Santos v. Pantelidis, 2017 ONSC 674

Santos v. Pantelidis, 2017 ONSC 674

CITATION: Santos v. Pantelidis, 2017 ONSC 674

COURT FILE NO.: FS-15-401573

DATE: 20170203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Debbie Santos Applicant

– and –

Jean-Philippe Pantelidis Respondent

Self-Represented

David Anthony, for the Respondent

HEARD: January 3,4,5,6,9,10,11,12, and 19, 2017

mcwatt, J.:

INTRODUCTION

1This is a custody case. Both parties want sole custody of Nicholas Jean Pantelidis (“Nicholas”), born July 1, 2013. The mother wishes the child to have his primary residence with her and to have sole decision making power on the issues of health, education, religion and extracurricular activities. The mother offers access to the father every other weekend and 1 day each week until Nicholas starts school in September, 2017. The access would then be limited to every other weekend.

2The father wants the child to live primarily with him and offers regular access to Ms. Santos. He wishes to have the right to make all important decisions regarding Nicholas, including, but not limited to education and health.

THE FACTS

The Relationship and Marriage

3Ms. Santos is 44 years old. Mr. Pantelidis is 41 years old. Both have previously been married. The parties met through an online dating site in February 2012 and began a serious relationship immediately. They began to live together in May or June, 2012 with the applicant’s first son, Luka Kucan, (“Luka”), born April 18, 2006. The applicant has sole custody of Luka from her previous marriage to Mr. Josip Kucan (“Joey”).

4Ms. Santos became pregnant in September, 2012 with Nicholas. The parties married on October 20, 2013, about 4 months after their son’s birth. They were separated just under 15 months later on January 9, 2015.

5When the couple met, the applicant was working as a receptionist in a law firm for the previous 9 years. She left the job in February, 2012. The respondent then began to assist Ms. Santos financially. Ms. Santos found two other jobs at which she worked for short periods of time, but as of April, 2013, she has not been employed. She owns a condominium (“the condo”) apartment at 2260 Tucana Court in Mississauga, Ontario. Mr. Pantelidis covered the applicant’s monthly expenses related to her condo from 2012 until it was rented when Nicholas was born.

6Mr. Pantelidis is a car salesman at a Toronto Porsche dealership. His income fluctuates from month to month as his job is completely commission based. The respondent owns a home (“the home”) at 827C Oxford Street, Etobicoke. He rented the home in early spring, 2012 until he and the applicant moved from the condo to the home at Nicholas’ birth in July, 2013.

7After the couple met and began living together, they did so in the condo. Mr. Pantelidis got along very well with Luka.

8The couple argued about money and, throughout the brief relationship and marriage, the applicant questioned the respondent’s fidelity. Mr. Pantelidis testified, and I believe, that, but for a parallel relationship which he ended once he became serious about Ms. Santos, he was committed to the marriage. I also accept that the applicant became more physically and emotionally aggressive toward Mr. Pantelidis as time passed. She jeopardized the respondent’s employment because of her jealousy. She contacting female clients of Porsche who she thought had an interest in Mr. Pantelidis. Once the two were married, the situation got worse. On several occasions during the marriage, the applicant would hide the respondent’s car keys and wallet and order him to leave his home. During some of these arguments, the applicant dangled the keys in her hand in front of Mr. Pantelidis and told him to “walk” from the home to his mother’s residence in Brampton. The respondent spent about a month living at his mother’s house or elsewhere during the marriage.

9On occasion, the applicant also threatened to have the respondent arrested for assaulting her and threatened him that he would never see his son again. In May of 2014, after becoming upset that the respondent was flirting with someone at a work event, the applicant again ordered the respondent to leave the home. She took his car keys and threatened that she would call the police and have him charged with assault. Fearful that the applicant would do as she threatened, Mr. Pantelidis sought legal advice about how to protect himself.

10The parties reconciled after this separation. On January 7, 2015, they attended marriage counselling. Mr. Pantelidis testified that he was open and honest during the session and felt positive about the relationship afterwards. The following day, however, the applicant was angry and apparently upset about something that Mr. Pantelidis had said during the therapy session. He slept on the couch that night. The turmoil continued. On January 9, Ms. Santos confronted the respondent, took his car keys and cell phone and ordered him to sleep at a hotel. The applicant claims that the respondent assaulted her and tried to choke her while Luka watched. She also testified that Nicholas knew about the assault. She claimed the respondent bit her hand and pushed her towards the stair bannister where she sustained several cuts and bruises. Mr. Pantelidis testified that he was trying to pack his belongings in order to leave the home and Ms. Santos kicked him in the groin. They scuffled over his cell phone as he tried to retrieve it from her. He did not deny biting her hand during the fight.

11The respondent said something about wanting to kill himself because of the situation and left. He had no car keys or cell phone. He walked to a gas station and called a cab from a pay phone to get to work. Later that day, he was arrested at work and charged with 3 counts of assaulting Ms. Santos.

The Assault Charges

12The respondent’s brothers-in-law acted as sureties in order to have him released from custody on the criminal charges. Mark Verdun is married to the applicant’s sister, Eulalia Santos (“Lolly”). Nelson Rocha is married to another of the applicant’s sisters, Iberia Rocha (“Ibe”). The two men attended court and posted a promise of funds for the respondent’s release. Mr. Pantelidis spent 1 night and 2 days in jail. Two of the conditions of his bail were to have no contact with the applicant and not to attend at his own home. Mark Verdun and Lolly took the respondent into their home to live while he awaited the trial.

13Lolly and Mark provided the applicant with a $4,000 cheque from the respondent after he was released from custody in order for her to pay the household expenses.

14In 2016, the respondent was acquitted of all charges after a trial. The judge made adverse findings about the applicant’s credibility about what she said had transpired on January 9, 2015. He also found that Luka, who the complainant had the Crown call to testify against the respondent, had been coached by Ms. Santos to say that he had seen the respondent choking his mother. Independent of the judge’s findings in this regard, Lolly testified at this trial that she asked Luka if he had seen what had happened on the night of the alleged assaults. Luka admitted to her that his mother had told him to say he saw Mr. Pantelidis choking her or he “would be taken away and would not see his family”. The criminal trial judge’s findings about Luka’s – and Ms. Santos credibility - is supported by Lolly’s testimony on this significant point.

15On another occasion, Luka told his aunt Lolly that he wanted to live with his father, Joey, and his mum could come and visit him.

16Of note, and telling in terms of Ms. Santos’ credibility in the criminal trial and in this trial, was the fact that here she testified about two of the three assault counts taking place months before January 9, 2015, but testified at the criminal trial that they happened within 2 days of each other as one continuous fight. She is obviously lying in either this trial or the criminal trial. I accept counsel for the respondent’s submission that the two incidents happened as she testified here, but that she conflated them to get an advantage at the criminal trial. Overall, I cannot find her credible on any account of her allegations of assault by the respondent. I do not believe that he assaulted her. At most, they scuffled over his property which she should never have taken.

17Ms. Santos also testified that, at one point during one of the two assaults months before January 9, 2015, Mr. Pantelidis picked Nicholas up by the back of his one piece jumper. She told the story to me, under oath, suggesting that he was assaulting the child. Even when Ms. Santos described the incident in her examination in chief, I did not believe it to be anything more than a father horse playing with an 18 month old child and doing something most children enjoy. Ms. Santos’ evidence on this point became all the more incredible after she was cross-examined on the point and after Mr. Pantelidis testified. That evidence confirmed, for me, exactly what the incident sounded like – horse play. Yet, the applicant exaggerated the innocent incident in order to paint it as an assault on their son to gain an advantage for herself in this litigation.

The CCAS Involvement

18As a result of the charges, the CCAS was called. Pilar Hall took over the file from the intake worker who attended the home immediately after the police became involved. Her evidence is relevant in this trial for two reasons. First, she testified that the CAS never mandated supervised access of Nicholas for Mr. Pantelidis. Second, she found Mr. Pantelidis’ home was a suitable environment for Nicholas on the two occasions she visited the respondent there once the applicant and Nicholas had moved out and he began to see his son there during his access visits.

