BARRIE COURT FILE NO.: FC-13-00001343-0000

DATE: May 22, 2018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Leonardo Zini, Applicant

AND:

Melissa Ann Cedrone, Respondent

BEFORE: Justice J. R. McCarthy

COUNSEL: John Syrtash, for the Applicant

Howard J. Feldman, for the Respondent

HEARD: May 4, 2018

RULING ON MOTION

Introduction

1The Respondent Mother (RM) moves under Rule 16 of the Family Law Rules (“the rules”) for summary judgment on the Applicant Father’s (AF) motion to change dated December 29, 2017. The RM seeks other relief as set out in her Notice of Motion. The AF opposes the RM’s motion and also moves for certain relief as set out in his Amended Notice of Motion dated April 20, 2018. The AF’s motion to change seeks to vary the June 19, 2015 consent order of Graham J. (“the order”). The order was given as a final one in respect of custody and access.

2Because the disposition of the summary judgement motion may result in the narrowing of issues to be determined going forward, the court suggested and counsel agreed, that the balance of the relief sought on the motion and the cross-motion should be adjourned sine die, returnable on a date to be determined. In line with that approach, counsel requested, and the court granted, an order vacating a settlement conference scheduled for May 7, 2018 on the basis that it would not be the most economical use of judicial resources to canvass issues which have been argued by way of motion and which are under judicial reserve.

Rule 16 Motions

3A motion for summary judgment requires that the moving party provide evidence that sets out specific facts showing that there is no genuine issue for trial [r. 16(4)]. The party responding to the motion must not rest on mere allegations or denials but must set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

4Pursuant to r. 16(5), if a party’s evidence is not from the person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to that party.

5If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly: r. 16(6).

6The court is directed to consider the evidence submitted by the parties; the court may weigh the evidence and evaluate the credibility of a deponent. The court may also draw any reasonable inferences from the evidence unless it is in the interest of justice for such powers to be exercised only at trial: r. 16(6.1).

Disposition

7For the reasons set out below, I am prepared to grant the relief sought by the RM and to dismiss the motion to change.

Background

8There are three children of the marriage: Gabriel Benjamin Zini (born October 18, 2004); Michael James Zini (born November 7, 2007); and Thomas Raphael Zini (born November 16, 2009). They are hereinafter referred to as “the children.” The parties married in 2001 and separated on May 24, 2013. The AF left the province in October 2014. The RM has had de facto care and control of the children since that time. The AF resurfaced in Washington DC in March 2015. The parties entered into an agreement which was incorporated into the order. The RM received formal custody under paragraph 5 of the order. The AF has exercised weekend access in Ontario from July 2015 to date. The parties consented to a further order of Graham J on March 27, 2017, which among other things, and on a temporary basis, required the AF to deposit his passports and visa with the RM for each and every access visit. Access was again restricted to Ontario. On a final basis, the order of Justice Graham dated June 19, 2015 was to reissue with changes only to the access arrangements in Ontario. Finally, on April 24, 2017 the RM accepted the AF’s offer to settle which served to clarify the passport deposit procedure during access visits.

The Order

9The order spans 12 pages and contains 62 paragraphs. The order incorporates the written consent of the parties, each of them having received independent legal advice. Paragraph 50 of the order stipulates that paragraphs 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17 and 18, “…are not subject to review or change unless by written agreement by the parties as witnessed for each party by the respective lawyer for each party”. For the sake of convenience, I refer to those paragraphs as the “non-variable paragraphs”. Those non-variable paragraphs effectively prohibited the AF from taking the children out of Ontario without the written consent of the RM. The residence of the children was to be Ontario. The RM was accorded the exclusive right to deal with applications and renewals of the children’s passports. Neither parent was permitted to apply for documentation to take the children to Brazil. At no time have the non-variable aspects of the order of June 19, 2015 been disturbed, varied or revised, on consent or otherwise

The Position of the RM

10The RM asserts that the AF is engaging in abuse of the court process by attempting to re-litigate the settled issues which make up the non-variable paragraphs. There have been no objective, unknown or unforeseen material changes in circumstances that should cause a court to re-visit the non-variable components of the court order. The AF cannot meet the established test laid down by the Supreme Court of Canada in Gordon v Goertz, 1997 191, (1996) 2 S.C.R. 27 (SCC). This decision set down a two part conjunctive test: first, the party seeking to change a final order must demonstrate on the facts that the change has altered the child’s needs or the ability of the parents to meet those needs in a fundamental way. Such a change must represent a distinct departure from what the court could reasonably have anticipated in making the previous order. Second, once a material change in circumstances is found, a number of principles are engaged, among them the best interests of the children in light of the new circumstances as established.

