NEWMARKET COURT FILE NO.: FC-11-039695-01
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
MARIA BROWNE
Applicant
– and –
GIOVANNI CERASA
Respondent
Self-Represented
G. De Vries, counsel for the respondent
HEARD: November 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, December 1 & 2, 2016 and February 14 & 15, 2017
FINAL WRITTEN SUBMISSIONS RECEIVED: April 24, 2017
DECISION
L.E. FRYER, J
I. Introduction
1The issue in this case is: should the Applicant (Mother), Maria Browne, be permitted to move with the child, Vincenzo Cerasa (born December 11, 2011), to Brooklyn, New York?
2Maria currently has sole custody and primary residence of Vincenzo. Maria has re-married. Her husband, Russell Browne, moved to New York in September 2015 after accepting a lucrative employment position with his long time employer, Scotiabank/Scotia Mocatta.
3The Respondent (Father), Giovanni Cerasa (“John”), is vehemently opposed to Maria moving Vincenzo to New York particularly due to the impact he believes it will have on his and his large family’s relationship with Vincenzo. John also fears that the travel associated with a move to New York will negatively affect Vincenzo’s health as Vincenzo has a heart defect.
4This is a high conflict case. The parties come from different cultural backgrounds and they have different social values. Events that occurred around the time of Vincenzo’s birth destroyed the trust between the parties. The same issues that were present in the first trial before Kaufman J. continue to plague the parties. The parties have been litigating continuously ever since Vincenzo’s birth, and the conflict remains unabated.
II. Brief Background & Timeline
5Many of the background details are set out in the decision of Kaufman J. dated December 11, 2014. The parties stressed that they did not wish to re-visit old history but in their evidence, they both returned to the circumstances that pre-dated Kaufman J.’s decision. These issues have not resolved for the parties and for this reason, it is necessary to provide a brief summary as context to this decision.
6Maria was born in Romania. She is 29 years old. Maria’s family immigrated to Canada when she was six years old.
7John was born in Canada; he is of Italian descent. John is 36 years old. John has a large extended family living in Southern Ontario.
8Maria worked as a project manager for Scotiabank for several years earning most recently approximately $80,000 per year.
9John has for many years been self-employed through his family business. He is now the sole owner of The Cerasa Group Ltd., a company that builds custom homes and owns rental properties among other things.
10The parties met in 2006. They purchased a home together in Bradford and started living together in or around October 2010.
11Maria became pregnant with Vincenzo. In August 2011, John accompanied Maria to a routine prenatal check-up where the doctor advised him that Maria has Hepatitis B, a disease she had contracted as a child. John was devastated and felt betrayed. The parties’ relationship ended. They sold their home and moved in with their respective parents.
12Vincenzo was born prematurely on December 11, 2011. Vincenzo received inoculations at the hospital and does not have Hepatitis. Maria still hoped that she and John could co-parent Vincenzo as a couple. For reasons that remain disputed, Maria suggested that John take Vincenzo home from the hospital with him.
13The parties’ relationship continued to deteriorate. Maria felt that John was excluding her from their newborn child. John refused to permit Maria to breastfeed, and the parties could not agree on the medical risk of Maria’s Hepatitis B to Vincenzo.
14Maria commenced an application on December 22, 2011.
15On March 7, 2012, Nelson J. ordered that Maria would have supervised access at an access centre primarily due to the lack of information about the nature of Maria’s Hepatitis B virus and whether or not it was communicable to the child. This period of time when Maria’s parenting time with Vincenzo was so limited had a significant emotional impact on her.
16At the return of the motion on April 24, 2012, when more information became available, Nelson J. ordered that the parties have equal, shared parenting of the child.
17On April 13, 2012, John commenced a civil claim against Maria for over $2,000,000 in damages for fraudulent misrepresentation, battery and sexual assault.
18The family law case remained relatively dormant for just under one year.
19In the intervening period, Vincenzo was diagnosed with an Atrial Septal Defect (“ASD”) (a hole in his heart). The parties jointly consulted with specialists to determine what, if anything needed to be done for Vincenzo. John brought a motion for an order that he be permitted to care for Vincenzo when he was ill; that motion was dismissed.
20The trial before Kaufman J. commenced November 13, 2013. The trial took eight days and was completed on April 4, 2014 with the delivery of written submissions.
21Up until this time the parties had continued to parent Vincenzo in a shared parenting arrangement.
22Kaufman J.’s decision was released on December 2, 2014. In his decision, Kaufman J. awarded sole custody and primary residence of Vincenzo to Maria.
23Mr. Browne and Maria who had been dating became engaged on October 3, 2014. Mr. Browne was, at that time, a senior executive with Scotiabank in Toronto.
24In March 2015, Mr. Browne accepted a lucrative position with Scotiabank/Scotia Mocatta in their New York office. Mr. Browne’s new job required him to move to New York.
25Maria commenced this Application on April 28, 2015 seeking an order permitting her to move. John sought an order for joint custody and additional parenting time.
26On June 23, 2015, McGee J. made an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). The OCL accepted the case and appointed clinical investigator, Naa Odey Armstrong, to conduct an investigation and report.
27Maria and Mr. Browne were married in a civil ceremony on June 26, 2015.
28Mr. Browne moved to New York permanently on September 17, 2015. Mr. Browne later obtained a condominium residence for himself, Maria and Vincenzo in the DUMBO area of Brooklyn, New York. Maria put Vincenzo’s name down for enrolment in the local school in Brooklyn.
29Ms. Armstrong began her investigation in September 2015. Her disclosure meeting was delayed by several months due to allegations by John and his family that Mr. Browne had physically abused Vincenzo. The York Region Children’s Aid Society (“CAS”) investigated two separate allegations and in both instances closed the file noting that the concerns other than parental conflict were not verified.
30Ms. Armstrong released her report dated February 25, 2016 in which she recommended that Maria continue to have sole custody of Vincenzo and that Maria be permitted to move to New York with Vincenzo.
31On March 7, 2016, the parties attended a Case Conference at which time they entered into temporary, without prejudice, Minutes of Settlement. Maria understood that the Minutes of Settlement were a prelude to her moving to New York with John’s consent; John denied this.
32In April 2016, Maria arranged for Vincenzo to have therapy at the Willow Centre in North York, Ontario and for Carol-Jane Parker to assist the parties in crafting a parenting plan.
33Later on in April 2016, relying on her interpretation of the Minutes of Settlement, Maria moved her and Vincenzo’s personal effects from her parents’ home to her and Mr. Browne’s apartment in New York. On April 23, 2016, Maria took Vincenzo to New York per the parties Minutes of Settlement. She enrolled him in the local school, PS 307, where Vincenzo attended a Pre-Kindergarten program for a number of weeks.
34Maria and Mr. Browne were married in a religious ceremony in Montreal on May 21, 2016.
35Maria was offered a job in New York starting in July 2016. She scheduled a motion on the regular, short motions list to permit her to stay in New York with Vincenzo after the end of the time-sharing arrangements set out in the Minutes of Settlement. McGee J. heard the motion on June 5, 2016 and dismissed it as the matter was better dealt with at trial.
36Maria made arrangements to remain in Toronto pending the trial of this matter. She declined the job in New York and in September 2016 moved into a home owned by Mr. Browne in Toronto near the lakeshore.
37Maria enrolled Vincenzo in Kindergarten at James S. Bell Public School near her home in Toronto.
38Vincenzo has continued to reside primarily with Maria and to spend weekends and holiday time with John pursuant to the order of Kaufman J.
III. Credibility Assessment
39I have set out below my brief comments regarding the credibility of each of the parties.
1. Maria Browne
40I found Maria to be very careful, organized and almost clinical in her presentation. She was forthright and direct. For the most part, she tried hard to avoid being inflammatory.
41When cross-examined by John’s lawyer, I found Maria to answer questions directly even when the answer was not favourable to her.
2. John Cerasa
42I found John to be more evasive in giving his evidence. He would at times avoid directly answering even simple questions unless he was sure that the answer would be favourable and support his case. He also had more of tendency to pass off responsibility for not having answers or documents available onto others such as his lawyer.
43As will be detailed below, there were certain events with respect to which I simply did not believe John’s version of the facts. On other issues, I found John’s position disingenuous. John’s approach to certain issues damaged his credibility before the court and called into question his approach to co-parenting with Maria.
44Where John’s evidence conflicted with Maria’s, I am more inclined to accept Maria’s.
IV. Analysis
45The legal principles applicable to this case are set out in Gordon v. Goertz, 1996 CanLII 191 (SCC). Gordon was a decision under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), but the principles are equally applicable to this case.
46In Gordon, the Supreme Court of Canada set out a general framework for the analysis of mobility issues at paras. 49 and 50 as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
1. Threshold Inquiry: Has there been a Material Change in Circumstances?
47The Children’s Law Reform Act, R.S.O. 1990 c. C.12 (“CLRA”) states that:
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
48In Gordon, the court held at para. 13:
It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
(a) Kaufman J.’s Order
49The determination of whether or not a material change in circumstances has occurred must be made with reference to the final order of Kaufman J. and his findings in support of that order.
50Kaufman J.’s order with respect to parenting is summarized as follows:
(a) Maria is to have sole custody and sole decision-making including medical decisions with respect to Vincenzo.
(b) Vincenzo shall reside primarily with Maria. He shall reside with John on alternate weekends from Friday after school or daycare to Monday morning return to school or daycare.
(c) The parties shall alternate school Spring Breaks as well as holiday weekends such as Easter and Thanksgiving. In the summer months, each parent is to have the child for two weeks in July and two weeks in August with Maria to have the first choice of dates in the event of a dispute.
(d) Each parent is to permit phone and Skype calls with Vincenzo during their parenting time.
(e) The parties will maintain flexibility with one another to ensure that the schedule does not preclude the child from participating in special events that fall on the time of the other parent.
(f) All communication between the parties is to be in writing except in the case of an emergency.
51In reaching his decision, Kaufman J. made the following findings:
“There can be no doubt that both parents have a strong emotional attachment to the child. They have different parenting styles as evidenced by their respective position regarding the child attending daycare. Whether it was litigation strategy or reflective of a personality trait, the respondent was borderline inflexible on this issue. There can be no doubt, however, that he was acting in a protective way for his son”: para. 123.
Maria and John’s extended family also had close ties to Vincenzo “but none greater than the other”: para. 124.
“Due to the child’s young age, his views and preferences cannot reasonably be ascertained”: para. 125.
Vincenzo had been residing in “in a stable home environment on an equal footing since the May 7, 2012 order”; the court was unable to find that one parent’s parenting arrangement was superior to the other”: para. 126.
“the court is satisfied that each parent is fully committed to being the best parent they can be to this young child… Vincenzo is fortunate to have parents equally committed to providing him with all of the assistance he will need to fulfill his potential”: para. 127.
Maria’s proposal was to remain living with her parents in their home in Maple although she hoped to move into her own residence possibly in Toronto in the future: para. 130.
“…both parties are competent and devoted parents, based on the evidence received and the weight attributed to such evidence, this court can only assume that both parties have arranged their lives in a manner that will afford Vincenzo stability in his upbringing”: para. 131.
“….the equal timesharing cannot continue, not only because of the distance between the respective homes, but also because the child will be attending school in September 2015”: para. 166.
“It is evident in receiving the evidence, both oral and written, from the respondent that he has no trust in the applicant and it is this court’s finding that this impacts his ability to communicate with her in a manner that would be supportive rather than creating conflict”: para. 168.
“Whereas there can be little doubt that the respondent is well-intentioned and totally focused on the child’s well-being, this court’s assessment of his demeanour is that it will be difficult for him to find a midway point with the applicant regarding the child’s health, education and general well-being. He has the attributes of an exceptional father in caring for the child, but his tunnel vision precludes him from communicating with the applicant in a way that appears to be rigid, if not condescending”: para. 169(l).
“In considering all the above, I am of the view that is in the best interests of the child that his custody be with the applicant. The history of the case reflects two loving parents consumed with the well-being of their child, as they should be, but the observations of this court in assessing all of the evidence before it, leads to the conclusion that she has attended to the child’s medical needs and that she is likely to do so in the future as well as tending to his educational needs and general well-being, while including the respondent in a meaningful way. The court is simply not convinced that if the roles were reversed, that the respondent would treat the applicant in a similar fashion”: para 170.
(b) Material Change in Circumstances
52Mr. Browne is not mentioned in Kaufman J’s order.
53Maria met Mr. Browne at work in early 2013 and they started dating toward the end of that year. After Maria and Mr. Browne got engaged, Mr. Browne purchased a home in Etobicoke. Maria and Mr. Browne were intending to renovate the home and make this their ‘dream home’.