19Ms. Santos testified that on the day police attended her home, and in the presence of the initial CCAS worker, Nicholas threw himself down in front of the worker 3 times and said the name “Jean” in order to show the worker the respondent had assaulted her. The worker made a note in the file that she had never seen anything like it in her career. Ms. Santos wanted me to take from the note (read out by Ms. Hall not the intake worker) that it supported her story that she had been assaulted by the respondent and her 18 month old saw the assault. There is no evidence what the intake worker meant by the note. She did not testify. It could have meant anything, including that the behavior was bizarre and incredible. I can make no factual finding about what Nicholas’ behavior meant on Ms. Santos’ or Ms. Hall’s testimony.

20Mr. Pantelidis testified that neither child was present when he and the applicant scuffled over his phone on January 9. He described what each was doing in their bedrooms just before he left the home. I believe him. On the evidence before me, I would not be surprised if the veracity of Nicholas’ behavior was questioned by the worker in that note. And, I would not be surprised if Ms. Santos had coached the child to perform what he did in front of the worker to gain an advantage in the criminal and family litigation. I am convinced that Ms. Santos will lie and use her children, in this instance her 18 month old son, to achieve her ends. Her evidence about this incident is preposterous. There is no other logical conclusion and that conclusion is consistent with what has emerged through the evidence as her “modus operendi” throughout the parties’ history. That modus operendi was outlined to her sisters well before her claims of assault at the hands of the respondent. Lolly testified that Ms. Santos would tell her and their sister, Ibe, that “if the relationship didn’t work, he (the respondent) would go down and she’d make him lose everything”.

The Reconciliation (Mid April to August 9, 2015)

21After some time, Mr. Pantelidis’ childhood friend, Domenic Garaci (‘Domenic”), took over as the surety for the respondent and Mr. Pantelidis moved into his home. During that time, around April to August 9, 2015, the parties tried to reconcile their differences. The reconciliation started when Ms. Santos waited for the respondent in the parking lot at the supervised visit centre where Mr. Pantelidis was seeing Nicholas. She told the respondent that she and Nicholas missed him. They began to see each other again without telling Domenic or anyone else. Ms. Santos subsequently consented to unsupervised access for the respondent on May 22, 2015. She went so far as to then ask the respondent to move back into her condominium. Her tenants were moving out in July. The respondent declined. The parties still corresponded every day and Mr. Pantelidis was seeing his son every other day. During the reconciliation, Ms. Santos tried to convince the respondent to plead guilty to the assault charges and take anger management. She was not happy when he insisted on maintaining his innocence.

22On August 9, 2015, Ms. Santos became angry that the respondent was taking Joey’s side in a discussion she told him about between her and Joey about something that had happened during an access exchange with Luka. The applicant became enraged by what I find was a rational position taken by the respondent. Ms. Santos called Mr. Pantelidis’ mother and his ex-wife to tell them that they had been seeing each other in the face of his “no contact” bail condition. She threatened to call the police and have the respondent charged with failing to comply with his recognizance. She demanded that he leave the condo.

23Coincidently, Domenic called the respondent while the parties were arguing and the applicant had once again taken possession of Mr. Pantelidis’ phone. Ms. Santos answered the phone and Mr. Garaci hung up. He then sent a text telling to the respondent to come home – having realized that the parties were together contrary to the respondent’s bail condition. Mr. Pantelidis left the condo and the relationship was finally over.

24Soon after the respondent left the home, Ms. Santos started to text Domenic to convince him that the reconciliation was what she and the respondent both wanted. She went so far as to suggest to him that the respondent would pay for any loss of funds he would incur as the surety due to the respondent’s breach of the “no contact” condition.

25On August 10, after she realized the reconciliation had failed, Ms. Santos began a text campaign filled with repulsive emails outlining to Domenic, and his wife, that Mr. Pantelidis had told her of infidelity in their relationship and a resulting transmission of a sexual disease between them. When asked during her testimony to explain the purpose of these emails, Ms. Santos said that she was trying to prove to Domenic and his wife that the parties had tried to reconcile. Instead, and in keeping with the evidence in this trial, I find that it was Ms. Santos emotionally out of control because the reconciliation had not worked and the respondent had not done as she wanted. The emails were a vicious attack on innocent parties in this litigation. There was absolutely no justification for them; and the only true explanation for them, which, again, is supported by all of the other evidence in this case, is that the applicant will do anything she wants to get her way. She appears to have few moral boundaries.

26As well as the disturbing suggestions about Domenic’s marriage, the applicant also made veiled threats to him, saying that she was going “to let the court know that he wasn’t doing his job” as a surety and indicating that she would be calling the “crown and the courts”.

27Several weeks later, in spite of the fact that she instigated the reconciliation, the applicant did call the police. They contacted Mr. Pantelidis, who, under the circumstances, and with input from his criminal lawyer, was not charged.

28I find that, in spite of knowing that she was part of the violation of the court ordered recognizance that they have no contact with each other, Ms. Santos tried to control the respondent and have him re-arrested and charged in order “to make him pay” for the failed reconciliation attempt. She takes no responsibility for any of her actions in the marriage. That fact is highlighted by her behaviour on August 24 to 25, 2015, when Ms. Santos tried to “rub salt into the wound” by posting a new status update on her messaging service. It said, “You chose your friend Dom, over your WIFE and SON!! {SMILEY DANCY FACe}Your LOST and you know who you are! Someone else “GAIN” Baby!! Karma!!!”

The Court Proceedings Leading Up to This Trial

29On May 22, 2015, during the parties’ attempts at reconciliation, the respondent consented to an Order including $1,422 per month child and $4,000 per month spousal support as well as other financial support for the applicant - all to continue until further order of the court. The applicant consented to unsupervised access to Nicholas to be facilitated through the applicant’s mother. In fact, the applicant had never confirmed with her mother that she would take part in the access exchange and she never did.

30On September 1, 2015, Mr. James Marks removed himself as counsel for Ms. Santos.

31On October 1, 2015, Justice Horkins ordered the access schedule made by Justice Stewart on May 22, 2015 to continue, but with pick up and drop off at 22 Division, Toronto Police. The parties were ordered to participate in an investigation regarding custody and access by the OCL. Ms. Santos never completed the intake forms. The investigation never took place.

32The applicant was ordered to allow Mr. Pantelidis to retrieve his belongings from the condominium and Justice Horkins set out a detailed procedure for her to follow to facilitate it.

33Ms. Santos was ordered to vacate the respondent’s home.

34She was also barred from communicating with Mr. Garaci, his wife and the respondent’s co-workers and employer at Porsche.

35The applicant was ordered to pay $7,500 in costs for the motion.

36On October 20, 2015, the respondent brought another motion which was heard by Justice Paisley. His Honour ordered police enforcement of the May 22, 2015 access schedule.

37On November 10, 2015, Mr. Pantelidis brought another motion. Justice Kiteley found that Ms. Santos failed to comply with Justice Horkins’ schedule for access because it was not convenient for her. Her Honour found that the applicant refused to comply with the retrieval order related to the respondent’s belongings and she had not acknowledged the order requiring her to vacate the matrimonial home. Justice Kiteley agreed that Mr. Pantelidis could bring a motion to strike Ms. Santos’ application for her refusal to comply with the court orders.

38At the same time, Justice Kiteley added an overnight access visit for the respondent. She extended Justice Paisley’s police enforcement order to January 30, 2016 to “ensure orderly transitions during the holiday period” and adjourned the issue of costs.

39On December 10, 2015, Justice Kiteley presided over the respondent’s motion to strike Ms. Santos application. Ms. Santos had filed no material and asked for an adjournment. Her Honour noted that the applicant was still not complying with the previous court orders. She set out a detailed schedule for access during December and set dates for Ms. Santos to serve and file her response to the motion to strike.

40On January 7, 2016, Justice Kiteley ordered Ms. Santos’ application struck on all issues except custody and access. The endorsement set out the following breaches by the applicant:

(a) Withheld access from August 9 to October 1 in breach of the order of Stewart J. dated May 22, 2015;

(b) Failed to comply with the order of Horkins J. dated October 1, 2015 by not providing access on October 4 and October 10 and 13;

(c) On October 10, 2015 and on November 21, failed to comply with the order of Horkins J. dated October 1 by refusing to leave the key to the condominium so that the Respondent could retrieve his belongings;

(d) Failed to comply with my order dated November 10, 2015 by not providing access as ordered on November 17 and November 22;

(e) On November 28 and 29, failed to provide the key to Oxford Street contrary to the order of Horkins J. dated October 1;

(f) On or about November 28, 2015 when she vacated, she failed to comply with the order of Horkins J. dated October 1 by taking numerous items she was prohibited from taking;

(g) Failed to comply with the order of Horkins J. dated October 1 which required completion of the intake forms to facilitate the referral to the OCL;

(h) Failed to pay costs ordered by Horkins J. in the amount of $7500 and the costs ordered by me on November 10 in the amount of $8040.33;

(i) Failed to file responding affidavit and factum by December 31, 2015.