The Position of the AF

11The AF states that his situation has undergone material changes since the order was granted. He is now married and in a permanent relationship with Faith Grant (FG). He has purchased a permanent residence and obtained full-time employment in Washington DC. There is no risk of him taking the children to Brazil, as might have been previously feared. He has applied for a green card. Unlike Brazil, the USA is a signatory to the Hague Convention. As well, it is obvious that children are suffering from anxiety brought on by the RM’s attempts at parental alienation. The AF suggests that the order he is seeking to change must be looked at contextually; he only agreed to the non-variable restrictions on child access and travel in order to allay the RM’s fears and concerns.

Analysis

12I am not persuaded that there has been a material change in circumstances which would warrant changes being made to the custody and access provisions of the order of Graham J for the following reasons:

1. The AF responded to a Form 14 B motion brought by the RM for disclosure details about FG by swearing an affidavit dated July 28, 2017 in which he stated as follows :

“…There are specific provisions in place in Justice Graham’s Order that prohibit me from leaving the Province of Ontario with the children. Nothing has transpired since the final order of April 24, 2017, that would warrant the matter being returned to the Court. The Final Order has not been breached, nor is there a potential threat that it will be breached in the future.”

This admission post-dates March 2017 when he consented to the reissuance of the order containing non-variable terms;

2. The AF was a temporary resident in the USA on March 27, 2017 under a TN1 NAFTA Visa. He is still a temporary resident in the USA under a TN1 Visa. He does not have a green card or permanent residence status in the USA. He does not know if he will get a green card in the USA. Little to nothing has changed in that regard. In any event, the evolution of residency status must have been entirely predictable and foreseeable for the AF given that he was under a 3 year employment contract in April 2015;

3. The AF is employed with the same US employer who sponsored him for the TN1 Visa. The AF was employed there at the time that he agreed to the non-variable terms of the order. I fail to see how the renewal of his contract with this employer for a further three years amounts to a material change in circumstances. I find that such a prospect would have been objectively foreseeable;

4. The AF has resided continuously in Washington DC since March 1, 2015. He presently inhabits the same apartment with FG that he has resided in since March 1, 2015. I find it of little to no significance that the AF has been added on title to a property that was formerly in her name alone;

5. The AF has repeatedly consented not to take the children out of Canada and to deposit his passports with the RM as a condition of his access. By agreeing to the reissuance of the order of Graham J in March 2017, I find that the AF was implicitly conceding that no material change in circumstances had arisen which would render the order unsuitable, unworkable or redundant. I find it impossible to believe that circumstances in December 2017 had been unforeseen or unknown to the AF in March 2017, when he agreed to the reissuance of an order containing non-variable terms ;

6. There is no compelling evidence that the children’s anxieties relate to the present inability of them to travel to Washington DC or anywhere else for that matter. To the extent that the source of that anxiety can be explained, it appears to stem from the overnight access visits which take place with the AF here in Ontario;

7. There is no independent or expert evidence that it would be in the best interests of the children to travel outside of Canada with the AF. Nor is there any compelling evidence that the children are victims of parental alienation by the RM. I am not prepared to draw any inferences from the text messages exchanged between the children and the RM during overnight access visits with the AF. For example, the text from Gabriel to his mother that he would be texting the RM through the night is not indicative of anything other than a young person who has strong ties with, and undoubtedly misses, his mother. The AF points to the text message from the RM wherein she applauds the children for “tracking their steps” as indicative of parental alienation and the instilling of unnecessary fear in the children. I cannot agree; when considered in the context of “the fitness tracker” mentioned in the cut-off message preceding it, the comments of the RM found in the subsequent message make perfect sense. The inference suggested by the AF is simply unsupportable;

8. The AF failed to comply with an undertaking to produce the notes from former therapist Denise D’Alessandro. These notes may have corroborated the AF’s assertion that he was truly encouraged by Ms. D’Alessandro to withhold the news from the children that he had re-coupled until the relationship with FG was a permanent one. The fact that this undertaking went unfulfilled leads me to conclude that the AF’s explanation for not disclosing this personal information at an earlier time would not have been corroborated by Ms. D’Alessandro;