54Mr. Browne was called by Maria as a witness at the trial; I found him to be straight forward, direct and credible.
55Mr. Browne has been an employee with Scotiabank for 19 years. He has been steadily promoted. He works in a specialized area of precious metals trading. Mr. Browne had been overseeing the New York ‘desk’ for some time and had many clients in New York. In March 2015, Mr. Bowne’s boss flew up from New York to speak to him about an offer of a role in New York City. The position being offered to him was a significant opportunity in terms of career advancement and remuneration, and he intended to accept it.
56Knowing that Mr. Browne would be moving to New York, Maria commenced her Application in April 2015.
57Mr. Browne received a formal offer letter dated May 27, 2015 and he accepted the job.
58Mr. Browne has been residing in New York since September 2015. Maria has been spending as much time in New York as the parenting schedule permits, and she takes Vincenzo with her when possible. Maria has twice been pregnant but sadly has suffered miscarriages.
59Kaufman J.’s order does not contain a restriction on Maria’s ability to move with Vincenzo. The Ontario Court of Appeal in Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA) stated at para 10:
The onus of meeting the threshold requirement is on the access parent. Where the child enjoys frequent and meaningful contact with the access parent pursuant to an order which stipulates terms of access on the assumption that the child’s principal residence will remain near the access parent, a move which would seriously curtail that contact meets the threshold requirement.
60Maria wants to make a life with her husband in New York, and she is not prepared to move without Vincenzo. The move will have an impact on John’s parenting time with Vincenzo as well as on Vincenzo’s relationships with his extended family, the majority of who reside in or around the Greater Toronto Area (“GTA”).1
61I find that the change in Maria’s circumstances, namely her marriage to Mr. Browne, Mr. Browne’s move to New York and Maria’s wish to move with Vincenzo to New York to join her husband all constitute a material change in circumstances that was not foreseeable when Kaufman J. heard the original trial.
2. Review of Best Interests
62As the threshold requirement has been met, the court must embark on a fresh inquiry and in so doing consider how the proposed parenting options affect Vincenzo’s best interests.
63Maria wishes to move to New York with Vincenzo as soon as possible. She proposes to fly back with Vincenzo once per month at her expense so that John can continue to have regular weekend access; she proposes that John can come to New York one additional weekend per month at his expense. The holiday parenting schedule under Maria’s proposal would remain much the same as in the order of Kaufman J. but for expanded time during the summer and but for the addition of a mid-Winter Break.
64Maria is not prepared to move to New York without Vincenzo.
65John’s proposal is that Vincenzo will not move to New York. He seeks an order for joint custody. In addition, he would like an additional Wednesday overnight access visit and if granted, he would rent his home in Springwater and move to Toronto.
66The CLRA sets out the criteria for the court to consider when determining the best interests of the child:
24
(1)
The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2)
The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
(3)
A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4)
In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
(a) Report from the Office of the Children’s Lawyer
67I had the benefit of a detailed report from the OCL Clinician, Ms. Armstrong, as well as her evidence at the trial.
68Ms. Armstrong presented her evidence in a careful and thoughtful manner and from her description she conducted her investigation and reached her findings in a similar manner. During her trial testimony, where she was not initially sure of an answer, she paused and chose her words, or she declined to comment. I found her evidence to be credible, reliable and supported by evidence from other witnesses.
69Ms. Armstrong’s recommendations taken from her report are summarized as follows:
(a) Maria shall remain the sole custodial parent and Vincenzo’s primary residence shall remain with her. Maria shall be entitled to move to New York with Vincenzo.
(b) Maria shall inform John of Vincenzo’s ASD surgery and other medical issues and John shall have full access to medical information about Vincenzo.
(c) John shall have access with Vincenzo once per month in the GTA and once per month in New York.
(d) John shall have Skype calls with Vincenzo three times per week.
(e) John and Maria shall share the school holidays.
(f) John and Maria should each consider individual counselling given the ongoing high conflict between them.
(g) Maria should arrange for counselling for Vincenzo.
70In her report, Ms. Armstrong made the following general observations:
Maria made the decision to move to New York in good faith. Her intention to move “appears to be solely related to bettering the life of her family and embracing opportunities that some may feel are opportunities of a lifetime”.
John, on the other hand is “fixated on his child being out of Canada and has only considered the worst case scenario in terms of outcomes for his son. [John] supported by his parents and common law partner have taken the extreme belief that [Maria] would purposely take Vincenzo away from them”.
“[T]rust between the two parents has been completely eroded leading to two polarizing sides. Differences in family cultures…may now be illuminated negatively by either side, creating an even greater divide that also seems to be fostering a climate of fear/fear mongering”.
John was not prepared to consider any possible positive outcomes or advantages of Vincenzo moving to New York.
Maria “understands the importance of Vincenzo being able to have a positive relationship with his father” and she “spent a lot of time, taking many factors into consideration and trying to be fair, while keeping Vincenzo’s best interests at the forefront, to develop a new access plan”.
71Ms. Armstrong supplemented her report in her testimony at trial in which she made the following comments:
John loves Vincenzo dearly, and he will do whatever he thinks is necessary and best for Vincenzo.
Despite the sole custodial order, the parties continued to struggle with decision-making. Maria would make a decision that John did not agree with or respect, and he would work against the decision. John was more inclined to put up obstacles and challenges to Maria’s parenting.
Maria had a well thought out plan for parenting time following the move to New York and she was more likely than John to support Vincenzo’s relationship with John, to facilitate regular contact and not to foment conflict.
John’s extended family believes that this move is designed to punish them and is motivated by malice.
The geographic distance between the parties might be beneficial in lessening the conflict and its impact on Vincenzo.
72Ms. Armstrong made a number of other helpful observations and recommendations that I will address further in my analysis.
(b) Vincenzo’s Current Circumstances
73Vincenzo is now five years old.
74Maria described Vincenzo as having a strong personality. He is independent but able to listen and express himself well. She characterized him as a cute, sweet child with whom she has a great relationship.
75John described Vincenzo as a “cheeky, funny, stubborn little boy who loves to play with people”. He is very loving of and has special relationships with everybody. John also emphasized that Vincenzo’s heart condition “impacts his daily functioning.”
76Chantal Nunes was the supervisor of the Tiny Steps Daycare where Vincenzo attended for several years. She described Vincenzo as a very active child who enjoyed solo play and was not aggressive.
77Dr. Melody Ashworth is a psychologist who works with the Willow Centre and was retained by the parties to do a developmental assessment of Vincenzo. She found Vincenzo to be a very bright child of high average intelligence. Vincenzo has excellent verbal skills and is somewhat precocious. Dr. Ashworth had no concerns about Vincenzo academically and found that he is functioning at an appropriate level.
78The other witnesses generally described Vincenzo as a friendly, outgoing and energetic child.
(i) Self-Regulation Concerns
79All of the witnesses at the trial noted that Vincenzo had challenges with self-regulation.
80John stated that Vincenzo was very attached to him. He had great difficulty separating Vincenzo from him when he was required to drop Vincenzo off at daycare and later at school. John described one occasion at the school where Vincenzo became so distressed at separating from him that he was breathing heavily and biting his shirt. John advised that Vincenzo typically sleeps with him in his bed as Vincenzo is afraid to sleep alone and has nightmares. John said: “I can’t say no to him”. John’s evidence was that essentially Vincenzo does not misbehave while in his care and that he felt that Vincenzo was “trying to please him”.
81Maria also stated that Vincenzo was at times emotional and acted out when in her care but that she was able to calm him down. Vincenzo sleeps in his own bed in her home. Maria described her approach to discipline including time-outs. Mr. Browne also observed that at times Vincenzo would get wound up emotionally. He supported Maria in setting boundaries for Vincenzo to regain his equilibrium. The issues raised by John with respect to Vincenzo did not appear to present when Vincenzo was in Maria’s care or at least not with the same intensity.
82Ms. Nunes found that when John dropped off Vincenzo at daycare, Vincenzo was much more emotional and clingy than when dropped off by Maria. She described the drop offs by John as “long and disturbing” and often disruptive to the other children.
83Ms. Parker is an experienced, children’s therapist and clinician who works at the Willow Centre. Maria initiated contact with the Willow Centre as she wanted to arrange for therapy for Vincenzo as recommended by the OCL. Ms. Parker suggested that the parties engage in an initial assessment to determine the appropriate approach for Vincenzo and to assist the parties in developing a parenting plan. During her sessions with John and Vincenzo, she found Vincenzo to be rather bossy, and he tried to take control. He also repeatedly wanted to check that John was still there. With Maria, Ms. Parker found that Vincenzo was more focussed, and he played quietly for some time.
84Ms. Parker found that Vincenzo was experiencing considerable stress and anxiety and she felt that it was essential that the conflict come to an end.2
85Dr. Ashworth also noted that when John brought Vincenzo in for the assessment, Vincenzo was preoccupied with getting up to check on him, saying “I need to see him and tell him I love him”. Dr. Ashworth spoke with Vincenzo’s teacher at James S. Bell Public School as part of her assessment. Vincenzo’s teacher noted self-regulation issues; Vincenzo will focus when interested but at other times, will zone out. Dr. Ashworth felt that if Vincenzo’s self-regulation issues were not addressed soon, his ability to independently learn would be negatively affected.
(ii) Heart Defect
86Vincenzo was diagnosed with an ASD when he was not yet two years old.
87John and Maria have been having ongoing consultations with paediatric cardiologists who have advised that the medical intervention necessary to repair the heart defect is a serious but not uncommon procedure. Both parents are understandably concerned and want what is best for Vincenzo.
88John believes that Vincenzo currently experiences negative symptoms associated with ASD including undue fatigue. Maria and many others who have spent considerable time with Vincenzo do not observe these symptoms.
89John has been particularly and in some respects unduly focussed on Vincenzo’s ASD and other health issues. His preoccupation pre-dated Maria’s announcement of her intended move to New York and that news appears to have exacerbated John’s concerns for Vincenzo’s health.
(c) Existing Parenting Arrangements
90The history with respect to each party’s parental role prior to the order of Kaufman J. was set out in detail in that decision. I do not propose to repeat it except where it relates to the current circumstances.
91I agree with Kaufman J. that Maria and John are each devoted to Vincenzo, and they each exhibit many positive qualities.
92Maria presented as a warm and caring mother who is calm and organized. She has good relationships with the various third party professionals involved in Vincenzo’s life. Vincenzo has thrived in her primary care.
93John also presented as a warm and caring father who wants to ensure that Vincenzo has all the same advantages in his upbringing that John himself enjoyed. In many respects, Vincenzo is his whole world. John’s extended family is very important to him and by extension important to Vincenzo.
94In her report, Ms. Armstrong states that “[w]hen asked about his family, Vincenzo mentioned Mummy, Daddy Russel [sic], Papa and Mama.” Papa being John and Mama being his fiancée, Ms. Viti.
95John and Ms. Viti have been friends for many years, and they are now engaged. They live together in Springwater. Ms. Viti appeared to be sincere and direct. Overall Ms. Viti appeared to be someone who is a warm and positive figure in Vincenzo’s life. However she repeated much of John’s evidence, and she is unwavering in her support of John and his family.
96John has a very close relationship with his parents, Vince and Josie Cerasa, and he continues to look to them both for guidance and support. John’s frame of reference with respect to parenting Vincenzo derives from his own upbringing that he views as superior. Vincenzo has spent considerable time with his grandparents particularly when John was residing with them. John’s parents have moved from their 10,000 square foot home in Bradford to a home closer to John and Ms. Viti in Springwater.
97Josie Cerasa obviously loves her grandson very much, and she is fearful that Maria’s move to New York will mean that she will be shut out of Vincenzo’s life. When asked by Maria if she was aware of the proposed parenting schedule, Josie Cerasa responded: “I am not aware of more time – I am aware of alienation and I will have to pay a ransom to see [Vincenzo].”
98John has a brother, Anthony Cerasa, who is a lawyer. Vincenzo refers to Anthony Cerasa as “Super Zio”, and he loves spending time with Super Zio playing super heroes with bed sheets or building forts.
99Many of John’s access visits with Vincenzo appeared to involve various family get-togethers. John’s extended family also sought to and did participate in various events for Vincenzo such as his graduation from daycare and a meet-the-teacher BBQ at his school.
100Maria’s mother, Cecilia Ilinca-Serb, and her stepfather, Caius Serb, live in Maple, Ontario. Maria and Vincenzo lived with them from shortly after separation until September 2016. Maria’s parents did not give evidence at the trial, but were interviewed by Ms. Armstrong as part of her investigation. Ms. Ilinca-Serb supports Maria in her decision to move to New York with Vincenzo and although she would miss them dearly, they planned to travel regularly to New York, and she knew that Maria and Vincenzo would be making frequent trips back.