The extent to which the Applicant has not complied is serious. Because the Applicant chose not to file responding material even though she had 4 weeks to do so, I have no explanation from her. I can only conclude that she has deliberately failed to comply with the obligations that four court orders have imposed on her: Stewart J. dated May 22, 2015; Horkins J. dated October 1, 2015; and my orders dated November 10 and December 10.

The only glimmer of compliance is that the access order I made on December 10 has been complied with.

Much to the frustration of Mr. Pantelidis, Ms. Santos has been given every opportunity to comply and she has failed to do so. Her continuous and repeated non-compliance is a triggering event that engages sub-rule 1(8) of the Family Law Rules. Absent any responding material which explains the non-compliance or apologizes for the non-compliance or asserts prospective intention to comply, there is no basis to exercise any discretion in her favour. Rule 2(3) requires the court to deal with cases justly by ensuring that the procedure is fair to all parties. Having been required to bring 5 motions and having been confronted with continuous and repeated non-compliance means that the procedure has been exceedingly fair to Ms. Santos. In deciding the outcome of this motion I must recognize the need to ensure that Mr. Pantelidis has the same right to be treated fairly.

41On March 10, 2016, Justice Kiteley ordered the matrimonial designation registered on title to the respondent’s property cancelled. She reduced the applicant’s temporary spousal support from $4,000 to $1,800 per month.

42On June 9, 2016, Justice Kiteley ordered questioning of Ibe Santos, Mark Verdun and Josip Kucan on the issues of custody and access. She refused to allow the applicant to attend the proceeding, finding that she would be disruptive to the hearing.

43Thereafter, Justice Kiteley conducted the Trial Management Conferences for this trial and on the financial issues between the parties.

The Applicant’s Witnesses

Iberia Santos

44Iberia Santos is the applicant’s mother. She supported her daughter’s application for sole custody saying that she is a good mother. I find that she was a well-intentioned, but an uninformed witness. She has taken her daughter’s side in this matter. She felt somehow entitled to phone Mr. Kucan before the trial to persuade him not to testify. The conversation was taped by Mr. Kucan, I admitted the recording and will explain why later in this judgment. In the recording, Mrs. Santos told Mr. Kucan that if he testifies, he is going to get “hurt”. Mrs. Santos spoke in English. It is not her first language and she testified through an interpreter during the trial. Perhaps, there was some misstatement on her part. Nonetheless, she is clearly not an objective witness. I do not put much weight on her testimony. In fact, her daughter, Lolly, testified that her mother has been swayed by the applicant and is “ignorant” of what had been going on in the applicant’s life.

45Iberia Santos testified that she had “raised Luka”. This was probably so because Ms. Santos has relied on her mother rather than letting Mr. Kucan do his share of the parenting.

Gabriella Ardito and Gloria Viera

46Gabriella Ardito and Gloria Viera, loyal friends of the applicant, appear to have had their evidence scripted. They both testified that the applicant was happy, her house was clean and the two boys’ needs were taken care of. Neither one knew the respondent, having met him only occasionally during the parties’ relationship. Neither one were able to testify in any depth about the applicant’s role in parenting Nicholas. Their testimony is of no real assistance to me in this trial.

Pilar Hall (CCAS)

47I have already set out the significance of Ms. Hall’s testimony.

The Respondent’s Witnesses

Domenic Garaci

48Domenic has known the respondent since grade 6. He is married with 2 children and works as a vice president of technology for a cell phone company. He and his wife were friendly with the respondent during his first marriage to Sarah Fawzy - Mr. Pantelidis’ first wife. They liked the couple. The marriage ended on good terms and the couple is friendly, although Ms. Fawzy now resides in Vancouver.

49Domenic acted as surety for the respondent from March 6, 2015 to the end of his criminal trial on the assault charges on June 29, 2016. Mr. Pantelidis lived in his home with his wife and children and Mr. Garaci testified that he had no concerns about his family’s safety during that time.

50Mr. Garaci did disclose that during his time in their home, the respondent was depressed and thought only of his son. He wanted to be with him.

51In August, 2015, after the failed reconciliation between the parties, Domenic warned the respondent to come home and call his lawyer about what had been going on. Ms. Santos began to email him. The applicant pleaded for Domenic to let the respondent come back to her and asked him why he was making the respondent stay away. The next day, the texts got more aggressive. I have outlined some of them above.

52Prior to August 9, 2015, the respondent was getting access to Nicholas every Tuesday in Domenic’s home. Mr. Garaci testified that the respondent fed the boy properly and acted appropriately with him.

Mark Verdun

53Mark Verdun and Lolly Santos have been married for 17 years and have two children. In 2003, he and his wife were living at Lolly’s parents’ home while they looked for a home of their own. The applicant lived there as well. The sisters got into an argument over the parents’ car. Mr. Verdun was using it at the time. The applicant was dating Joey Kucan and wanted the car to take him out for his birthday. The applicant told her sister that they had no right to the car. The two began a physical fight. Mr. Verdun stepped in and the applicant held him by his neck tie. He bit her finger in order to get Ms. Santos to release him. The applicant then threw a bottle across the kitchen at the couple and went into the street yelling about the incident to neighbors. She then spray painted the couples belongings with black lacquer. The couple and Ms. Santos did not speak to each other for 13 years.

54When the parties married, the relationship began to be repaired. Mr. Verdun and Lolly’s children began to establish a relationship with both Luka and Nicholas and the families spent time together. Mr. Verdun felt the respondent was a good influence on the applicant. He was calm and collected and was a good provider for her and their son. He testified that the respondent is kind, is a good caregiver and is respectful to his family. After the charges were laid, the respondent was depressed, but “soldiered on”. He bought them wine, paid for dinner on occasion and bought their daughter a present on her birthday. It was a sad time for everyone in his home.

55Mr. Verdun testified that Mr. Kucan’s access to his son, Luka, was also better when the parties were together.

56He explained that he agreed to sign Mr. Pantelidis’ bail because of his regard for him and to get him out of jail so that he could go back to work. It was better for Mr. Pantelidis to take care of the applicant and Nicholas rather than place that responsibility on Ms. Santos’ retired parents. In spite of what he considered to be assistance for her, he testified that Ms. Santos has been resentful of any help that he and his wife have provided to the respondent. Her parents have also broken from good relations with him and Lolly as they perceived that the couple had taken the respondent’s side.

57Mr. Verdun and his wife are on good terms with Mr. Kucan. Joey did not tell the applicant about his relationship with her family as he believed she would then try to diminish what access he had to Luka. I believe him. Mr. Verdun has a relationship with Luka only through the boy’s father and has chatted with him. In one of the chats when he asked the boy how he was doing, Luka told him that he “was doing okay, but did not believe his mother loved him”. He told his uncle that she yells at him and sends him to his room. She has also threatened to cut off Luka’s access to his extended family if he does not do what he is told.

58Mr. Verdun believes that Mr. Kucan would be better situated to provide Luka with what would be in the boy’s best interest.

59Mr. Verdun testified that access of the fathers to the two boys was “conditional on the applicant’s wish and will”. There were many times when he and his family were to see the two boys with their fathers, but the applicant simply denied the fathers’ access.

60Mr. Verdun testified that when the applicant learned that he and his wife were going to be witnesses at the trial, she called and argued with Lolly, telling her that she did not have to attend the trial. When Lolly told her that she had to answer to a subpoena, the applicant ended the conversation by saying, “Your husband is cheating on you. Karma’s a bitch, your daughter has colitis and she is going to die!”

61Mr. Verdun denied that he was being vindictive toward the applicant. There is no doubt that he was heartened when she met Mr. Pantelidis. I find that, having seen her actions towards Mr. Pantelidis and towards Mr. Kucan, Mr. Verdun felt obliged to tell this court about Ms. Santos’ controlling, vindictive and irrational behavior.

62Ms. Santos attempts at cross-examining Mr. Verdun were without success. I accept his evidence and consider it weighty in these proceedings because he is part of Ms. Santos’ family. He had no motive to exaggerate, fabricate or colour his testimony.