9. In any event, Ms. D’Alessandro, who had worked with the family for a number of years, and who I find would have some insight into the best interest and wishes of the children, stated as late as March 19, 2018 that she, “….would not recommend that the children visit the United States until these concerns are satisfactorily resolved.” (referring to the AF’s new domestic arrangements);

10. None of the alleged changes in circumstances alleged can be objectively viewed as unanticipated or unforeseen in 2015, let alone in 2017 when the AF consented to the reissuance of the order. His children have grown older, that is true; but that was inevitable. The AF has now settled permanently in Washington DC, but he has been living there continuously since 2015. His residency status in the USA has not changed in any appreciable way; he continues to reside at the same address. It cannot have been unexpected that he would obtain a renewal of his employment contract; that would have been the goal of any reasonably motivated and capable person. As well, I find that the AF has been less than forthcoming about his relationship with FG. It find it highly discrediting that the AF refused (or was not permitted by his counsel) to answer material questions about the events leading up to his marriage to FG when that is one of the changes that he relies upon in support of his motion. The court received no independent evidence from FG; presumably, she would have been capable of furnishing this matter with evidence of the history of the relationship;

11. I find the AF’s attempt, as revealed by the transcript of his questioning, to differentiate between a “committed relationship” pre-marriage and a “permanent relationship” after marriage, to be nothing short of outrageous. In fact, I find that this specious and transparent dichotomy is not only unconvincing but was designed by the AF to create the appearance of a material change in order to bolster his chances of success on this motion. In fact, I find that this man’s marriage to FG is nothing more than the natural evolution of events: he is undoubtedly with the same partner, living in the same place, under the same residency status as when he executed the consent to the order and most certainly since that order was reissued. Nothing has changed, let alone anything material or of significance;

12. I find that the AF’s assertion that he has “plans” to acquire property in Ontario should be afforded no weight. He has no declared assets and earned the paltry sum of $16,717 USD in 2017. His rather defensive and crafty distinction between “buying a property” and “planning on buying a property” is an entirely transparent position. I find that his “plans” to buy a property in Ontario are, at best wishful thinking, at worst an attempt to mislead the court into thinking that such an acquisition is imminent;

13. The AF had legal representation and advice at the time of entering into the agreement which led to the order;

14. I am not persuaded that the reasons of my brother McDermot J in his order of August 25, 2016 are in any way probative of the issue before me. The motion before him had to do with a request by the RM for supervised access not with a request to change the non-variable terms of a final consent order.

Conclusion

13I have concluded that it is not necessary in the interest of justice to leave the weighing of evidence, the evaluating of credibility or the drawing of reasonable inferences to a trial judge. Nor is oral evidence necessary for me to determine the issue before me. I am fully capable of evaluating whether there is a genuine issue requiring a trial of the motion to change on the evidentiary record before me.

14For the reasons set out above, I have concluded that the alleged changes put forth by the AF do not constitute a material change in circumstances sufficient to satisfy the first prong of the test in Gordon v Goertz. I am not satisfied that the changes described have altered the children’s needs or the ability of the parents to meet those needs in a fundamental way. If I am wrong in having reached that conclusion, and because there appears to be case law which focuses primarily on the best interests of the children when considering a motion to change a final order, I will go on to give those interests consideration.

15I am not persuaded that the variations in access sought by the AF would be in the best interests of the children in any event. We have the evidence of Ms. D’Alessandro. There is not a shred of medical evidence that the RM suffers from any kind of mental health condition. There is no verifiable evidence from any independent source, expert or otherwise, that the anxiety being experienced by the children has anything to do with their inability to travel outside the country with their father. In fact, it appears that their anxiety is heightened during overnight access visits with the AF. I am unable to detect any kind of parental alienation at work in the text messages exchanged between the RM and the children. On the contrary, a close review of the content of those text messages suggests only that the children have a strong attachment to their mother. There is nothing in the world wrong with that. Finally, there is no independent, verifiable evidence that the children wish to see any variation in the present access arrangements.

16The AF has failed to meet the test on either prong of the Gordon v Goertz analysis and has failed to persuade the court on a balance of probabilities that the best interests of the children call for a change to the non-variable terms of the order.

17There is no genuine issue requiring a trial of the issue of the change to the custody and access portion of the order of Graham J dated June 19, 2015. Accordingly, that aspect of the motion to change must be dismissed. The balance of the motions of the two parties are adjourned to a long motion date before me to be arranged through the trial coordinator at Barrie.

18If the parties are unable to agree on the issue of costs or the form and content of any order, they may take out an appointment to address those issues before me through the trial coordinator at Barrie.

McCARTHY J