101Vincenzo is very close to Maria’s little brother, Luca, as they are similar in age. Ms. Armstrong noted that the main family member that Vincenzo talked about was his Uncle Luca.
102Mr. Browne has been part of Vincenzo’s life since early 2014. Mr. Browne’s large family (his mother has nine siblings) is originally from Barbados. Many of his family members including his twin brother live in the Montreal area. His mother is a PhD Professor in Women’s Studies at Queen’s University. Mr. Browne does not have other children but has a close relationship with his brother’s children ages 16 and 12. Mr. Browne was involved in the Big Brothers program in Montreal, and he keeps in contact with one of his “Little Brothers” who is now in university.
103John questioned the stability of Maria’s relationship with Mr. Browne; I saw no evidence that their relationship of four years was other than committed and stable. Maria and Mr. Browne having been making the best out of the long distance relationship pending this decision.
104Mr. Browne described his relationship with Vincenzo as the best gift that Maria could have given him. Mr. Browne felt that he and Vincenzo had a strong bond; it was easy to fall in love with him. He was candid in saying that if you asked him four years ago, what his life would be like, he would not have expected to be parenting a four year old. He described learning to play the never-ending game of “peek-a-boo” with Vincenzo. Mr. Browne stated that he supports and admires Maria in her parenting of Vincenzo.
105Vincenzo may not have had the opportunity of spending long periods of time with Mr. Browne; however, the evidence suggests that Vincenzo has a warm relationship with Mr. Browne and sees him as an integral part of his family. Mr. Browne presented as a calm, warm and supportive person who will continue to be a positive parental figure in Vincenzo’s life. Importantly, Mr. Browne acknowledges that Vincenzo has a deep and strong relationship with John and with John’s side of the family. He tells Vincenzo that he is lucky because he has two families who love and cherish him.
106Although Maria has a close relationship with her extended family, Maria leads a more independent lifestyle than does John who prefers to spend much of his time with extended family. John indirectly suggested that Vincenzo needed to spend more time in his care if only to facilitate the numerous gatherings with extended family. Maria appears to prefer to spend her leisure time with her immediate family circle being Mr. Browne and Vincenzo. Neither lifestyle is to be preferred in terms of Vincenzo’s best interests, however this highlights yet another fundamental difference between the parents.
(d) Chronic Conflict
107Despite these two devoted and capable parents, the existing parenting arrangement has frequently not worked well for Vincenzo. The same themes of chronic conflict observed by Kaufman J. have continued. Maria’s announcement that she wished to move with Vincenzo to New York to join her husband, Mr. Browne, led to fresh sources of conflict.
108Effective January 2, 2014, Maria became the sole custodial and primary care parent for Vincenzo. John who formerly had Vincenzo in his care for equal time now had parenting time on alternate weekends and holidays. The transition from the interim, shared parenting regime to the current regime did not go well and the conflict and complete lack of trust that was so prevalent in the period prior to the order of Kaufman J. continued to manifest in many of the same areas.
109John had difficulty accepting the fact that Maria now had the final say on disputed decisions; he has said, “I had no power…my time has come and gone.”
110The evidence does not suggest that Maria abused her role as custodial parent. She sought John’s input and kept him informed of issues relating to Vincenzo but where the parties could not agree, she exercised her authority as the sole custodial parent. Tellingly, John characterized this as Maria “flexing her custodial muscle”. Maria also attempted to be flexible with parenting time and to accommodate many of the special occasions arranged by John and his family.
111Ms. Armstrong found that the ability of Maria and John to communicate and make decisions was very poor; she saw only “hints of cooperation”. Both parties approach their interactions with each other with distrust – in perpetual self-protection mode. John does not go anywhere related to Vincenzo without his fiancée, Ms. Viti, and/or his mother, Josie Cerasa. For example, John declined Ms. Armstrong’s request to meet with her alone and brought Ms. Viti and/or his mother to the meetings. Maria too seeks to have all communication with John in writing to ensure that there is a written record. The e-mail communication between the parties entered into evidence was voluminous.
112The communication and decision-making problems between the parties can be grouped into a few areas, and I have explored these areas in some detail below, as they are a factor in my overall assessment of what is in the best interests of Vincenzo moving forward.
a. Skype Communication
113Kaufman J.’s order requires each party to “allow each other telephone access at reasonable hours and no later than 7:00 p.m. during the parenting time”. John interpreted this provision as requiring a Skype call every day when Vincenzo was not with him. Maria on the other hand did not feel the need to call Vincenzo when he was with John on weekend visits. She resented the intrusion of John’s calls on her weekend time and sometimes found it difficult to facilitate a Skype call as opposed to regular phone call when she and Vincenzo were not at home. She suggested that John have three calls per week on set days; John continued to insist on daily calls.
114The issue of the Skype calls occupied many hours of trial time. Each party blamed the other for the technological problems they were experiencing using Skype. Maria suggested that if Skype was not working, John could have a regular telephone call with Vincenzo, but John refused as he wanted the face-to-face interaction.
115Maria took issue with John’s failure to facilitate an agreed upon Skype call when he was travelling to Florida with Vincenzo. Although they had agreed on a date for the call, John turned off his cell phone until he had Wi-Fi access at the condominium complex. When Maria did not hear from John two days after the date for the scheduled call, she contacted the police in Florida to do a “wellness check”.
116Ms. Armstrong’s view was that John’s challenging Maria on the frequency of Skype call was another example of his refusal to accept her decision-making authority.
117Listening to the evidence of both of the parents, this issue was more about the parents’ own needs, in particular, the need for control, and less about connecting with Vincenzo to hear about his day or wish him good night.
b. Travel Issues
118There was also considerable conflict regarding various travel related issues. I have provided some detail with respect to these issues as they illustrate how the actions taken by each party but particularly John have created an atmosphere of distrust and impaired effective co-parenting.
119In October 2014, Maria asked John for consent to take Vincenzo to the Dominican Republic for a vacation in January 2015 on her parenting time per the existing interim order. John would not commit to giving consent, saying he needed to think about it and needed more information. Maria clarified that she was to attend a destination wedding. Much later John objected to the trip, as it would interfere with Vincenzo attending an Italian Festival – a “special occasion” according to John pursuant to the order of Kaufman J. Maria brought a motion to dispense with John’s consent to travel on October 4, 2014. The motion was adjourned at John’s request, as he wanted more time to respond. Just before the return of the motion, Kaufman J. released his final order with the new custody and access regime. At the return of the motion on December 14, 2014, McGee J. dispensed with John’s consent to the travel and ordered police enforcement if he failed to return Vincenzo to Maria on time for the trip. In her endorsement, McGee J. noted: “the father declined to make submissions on make-up time and became argumentative. Court was closed. Should the mother seek costs of the attendance, she may do so in writing.”
120Despite being forced to obtain a court order permitting her to travel, Maria volunteered to give John make-up time which he accepted. John then surprisingly delivered a Notice of Appeal of McGee J.’s order; the ground of appeal being that 10 weeks was insufficient time for him to respond to the motion. Upon receiving the Notice of Appeal, Maria was upset and revoked her commitment to make-up time. John then served a contempt motion returnable on January 14, 2015, a day when Maria would be away in the Dominican Republic. Maria agreed to re-instate the make-up time rather than, in her words “risking a warrant for her arrest”.
121In January 2016, Maria asked John for consent to travel to New York with Vincenzo for the March Break again, on her scheduled time. She made this request when Ms. Armstrong was trying to arrange for the disclosure meeting. After some delay, John provided Maria with the travel consent letter, but his signature bore no resemblance to his usual signature. Similarly the signature of his witness, Ms. Viti, bore no resemblance to her usual signature evidenced from an affidavit filed with the court. When Maria pointed this out, John denied that there was anything unusual about the signatures and purported not to understand what all the fuss was about. In the atmosphere of extreme distrust that existed between the parties, the wonky signatures smacked of gamesmanship. John declined to provide a replacement travel consent letter with his signature. Maria brought another motion that was dealt with on February 24, 2016 by Douglas J. John “re-signed” the travel consent and Douglas J. ordered, on consent, that John would forthwith consent to Maria’s Nexus application for Vincenzo.
122Another prime example of the damaging interaction between the parties involved John’s trip to New York in June 2016. John and Maria entered into Minutes of Settlement on March 7, 2016 at a conference wherein John would spend from June 3, 2016 to June 7, 2016 with Vincenzo in New York; the Minutes of Settlement were not clear on the purpose of John’s trip. Maria understood that the purpose of this trip was for John to familiarize himself with the DUMBO area where Maria hoped to live with Vincenzo and for John to meet Vincenzo’s service providers such as his therapist and dentist. Paragraph 10 of the Minutes of Settlement stated that John “would participate in at least one counselling session when he is in New York between June 3 and June 7 if possible.” John stated that the purpose of the trip was simply for him to spend some holiday time with Vincenzo.
123Maria sent John e-mails with copious detail about how to get in and out of Brooklyn and what activities Vincenzo might enjoy in the DUMBO neighbourhood.
124John e-mailed Maria the day before he was to leave to advise that he and Ms. Viti had booked a flight on Porter and would be arriving at Newark airport. In an e-mail sent at 10:35 p.m. the night before departure, he gave her the address of the Residence Inn that he said they had booked in New Jersey close to the airport. He did not want to meet at Newark airport but suggested that they meet somewhere close by “to avoid the crowds”. Maria queried why he was staying in New Jersey when, according to her, the idea was for him to get to know the DUMBO area. They agreed to meet at a bakery in Manhattan that Vincenzo liked for the exchange.
125John and Ms. Viti arrived at the bakery by taxi and picked up Vincenzo as planned. Later Maria called Vincenzo on Skype at the time set out in the Minutes of Settlement. John and Vincenzo were in a concrete stairwell. Maria could not figure out why John was phoning from there and as reception was bad she called the hotel in New Jersey directly so that she could speak to Vincenzo in the hotel room. Maria was told that they had no record of John booking a room or staying there.
126Maria was very upset and called John again on his cell phone. John still avoided telling Maria where he was actually staying with Vincenzo. It turns out he was at the Great Wolf Lodge in Connecticut. In his evidence John said that he did not think he needed to tell Maria where he and Vincenzo were staying, as she should be able to decipher this from the wolf ears that Vincenzo was wearing during the Skype call.
127John’s version of the events is that the evening before departure, he and Ms. Viti decided that they would rather drive to New York. They cancelled their flight and drove through the night to make to it New York the next morning. They parked the car several blocks away and took a taxi to the meeting point with Maria in Manhattan, as they were not sure about the parking situation. According to John, they then drove back to the hotel in New Jersey that they had booked only to realize that it was not a suitable place to stay; it was the desk clerk who told them to try Great Wolf Lodge as it was a short distance away.
128John had detailed documentary back up for most other parenting issues including confirmation of hotel reservations for his travels down to Florida with Vincenzo. However, he was unable to produce any proof of the alleged hotel booking in New Jersey or proof of his alleged flight booking and subsequent cancellation.
129I found John’s version of these events completely unbelievable. I do not believe that John ever booked flights to New York or a hotel in New Jersey. John knew that Maria expected him to be investigating the DUMBO area and meeting some of the professionals that she proposed to engage for Vincenzo. John had other ideas.
130The other troublesome aspect of John’s deceit is that it was to be expected that - as he ultimately did - Vincenzo would tell Maria that his father picked him up in his truck and that they went to Great Wolf Lodge. Maria should have received this information directly from John rather than through Vincenzo.
131John did not need to lie to Maria about his travel plans, and I found it incredible that he continued to maintain the fiction in his evidence before me. Maria said that this was never an issue of Vincenzo being safe; it was an issue of trust and honesty – I agree.
c. Daycare
132The conflict over Vincenzo attending daycare also continued to be another flashpoint for John and Maria. Maria needed daycare for Vincenzo when she returned to work full time. She also wanted Vincenzo to attend daycare for socialization and routine. John did not agree with Maria’s decision; he felt that Vincenzo would be better cared for at home where he could get home cooked meals and where his medical needs could be monitored.
133Vincenzo’s daycare teacher, Ms. Nunes, obviously felt genuine warmth and regard for Vincenzo. I did not perceive that Ms. Nunes harboured any ill will toward John. She was careful and balanced in her evidence, and I found her a credible and neutral witness.