Eulalia Santos

63Lolly Santos testified about the fight that damaged the sisters’ relationship in 2003. She also recalled and testified about an earlier argument over her car when she did not permit the applicant to borrow it. Ms. Santos called her “a white trash nigger lover”. Lolly had a black boyfriend at the time.

64Lolly is on good terms with her three other siblings. She is no longer on good terms with the applicant since her husband signed the respondent’s recognizance. She also has a strained relationship with her mother as a result of helping Mr. Pantelidis because Lolly was the one who convinced her husband to get the respondent out of custody after he was charged with the assaults. She had no reservations or concerns about the respondent when he lived with her and her family.

65When the parties were married, Lolly and the applicant would speak every day. She had a relationship with Mr. Kucan and Luka. Both Mr. Kucan and her mother brought Luka to her home.

66The applicant, she testified, does not do much with the two boys except take them shopping. The only times Ms. Santos would go to Luka’s soccer games was when the games were close to her sister, Ibe’s, home as she could visit and socialize with Ibe while Luka played soccer. She saw the applicant hit Luka on the head in front of her and a girlfriend at Canada’s Wonderland and her sister Ibe has complained to her that the applicant hits Luka over the head with his text books.

67Lolly was a credible witness. And, like her husband, Mark, I find that she came forward and testified on behalf of the respondent because she has seen the actions of her sister, Ms. Santos, towards the respondent and Mr. Kucan and can no longer tolerate it.

Joey Kucan

68Mr. Kucan is gainfully employed and in a stable relationship. He is Luka’s father and his only child. Joey and the applicant met in 2000. They married in 2004 and Luka was born on April 18, 2006. He and the applicant were separated on July 5, 2009.

69Mr. Kucan was also charged with assaulting the applicant about 10 years ago. He, too, was acquitted after a trial. On July 23, 2008, Justice Forsyth, in the Ontario Court, found that Ms. Santos was not a credible witness, but was motivated in the prosecution to prevent Mr. Kucan from seeing his son Luka.

70Initially, after release on the assault charge, and while on bail, the applicant phoned Mr. Kucan and asked him to come home. He did. While he lived with her, if he did things she did not approve of, like leaving a drink on the kitchen counter, Ms. Santos would pick up the phone, hold it up and threaten to call the police. One day, when she got home, she “went ballistic”, according to Mr. Kucan. She called the police and had him charged with a breach of his recognizance for being with her.

71He got out of custody again, this time on a house arrest release when his brother posted a $30,000 bail. He lost his job because of the charges and because the applicant would not stop calling his work place.

72The applicant called the police once again sometime later and told them that Mr. Kucan had threatened to kill her parents and “put a hit on her”. His bail was revoked and he spent 5 months in Maplehurst Correctional Centre awaiting his trial. He eventually pleaded guilty to the fail to comply with recognizance charge for living with the applicant when he was ordered not to have any contact with her.

73Mr. Kucan was not permitted by the applicant to see his son, Luka, for 2 and ½ years during this time. He missed the boy’s second and third birthdays. In his efforts to gain access to Luka and to expose emotional and perhaps psychological issues he suspected the applicant suffered from, he volunteered to take a psychiatric exam to prove that he was a fit father and to encourage Ms. Santos to have herself assessed. She refused.

74He knows of 2 relationships since she and Mr. Pantelidis have separated that the applicant has had, which have culminated in conflict. The first is with a man called “Derek” who the applicant has taken out restraining orders on. The second, John McAuliffe, contacted Mr. Kucan’s parents to explain that he had been dating the applicant and she was making his life “a living hell” by calling his employer and revealing things he had told her in confidence. Mr. McAuliffe was about to lose his job and he needed to understand what was going on. Mr. Kucan testified that he did not get involved with these men because he feared that the applicant would curtail his access to Luka if he did.

75The applicant has never allowed Mr. Kucan to take Luka out for Halloween or to take a vacation with him outside Ontario. Three years ago, Mr. Kucan proposed to take his son on a beach holiday. The applicant agreed to the holiday. Mr. Kucan had a travel letter prepared for Ms. Santos to sign. She refused to go to the office where the letter awaited her signature until Mr. Kucan provided her with gas money to get there. He complied with this and other demands and booked and paid for the tickets. The applicant subsequently revoked her consent to Luka travelling and Mr. Kucan went on the holiday by himself.

76It appeared to me on the evidence from the applicant and Mr. Kucan that, had he not agreed to pay for and facilitate soccer in Luka’s life, Mr. Kucan would rarely see his child.

77Mr. Kucan testified that he had concerns for his son’s learning difficulties. He testified that, in spite of begging the applicant to get Luka tutoring, Ms. Santos appeared not to care about or ignored the possibility that her son needed extra academic support. Mr. Kucan’s partner is a teacher and is presently tutoring Luka when he is with his father.

78During a recent incident at school, Luka was suspended for choking a female student. Instead of trying to get to the bottom of the incident, the applicant portrayed the event as Luka acting out what Mr. Pantelidis did to her on January 9, 2015. It is of concern that Ms. Santos consistently uses her children to prove facts which might assist her in litigation. I have no evidence of the incident except from the applicant and find her testimony on this point to be wholly unreliable and self-serving. Of note is the fact that Ms. Santos does not find the incident sufficient to warrant any sort of intervention or therapy for Luka.

79Mr. Kucan testified that Ms. Santos has discussed the present family court proceedings with Luka and that the boy also asked him whether, when he was 4 ½ years old, Mr. Kucan hit his mother and went to jail for it. Luka also told Mr. Kucan that his grandmother had told him that his father was violent and would not be allowed to see him.

80Mr. Kucan made several surreptitious recordings of his telephone conversations with the applicant in contemplation of this and his own litigation about access and custody issues. He also made one recording of the applicant’s mother, which I have already discussed. Although the applicant objected to the admissibility of the recordings, I admitted them. Here are the reasons why.

81On my May 5, 2015 ruling in Turk v. Turk, 2015 ONSC 3165, I found that such recordings were inadmissible. That case involved the issues of child and spousal support. Several other cases, which I have relied on in these proceedings, have allowed such evidence where it is in the best interests of children to do so.

82In Reddick v. Reddick, [1997] O.J. No. 2497 (Ont. Gen. Div.), the father sought to introduce into evidence four telephone conversations he taped between the mother and their children. Bell J. ruled that the evidence was admissible. At paragraph 24, he wrote,

After reviewing all of the evidence on the voir dire, I conclude that the evidence of tape-recorded conversations between the mother and the children which is sought to be introduced is relevant, reliable and probative. In the particular circumstances of this case, the fact that the evidence goes to such important issues of parental alienation and inappropriate pressure on the children leads to the conclusion that it should be admitted in the best interests of the children. That would outweigh any perceived unfairness relating to the lack of early disclosure and the unavailability of some of the earlier tapes, the court's repugnance of illegal conduct and the general need to discourage the taping of private communications between parent and child. Accordingly, the evidence sought to be adduced shall be admitted.

83In Toope v. Toope, 2000 28375 (Nfld. U.F.C.), the child lived with the father. The mother believed that the child suffered from parental alienation that was deliberately caused by the father. She sought to introduce as evidence secretly taped telephone conversations with the child. At paragraphs 28 to 29, the court found the following:

The tapes and transcripts are relevant, especially in considering whether Mr. Toope planted the seeds of parent alienation. The presiding judge who will deal with the merits of the application will determine the reliability and probative value of the tapes and transcripts when he or she considers all of the evidence. Adam’s best interests must be the paramount consideration. This outweighs any procedural unfairness relating to the lack of early disclosure of the tapes and transcripts. It also outweighs this Court's repugnance of illegally taping telephone conversations without knowledge or consent. In short, with a degree of reluctance, but also by not condoning such calculated subterfuge, the evidence sought to be adduced can be considered at the hearing of the application on its merits.

84The case of F. (A.) v. W. (J.), 2013 ONSC 4272 involved the variation of a custody order. Harper J. found the emotional abuse by the mother to be extreme and granted the father custody of the children. In doing so, he admitted tape recordings of the access transfers which showed that the mother spoke negatively about the father and did not promote him positively to the children as had been previously ordered. At paragraph 56, His Honour found the following:

I agree that, in most family law cases, the surreptitious taping of the other party should be generally discouraged. I also agree that much of the reasoning behind the desire to discourage such conduct is that the parties should build trust in the other to be able to parent after separation. However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny. The behaviour demonstrated in the recordings reveals that the mother's outward compliance with my June 27, 2011 order was merely a façade.

