LONDON COURT FILE NO.: F 1089/18 DATE: 20181115 SUPERIOR COURT OF JUSTICE – FAMILY COURT BRANCH
RE: Jorge Goffi, Applicant AND: Chantal Goffi, Respondent
BEFORE: Howard J.
COUNSEL: Alexander Hodder, for the Applicant Debora Canedo Brubacher, for the Respondent
HEARD: October 24, 2018, with further submissions on November 8, 2018
Endorsement
Overview
[1] There are three motions before the court [Continuing Record, Tabs 3, 5, and 8].
[2] The applicant father brings a motion [T3] seeking an order, inter alia, that he have parenting time with the two children of the marriage, namely, Alyssa Ella Goffi, born May 17, 2009 (now nine years of age), and Aythen Alejnadro Goffi, born June 8, 2012 (now six years of age), each Friday from after-school until Monday morning.
[3] The respondent mother brings two motions [T5 and T8] seeking an order, inter alia, that the father shall have parenting time with the children every Saturday from 10:00 a.m. to 4:00 p.m. and every Sunday from 4:00 p.m. to 8:00 p.m., and that at all other times the children should remain in the primary care of the respondent mother. [1]
[4] It is common ground that the parties started dating in the summer of 2006, were married on February 18, 2009, and separated on or about April 11, 2017.
[5] It is also common ground that following separation the parties ultimately came to an agreement respecting a parenting schedule, pursuant to which the father had the children with him every Friday from after-school until Monday morning’s drop-off at school, and the mother had the children with her at all other times. The parties did not sign a separation agreement or obtain a court order respecting the arrangement; however, it appears from the evidence of the mother that they came to this agreement by way of exchange of WhatsApp messages in or about August 2017.
[6] It is also common ground that both children came to develop behaviours that are of concern. The older child, the parties’ daughter Alyssa, started to demonstrate behaviour issues at school over the 2017-2018 school year. In the comments section on Alyssa’s Grade 3 final report card, dated June 27, 2018, her teacher noted the following:
[Alyssa] continues to test her boundaries with figures of authority as she fails to distinguish that there are different ways to interact with adults and with her peers. Listening to redirection from supervisory adults during nutrition breaks and following through on their recommendations is important for her to meet the expectations of being kind and respectful to the adults in our building and to model leadership qualities for her peers. … Alyssa would benefit from considering the short- and long-term effects of her words and actions on her peers before saying or doing something she might regret. Continuing to work on being flexible in group work armed with the knowledge that she will not always get her way is an area of improvement for her. [2]
[7] More troubling is the evidence concerning the younger child, the parties’ son Aythen, who began to engage in self-harming behaviour during the 2017-2018 school year. The evidence of the mother is that while Aythen had started self-harming on and off in or about February 2018 (when Aythen was then five years of age), the behaviours escalated over the summer of 2018 with Aythen punching himself in the forehead when upset and saying things like “I’m the worst kid ever” and “I don’t want to live anymore.” [3]
[8] While the applicant father did not raise the self-harming behaviour of Aythen in his initial affidavit, and did not expressly take issue with the mother’s description of Aythen’s behaviour, he stated in his reply affidavit that he “became aware of Aythen’s self-harm behaviour through Alyssa.” The father’s understanding from Alyssa is that, reportedly, Aythen has a habit of hitting and punching himself when the mother gets mad at him or disciplines him. The father noted that the mother did not disclose Aythen’s self-harming behaviour to him directly.
[9] While, as I have said, both parties accept that the children are in fact engaging in these concerning behaviours, the cause(s) of the children’s behaviours are in question.
[10] For reasons more fully reviewed below, on Friday, August 24, 2018, the mother sent a message to the father to say that she would not be sending the children to the father for their weekly visit. The mother’s position is that she had reason to believe that both Alyssa and Aythen did not feel safe and/or comfortable during their time with their father.
[11] In response, on Tuesday, August 28, 2018, the applicant father commenced the instant application and served his emergency motion [T3], seeking a return to the former parenting schedule, in advance of a case conference being held.
[12] The father’s motion was originally returnable September 5, 2018. It came before Henderson J. on that date but was adjourned, on consent, to September 12, 2018, as, it would appear, the respondent mother had just retained counsel. In the interim, Henderson J. made an order on September 5, 2018, for the father to have unsupervised access on Saturday, September 8, 2018, from 10:00 a.m. to 4:00 p.m. and Sunday, September 9, 2018, from 4:00 p.m. to 8:00 p.m. As well, Henderson J. also ordered that:
Neither party shall involve the children in this litigation or any adult issues.
Neither party shall speak poorly of the other in presence of the children or permit anyone else to either.
[13] On September 12, 2018, the motion was further adjourned to October 3, 2018, as, I am advised, the applicant, having just retained counsel, required more time to reply, and the October 3rd date was the first date both counsel were available.