134On March 5, 2015, Vincenzo was playing at daycare when he ran into a plastic table and pushed back his front baby tooth. Ms. Nunes contacted Maria immediately and sent her a picture by text of Vincenzo’s mouth. Maria contacted Vincenzo’s dentist; she forwarded the picture to the dentist and explained what happened. The dentist booked an appointment for her at 4 p.m. Maria then sent John a detailed e-mail of what happened and how Vincenzo was doing including the photo of Vincenzo’s mouth; she invited him to attend the dentist appointment with her later that day.
135John again had his own ideas. He did not accept Maria’s decision on the course of action. He said that this was because he had suffered a similar injury as a child, and he knew how serious it could be. John made his own appointment with the dentist for 2 p.m. He drove over to the daycare and used the access card that he had been given previously to enter the daycare. It was only when Ms. Nunes saw him putting Vincenzo’s coat on to remove him from the daycare that she or the daycare owner, Isabel Fonseca intervened to stop him.
136John’s version of the events is that he did not have an access card and when he arrived some hours after the initial injury, he was not permitted to enter the daycare. However he could see Vincenzo in the office through the glass doors, and he was “hurt pretty bad”. According to John, Vincenzo had blood on his face and his face was swollen. The evidence of Ms. Viti who attended with John is essentially identical. This description is not consistent with the evidence from Ms. Nunes including the photo of Vincenzo sent by her to Maria earlier in the day in which Vincenzo has no blood on his face. I prefer the evidence of Ms. Nunes in all respects.
137John did not contact Maria to share his concerns or to discuss with her whether the earlier appointment might be appropriate. John called the police.
138According to the police report, John’s complaint was not that he was not permitted to enter the daycare but rather that the daycare “would not release” Vincenzo. John advised the police that he thought that the injury was “severe” and that he need to be seen by the dentist right away. One police officer attending the scene described Vincenzo as “completely fine…actually looked happy”. John also required that the EMS be called because he was worried about Vincenzo’s heart. The paramedics came and gave Vincenzo and ECG; they advised that he was fine.
139John may have been motivated by a desire to care for Vincenzo. However, his actions were out of proportion to the nature of the injury based on the detailed and timely information given to him by Maria. John relied on his own childhood experiences to guide him in this situation rather than Maria’s judgment and the judgment of the professionals involved. Furthermore, John does not appear to have considered how upsetting the unnecessary police and EMS attendance might have been for Vincenzo and the other children at the daycare.
140Ms. Armstrong noted this as another example wherein John would not accept Maria’s decisions for Vincenzo.
141In another recurring theme related to the daycare, John would regularly drop in to the daycare to visit with Vincenzo or to take him home for lunch. On his access drop-off days, he would bring Vincenzo late and on pick-ups would frequently come early. Maria objected to these practices for a number of reasons. Maria felt that Vincenzo should have the benefit of a structured routine at the daycare, and the daycare should be his individual space. Maria also felt that this was John continuing to challenge her parenting decisions. Maria was also concerned about losing her daycare subsidy.
142Maria instructed the daycare to charge John for the time Vincenzo missed from the regular daycare schedule and this practice became incredibly contentious. On one occasion, the daycare owner, Ms. Fonseca refused to permit Vincenzo to leave the daycare until John paid the appropriate fee. John was already upset when he went into the office to pay the fee and noticed from Vincenzo’s file that he was not named as the secondary emergency contact. John became angry and loud and according to Ms. Nunes was “in her face”. Josie Cerasa paid the $40 fee, and they all left. According to Ms. Nunes, Vincenzo and most of the daycare class overheard this altercation.
143John had been surreptitiously recording his exchanges with the daycare. When John’s lawyer mentioned this practice in correspondence with the daycare over the secondary contact issue, this further eroded John’s relationship with the Tiny Steps staff.
144In his testimony, John repeatedly referred to how offensive he found being asked to pay a fee to drop off his child late or pick his child up early from the daycare. He also highlighted this issue in his closing submissions by way of questioning whether Maria can be expected to be reasonable in facilitating his parenting time with Vincenzo.
145It is significant to note that at the time he was asked to pay these minimal sums to the daycare, John was not only paying nothing toward to the cost of daycare, he was not paying any child support as, according to him, Maria never asked for it. He did not start paying child support until the investigation by the OCL commenced at which time John provided a number of back dated cheques.
146Ms. Nunes estimated that the penalty fees that John was required to pay totalled $120.
d. John’s Civil Claim against Maria
147Another example of the poor relationship between Vincenzo’s parents is John’s claim for civil damages against Maria.
148In April 2012, John commenced a claim against Maria and her parents for civil damages for, among other things, sexual assault and battery and defamation all related to her failure to disclose to him that she had Hepatitis B. John’s brother, Anthony Cerasa, who is a lawyer, acted as co-counsel with respect to this claim as well as with respect to the previous family law matter for a period of time. Maria’s parents counter-claimed for repayment of a loan of $100,000 that they made to John’s company, the Cerasa Group Ltd., although that loan was not yet due. The civil suit has been dormant for several years but has not been discontinued.
149In his decision, Kaufman J. stated that although John had the right to commence a civil law suit for damages against Maria: “as long as that litigation continues, it will impact his relationship with the applicant and perhaps exacerbate it to the detriment of the child”: para. 168.
150John’s civil suit is symbolic of his inability to move past his feeling of being betrayed by Maria. As recently as the OCL disclosure meeting, John asked Maria if she had told Mr. Browne that she was infected with Hepatitis B because, as he stated: “I want to make sure you can’t do this to anyone else”.3
151Ms. Viti asserted that John has had a change of heart and he is “done fighting” with Maria. However, according to Ms. Viti, John did not want to continue the civil claim but only did it so that he could ensure that Maria did not lie to other people about her Hepatitis B status.
152John continuing the civil claim against Maria calls into question his willingness and ability to co-parent with her.
153Naa Odey Armstrong, Carol Jane Parker, Dr. Melody Ashworth, Dr. Musewe, Chantal Nunes: all of these professionals expressed their concerns about the chronic conflict between Maria and John and the negative impact that it was having on Vincenzo.
154While both John and Maria must take some responsibility for this conflict, in my view, much of the more recent conflict is related to John’s refusal to accept Maria as Vincenzo’s sole custodial and primary care parent.
(e) Abuse Allegations against Russell Browne
155Ms. Armstrong commenced her investigation in September 2015. On October 27, 2015, just as she was nearing the end of her investigation, she had a meeting with John, Josie Cerasa and Ms. Viti in which they told her that Vincenzo had been disclosing from as early as January 2015 that he was being hit by “Russell”. Ms. Armstrong was very surprised as this was the first time that this concern had been raised by anyone. John and Ms. Viti protested that they had raised it with her in their earlier meeting something that Ms. Armstrong denied and that was not reflected in her notes of the meeting.
156John advised Ms. Armstrong at that time and repeated in his evidence at trial that initially he thought that Russell might be a little boy from the daycare, he did not know who Russell Browne was until he saw his name on Maria’s wedding website in October 2015, and he delayed saying anything as what Vincenzo described was more a form of discipline rather than abuse and he did not want to take things to “the next level”. I found John’s evidence on this issue disingenuous and straining credulity.
157Firstly it was clear that John knew who Mr. Browne was well before October 2015: on March 23, 2015, John sent Maria an e-mail asking why Vincenzo kept referring to “Russell Daddy” and asking her to confirm that this was her boyfriend. Secondly, Maria commenced her Application in April 2015 seeking to move to New York with her partner; although Maria did not refer to Mr. Browne by name in her Application, it would not be difficult for John to connect the dots. Thirdly, by the time John and his family members raised the issue of alleged abuse of Vincenzo Ms. Armstrong was finalizing her investigation of Maria’s proposed move to New York to be with Mr. Browne.
158Given John’s approach to other parenting issues with Maria and his fear of Vincenzo moving to New York, I also find it very difficult to accept that he would decline to mention a longstanding concern that his son had been physically disciplined by Maria’s fiancée simply because he did not want to “take things to the next level”. I prefer Ms. Armstrong’s evidence that there was no mention of any alleged abuse of Vincenzo until the time when she was finalizing her investigation.
159Ms. Armstrong notified the CAS about these allegations and delayed the disclosure meeting while the CAS investigated. The CAS found no protection concerns other than ongoing conflict between the parents.
160Ms. Armstrong rescheduled the disclosure meeting to January 7, 2016. However, John’s lawyer later cancelled this date, and the meeting was again rescheduled for January 14, 2016.
161In the interim, on January 11, 2016 the CAS worker, Christina Croccitto, notified the parents that CAS was closing the file. This same day, John called the CAS to report that Vincenzo had made a fresh disclosure: that Russell had slapped him hard on the face during a New Year’s Eve party in Montreal. Ms. Nunes stated that the same day, Ms. Viti brought Vincenzo to the daycare late and said that Vincenzo was having a hard time getting out the truck, because Mr. Brown had slapped his face when they were in Montreal together and that the CAS was investigating. Ms. Nunes did not observe Vincenzo to be upset that morning and Vincenzo denied having a hard time explaining that he was late, because he had been sitting in his father’s car eating a banana.
162Ms. Nunes was shocked when she first heard about the abuse allegations. According to her observations, Vincenzo is a very open and vocal child and she felt that he would have said something to her or someone else at the daycare.
163The CAS re-opened the file and this time interviewed Vincenzo at the daycare. The allegations of abuse were again not verified.
164Mr. Browne vehemently denied that he had physically disciplined Vincenzo or abused Vincenzo in any way; he stressed that Maria was responsible for the discipline of Vincenzo. He found the allegations “gross and disgusting” and felt that they must be about some other person.
165Maria provided detailed evidence with respect to Mr. Browne’s whereabouts during the period after the first abuse allegation was made. Other than a short trip to Toronto in December 2015 when he stayed in a hotel downtown and possibly a brief trip to pack up his apartment, Mr. Browne was not in Canada. Mr. Browne was in Barbados over New Year’s Eve. I find that he did not see Vincenzo in person during the period in which the second, more specific instance of abuse is alleged to have occurred.
166On January 22, 2016, Ms. Nunes read the children the story about the “Boy who Cried Wolf”. Later that day, Vincenzo was playing independently on the carpet and Ms. Nunes was sitting at a table when Vincenzo said to her “Poppa does not tell the truth. He said Daddy Russell hits me and that is not the truth…” Ms. Nunes did not say anything further to him, and he went out to play. Ms. Nunes contacted the CAS to report what Vincenzo said.
167The concern with respect to coaching was not verified by the CAS. However, Ms. Armstrong was so concerned about the possibility that Vincenzo had been influenced or coached by John, that she added a recommendation to her report that if similar, unverified allegations continued, John’s time with Vincenzo might need to be supervised.
168As of the time of the trial Vincenzo has made no further allegations of inappropriate discipline or abuse by Mr. Browne.
169The timing of these allegations of physical abuse coming just prior to the conclusion of the OCL report, the fact that Vincenzo only made alleged disclosures to John and his family, the fact that Russell Browne did not see Vincenzo for several months when the abuse was alleged to have occurred, Vincenzo’s presentation to Maria, Ms. Armstrong, Ms. Nunes and Ms. Croccito along with my assessment of the credibility of all of the witnesses who gave evidence with respect to this issue lead me to the conclusion that not only is it highly unlikely that Vincenzo was abused but that there is a real possibility that John and/or one or more of his family members encouraged Vincenzo to make false disclosures.
170Maria and John each presented as warm and caring parents who are committed to Vincenzo. However Maria and John are challenged as co-parents. The conflict in their relationship and the involvement of extended family on John’s side in particular have perpetuated the conflict that existed prior to the trial before Kaufman J. This conflict has manifested in a variety of areas and culminated in serious allegations that Maria’s husband had abused Vincenzo. This is the background context in which I move to an examination of the proposed parenting plans of each of the parties.
3. Proposed Plan of Care of Each Parent
171Maria initiated this Application even though she currently has sole custody and primary residence of Vincenzo, as the move will inevitably affect other aspects of the parenting schedule most significantly John’s parenting time.
172Pursuant to Gordon once Maria opened the door by seeking to move with Vincenzo to New York and a material change in circumstances was established, John was entitled to seek a fresh parenting regime. See also M. (E.S.) v. B. (J.B.), 2012 NSCA 80, 319 N.S.R. (2d) 232.
173Maria bears the evidentiary burden of demonstrating that the move to New York is in Vincenzo’s best interests and John bears the evidentiary burden that it is in Vincenzo’s best interests to remain living in the GTA and that there should be a change in custody and an increase in his parenting time: L. (T.) v. C. (A.), 2013 NBCA 24, 402 N.B.R. (2d) 373, at para. 8.
(a) Maria’s Proposal for the Move
174Maria submitted a very detailed proposal for various aspects of parenting following her move to New York. Maria’s proposal for the most part mirrors the recommendations of the OCL.