85This case was appealed (Fiorito v. Wiggins, 2015 ONCA 729 at para. 22), but the appeals court upheld the trial judge’s decision to admit the recordings.

86In Scarlett v. Farrell, 2014 ONCJ 517, the mother had sole custody and the father brought an application seeking access. The mother was opposed to any access. The father sought to introduce videos into evidence on the basis that they showed the child having fun in his presence, which would rebut the mother’s accusations. Spence J. found that the videos were not taken surreptitiously and admitted them into evidence. At paragraph 31, he wrote,

Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court's need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.

87The recordings are highly probative in this case considering the criminal accusations made against the respondent. They are also relevant to the applicant’s claim of having not sworn or raised her voice around her sons or how she comports herself around them, generally. The recordings conveyed the applicant’s temper. If she was not in agreement with what Mr. Kucan said, she simply shouted over him and used profanity. She also raised her voice and swore around Luka. In the first recording played in court, Luka tells his father that if Ms. Santos does not receive Mr. Kucan’s support cheque by a certain date, he would not be allowed to play soccer any more. In the second recording played, Mr. Kucan’s car battery had died and he was late in picking Luka up for soccer. The applicant yells vulgar profanities at Mr. Kucan, including, “Soccer is over for you and your son. You just want to get laid and fucked.” A child’s voice is heard in the background of the applicant’s location. Another recording of Ms. Santos was played with her speaking to Luka, who was with his father when Portugal won the soccer world cup. Luka passed on Mr. Kucan’s congratulations as Ms. Santos is Portuguese. Ms. Santos response to the boy was, “tell your dad to kiss my ass”.

88Mr. Kucan testified that when the respondent was charged, he went to the CCAS worker, Ms. Hall, to try and get “something done” about the applicant. Ms. Hall did not want to hear anything he said, including the fact that Luka needed counselling and the applicant refused to get him any.

89Mr. Kucan testified that he has been afraid to get involved in these proceedings because the applicant will curtail his access to his son.

90In cross-examination, Mr. Kucan admitted to the applicant that he is very concerned about his son and questions him constantly about whether he is okay and whether his mother is doing any activities with him. He testified that he liked Mr. Pantelidis as, while the parties were married, he could trust the respondent to act in an appropriate way with Luka. He testified that he is not helping Jean to “railroad” the applicant, but for the best interests of their sons. He agreed there was not a “cuss word in the English language” that he had not used to describe the applicant and that she was a “sadistic bitch”.

91In the cross-examination, he testified that he is friends with the respondent because he realizes that the two brothers need to foster a good relationship and he wishes to continue to have the boys do so if Nicholas is in the respondent’s sole custody. When the applicant suggested to Mr. Kucan that he has no relationship with Nicholas’, Mr. Kucan testified that he is afraid to say even “hello” to Nicholas due to the ongoing litigation and, in any event, Nicholas hides behind her when he arrives to pick up Luka. He testified that he feels like a “terrorized sperm donor” rather than a father. He told the court that he regrets not being able to parent his son, but that the applicant’s mother, Iberia, has done a good job in his place.

Mr. Pantelidis and Mr. Kucan “Colluding”

92In the cross-examinations, Ms. Santos suggested to the respondent and Joey that they were “colluding” to ruin her life. Her complaint is based on a text message conversation between the two men on October 3, 2015, which included a picture of Nicholas taken by Mr. Kucan on the soccer field that day. The screen shots were included in an affidavit during the proceedings to support the respondent’s allegation that he had been denied access to Nicholas by the applicant on several occasion – October 4, 2015 in particular when Ms. Santos had claimed the child was sick. The day would have been the first day of Justice Horkins’ order for access, dated October 1, 2015.

93Ms. Santos berated Mr. Kucan for communicating with the respondent and, in a recording of her filed as an exhibit in this trial, threatened to call CAS and have Luka speak to them “about what Mr. Kucan was doing”. She told him in the same recording that “Luka was not happy with him right now”.

94I find that, after what these two men have been through at the hands of the applicant, the only resort they had was to support each other in order to gain any ground in circumstances where they had found very few people willing to believe them previously.

95Both men complained in their evidence that the CCAS did nothing to unearth Ms. Santos responsibilities for the situations that arose in their respective relationships or to investigate whether the applicant was coaching the boys to lie or pretend in the criminal cases. It is not the mandate of the CAS to do so. The judge at the respondent’s criminal trial believed that Luka had been coached to lie about the incident. I am convinced of the same based on the evidence in this trial. I have already expressed my concern about Nicholas’ actions in front of the initial CCAS worker and have found that he, too, was probably put up to his behavior on that day by the applicant. In the face of this type of manipulative behavior by the applicant, it is understandable why the two men must support each other in this trial. And, both of them are sincerely concerned that the boys are not receiving the care that is in their best interests.

Mr. Jean Pantelidis

96The respondent testified. He was credible. He substantiated the picture that the witnesses called before him in his case painted of the applicant. I have already adopted his testimony as part of the facts I have found, above. I accept and add the following:

1. He has become friends with Mr. Kucan in order for the two brothers to maintain contact with each other throughout their lives. He also has a good relationship with Lolly and Ibe’s families and sees them socially on a regular basis so that Nicholas will maintain good relations with the Santos family;

2. He does not travel for work except twice a year for 3 days and 2 nights each trip;

3. When Nicholas was 2½ years old, he noticed that the boy did not speak, but used gestures instead. He did not know his colours or how to count. Having lived with Luka, he also knew that he was a “D” student and struggled to achieve any success in school. In order to prevent Nicholas from falling behind in school, the respondent contacted Canoe Therapy and tried to arrange an educational assessment. The applicant was notified by the agency and she cancelled the assessment. She has used the respondent’s efforts regarding Nicholas’ potential learning difficulties as evidence Mr. Pantelidis has violated her rights as a mother rather than an attempt by the respondent to help their son;

4. He plans to acquire death benefits in case something happened to him. He believes that Ms. Santos will not be able to take care of Nicholas as she is not financially responsible. He is also obtaining medical benefits for his son this year;

5. He has been financially devastated by the criminal and family proceedings, having spent tens of thousands on them to date, mainly because the applicant does not obey court orders and has been allowed to manipulate the criminal and family systems;

6. In cross-examination, the respondent testified that after seeing what the applicant did to Joey, first hand, he believes that she will “poison” her children. And, if things don’t go her way, she loses control. He testified that after “giving his all” to reconcile with the applicant in April, 2015, he lost all trust in her after the incident on August 9.

7. He has not been able to maintain a relationship with Luka because of the fear the applicant has put into Luka about communicating with Mr. Pantelidis;

8. The applicant suggested to Mr. Santos that the only reason he was communicating with Mr. Kucan and wanted to have custody of his son was so that he did not have to pay her child support. Mr. Pantelidis responded in two parts. First, he explained that the only reason he and Mr. Kucan were communicating was because no one would believe them if they spoke out about Ms. Santos on their own. Second, the respondent agreed that, because Ms. Santos was “not putting her life back on track” financially, he resented giving her hard earned money, but he was more concerned with her parenting than the money;

9. The respondent went on to say that, regardless of court orders, if the applicant maintained sole custody of Nicholas, as she had with Luka, the next 12 to 18 years would be disastrous for him and for Nicholas. He stressed that he was having a trial because he would not give up efforts to prevent that for his son. He testified that, “Joey gave up. I won’t give up like he did”.

ANALYSIS

97The applicant submits that she has had sole custody of the children for a long time – Luka is 10 years old and Nicholas is 3 years old. If Mr. Kucan had any valid complaints about her parenting, then why did he not do something to change it? She is a good mother, keeps a clean house and provides her children with the necessities of life. She loves them.

98The evidence in this trial refutes Ms. Santos submissions. It, instead, supports a finding that Ms. Santos is a poor parent who puts her own needs before those of her children and does not act in the best interest of Nicholas or Luka.

99As I have already pointed out, this case is not about who shall have custody of Luka Kucan. But, what has transpired with him and his father is instructive about the applicant’s present and future treatment of Nicholas.

100The evidence in this case leads me to the following conclusions:

1. The applicant’s overall view of parenting is to diminish the role of the respondent as much as possible. Along with the evidence in the trial, this conclusion is supported by the draft order she prepared for trial, in which she requests that the respondent get every other weekend access once the child starts school this September. She also seeks a grossly disproportionate amount of annual holidays.

