children during the other party’s schedule time without the other party’s consent; 7(f) Both parties may attend extracurricular activities and scheduled school events regardless of the schedule. The parties shall keep each other advised of school activities and events; 7(j) Notwithstanding the above subparagraphs, the parties shall at all times maintain a reasonable and flexible position respecting the custody/access arrangements for the children and at all times the best interest of the children will prevail. Accordingly, if special occasions, extracurricular activities, excursions or other opportunities become available to the children, or to either party, neither party shall insist that the custody/access arrangements set out herein be adhered to without exception; 13(h) Consult each other regularly about important issues such as the children’s education, health care and religious upbringing.

[3] Since the trial, it appears that the parties have had acrimonious relations. The Mother deposes that the Father’s mother (“Mrs. Naccarato”) will not permit the Mother to set foot on Mrs. Naccarato’s property (an allegation the Father has not denied). The Father deposes that the Mother has not kept him fully abreast of events in the children’s lives.

[4] This is an unfortunate, but not entirely unexpected, turn of events.

The First Communion

[5] Both parents were raised Roman Catholic. Accordingly, the eldest child Karmyn is of the age where she is to receive both her Reconciliation as well as her First Communion. She has received Reconciliation but not her First Communion. Arranging the latter has been a point of considerable contention.

[6] Currently, Karmyn is to receive two First Communions: One on May 20, 2017 in Windsor, one on May 27, 2017 in Sault Ste. Marie. This is an unusual state of affairs. It is also complicated by the fact that the Father’s normal access weekend falls on May 20 (Victoria Day weekend) as well as May 27 (which is to take place in Sault Ste. Marie).

[7] The machinations of how the two First Communions were arranged is not really of much benefit to my decision save and except to state the following:

1. The parties filed considerable email communication wherein each attempted to characterize the other’s communication as being unreasonable and high-handed. Upon a full review of the emails, and without parsing each individual email [1], it appears that the Father can be controlling at one moment and then conciliatory. His communications appear to be missives directing those weekends which he is to have the children followed by statements to the effect that he is “trying to work together in the best interests of the children”. I question how much he wishes to work with the Mother, as opposed to dictating parameters upon her. His choice of language also causes me to think that he is potentially writing the emails not to work with the Mother, but to impress a Court of Law at a later date.
2. For her part, the Mother’s email communications appear to be defensive in nature, often sounding as though she is not attempting to work with the Father. [2] When discussing the timing of the First Communion, the Mother initially took the position that May 27, 2017 was an inappropriate date since Karmyn had a dance dress rehearsal that weekend. While undoubtedly a valuable children’s activity, dance rehearsals should generally not take precedence over a non-custodial parent’s ability to host an important religious observance (all else being equal).
3. At one point, the Father was amenable to having the First Communion in Windsor provided his family was able to attend the event. The Mother was not willing to compromise as she had family coming from out of town for the event. She felt that the families could not co-exist at this event.

[8] Accordingly, the Mother indicates that there should be two First Communions: One in Windsor for her family, followed by one in Sault Ste. Marie for the Father’s family. The Father takes the position that he should have his normal access on both the May 20 and 27th weekends as contemplated by my previous Order.

[9] Tellingly, in several volumes of materials, only a brief mention is made of Kamryn’s wishes wherein the Father states that Kamryn wishes for her family to be together for her First Communion.

Analysis

[10] It is my duty to determine what is in the best interests of Kamryn in the circumstances of the First Communion. I believe that, while Kamryn is young, her statement that she would like her family to be together for an important life event makes eminent sense.

[11] Further, given the Father’s previous willingness to “compromise” and – more importantly – given Kamryn’s wish to have her family together for her First Communion, I find that it is in Kamryn’s best interests to have her entire family attend the event. I am advised that the Mother’s family will be travelling to Windsor for the May 20 First Communion including the Mother’s brother (who is Kamryn’s Godfather) from Pennsylvania. It would seem to me that a Godfather’s presence at a First Communion is an important phenomenon. I have been given no evidence to suggest that the Father’s family cannot attend the event on May 20, 2017. I have also been given no evidence to suggest that the Godfather is available for the May 27, 2017 event.

[12] In oral argument, I was advised that the Mother’s father tragically passed away a few days ago. This too will complicate the access schedule in terms of what is reasonable in the circumstances.

Order

[13] Given the foregoing, and given the Order that demands flexibility, I hereby Order that the Mother will be allowed to organize the First Communion in Windsor on May 20, 2017. The Father and his family will be entitled to attend the event. The Mother will have exclusive access to both children from the end of the event until 6:00 p.m. The Father will have exclusive access to the children (in Windsor) from 6:00 p.m. until the following afternoon at 2:00 p.m. [3] This will permit both parents, and their respective families, to have quality “First Communion” quality time with Kamryn.

[14] The Mother will have the children from 2:00 p.m. on the Sunday until the following weekend where the Father will enjoy his normal access in Sault Ste. Marie. Although not normally provided, in light of the exceptional circumstances of the maternal grandfather’s passing, the Mother can have access to the children from 1:30 p.m. to 3:30 p.m. on May 27, 2017 (in Sault Ste. Marie) which will enable the Mother’s family to see the children in their time of grieving.

[15] This schedule (while abridging some of the Father’s access) recognizes that Kamryn (and her sister) may wish to spend some additional time with the maternal family in light of the maternal grandfather’s passing.

[16] There is no question in my mind that this schedule will frustrate both parents who had hoped for an “all or nothing” result. However, Kamryn’s emotions are undoubtedly heightened given the loss of her grandfather and her upcoming First Communion. I will accede to her wishes and ensure that her entire family is able to attend her special day.

[17] The Mother has voiced concerns that the presence of the two families at the same event will be difficult given their poor relations. I accept that fact. Nonetheless, and especially in light of the recent passing of Kamryn’s grandfather, it is important for the adults in Kamryn’s family to act like adults and bridge their differences for this important event. The best interests of this child deserve nothing less, especially at an event whose religious significance would, presumably, demand that the parents put the interests of the children ahead of their own for the sake of the child’s religious development.

Costs

[18] The parties may provide me with their bills of costs within 14 days of the release of these reasons however the parties should be aware that I will certainly consider the divided nature of this result in determining any quantum to be awarded.

Varpio J.

Released: April 28, 2017

Footnotes

[1] I am mindful of the time constraints necessitated by the timing of the motion and the timing of the First Communion(s).

[2] For example, the Father claims that the Mother failed to inform him of the Roman Catholic Reconciliation that occurred on a given date. The Mother denies withholding that information. A perusal of the emails shows that the Mother wrote on October 25, 2016 8:44 A.M. “As I have notified you earlier, Karmyn has her Reconciliation [sic] that Sunday at 3.” The Father responded at 9:18 AM as follows: “I am working with St. Veronica’s Perish [sic] to have it [the Reconciliation] take place in the Sault where she can be surrounded by family and have the sacrament in the perish [sic] that she has grow up in [sic]”. No further discussion of the Reconciliation occurs until the Father indicates that it “broke his heart” to find out that the Reconciliation occurred in Windsor.

[3] The timing of each parent’s “First Communion” access assumes a morning mass on May 20, 2017. I expect that the parents will be able to reach an agreement as to the access on that weekend if the mass, in fact, occurs in the afternoon. If they are not so able, I will be willing to entertain argument as to appropriate access. This argument will be in writing, no more than one page, to be filed within 7 days of the release of this decision.