175Maria, Mr. Browne and Vincenzo would live in the apartment in the DUMBO area of Brooklyn. The DUMBO area was originally more of an industrial area that has since been gentrified. The apartment is near a large, multi-faceted park located on the river with lots of cultural and play activities. DUMBO is also easily accessible to and from Manhattan.
176The apartment has three bedrooms and two bathrooms. Maria has already set up Vincenzo’s room.
177Maria and Mr. Browne are both Canadian and their extended family is mostly located in Canada. They plan to keep their home in Toronto, as ultimately they would like to retire there. Maria and Mr. Browne expect to return home to Canada regularly to see family.
178Maria’s mother and stepfather, Vincenzo’s maternal grandparents, intend to travel to New York to visit with Maria, Vincenzo and Mr. Browne.
(i) Employment
179Maria’s request to move to New York with Vincenzo was prompted by Russell Browne’s new job. John suggested that there was no reason why Mr. Browne could not have looked for another job in the GTA and that he is sacrificing his family in favour of prestige and his career.
180Mr. Browne explained that the job he held in Canada no longer exists as Scotiabank transferred the majority of its precious metals division to the New York office. While it is possible he could be offered a position in another area of the bank or that he could find employment at another financial institution, it was also possible he could be out of a job. Given the specialized nature of the field in which Mr. Browne works, his length of service with Scotiabank and the opportunity for advancement offered by this position, I am satisfied that this job opportunity was not one that was available to him in Canada. Mr. Browne’s motivation for taking the job was clearly the opportunity for career advancement as well as the associated increase in remuneration that would benefit him and his family.
181Mr. Browne expected that his income including bonus would increase significantly from year to year. His base salary had increased to $230,000 USD and a substantial part of his remuneration was his additional bonus. When he gave his evidence, his year to date income was $400,000 USD, and he expected to earn $680,000 USD in 2016.
182Although Mr. Browne is required to renew his U.S. visa from time to time, the job that Mr. Browne holds is a permanent position.
183Maria also expects to pursue her career in New York and to earn a higher salary. Mr. Browne’s employer arranged for work visas for Mr. Browne and for her. Maria was earning approximately $80,000 CAD per year at Scotiabank in Toronto. She was offered a job with First Derivatives in New York in April 2016 with a salary of $90,000 USD plus bonus but was required to turn it down, as this case had not been decided.
(ii) Medical
184John is very worried about the impact of the move and the associated travel on Vincenzo given his heart defect among other things.
185John and Maria do not agree as to whether Vincenzo currently experiences symptoms of the ASD, which include increased fatigue and upper respiratory tract infections.
186John described Vincenzo getting unduly tired for example when visiting a theme park with and in contrast to Ms. Viti’s stepbrother, “Little-Gabe”, who is 12. He also described instances where Vincenzo seems out of breath and has blue lips. With respect to the latter, he acknowledged that sometimes the blue lips occur when Vincenzo has been swimming.
187Vincenzo has spent a lot of time with his grandmother, Josie Cerasa, and with John’s fiancée, Ms. Viti; neither of these witnesses emphasized in their evidence that Vincenzo became unduly fatigued while in their care.
188Maria does not observe these symptoms. She acknowledges that Vincenzo did suffer from repeated upper respiratory tract infections when he was younger until he had tubes put in his ears. This procedure seemed to alleviate these concerns. Maria described Vincenzo as reasonably high energy, and he does not require regular naps.
189Ms. Nunes from the Tiny Steps daycare would have seen Vincenzo on weekdays for over a year. She did not observe Vincenzo displaying unusual fatigue. To the contrary, she described Vincenzo as the “energizer bunny” who napped only occasionally.
190In her report, Dr. Ashworth commented that Vincenzo’s ASD was not an issue. John and Maria both reviewed the report and while John requested certain corrections, he did not identify that comment as an error.
191John attended all of the appointments with Vincenzo’s cardiologists, Dr. Musewe and Dr. Lee, and presumably would have brought this issue to their attention particularly after Maria commenced this Application. Dr. Lee stated in his report: “there are no restrictions on physical activities”. According to Maria, the cardiac specialists told them to treat Vincenzo as a “normal little boy”.
192Ms. Armstrong sought input from Dr. Musewe about Vincenzo’s heart condition and the impact on Vincenzo of a move to New York. Dr. Musewe stated that there was no risk associated with air travel. Dr. Musewe also advised that it would make no difference for the ASD surgery to be performed by a doctor in Ontario or a doctor in New York. Following the surgery, Vincenzo should not travel for between one to four weeks.
193When John and Maria saw Dr. Lee on April 13, 2016, he recommended that they wait until Vincenzo was a little older and had more “somatic growth” so that they could attempt the less invasive, device closure procedure. Dr. Lee was aware that Maria might be moving to New York shortly and he offered to perform a surgery as a guaranteed option to close the hole but both parents declined. John suggested that Maria’s focus in this meeting was on her move to New York and that she wanted the early surgical intervention for selfish reasons. Dr. Lee’s report and Maria’s own evidence, which I accept, contradict this.
194Neither party called Vincenzo’s doctors to give further evidence.
195John appears to be almost obsessed with worry about Vincenzo’s health. While some of this could be viewed as tactical to support his opposition to a move to New York, I see it as a genuine fear for his child albeit one that he has blown out of proportion. John has difficulty accepting the advice of the experts involved with Vincenzo when that advice does not support his own narrative. This was something noted by Kaufman J. as well; for example, John continued to assert that Vincenzo had contracted Hepatitis B from Maria even when this was contradicted by the medical evidence.
196Maria and Mr. Browne both confirmed that medical insurance was an important issue, and they wanted to ensure that the medical coverage in New York mirrored that in Canada. Mr. Browne’s employer has arranged for appropriate medical insurance coverage for Vincenzo and for Maria while residing in the U.S. The medical insurance coverage does not contain exceptions or limitations related to Vincenzo’s pre-existing ASD.
197The ASD is clearly a serious health issue for Vincenzo; however, it is one that can be corrected hopefully with the less invasive procedure. This medical intervention can take place in New York. At present, Vincenzo does not appear to be negatively impacted by the ASD, and the evidence did not support John’s contention that the travel associated with Maria’s proposal would be contraindicated.
198The evidence did not suggest that Maria was minimizing or downplaying Vincenzo’s medical issues in favour of her move. Rather Maria has responded appropriately to Vincenzo’s medical needs, and I am confident that she will continue to do so.
(iii) Education
199Vincenzo attended Tiny Steps Daycare in Vaughan and then attended Kindergarten at James S. Bell Public School near Maria’s home in Toronto. He is now preparing to enter Grade 1, and Maria proposes that Vincenzo would attend the school closest to her home in Brooklyn being the school PS307.
200When Ms. Armstrong was conducting her investigation it was anticipated that Vincenzo was going to attend PS806. After the report was completed there was a zoning change and the school that Vincenzo would attend changed to the school currently proposed by Maria: PS307. This school services both the gentrified DUMBO area and the low-income, community Ferregut Housing complex nearby. Maria acknowledged that she had concerns about the zoning change. She toured the school with Mr. Browne and found out that it had been designated as a STEM school. STEM stands for Science, Technology, Engineering and Math; STEM schools offer various enhanced educational opportunities with an emphasis on science and technology. Maria feels that this type of school would be particularly good at meeting Vincenzo’s aptitudes and interests.
201Ms. Armstrong confirmed that the change in the proposed school had no impact on her recommendations as Vincenzo’s education was very important to Maria and she felt Maria would choose a school that would best suit Vincenzo.
202After the parties entered into Minutes of Settlement in April 2016 to permit Vincenzo to spend longer periods of time with Maria in New York, Maria enrolled Vincenzo in a pre-Kindergarten program at PS 307 where he attended for several weeks. During those few weeks Vincenzo engaged in coding on the iPad, took lessons in the Mandarin language and worked on construction projects.
203John travelled to Brooklyn in or around September 2016 to view the neighbourhood and the school and to take pictures. He voiced serious concerns about the school. John grew up in the country and he felt Vincenzo should be entitled to do the same. He stated that while Maria’s apartment might be in an acceptable neighbourhood, the area in which the school is located is unacceptable to him. Both parties provided Google Street View pictures of the school that highlighted in Maria’s case the positives and in John’s case the negatives of the physical environment of PS 307.
204PS 307 is an urban school, and the students come from varying socioeconomic backgrounds. The exposure to different people from different walks of life can be a positive experience for a child. Maria’s choice of school focussed on the educational benefits for Vincenzo in particular. Maria stated that if she ultimately deemed PS 307 unsuitable for Vincenzo, she had investigated a Christian private school that she and Mr. Browne were prepared to pay for as a back-up plan.
205Maria was clear that education is very important to her. I am confident that Maria will select a school environment that meets Vincenzo’s educational as well as social needs.
(iv) Access Proposal
206Maria’s proposal can be summarized as follows:
(a) John will have access to Vincenzo on two weekends each month. On one weekend, she will fly Vincenzo back to Toronto at her expense and will accompany him on the flight until he is old enough to travel unaccompanied. John would be entitled to spend the other weekend with Vincenzo in New York at his expense.
(b) John shall have extended holiday time over the school Christmas break. The parties will alternate Spring Break and the Mid-Winter Break offered by the New York school system.
(c) Vincenzo’s summer vacation time with John will be increased from four weeks to five weeks.
207After the abuse allegations surfaced, Ms. Armstrong suggested that if there was future evidence that Vincenzo had been coached by John or his family, supervised access might be appropriate. Maria then changed her position and in her draft order she sought to have John’s access supervised until there was input from therapists and a parenting coordinator. Despite Maria’s position set out in her draft order, she did not actively pursue this relief at trial and her focus was on the proposal set out above wherein John would have regular, unsupervised access.
208Maria also proposed various flexible options to increase the time that John could spend with Vincenzo. She offered to return to Ontario with Vincenzo on various unspecified dates and also to afford John additional opportunities to visit with Vincenzo in New York.
209John raised a number concerns about Maria’s access proposal in addition to the impact on Vincenzo’s health.
210Maria provided detailed evidence of how she would get Vincenzo to Newark airport for the flight to the Toronto Island airport. She prefers to use Porter Airline as Billy Bishop airport in Toronto and Newark Airport in New Jersey are both less busy than the alternatives. With Porter she would purchase a full fare ticket that would give her the options of leaving earlier if she and Vincenzo were already at the airport.
211John raised a concern that on those weekends when Maria would be flying Vincenzo back to Toronto, his parenting time would be significantly reduced as compared to the existing schedule. He would be picking up Vincenzo from a downtown airport at 5:30 pm and driving north to Springwater at the height of rush hour traffic as opposed to picking Vincenzo up earlier from school as he does now. He would no longer have Vincenzo in his care on Sunday nights and he would need to leave Springwater early to get Vincenzo to the airport for a 5:30 pm flight on Sunday.
212The proposed schedule including the necessary travel logistics on the regular weekends in Ontario would reduce John’s regular parenting time when compared to the current schedule. However on the other regular weekends in New York, John’s parenting time with Vincenzo under Maria’s proposal is largely preserved.
213Under Maria’s proposal, John would also enjoy extended holiday time with Vincenzo including an additional week of the mid-Winter break and an additional week of summer access for a total of five weeks during the summer. John and Ms. Viti both observed that Vincenzo seemed to settle down and do better when he was in John’s care for longer stretches of time.
214Another concern raised by John was that if Maria was permitted to move to New York with Vincenzo, he and his family would not be able to spend as much time with Vincenzo. His mother, Josie Cerasa, cannot fly due to vertigo although I note the John prefers to drive to New York and presumably his mother could accompany him. John also raised the fact that Vincenzo would not be able to take advantage of various special occasions involving paternal family. The move to New York would impact on the amount of time that Vincenzo could spend with John’s extended family, and this is a factor to weigh along with the others.
215John’s position was that the demands of his business would not permit him to travel to New York for the regular weekends proposed by Maria and that even if he could get away, he could not afford the travel. Based on all of the evidence, I find both of these assertions difficult to accept.
216John has worked for the family business from a young age. The Cerasa Group Ltd. developed subdivisions buying raw land and building homes. John estimated that the Cerasa Group had developed at least five subdivisions. John incorporated The Cerasa Group Ltd. and he is the owner of that company; it was not clear what relationship that business has to the original family business. John stated that the company has properties in Canada including buildings in Windsor where they act as landlords as well as various projects in Toronto.