2. I accept counsel for Mr. Pantelidis’ submission that those who testified for his client are “a group of people who have had enough of the trail of chaos Ms. Santos constantly leaves in her wake.” I agree. Instead of ill motives against Ms. Santos, Mr. Garaci, Mr. Verdun, Ms. Lolly Santos and Mr. Kucan are concerned that Nicholas is not receiving the care he should in the applicant’s custody. Their evidence tends to support the conclusion that Nicholas would be better raised by Mr. Pantelidis, who would provide to him what is in the child’s best interests.

3. Ms. Santos has been shown to lack credibility. She has diminished her penchant for yelling and swearing in front of her children when, clearly, she does. She has shown that she is capable of fabricating evidence in the criminal justice system and here to achieve her goal of keeping the fathers of her sons out of their lives. She used the assault charges against the respondent to enforce supervised access when the CCAS had asked for no such condition. Ms. Santos seems to believe that she can lie without consequence, but that everyone else is subject to “Karma”.

4. She has shown an open disregard for family court orders. She also thwarted two criminal court orders when she invited both Mr. Kucan and the respondent to return to live with her after she had them charged with assault. And what is more reprehensible is the fact that when she was no longer happy with their behavior, she had Mr. Kucan charged and attempted to have Mr. Pantelidis charged for the breaches she instigated.

5. She has shown that she is also prepared to use the CCAS for her purposes – threatening to call them if the fathers stepped beyond her perceived lines.

6. She has shown that when she does not get her way, she sets into motion a course of damaging communications by phone or text. Mr. Kucan lost his job. Mr. Pantelidis lost a customer and his friend Domenic and his wife were subjected to unnecessary and damaging comments. This court ordered her not to contact potential witnesses in this trial because she would try to interfere with them and disrupt the proceedings.

7. The applicant has no appreciation nor does she seem to care about the costs of the proceedings. This is all part of her inability to take responsibility for her own actions. Her costs up to a certain point of the litigation were paid for by her parents. After spending $35,000, they could afford no more. Mr. Pantelidis has spent over $100,000 to pursue this claim and defend himself on the criminal charges.

8. The applicant’s actions have contributed to splitting her own family. Again, I accept the submission of Mr. Anthony that it could all have been avoided. The parties would have been better off financially, emotionally and Nicholas’ future would have been more secure had the applicant behaved more reasonably.

Children’s Law Reform Act

101Section 24(2) of the Children’s Law Reform Act, R.S.O 1990, c.C.12 (CLRA) requires the court to consider various factors in order to determine the best interests of Nicholas. I have considered the following subsections and made the following conclusions:

(a) Both of the parties are able to care for Nicholas’ basic needs, but Mr. Pantelidis is more equipped to maintain and encourage the love, affection and emotional ties between Nicholas and himself, Ms. Santos, the grandparents, the aunts and uncles and their children and with Luka and Mr. Kucan. Ms. Santos has only caused alienation and discord in the same relationships.

(c) I cannot conclude, on the evidence in this, trial that Nicholas has lived in a stable environment in his mother’s home to date. He needs more stability and access to extended family. There is also no guarantee that Ms. Santos will maintain stability for Nicholas in her home by fostering a positive relationship for him with the respondent. That relationship is at the mercy of her “wish and will”.

(d) The respondent is more capable of providing Nicholas with guidance. Ms. Santos has shown herself to be irrational, verbally abusive and, at times, physically violent. There is no evidence in this trial that she has assaulted Nicholas. He is only 3 years old. There is evidence, however, that she is capable of assaulting the child because she has hit Luka. Ms. Santos has shown no interest to almost a resistance to making sure that Nicholas and Luka can obtain some success in school. Her objection to speech therapy for Nicholas –even though it was to be fully funded by the respondent -and her failure to follow up on the issue is support for this finding. She has refused to have Luka assessed or tutored even though his father and the respondent have testified that he is a poor student. The fact that she refused to complete the OCL intake forms is also support for this conclusion.

(e) Mr. Pantelidis plans to register Nicholas for a day care program near to his work. This, he believes, is necessary so that the boy can mix with other children and participate in daily activities rather than be left to do little in the applicant’s care. Ms. Santos has shown no interest in putting either child in extracurricular activity. She has shown resistance even to Luka’s soccer, allowing it only because Mr. Kucan pays for it and does most if not all of the transportation.

(f) Mr. Pantelidis lives alone. His mother is not always in the city. However, he has fostered positive, stable relations with Ms. Santos’ family and Luka’s father. He has a strong friendship with Mr. Garaci and his family. Ms. Santos has brothers and sisters, many of whom she has no relations with. I am satisfied on the evidence in the trial that the respondent will provide more stability and permanence if Nicholas lives with him.

(g) There is credible evidence in the trial that Mr. Pantelidis is a responsible parent. There is an abundance of evidence in the trial that Ms. Santos’ ability to parent is somewhat impaired. She has managed to involve Luka in her various litigations and has made him fearful of losing his family if he does not do what she says. She has made poor choices for the children as a parent by not fostering good relations with their fathers. She has purposely cut them off from extended family because she does not get along with them.

102In section 24(3)(b) of the CLRA, a person’s past conduct shall only be considered if a court is satisfied that the conduct is relevant to the person’s ability to act as a parent. As I have stated throughout this ruling, Ms. Santos’ past conduct is highly relevant to her ability to act as a parent and I have given the evidence of her past behavior great weight in deciding the issue of which party should have sole custody of Nicholas.

103I have also considered subsections 24(4)(a) and (b) and (d) of the Act, requiring me to consider whether Ms. Santos or Mr. Pantelidis have committed violence or abuse against Nicholas, Luka or Joey. I have set out my findings above, but will summarize them here. I am satisfied that Mr. Pantelidis did not assault the applicant. There is evidence before me that she may have instigated the struggle between them that resulted in her injuries. Ms. Santos has never denied or refuted the evidence that she has hit Luka on the head more than once. There is no other evidence that the applicant or the respondent committed violence or abuse against anyone else.

104Ms. Santos has not acted in the best interest of Nicholas Pantelidis. She withheld access to his father from January 9 to March, 2015; from August 9 to October 6, 2015, Thanksgiving weekend of 2015 and many other days.

105Ms. Santos testified that Nicholas is of the age now that he can be nurtured and molded. The evidence supports the conclusion that Mr. Pantelidis is the parent best suited for that responsibility.

106Finally, I agree with Mr. Anthony’s submission that Ms. Santos’ getting some kind of psychological assessment and counselling would benefit the parties and her children. Mr. Pantelidis asked for it in his Answer. Mr. Kucan testified that he volunteered to do a psychiatric assessment when he was involved with Ms. Santos, hoping that she would do the same. She did not. Her role in the children’s lives will continue for years. If she does not control her behavior, she will continue to have a diminished role in their upbringing because of no one but herself.

DISPOSITION

107Mr. Pantelidis should have sole custody of Nicholas Pantelidis. Order to go as attached.

108During the trial, Ms. Santos agreed to certain conditions set out in the Order. Those conditions are as follows and shall be part of the Order on consent of the parties:

109Paragraph 7) regarding Easter Weekend;

110Paragraphs 7) viii. 3., 6., 7. and 8.;

111Paragraph 9) regarding the parties’ respective birthdays;

112Paragraphs 15) ii, iii, iv, v, vi, vii, viii, xii, xiii;

113Paragraphs 16), 17), 19), 22); 28 to 37.

114Today is Friday, February 3. The custody and access schedule in the Order attached to this judgment shall commence on the Friday of Week 2. Therefore, Ms. Santos has access today. Mr. Panteledis is to resume custody of Nicholas at 6pm tomorrow, Saturday, February 4, 2017. Thereafter, the parties shall follow the two week schedule set out in the Order.

COSTS

115The parties are free to agree on the issue of costs of the trial. Otherwise, the respondent has 15 days from the release of this judgment to forward his written submissions on costs to me. The submissions shall be no longer than 5 pages, excluding attachments.

116The applicant has a further 20 days to respond in no more than 5 typed or 10 handwritten pages, excluding attachments.

117This Judgment and the Order will be emailed to the applicant at the email address she has provided to this court. They will also be sent to her in the mail. The Judgment and the Order will be emailed to Mr. Anthony on behalf of the respondent.

McWatt

Released: February 3, 2017.

