Court File and Parties

Citation: Sacco v. Sacco, 2017 ONSC 5980 Newmarket Court File No.: FC-17-054524-00 Date: 2017-10-06

Superior Court of Justice - Ontario

Re: Jonelle Sacco, Applicant And: Tommaso Sacco, Respondent

Before: The Honourable Justice G. M. Mulligan

Counsel: Samantha Dineno, Counsel, for the Applicant Annamaria Perruccio and Christine Lu, Counsel, for the Respondent

Heard: October 4, 2017

Endorsement

[1] This is the return of a motion which came before Bennett J. on September 22, 2017.

[2] The matter was adjourned to October 4, 2017 to enable the Respondent to prepare responding material.

Family Facts

[3] The Applicant, Jonelle Sacco, (Jonelle) and the Respondent, Tommaso Sacco, (Tom) have two children, Arianna Sacco, date of birth August 12, 2016, and Chiara Sacco, date of birth August 18, 2017. They were married on the 5 day of March, 2016. They separated on September 11, 2017. That separation occurred immediately after Tom was arrested for assault, uttering threats and mischief arising from allegations of domestic violence involving Jonelle.

[4] Those charges are before the Court and have not been resolved. He was released on an Undertaking not to contact Jonelle. He has not seen the children since then.

Litigation History

[5] Jonelle brought an urgent motion seeking an order for sole custody before Bennett J. Tom was served and, upon the return of that motion, Bennett J. adjourned it to give Tom a chance to file further materials.

[6] Justice Bennett declined Tom’s request for access supervised by Tom’s brother. As Justice Bennett noted in his endorsement, “Based on the material before the Court, the Court has major concerns about what is being proposed by the Respondent Father.” He then ordered that the children remain with Jonelle as the primary caregiver and further ordered that, “The Respondent Father shall not be entitled to any access to the said children pending return of this matter.”

[7] There has not been a case conference with respect to this file. A case conference has been scheduled for November 17, 2017

[8] In addition to her own affidavits, Jonelle filed an affidavit from her mother. With his responding materials, Tom filed affidavits in support from his sister-in-law, his brother, his mother, his father, his sister and a friend.

[9] Jonelle’s affidavit traces a history of abuse by Tom during their brief relationship. The police have been involved with this family on several occasions as well as The Children’s Aid Society. A police report attached to Jonelle’s affidavit indicates that the police attended the residence on March 19, 2017. Jonelle has reported to the police about name-calling and his moods. At this time Jonelle was five months’ pregnant, expecting their second child.

[10] Police attended the home again on March 23, 2017. The officers noted that both parties were upset. There were no allegations of physical confrontation. The matter was resolved because Tom left the house for the night.

[11] The parties then engaged with York Region Children’s Aid Society and a service plan was prepared meant to cover the period 08 May 17 to 08 November 17. The plan was provided to each parent but noted, “However, he (Tom) was not present at the meeting despite being aware that it was occurring”.

[12] The CAS commented in its plan,

Ms. Sacco is also to contact the police if she feels her safety is at immediate risk and she is not able to leave the home. It was also discussed that she should keep a bag ready, in the event that she needs to leave in a hurry and to allow her to stay away from the home for a prolonged period of time.

CAS

[13] Jonelle has sought a copy of the CAS records and signed a consent and a release. To date, Tom has not signed such a release. A letter from the Society dated September 21, 2017 sets out the Society’s current position: “The Society is aware that Ms. Sacco is involved in a Family Court proceeding. At this time, the Society does not see a need to be involved in the Family proceeding” (emphasis added).

[14] In Tom’s affidavit, he denies any physical assaults took place and he denies that he has uncontrollable rage suggesting that Jonelle is bringing proceedings for strategic advantage and denying on a point-by-point basis each of the allegations in Jonelle’s affidavits.

Temporary Access

[15] Jonelle submits that access on a temporary basis at a supervised access centre is both necessary and appropriate in this case. She has concerns about the facilitators proposed by Tom which, according to their affidavits, have taken sides with him.

[16] I am satisfied that access as a supervised access centre for one hour per week with respect to the oldest child of the marriage, Arianna Emily Sacco, August 12, 2016 is appropriate as a first step in re-establishing access between this child and her father. I see no benefit in ordering supervised access for the infant child now one-and-a-half months of age in this environment. However, in the fullness of time, I would expect that access would occur and be expanded beyond the supervised access centre which, at the best of times, is meant to be a short-term remedy. This will give an opportunity to determine both parents’ level of co-operation in making this happen and also the potential for trained observers to provide notes to assist the Court on an ongoing basis.

[17] No doubt this issue can be canvassed at a Case Conference with a view to expanding the access if appropriate.

[18] Although I do not order it, I would encourage Jonelle and Tom to set up Facebook access between the two children and him. This could best be arranged by Jonelle having someone else assist her with this so that she is not present when this face-time takes place.

[19] The Respondent’s motion for access with the assistance of family members or friends is dismissed.

[20] If the Applicant seeks the production of the CAS file, a motion should be brought on notice to the CAS. Otherwise there shall be no other motions brought before the case conference.

Costs

[21] The Applicant has achieved a measure of success on this motion. If costs are sought and no agreement is arrived at, I will receive brief written submissions not exceeding five pages from the Applicant within 20 days. The Respondent will then have a further 10 days to respond. Costs submissions to be sent in care of my judicial assistant at Barrie.

MULLIGAN, J.

Date: October 6, 2017