217According to John, when he and Maria were a couple, he was a workaholic, the business was great, and the finances were very comfortable. At that time, the Cerasa Group owed him $400,000, and he and Maria had just purchased a home together. John’s declared income for income tax in those “successful years” was not dissimilar to his current stated income:
2008 - $13,739
2009 - $37,063
2010 - $38,400
218When Vincenzo was born in 2011, John said that he found it difficult to “walk away from the business”, as “they owned property, they had houses under construction and houses in inventory”. However, in the trial before Kaufman J, John was seeking primary residence of Vincenzo and his evidence in terms of his work commitments is summarized at para. 146 of Kaufman J.’s decision:
[John] owns and operates his own business which he can run from home and which grants him the freedom to work minimal hours a week, thereby freeing up plenty of time to enable him to care for his son, take him to his various doctor’s appointments, be there for him immediately at his times of need, accompany him on various excursions and play dates and be actively involved in school and extracurricular activities and events.
219John presented a much different picture of his work commitments in the trial before me. He specifically stated that he was not able to work from home. According to John, he was required to work on weekends and to set aside even Maria’s estimate of 5-6 weekends per year would be “very disruptive to his business.” John stated that he has to be available every day to check on jobs and on people and that to “have to be away for five days would be beyond [his] means at this point”. John did not explain why the nature of his business has changed so much nor why his business commitments are so different now than when he appeared in front of Kaufman J. in 2013.
220The second part of John’s objection to visiting Vincenzo in New York was that he simply could not afford it.
221John provided minimal disclosure to substantiate his income. John’s most recent sworn Financial Statement was dated May 27, 2015. He included an unsworn Financial Statement dated October 26, 2016 in the Trial Record. Despite repeated requests by Maria, John failed to produce even basic financial disclosure such as his Notice of Assessment for 2014 or his Income Tax Return and Notice of Assessment for 2015. He did not produce a Certificate of Financial Disclosure and significantly, declined to produce financial statements for his company. Despite being represented by counsel throughout, he professed not to know that his corporate financial statements were required.
222John continued to assert that his true income for the past few years has been on average $40,000 as reflected in his Line 150 on those of his personal income tax returns that were produced.
223John does not mention his ownership interest in The Cerasa Group Ltd. as an asset in his Financial Statements even though the majority of his declared income ($43,000 in 2013 and $34,000 in 2014) was from dividends rather than employment income.
224John lives in a large, new home that he built in an estate subdivision in Springwater. He estimated that this home was worth $700,000; he has a mortgage of $520,000.
225Ms. Viti also works for The Cerasa Group Ltd. doing administration work and according to her evidence, she earns “a little bit less than John”. Neither John nor Ms. Viti advised as to her total income or how much she is paid by The Cerasa Group Ltd.
226In John’s Financial Statement sworn May 27, 2015 (the most recent sworn statement made available at trial), John states that he earned $36,000 from employment (not dividends) plus $1,000 in car benefits for the year. In this same Financial Statement, John’s budget totalled $34,400 annually. However, absent from this budget were many significant expenses including income tax (listed as “unknown”), property tax, cell phone, vacations and legal fees. John had savings of almost $30,000 and no debts other than his mortgage. All of this suggests that his income was well in excess of $36,000.
227John’s unsworn Financial Statement dated October 26, 2016 paints a similar, incomplete and/or deceptive picture of John’s true financial means. John acknowledges that his income including expenses paid by his corporation totals $87,200. However he still shows income from employment rather than dividend income and as he failed to produce his 2015 Income Tax Return and Notice of Assessment, it is not possible to verify these figures. John’s budget increased to $35,773. However, he now indicates that he shares a number of expenses equally with Ms. Viti including his monthly mortgage payment of $2,500. He still lists no expenses for income taxes, vacation or for legal fees. Again, all of this suggests that John’s income is much higher than he is prepared to acknowledge.
228John’s approach to the financial issues in this trial raised further questions about his credibility. Based on a review of all of the evidence regarding John’s financial means, I find that he is well able to pay for the cost of travelling to New York to visit with Vincenzo if he chooses. Similarly, John’s evidence with respect to his business commitments squarely contradicts the evidence that he gave in the trial before Kaufman J. without any explanation as to what has changed; I do not accept that John cannot arrange his business affairs to take advantage of visits in New York with Vincenzo.
(b) John’s Proposal
229John sought primarily to have Maria’s application to move with Vincenzo dismissed. John’s position is that Maria should remain living in Toronto and spend time with Mr. Browne in New York when Vincenzo is not in her care.
230However, it was clear that John was not happy with the decision of Kaufman J., and he also took the opportunity to advance his owns claims for changes to that order.
231John suggested his regular Skype calls with Vincenzo be eliminated in favour of Wednesday overnight access. If Wednesday overnights were granted, John would seek to obtain alternate accommodation in Toronto and rent his house in Springwater.
232I have not considered John’s alternative proposal to have sole custody of Vincenzo if Maria was to move without the child, as Maria made it clear that she would not move without Vincenzo.
233No one proposed that John might move to New York to be closer to Vincenzo should the move be permitted.
234John did not propose any alternative terms that would apply should Maria’s move to New York be permitted.
4. Summary
235Maria’s proposed move to New York with Vincenzo to join her husband, Mr. Browne, constitutes a material change in circumstances that materially impacts Vincenzo and his parenting time with John among other things.
236The threshold issue having been met, I embark upon a fresh inquiry as to what is in Vincenzo’s best interests and in so doing, I have considered the findings of Kaufman J. as well as evidence of the new circumstances since the trial.
(a) Custodial Order
237Maria has had sole custody of Vincenzo and primary residence pursuant to the order of Kaufman J. since January 2014. John has alternate weekends that run from Friday to Monday morning as well as additional holiday access including four weeks during the summer.
238Vincenzo appears to have thrived in Maria’s care. Maria has been a warm and loving parent who creates a calm and organized environment for Vincenzo. Contrary to John’s assertions, I find that Maria has worked hard to ensure that John continues to have a meaningful and supported role in Vincenzo’s life.
239John is also a warm and loving parent. He cares deeply for Vincenzo’s needs as he perceives them. Vincenzo enjoys his time with John and with his many extended family members on the paternal side.
240Despite each parent’s positive qualities, they have not stopped litigating since Vincenzo was born, and they are frustrated in their ability to make even basic decisions for Vincenzo. The conflict between them remains unabated. All of the various professionals involved with this family noted with concern the negative impact that the conflict is having on Vincenzo. Both parties bear some responsibility for the conflict, however I found aspects of John’s attitude and approach to co-parenting particularly concerning.
241John was not happy when Kaufman J. granted sole custody to Maria. He sought to undermine the spirit of the order. Ms. Armstrong noted that John did not accept Maria’s decisions even when supported by third party professionals. The tooth incident is a prime example.
242Some of John’s challenges to Maria’s custodial authority appear to emanate from his hyper vigilance of Vincenzo’s health issues; this issue was present before Kaufman J. as well. John admitted “health concerns are always on [his] mind”. Although the paediatric cardiologist, Dr. Musewe, found that Vincenzo should be treated as a regular little boy, John continually saw signs that Vincenzo was impacted by the ASD while others did not. John’s intransigence with respect to medical issues – real or otherwise – has led to significant conflict between the parties.
243In his closing submissions, John stated:
If the mother’s behaviour was restricted to withdrawing extra time given for special events to punish the Respondent father or excluding him from attending the child’s events, it would be an annoyance but the Applicant mother has put the child’s health at risk to “prove” she is in charge.
This extreme statement was not borne out by the evidence in any way. There was no evidence that Maria had put Vincenzo’s health at risk to prove that she was in charge or otherwise. There was no evidence that Maria was anything but appropriate with respect to how she handled Vincenzo’s various medical issues, including ASD, having regard to medical advice. On whole, Maria appears to have a more balanced approach to medical decisions for Vincenzo.
244However, John’s comment made with the assistance of counsel in closing submissions highlights how entrenched John’s views still are. John’s stance makes it next to impossible that he and Maria would be able to make joint decisions for Vincenzo in a cooperative and timely manner.
245John took a tactical and at times deceitful approach to co-parenting that further eroded any chance of a working relationship with Maria. John ensured that he always had “witnesses” present including Josie Cerasa and Ms. Viti. He surreptitiously recorded his interactions with the daycare staff. John forced Maria to resort to the court on a number of occasions when she sought to travel with Vincenzo on her time rather than cooperating. John was dishonest about his own travel plans to Brooklyn in July of 2016 and this led to further distrust and conflict between the parties. John has not discontinued his civil claim against Maria for damages for sexual assault.
246John is fully supported in his position by Ms. Viti and his extended family. As Ms. Armstrong stated: John and his family take a very extreme view of Maria’s proposed move – they see it as vindictive and an attempt to punish them. I query whether some of these other family members may be independently trying to influence Vincenzo, the abuse allegations involving Russell Browne being an example.
247Despite all of the various challenges, Maria has for the most part, been able to recognize and actively support John’s important role as Vincenzo’s father. Mr. Browne will play a significant role in Vincenzo’s life and despite the serious allegations levelled against him by John, he still acknowledged the importance of Vincenzo’s relationship with his father and had empathy for John. I am confident that Maria will continue to foster Vincenzo’s role with his father and extended paternal family. Like Kaufman J., I would, however, have serious concerns about the ability and willingness of John to do the same should custody be reversed.
248In Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), at para. 11, the Court of Appeal stated in considering the appropriate custodial order:
…There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important.
The court in Kaplanis also found that it was useful to review how parties communicated under the context of an interim order to determine whether joint or sole custody was in a child’s best interests.
249In this case, I had the benefit of evidence with respect to the parties’ communication spanning several years prior to and after the final order of Kaufman J. Maria and John have significant differences, and they are unable to communicate effectively with each other. Even after Maria was granted sole custody, conflict erupted over uncertain terms in the final order such as the parties’ need to be flexible when special events arose. Vincenzo is still young and he has been negatively affected by the conflict.
250For all of the foregoing reasons and having regard to the factors set out in s. 24 of the CLRA, it is in Vincenzo’s best interests to remain in Maria’s sole custody and primary care.
(b) The Move
251There was no evidence that the reason for Maria desiring to move to New York was other than to join her husband, Mr. Browne, who had taken a unique and lucrative job opportunity there.
252Maria was clear that she would not move without Vincenzo. The issue then is should Maria be permitted to move to New York with Vincenzo – is this in Vincenzo’s best interests?
253In Woodhouse, at para. 91, the Court of Appeal held that: “the custodial parent’s decision to move should be given great respect because it is accepted that there is a real connection between the best interests of the children and the best interests of the custodial parent”.
254Maria understandably wants to live with her husband. Maria and Mr. Browne wish to have another child; Maria has twice been pregnant but suffered miscarriages. Furthermore, Maria wishes to pursue her career and to have some economic independence. It would be unlikely that she could do that if she was splitting her time between Toronto and New York.
255Vincenzo will benefit not only from the economic advantages of the move, but also by being raised in a family that values hard work and career advancement. This in much the same way as Vincenzo benefits from having John, a committed and successful business owner as a role model.
256Mr. Browne has been financially supporting Maria and Vincenzo since Maria lost her job in February 2015. Mr. Browne’s current income alone ensures that Vincenzo and Maria will be financially supported while living in New York and that they can afford to fly back for the regular access visits as proposed. When Maria is able to re-enter the work force in New York, this will supplement the family’s financial situation.
257As detailed earlier, Maria’s thoughtful and detailed plan ensures that Vincenzo’s best interests in terms of healthcare and education will be appropriately met in New York.
258The greater challenge in analyzing this case is the impact of the move on Vincenzo’s relationship with John as well as with paternal and maternal family living in Ontario.
259Vincenzo has a close, warm and loving relationship with John and also with Maria as well as with their respective partners. Vincenzo is lucky to have many extended family members on both sides of his family who also love him very much.
260A move to New York will likely reduce the amount of time that Vincenzo can spend with these extended family members. The move will also limit opportunities for John and for his family to participate in formal and informal events that occur for Vincenzo from time to time.
261The court is mandated to consider the maximum contact principle as set out in Young v. Young, 1993 CanLII 34 (SCC) and referred to in Gordon. However the maximum contact principle is still circumscribed by and must be consistent with the child’s best interests.
262As Justice McLachlin stated in Gordon at para. 25:
The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and [should] permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.
263In her parenting plan that she continued to hone during the trial, Maria worked to maintain as much as possible John’s current level of parenting time with Vincenzo and to ensure that there would be meaningful communication in between visits.
264Maria’s proposal for regular weekend access is a reduction to John’s current regular weekend time particularly if John does not take advantage of available time with Vincenzo in New York. However, the lost time is somewhat compensated for through additional holiday time in the summer as well as the mid-Winter and Spring breaks offered by the New York school system.