ONTARIO

Court File Number: FS-15-401573

Superior Court of Justice at 393 University Avenue, 10th Floor, Toronto, ON M5G 1E6

Form 25: Order (General)

[ ] Temporary [x] Final

Applicant: Debbie Santos 4460 Tucana Court – Apt. 2002 Mississauga, Ontario L5R 3K9 Tel: 647-209-0472 E-mail: deborahsantos_to@hotmail.com

The Honourable Madam Justice McWatt

Respondent: Jean-Philippe Pantelidis c/o Counsel David Anthony Decipher Professional Corporation 1 West Pearce Street, Suite 505 Richmond Hill, ON L4B 3K3 T: 416-528-6140 F: 855-423-2234 E: david@problem-solved.ca

RESPONDENT’S ORDER FOR TRIAL

The court heard a trial on the issues of custody and access of Nicholas Jean Pantelidis (“Nicholas”), born July 1, 2013.

The following persons were in court: The Applicant The Respondent and counsel for the Respondent

The court received evidence and heard submissions on behalf of: The Parties

THIS COURT ORDERS THAT:

SOLE CUSTODY

1. The Respondent shall have sole custody of the Child, Nicholas Jean Pantelidis (“Nicholas”), born July 1, 2013.

2. For clarity, sole custody refers to the ability of the Respondent to make all the important decisions regarding Nicholas, including but not limited to education and health.

3. The Respondent shall advise the Applicant in advance of all major decisions being made whenever possible, and preferably at least thirty (30) days prior.

PRIMARY RESIDENCE

4. Nicholas shall reside primarily with the Respondent.

REGULAR ACCESS

5. Commencing as of the date of this Order, the Applicant will have access to Nicholas as follows (“Regular Access”):

	SUN	MON	TUE	WED	THU	FRI	SAT
WEEK #1	JEAN’S DAY/NIGHT	JEAN DROP-OFF DEBORAH’S NIGHT	DEBORAH DROP-OFF JEAN’S NIGHT	JEAN DROP-OFF JEAN’S NIGHT	JEAN’S DROP-OFF JEAN’S NIGHT	JEAN DROP-OFF DEBORAH’S NIGHT	DEBORAH’S DAY/NIGHT
WEEK #2	JEAN’S DAY/NIGHT (Deborah to drop-off @ 10am)	JEAN DROP-OFF JEAN’S NIGHT	JEAN DROP-OFF JEAN’S NIGHT	JEAN DROP-OFF DEBORAH’S NIGHT	DEBORAH DROP-OFF JEAN’S NIGHT	JEAN DROP-OFF DEBORAH’S NIGHT	DEBORAH’S DAY JEAN’S NIGHT (Jean to pick up @ 6pm)

For clarity, the Regular Access schedule referenced above is a bi-weekly schedule where Week #1 ends on Saturday and moves into Week #2 on the Sunday. At the end of Week #2, the schedule simply moves back to Week #1 again on the Sunday.

6. During the weekdays of the above schedule the term “drop-off” shall refer to dropping off Nicholas directly at daycare or school, as the case may be. The term “night” during the weekdays shall mean that the parent with access will pick-up Nicholas from daycare or school as the case may be.

HOLIDAY ACCESS

7. This holiday access schedule (“Holiday Access”) is in addition to the “Regular Access” schedule above, and the Holiday Access overrides the Regular Access schedule in the event of conflict. The Regular Access schedule and the Holiday Access schedule are collectively referred to as the "schedule".

For clarity, reference in any section below to “alternating years” or “alternate every year” or words of similar effect, shall mean that one Party shall have an entitlement every “even year” (i.e. 2016, 2018, etc.) and the other Party shall be entitled to the same thing every “odd” year (2015, 2017, etc.).

Additionally, where a Party has Nicholas over a long-weekend pursuant to the Holiday Schedule, the other Party shall be entitled to access the next day following the given long-weekend, whether a Monday (in the case of a Friday long weekend) or a Tuesday (in the case of a Monday long weekend), regardless of the Regular Access schedule.

Family Day Weekend

i. Family Day occurs every year on a Monday in February. In 2017, Nicholas will spend Family Day with the Respondent. This schedule will alternate every year.

School Spring Break

ii. Nicholas will stay with the Respondent during the school Spring Break/March Break in odd-numbered years and with the Applicant in even-numbered years. This only applies when Nicholas is in a school (whether daycare, kindergarten, grade school, etc.) that has a spring break as part of the school schedule. For clarity, as an example, if Nicholas is in a daycare program which does not take a March Break/Spring Break, then this section shall not apply for that year.

Easter Weekend

iii. Nicholas will be with the Applicant over the Catholic Easter weekend.

iv. Nicholas will be with the Respondent over the Orthodox Easter weekend.

Mother's Day

v. Mother’s Day falls on the 2nd Sunday of May every year. If the Applicant has regular access during that weekend up to Sunday at 10am, the Applicant shall have Nicholas for the remainder of that Sunday as well until the following morning. If the Respondent has access with Nicholas prior to the Sunday at 10am, the Respondent shall transfer Nicholas to the Applicant at 10am on Mother’s Day and the Applicant shall have Nicholas for the remainder of that day until the following morning. This shall apply to every Mother’s Day.

Father’s Day

vi. Father’s Day falls on the 3rd Sunday of June every year. If the Respondent has Nicholas prior to 10am on the Sunday, the Respondent’s access will continue for the remainder of that Sunday until the following morning. If the Applicant has Nicholas prior to 10am, the Applicant shall transfer Nicholas to the Respondent at 10am on Father’s Day and the Respondent shall have Nicholas for the remainder of that day until the following morning.

Victoria Day

vii. Victoria Day falls on the Monday preceding the 25th of May every year. Nicholas will spend Victoria Day in 2017 with whichever Party has regular access during the weekend immediately preceding Victoria Day. This will alternate on a yearly basis.

Vacation

viii. With respect to general vacation, each Party shall be entitled to spend uninterrupted vacation time with Nicholas as follows (“Vacation”):

1. Nicholas will stay with the Applicant for two (2) non-consecutive weeks each calendar year, during which time the Respondent's Regular Access will be suspended;

2. Nicholas will stay with the Respondent for two (2) non-consecutive weeks each calendar year, during which time the Applicant’s Regular Access will be suspended;

3. Each Party shall provide no less than thirty (30) days’ notice to the other Party with respect to each Vacation week to be exercised;

4. A detailed itinerary shall be given to the other party at least 10 days in advance of the commencement of the vacation, including name of any airline carrier and flight times, accommodation, including address and telephone numbers and details of how to contact the child during the trip.

5. The two (2) non-consecutive weeks for each Party shall apply to each calendar year, and cannot be “carried forward” into following years. For clarity, should a Party not utilize both weeks during a given calendar year, those weeks are forfeited. The non-consecutive weeks must be taken as a 7 day block beginning on a Monday and ending the following Sunday. If a Party wishes a shorter vacation period with Nicholas, the Party can simply forfeit the remaining time in the seven day block. In the event that a Party wishes to take a vacation longer than 7 days, and has legitimate reason to require additional time (re: travel outside the Province of Ontario), the Parties agree to act reasonably with respect to same and also give reciprocal consideration in the future (providing no request shall be made for a vacation of longer than 9 days). In other words, if one Party accommodates the other by allowing a slightly longer vacation period, the Parties agree that this accommodation shall be reciprocated in the future if requested;

6. Neither Party shall schedule Vacation time during the Christmas period (defined as the period from the last day of Nicholas’ school/daycare prior to Christmas until the first day of Nicholas’ school/daycare after Christmas);

7. Neither Party shall schedule Vacation if same falls on Mother’s/Father’s Day applicable to the other party.

8. Neither Party shall schedule Vacation which includes Nicholas’ birthday (unless the other party consents to same in writing).

9. Apart from the dates above, if a Party choses a vacation period that conflicts with any other date in the Holiday Access schedule herein, the Vacation takes priority;

10. The Parties shall consider Nicholas’ schedule (school and otherwise), when planning a vacation, in order to limit the impact of same on Nicholas’s general routine;

11. In the event that both Parties chose the same or overlapping vacation dates, the Party that provided written notice first shall have priority to those dates; and

12. For the purpose of this Vacation section, “non-consecutive weeks” shall mean not only that a Party cannot schedule both of his/her vacation blocks in concurrent weeks, but also that neither Party may schedule the start of his/her second Vacation block within 30 calendar days of the last day of her first Vacation block ending.

Canada Day Weekend / August Civic Holiday / Labour Day Weekend

8. Nicholas will stay with whichever Party has Regular Access during the weekend related to these long weekends, whether the holiday falls on a Monday or a Friday. Each of these will alternate every year.

Parties’ Birthdays

9. The Parties shall each be entitled to full-day access on their respective birthdays each year. This will remain consistent every year.

Thanksgiving Weekend

10. Nicholas will stay with whichever Party has Regular Access during the weekend related to Thanksgiving in 2017. This will alternate every year.

Halloween & New Year’s

11. Nicholas will stay with whichever Party has Regular Access on Halloween for 2016. This will alternate every year. The Party who has Nicholas for Halloween will be responsible for the Nicholas’s costume;

12. Nicholas shall stay with whichever Party has Regular Access on December 31st, 2016 and that Party shall be entitled to access for the entire day on January 1st, 2017 as well. The regular schedule shall continue as normal in the days before December 31, 2014 and after January 1st, 2015. This will alternate every year.

Christmas

13. In 2017, Nicholas will stay with the Respondent on December 24th and the morning of December 25th until 2pm. The Applicant shall pick up Nicholas at 2pm on December 25th and shall be entitled to access for the remainder of December 25th and all day December 26th. This schedule shall alternate every year.

Nicholas’ Birthday

14. Nicholas will spend July 1st with whichever Party has regular access that day until 3pm, at which time the other Party shall be entitled to pick-up Nicholas and have access for the remainder of the day until the next morning. This will alternate every year.

15. With respect to the custody and access arrangement for Nicholas set out above, the Parties further agree as follows:

i. The Parties shall make such adjustments as are necessary to give effect to the Schedule outlined above. The Parties agree and acknowledge that it may be necessary at the start of each calendar year or even during a given year, to switch days in order to allow a Party to have access on a given long-weekend or Holiday which is rightfully that Party’s. Specifically, most holidays are to alternate every year and the Parties each acknowledge they will act reasonably to ensure that each Party gets the time they are entitled to.

ii. The Parties will share equally in Nicholas’s access transportation.

iii. Both Parties will provide each other with their email addresses, current addresses and a phone number where they can be reached at all times.

iv. Access will only be altered if both Parties agree in writing beforehand.

v. If a Party is unable to spend her scheduled time with Nicholas, he/she will give the other Party at least 48 hours' notice.

vi. Neither Party will object to the other's plans with Nicholas and must respect each other's ability to care for Nicholas appropriately.

vii. Neither Party will arrange activities for Nicholas during the other Party's scheduled time without the other Party's written consent.

viii. Both Parties may attend extracurricular activities and scheduled school events regardless of the schedule.

ix. If Nicholas is sick, the transition from one Party's care to the other Party's care is to proceed according to the schedule, unless Nicholas is too sick to travel between the Parties' homes according to Nicholas’ doctor.

x. Nicholas will be permitted to take any personal item, toy, gift or article of clothing between the Parties' homes, without restriction.

xi. Nicholas’s health card will travel with Nicholas and each Party shall ensure that this occurs.

xii. If Nicholas will be in the care of a third party for more than one overnight during a Party's scheduled time, that Party will advise the other Party by email and will provide the name, address and phone number of the third party.

xiii. Notwithstanding the above subparagraphs, the Parties will at all times maintain a reasonable and flexible position respecting the custody/access arrangements for Nicholas and at all times the best interests of Nicholas will prevail. Accordingly, if special occasions, extracurricular activities, excursions or other opportunities become available to Nicholas, or to either Party, neither Party will insist that the custody/access arrangements set out herein be adhered to without exception.

16. The Respondent and the Applicant agree that it is in Nicholas’s best interests to spend time with the other parent rather than with a third party. Accordingly, if a Party with whom Nicholas is scheduled to be with pursuant to the schedule cannot care for Nicholas, that Party will notify the other Party and give the other Party the opportunity to do so.

17. The Respondent and the Applicant may telephone or communicate by email with Nicholas on a daily basis. Nicholas may telephone or email the Respondent or the Applicant when he wishes.

18. The Respondent and the Applicant may make inquiries and be given information by Nicholas’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with Nicholas. The Parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient (although both Parties intend it to be sufficient authority for either of them), the Parties will cooperate and execute any required authorization or direction necessary to enforce the intent of clause.

19. It is in Nicholas’s best interests to continue a relationship with his grandparents. The grandparents will have reasonable access to Nicholas. In addition, the grandparents (i.e. parents of a Party) can exercise access if that Party is unavailable to care for Nicholas during that Party's scheduled time.

20. The Respondent and the Applicant will live near each other so that Nicholas will have frequent contact with both Parties. Neither Party will move more than 25 kilometers away from their current residences, without the other's written consent or a court order.

21. The above-noted restriction on moving is not intended to limit the Parties' ability to take Nicholas out of the jurisdiction of the court for the purposes of Vacation travel with Nicholas.

22. Neither party shall change the child’s name from Nicholas Jean Pantelidis without the other’s written consent.

23. The Respondent shall keep Nicholas’ health card, social insurance card, benefits card and any other similar document. The Respondent shall provide proper photocopies of these documents to the Applicant and provide the original if ever required. The original is to be returned promptly to the Respondent thereafter.

24. The Respondent will apply for a renewal of Nicholas’s Canadian passport when necessary. The Applicant will sign the passport application if necessary. The Respondent will keep the passport and give it to the Applicant when she needs it for travel. The Applicant will return the passport promptly to the Respondent.

25. If either Party plans a vacation with Nicholas, that Party will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Nicholas during the trip.

26. If either Party plans a vacation without Nicholas, that Party will give the other a telephone number where he or she can be reached in case of emergency or if Nicholas wishes to contact that parent.

27. If either Party plans a vacation outside Canada with Nicholas, the travelling Party will provide the other Party with a draft letter or travel consent authorizing Nicholas to travel, for the other Party to execute and have notarized. At least three weeks notice shall be provided if a Party requires the other to sign a travel consent (unless in the case of an emergency – i.e family death, etc.). Provided the vacation is compliant with the terms of this Order, neither party shall unreasonably withhold consent to signing a travel consent and that party shall attend to having the travel consent notarized no later than twelve calendar days prior to departure.

The Respondent and the Applicant agree to:

28. Prefer Nicholas’s interests to their own and at all times keep the best interests of Nicholas in mind;

29. Encourage Nicholas to have a good relationship with each Party;

30. Refrain from making disparaging or negative remarks to Nicholas about the other Party, and discourage others from doing so in the presence of Nicholas;

31. Exchange information and communicate about Nicholas, with such communications to be in writing by email whenever possible. The Parties agree that any correspondence/communications between them shall be private, respectful and related solely to Nicholas;

32. Communicate regarding Vacation and Holiday scheduling in writing;

33. Share all documents regarding Nicholas by scanning the document and then emailing it to the other Party, rather than requiring Nicholas to transport documents between them;

34. Refrain from discussing with Nicholas, or with a third party in the presence of Nicholas, present or past legal proceedings, issues between the Parties in any such legal proceedings or any conflicts between the Parties;

35. Ensure that all information or documentation pertaining to the Parties' break down of relationship, including all personal correspondence or email communications in respect thereof, is not accessible to Nicholas.

GOOD FAITH

36. The Parties each agree that they shall act reasonably and make best efforts to foster a respectful working relationship between one another, for the sake of Nicholas;

37. In the event that an issue arises which is not covered specifically by this Order, the Parties agree that they shall negotiate said issue in good faith, keeping in mind the proportionality and intent of this Order and the best interests of Nicholas.

POLICE ENFORCEMENT

38. The Sherriff and local, provincial and national police forces and enforcement officials to whose attention this order is brought to forthwith locate and apprehend the child, Nicholas Jean Pantelidis born July1, 2013, and deliver the child to the care of either party for the duration of access as ordered herein.

39. This Order expires in twenty-four (24) months if it is not renewed.

COSTS

40. Costs to the Respondent on a substantial indemnity basis.

Date of signature

Signature of judge or clerk of the court

CITATION: Santos v. Pantelidis, 2017 ONSC 674

COURT FILE NO.: FS-15-401573

DATE: 20170203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Debbie Santos Applicant

– and –

Jean-Philippe Pantelidis Respondent

REASONS FOR JUDGMENT

McWatt