265Maria in her proposal also attempted to maintain flexibility by offering John informal additional time in New York and by offering to return to Ontario at unspecified additional times during Vincenzo’s first year away. While the motivation – to provide more time for John and Vincenzo – is commendable, based on past history, a clear and concise order, even one that results in somewhat less parenting time for John is required to reduce opportunities for further conflict.
266Under the regular schedule, John will be able to spend full weekends with Vincenzo in New York every 3rd weekend of the month should he so choose. I have already found that he has the means to afford such trips, and I would hope that he could manage his business commitments to spend this additional time with Vincenzo. John has indicated a preference to drive to New York rather than to fly and in that case, Vincenzo’s paternal grandmother could also accompany him.
267The parties can continue to use Skype to facilitate regular communication between John and Vincenzo. Vincenzo has an iPad and Facetime is also an option. Although there appeared to be some technological issues with Skype in the past, in my view those problems were overblown and reflected more a contest of wills between the parties. If technological problems occur, John can have regular telephone calls with Vincenzo.
268John should have additional holiday time with Vincenzo.
269The Christmas school break in the New York school system is only one week long. John should have five days of that break including the day of pick-up and the day of drop-off and in alternate years his time shall include the key holiday days from December 24 to 26.
270The New York school system offers two, week long breaks between January and the end of school in June the first being the mid-Winter break and the second being Spring break. John should have 2 out of the 3 of the mid-Winter breaks and the parties should alternate the Spring Break.
271In addition, John should have five out of the roughly eight weeks of school summer vacation. While Vincenzo is younger, the summer vacation should be broken up into periods of no longer than three weeks. When Vincenzo turns eight, the summer vacation period can be one five-week period.
272All of these longer stretches of time over the holidays will give Vincenzo a chance to settle down in his father’s care and also to enjoy regular get-togethers with paternal family.
273John stressed that the move will impact that term of Kaufman J.’s order that mandated flexibility to permit Vincenzo to attend special events. In my view that term of the order was somewhat abused by John and led to considerable conflict.
274In Gordon one of the other factors that the court is to consider is the disruption to the child consequent on removal not only from family but also from schools, and the community he or she has come to know. In Vincenzo’s case, he did not appear to have a close connection to any one community as both parents have moved a number of number times since his birth. Most recently Maria moved with Vincenzo from Vaughan to Toronto; John then moved from Bradford further north to Springwater. I did not receive a lot of evidence regarding Vincenzo’s peer group friends; his closest connections appeared to be to his maternal Uncle Luca who is the same age and Ms. Viti’s step-brother Little Gabe who is age 12.
275In many respects at age 5, this is the ideal time for a move to occur in terms of Vincenzo’s community and school. Vincenzo does not appear to be leaving behind a circle of close school friends, and he has not become involved in significant extra-curricular activities in his community.
276In the case of Bjornson v. Creighton, 2002 CanLII 45125 (ON CA), the Court of Appeal held that the negative relationship between the child’s parents was one of a number of factors that supported the move. While in Bjornson the issue was the father’s economic and emotional control over the mother, there are parallels to Vincenzo’s parents’ relationship.
277The level of conflict between John and Maria and its chronic nature was of grave concern to me as well as the other professionals involved with the family. John did not accept the order of Kaufman J., and he frequently worked to undermine Maria’s decision making for Vincenzo. John adopted a tactical and at times deceitful approach to co-parenting with Maria. Maria described how John’s approach to parenting made her anxious and she had reservations about being flexible with John for fear of being taken advantage of. John’s family all appear to have rallied around John who they still view as having been betrayed by Maria.
278Even though each parent may have tried to shield Vincenzo from conflict, it is inevitable that Vincenzo will pick up on what they as parents are feeling and experiencing. The evidence suggests that this is the case. It is strongly recommended that Maria and John both engage in therapy to assist them in understanding the dynamic in their relationship that is leading to conflict and for each of them to develop strategies to avoid conflict.
279It is imperative for Vincenzo that this conflict between his parents comes to an end. While Maria’s move to New York with Vincenzo will have an impact on John’s parenting time and the time that Vincenzo is able to spend with John’s extended family, the physical distance and associated modifications to the parenting schedule may be beneficial in terms of reducing Vincenzo’s exposure to conflict.
280For all of the foregoing reasons and having regard to the principles set out in Gordon, I find that it is in Vincenzo’s best interests for him to remain in Maria’s sole custody and in her primary care. Even when weighed against the continuance of the present level of contact with John, it is in Vincenzo’s best interests for Maria to be permitted to move to New York.
281Maria’s general proposed parenting plan is also in Vincenzo’s best interests. It provides regular and meaningful contact with John and with his family. The reduction in parenting time during the regular schedule is somewhat compensated for by John having additional, long stretches of time with Vincenzo during holidays.
5. Ancillary Parenting Orders
282Maria shall be entitled to move with Vincenzo after August 21, 2017. The regular parenting schedule will then commence with John’s weekend in Brooklyn on September 15, 2017. The summer arrangements that the parents have made pursuant to the order of Kaufman J. with respect to the summer vacation shall govern until Maria decides to move. I have deliberately provided a period of some weeks to allow Vincenzo to settle in to his home in Brooklyn and into his new school even though this means that there will be a period before he will have a visit with John in person. John shall be entitled to the regular Skype calls with Vincenzo.
283Maria suggested that John could drop Vincenzo off at school on Monday mornings on his New York visits. I have modified this for the first school year such that John will return Vincenzo to Maria’s care on Sunday night. John made it clear that he did not approve in any way of the school that Maria was proposing Vincenzo attend, and I am concerned that John’s views will be wittingly or unwittingly shared with Vincenzo to Vincenzo’s detriment. Furthermore, Vincenzo seemed to experience emotional challenges separating from his father when being dropped off at daycare and later at school. While Vincenzo is getting used to a new school environment, it is in his best interests for him to be dropped off by Maria even though this will reduce John’s weekend time in Brooklyn during this first year.
284As detailed above there have been problems leading to conflict associated with John’s travel with Vincenzo. For this reason, my order restricts John from travelling outside of New York State with Vincenzo without Maria’s consent and requires John to provide Maria with details as to where he and Vincenzo will be staying.
285It is expected that Vincenzo will have his ASD surgery sometime in the next year or so. That surgery will likely take place in New York. There may be a period of time prior to the surgery and there will definitely be a period of time after the surgery in which the regular access schedule will be suspended. It is particularly important that Vincenzo not be subjected to stress due to conflict between his parents surrounding the surgery. I am confident that Maria understands how important it is for John to be kept abreast of Vincenzo’s medical issues and for him to be able to provide Vincenzo with reasonable and appropriate comfort and support at the time of the surgery. Maria shall solely determine how and when John shall spend time with Vincenzo in the period prior to and after the surgery in consultation with Vincenzo’s doctors.
286Each party requested that a parenting coordinator be appointed. Given the immense difficulty that the parties have had reaching even simple decisions such as consent to travel, a parenting coordinator will be of some assistance. However the parenting coordinator is not a substitute for all decision making. Maria continues to have sole custody as I found that Maria’s approach to the majority of contentious issues was fair and focussed on Vincenzo’s well-being rather than designed to marginalize John’s role in Vincenzo’s life.
287The parties both agreed that Vincenzo requires regular therapy to assist him in resolving some of the self-regulation issues that have cropped up. Therapy will also be beneficial in assisting Vincenzo to process the move and a further change in the parenting plan. Maria shall select the therapist for Vincenzo.
6. Child Support
288Maria proposed that child support would be reduced for those months that John is travelling to New York to visit Vincenzo. She is also proposing to pay the full cost of her return air travel with Vincenzo. The latter proposal is appropriate; the former is not.
289Section 21 of the Child Support Guidelines, O. Reg. 391/97 [OCSG] sets out the positive obligation on a support payor to provide ongoing, timely details of income in support of the overall objectives of the OCSG. The mandatory income information includes financial statements for a corporation where the payor controls the corporation.
290It is up to the support payor “to demonstrate as accurately as possible just what his income is. He has an onus to make timely and complete financial disclosure so as to enable a proper determination of support issues to be made”: Cass v. Dyke, 2004 CanLII 5095 (ON SC), at para. 8.
291John provided little or no meaningful evidence in support of his income for child support particularly having regard to the fact that he is self-employed.
292Maria is agreeable to child support being paid as proposed by John based on an income of $40,000. Under s. 15(2) of the OCSG:
Where both parents or spouses agree in writing on the annual income of a parent or spouse, the court may consider that amount to be the parent’s or spouse’s income for the purposes of these guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21. [emphasis added]
293John’s income of $40,000 is not reasonable for the purposes of paying child support. According to his own unsworn Financial Statement, John’s employment income is $36,000 and in addition he has an annual benefits from employment totalling $51,200 putting his total income at $87,200. John’s income as reflected in this unsworn Financial Statement is significantly higher than the $40,000 that he stated his income was in his oral evidence. Even if I did not have the benefit of John’s unsworn Financial Statement, based on all of the evidence including John’s historical income from dividends, his budget, the value of his home and the size of his mortgage, an income of $87,200 is more reflective of John’s true income for child support and is a reasonable income for the purposes of child support.
294Maria did not seek to impute an income to John. While I am prepared to adopt an income for child support of $87,200, the evidence suggests that his income is likely even higher particularly if the appropriate gross-up was applied pursuant to ss. 18 and 19 of the OCSG. John declined to produce even the most basic financial disclosure that would have permitted to the court to properly and accurately determine his income. For these reasons, I am not prepared to reduce John’s child support obligation further to reflect his travel commitments.
295Maria has requested that there be a financial penalty imposed if John does not get Vincenzo to the airport in time for his flights. Again, given the history of issues such as the daycare, this is an appropriate request. If John is late delivering Vincenzo to the airport for any reason, he shall pay the cost of the trip back to Canada for Maria and Vincenzo on his next weekend with Vincenzo in Ontario.
7. Jurisdiction
296John had requested an order that the Superior Court of Justice in Newmarket, Ontario remain designated as the jurisdiction for all future disputes regarding Vincenzo.
297Section 19(1)(b) of the CLRA states that one of the purposes of Part III of the Act dealing with custody and access is:
to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
298The CLRA sets out a detailed framework for determining whether or not Ontario is the appropriate jurisdiction to deal with a custody and access matter. As Perkins J. summarized at para. 19 of Haggarty v. Haggarty, 1997 CanLII 12060 (ON SC), the public policy behind the legislation dealing with custody and jurisdiction is “that children's custodial arrangements should be dealt with in their "home" jurisdiction unless there is very good reason for the courts of another place to assert jurisdiction based on physical presence and balance of convenience”.
299While Brooklyn, New York will likely be considered the “home jurisdiction” for Vincenzo following the move, the jurisdictional issue should be dealt with at the time of any future application.
300The parties have had numerous court attendances involving a number of different judges. The procedural and substantive history of this case is complex and it is challenging to appreciate without the full narrative. Although this is a final order and the issue of jurisdiction is left to be decided at the material time, if either party brings a proceeding before this court within the next year, I shall be seized. This is supported by the court’s duty to manage cases pursuant to r. 2(5) of the Family Law Rules, O. Reg. 114/99. See also D.G. v. A.F., 2015 ONCA 290, 59 R.F.L. (7th) 301.
V. ORDER
This order replaces the order of Kaufman J. dated December 2, 2013 in its entirety.
The Applicant (Mother) shall have sole custody of the child, Vincenzo Cerasa (born December 11, 2011), and the child shall be primarily resident with the Applicant (Mother).
The Applicant (Mother) is at liberty to move to Brooklyn, New York at a date and time of her choosing after August 21, 2017 regardless of any summer or special activity plans that may have been made previously. She shall notify the Respondent (Father) in writing of her departure date at least 7 days prior. The summer access arrangements already agreed upon by the parties shall apply until the date chosen by the Applicant (Mother) to move.
The Applicant (Mother) shall advise the Respondent (Father) of the name and contact information for the child’s school and teacher as well as the child’s health care providers and extra-curricular activity providers. The Respondent (Father) shall be entitled to communicate directly with any of these people and institutions and it is expected that he shall do so. If necessary, the Applicant (Mother) shall provide written directions to these third parties to facilitate open communication with the Respondent (Father).
In addition to her obligation under paragraph 4, the Applicant (Mother) shall provide the Respondent (Father) with reasonable, informal updates regarding things such as the child’s health, education and extra-curricular activities. However, it is the primary obligation of the Respondent (Father) to communicate directly with these third parties to obtain information with respect to the child.
Upon the Applicant (Mother)’s move to New York, the Respondent (Father) shall have access to the child as follows:
Regular Access
a. The Respondent (Father) shall have access with the child in the Greater Toronto Area (“GTA”) on the first full weekend of each month (the first weekend being defined as the first weekend to include both Saturday and Sunday) from Friday at 5:30 p.m. to Sunday at 4:00 p.m. extended to commence Thursday at 5:30 pm or to end Monday at 4:00 pm if there is a school holiday in New York except that there shall not be an access visit on the Labour Day long weekend in 2017.
b. For the visits referred to in (a), the Applicant (Mother) or third party designated by her shall bring the child back to Toronto at her expense until such time as the child qualifies to travel alone through the airlines “assisted travel program” at which time the Applicant (Mother) may choose to send him unaccompanied. The Applicant (Mother) shall purchase flights that ensure that the child arrives at 5:30 pm on Friday or Thursday if a school holiday in New York subject to unavoidable delays (ie. weather or mechanical issues). She shall advise the Respondent (Father) 48 hours prior to travel as to which airport (Billy Bishop or Toronto Pearson International Airport) the child will be flying in and out of. The exchange shall take place at a location selected by the Applicant (Mother) inside the airport terminal. The Respondent (Father) shall drop off the child by no later than 4:00 p.m. on the Sunday or Monday if a school holiday in New York at the airport selected by the Applicant (Mother); again the drop-off shall take place at a location inside the airport terminal at a location selected by the Applicant (Mother).
c. If the Respondent (Father) fails to return the child on time to the airport terminal for any reason such that the originally scheduled flight is missed, the Respondent (Father) shall pay the full cost of the in-bound flights for both the Applicant (Mother) (or her designate), if applicable and the child for the next access visit taking place in the GTA. In this case, the Applicant (Mother) shall select the flights that she proposes for the next GTA access visit and the Respondent (Father) shall be responsible for booking her selected flights and paying for the tickets for her (or her designate), if applicable and the child. If the Respondent (Father) fails to book and pay for the tickets selected by the Applicant (Mother), the Applicant (Mother) is under no obligation to bring the child to the GTA for that next access visit, and it shall be deemed forfeited.
d. If the Applicant (Mother) opts to travel with the child other than by air, she shall advise the Respondent (Father) 48 hours in advance of the scheduled visit as to the location for pick-up and/or drop-off.
e. The Respondent (Father) may visit with the child in New York on the third weekend of each month. He shall pick up the child at a location selected by the Applicant (Mother) as soon as reasonably possible after school on Friday (or Thursday if a Friday is a school holiday) and drop the child off at a location selected by the Applicant (Mother) at 5:30 p.m. on Sunday (or, Monday if a school holiday in New York). Commencing with the third weekend in September, 2018, the Respondent (Father) may return the child to school on Monday mornings or Tuesday mornings if Monday is a holiday. The Respondent (Father) shall not remove the child from New York State during these visits without the written consent of the Applicant (Mother). The Respondent (Father) shall provide the Applicant (Mother) with documentary details (i.e., hotel confirmation) at least seven days prior as to where he will be staying with the child on these weekends.
f. The Respondent (Father) shall have access by videoconference (i.e., Facetime or Skype) on Tuesday, Thursday and Sunday evenings. The Applicant (Mother) shall select a 30-minute window on each of these days (preferably but not necessarily the same window each day) during which the Respondent (Father) shall initiate the call. The call shall be of a reasonable length having regard the child’s attention span, other activities and bed-time. If there are technological problems for any reason, the Respondent (Father) shall initiate a telephone call to the phone number provided by the Applicant (Mother).
g. The Applicant (Mother) shall have access by videoconference when the child is in the care of the Respondent (Father) and the same terms in paragraph (f) above shall apply except that Respondent (Father) shall be substituted for Applicant (Mother) and visa versa.
Holiday Schedule
h. The holiday schedule overrides the existing regular schedule and the regular weekend access schedule is suspended except that the regular communication schedule in paragraphs (f) and (g) shall continue to apply.
Christmas Holidays
i. The school Christmas Holiday period is defined as the end of the school day on the last day of school through to and including the day before the child is scheduled to return to school.
ii. Each year the child shall spend one period of five consecutive days (including the day of pick-up and the day of drop-off) during the Christmas Holiday period with the Respondent (Father). The five-day period shall start on the first day at 5:30 p.m. and end on the fifth day at 4:00 p.m. In odd numbered years, the Respondent (Father)’s five-day period shall include, if he chooses, all or part of December 24 – 26.
iii. In odd numbered years, the Respondent (Father) shall select the five-day period that he wishes to have by no later than November 1 of that year. If the Respondent (Father) fails to communicate his dates by November 1, the Applicant (Mother) shall select the dates for the Respondent (Father).
iv. In even numbered years, the Applicant (Mother) shall select the dates for her Christmas holiday period with the child but she must leave the five-day period for the Respondent (Father); she shall communicate her choice of dates to the Respondent (Father) by November 1 that year.
Mid-Winter & Spring Break
v. Commencing in 2018, the Respondent (Father) shall have the full school Mid-Winter break with the child for two consecutive years; every third year, commencing in 2020, the Applicant (Mother) shall have the child for the full school Mid-Winter break.
vi. The parties shall alternate the Spring Break period. The Respondent (Father) shall have the full Spring Break period commencing 2019 and in alternate years thereafter. The Applicant (Mother) shall have the full Spring Break period in 2018 and in alternate years thereafter.
vii. The school Mid-Winter Break and Spring Break periods are deemed to commence on the last day of school through to the Sunday before school is to re-commence.
Summer Holidays
viii. The school summer holiday period shall be defined as commencing on the Friday of the last week of school even if school ends earlier in the week and ending on Sunday of the Labour Day long weekend.
ix. Commencing in 2018, the Respondent (Father) shall have five weeks of holiday time with the child. Until the child turns eight, the Respondent (Father) shall have two or three consecutive weeks in the month of July and two or three consecutive weeks in the month of August for a total of five weeks of the summer vacation. Until the child turns eight years old, there shall be a gap of at least seven days between the two holiday periods. When the child is 8 years old, the Respondent (Father) can opt to have a single period of five weeks with the child in lieu of the two periods.
x. Each year by March 1 the Respondent (Father) shall notify the Applicant (Mother) of his preferred choice of summer holiday periods with the child. If he fails to notify the Applicant (Mother) by March 1, the Applicant (Mother) shall select his holiday dates.
xi. In the event of a conflict between the Respondent (Father)’s summer holiday dates and the Applicant (Mother)’s summer holiday dates in even numbered years, the Respondent (Father)’s choice shall dictate (provided that the Respondent (Father) notified the Applicant (Mother) of his dates by March 1), and in odd numbered years the Applicant (Mother)’s choice of dates shall dictate. However, both parties’ choice of dates must ensure that the Respondent (Father) has a 2-3 week period in each of July and August with a gap of at least seven days for a total of five weeks or a single five-week period after Vincenzo’s 8th birthday.
General Provisions re Holidays
xii. All holiday periods shall commence at 5:30 p.m. and end at 4:00 p.m. unless the parties agree otherwise in writing.
xiii. The Applicant (Mother) or her designate shall be responsible for transporting the child to and from the GTA for these holiday access periods with the Respondent (Father). The same terms as set out in paragraphs 6(b), (c) and (d) shall apply.
i. If the Respondent (Father) is unable to exercise all or part of his holiday access time, there shall be no make-up time unless otherwise agreed in writing.
- The Respondent (Father)’s access (regular and/or holiday access) shall be suspended for a reasonable period of time, before and after the child’s ASD surgery or procedure, if necessary as determined solely by the Applicant (Mother) in consultation with the child’s doctor. The Respondent (Father) may spend a reasonable period of time with the child in New York at the time of his ASD surgery; the terms of visitation during this time to be solely determined by the Applicant (Mother) in consultation with the child’s doctor.
Other Parenting Provisions
The parties shall communicate only through Our Family Wizard except in the case of emergency involving the child and except as necessary to facilitate regular Skype or phone conversation between the child and the other parent. Each party shall be responsible for their own annual fee.
The Respondent (Father) shall not attend at the child’s school or activities except to pick-up or drop-off the child per the existing access schedule or by prior agreement in writing with the Applicant (Mother).
The Respondent (Father), his partner and his extended family may attend at special events for the child organized by third parties such as school concerts, graduation ceremonies and important sporting events subject to the availability of tickets. If there is a limited number of seats allocated for family these shall be evenly divided between the Respondent (Father) and the Applicant (Mother).
The Applicant (Mother) shall designate the Respondent (Father) as the child’s secondary contact with the school. The Respondent (Father) shall be entitled to obtain copies of school notices for parent-teacher meetings and other events and report cards directly from the school. If for any reason, the school will not provide same directly to the Respondent (Father), the Applicant (Mother) shall provide them via Our Family Wizard.
The Applicant (Mother) may travel with the child without the consent of the Respondent (Father). The Respondent (Father) shall require the consent of the Applicant (Mother) to travel with the child. Consent is not to be unreasonably withheld. Both parties are required to provide the other with detailed itineraries and contact information prior to travel outside of New York or Ontario.
The Respondent (Father)’s consent to the renewal of the child’s passport or Nexus/Global Entry/Fast Track application is hereby dispensed with. If despite this order the consent of the Respondent (Father) is required by the issuing authority, he shall provide it forthwith upon being requested by the Applicant (Mother).
The Applicant (Mother) shall provide the Respondent (Father) with a copy of the child’s health benefits card.
The Applicant (Mother) shall forthwith arrange for a therapist for the child and ensure that the child engages in reasonable, regular counselling having regard to the recommendations of the therapist.
Neither party shall speak ill of the other within earshot of the child or permit others to do so.
Neither party shall speak ill of the other’s partner or extended family or the living arrangements of the other within earshot of the child or permit others to do so.
Neither party shall discuss any aspect of this court proceeding with or within earshot of the child nor permit others to do so.
Neither party is to attempt to influence or persuade the child to make decisions about the parenting schedule or to permit others to do so.
Child Support
The Respondent (Father)’s stated income is $87,200 for the purposes of child support.
Commencing January 1, 2017 the Respondent (Father) shall pay child support for the child in the amount of $779 per month being the Table amount of child support pursuant to the Ontario Child Support Guidelines based on an income of $87,200, with credit to be given for child support payments already made.
The calculation of the income of the Respondent (Father) and the quantum of child support shall be reviewed if requested by the Applicant (Mother) on or after the anniversary date of this order.
Parenting Coordinator
A parenting coordinator with arbitration certification shall be immediately engaged. The Applicant (Mother) shall select a parenting coordinator who may be located in either New York or in Ontario at her choice. The Respondent Father’s consent shall not be unreasonably withheld in respect of the Applicant (Mother)’s selection. Failing the Applicant (Mother) selecting a parenting coordinator within 60 days of this Order, the Court shall receive written submissions by way of a 14B motion from each party not to exceed three pages, listing the names of potential parenting coordinators and the reasons for their proposed appointment, with their statement of qualifications attached to the submission and the Court shall select the parenting coordinator.
Parenting time shall only be altered on prior written consent of the parties or by further court order. The parenting coordinator shall have no authority to make modifications to the parenting time schedule.
The parties shall share the cost of the Parenting Coordinator equally.
The requirement for a Parenting Coordinator and/or the choice of the Parenting Coordinator may be reviewed after 18 months at the request of either party.
Fryer J. shall be seized of this case for the period of one year.
Costs
- The Applicant (Mother) shall deliver her submissions with respect to costs not to exceed 10 pages excluding any offer to settle and bill of costs, on or before September 8, 2017. The Respondent (Father) shall deliver his submissions with respect to costs not to exceed 10 pages excluding any offer to settle and bill of costs on or before September 29, 2017. The Applicant (Mother) may deliver brief reply submissions not to exceed three pages on or before October 13, 2017.
JUSTICE L.E. FRYER
Released: August 1, 2017
Footnotes
- In this decision, the GTA refers to Toronto and the surrounding municipalities, including John’s residence in Springwater even though Springwater may not technically fall within the official definition.
- The parties had both initially anticipated that Carol-Jane Parker would be providing expert evidence on the issues of attachment among other things. However, Carol-Jane Parker did not produce a report until the day that she attended as a witness. As a result, I made certain rulings that limited the scope of Ms. Parker’s expert evidence; I did not permit expert evidence regarding attachment issues.
- John was not infected with Hepatitis B. Maria was “considered to be an inactive carrier, with a low viral count such that her ability to transmit the virus is very low... She states that she had knowledge that both [John] and his family had all been immunized. She had also ascertained that the vaccine is very effective and provides protection so she was confident that neither [John] nor her unborn child would be in peril.”: Kaufman J. decision at paras. 26-27.