[14] The motions thus came before Mitrow J. on October 3, 2018. The endorsement record indicates that the “court elected to conduct a case conference.” At the conclusion of the conference, Mitrow J. made the following order, on consent:
On a without prejudice interim interim basis, the father shall have access each week from Saturday 10:00 a.m. to Sunday 8:00 p.m.
[15] The court’s endorsement expanded on the nature of the order being made, and stated that while the order was made on consent, “with respect to the parenting schedule, neither party is satisfied with it and the order is being made without prejudice to the right of either party in advocating for a different schedule.” In the result, all motions were adjourned to October 24, 2018.
[16] The court also made a referral order requesting the appointment of the Office of the Children’s Lawyer (“OCL”) for the purposes of providing an investigation and report under s. 112 of the Courts of Justice Act. [4]
[17] The motions then came before me on October 24, 2018. In support of their three motions, the parties relied upon, and I reviewed, inter alia, the affidavit of the applicant father sworn August 28, 2018 [T4], the affidavit of the respondent mother sworn September 6, 2018 [T6], the responding/reply affidavit of the respondent mother sworn September 27, 2018 [T9], the responding/reply affidavit of the applicant father sworn October 17, 2018 [T10], and the reply affidavit of the respondent mother sworn October 16, 2018 [T15]. I also reviewed the entire yellow endorsement record.
[18] It is to be noted that while the parties each filed multiple, conflicting affidavits; there was no cross-examination conducted on any of the affidavits.
[19] Consistent with counsel’s confirmation notices, the three motions had been set down for, collectively, 45 minutes only. At the outset of the hearing before me, I expressed my concern that 45 minutes would appear to be insufficient time to address the motions given the nature of the issues involved and the volume of affidavit materials filed, and I indicated that, in my view, the motions were more appropriately the subject of a special appointment. However, both counsel requested that I hear the motions given the number of adjournments that had already transpired. In the circumstances, I acceded to the request of counsel but stated that, given the representations of counsel on their confirmation notices, as well as the fact that I had a full schedule of conferences in the afternoon commencing at 2:30 p.m., I would hold them to their time estimates. In the result, however, argument on the motions was concluded within 55 minutes. [5]
[20] In the course of argument, counsel for the respondent mother (very helpfully) handed up draft terms of the precise order she was seeking. As counsel for the applicant father did not have a similar draft with him, in the interests of fairness, I invited counsel for the applicant to also submit, if he wished, the draft terms of the precise order he was seeking, by way of email correspondence directed to the Trial Coordination Office (“TCO”). I understand that counsel for the applicant did email the TCO with his draft order on November 8, 2018, which correspondence was then passed on to me. As such, I have also considered the draft order submitted by counsel for the applicant.
Position of the parties
[21] The applicant father seeks to restore the parenting arrangements that were in place before the respondent mother denied him access on August 24, 2018. The applicant father seeks a return to what he maintains was the status quo following separation. The applicant father submits that the problem with the motions of the respondent mother is that (a) they depend on the hearsay evidence of the children and (b) at this juncture, such evidence cannot be tested. Accordingly, the applicant submits that the motions of the respondent mother should be deferred until after the OCL delivers its s. 112 report (assuming that the OCL accepts the court’s request to conduct such an investigation). The applicant father maintains that the respondent mother cannot be permitted to, in effect, attempt to establish a new status quo by resort to self-help remedies, and that such self-help remedies, as reflected in her denial of access on August 24, 2018, must not be countenanced by the court and, indeed, must be denounced by the court.
[22] As reflected in her two notices of motion, the respondent mother sought to restrict the applicant father’s parenting time to parameters consistent with the order of Henderson J. dated September 5, 2018, that is, that the father shall have access to the children each Saturday from 10:00 a.m. to 4:00 p.m. and Sunday from 4:00 p.m. to 8:00 p.m. As such, that would provide the applicant father with no overnight access with the children.
[23] The respondent mother also sought in her motions a referral order to the OCL and, as I have said, that was granted by the order of Mitrow J. dated October 3, 2018.
[24] That said, in her argument before me, and in the draft order submitted to me in argument, the respondent mother sought what I would term a “compromise proposal” by which she sought to have continued the interim interim without prejudice arrangements established by the order of Mitrow dated October 3, 2018, that is, that the father shall have access to the children each Saturday from 10:00 a.m. until Sunday at 8:00 p.m.
[25] Much time in counsel’s oral argument before me was spent on counsel’s various procedural evidentiary objections to the admissibility of the affidavit evidence tendered on the motions. Counsel for the applicant, by my count, advanced some 36 objections to various paragraphs in the respondent’s material on the grounds of hearsay, privileged communications, no source having been cited, etc. For her part, counsel for the respondent responded in kind and objected to some 11 different paragraphs in the applicant’s affidavits.
[26] I do not propose to deal with or rule on all of counsel’s numerous objections, many of which had minimal or no merit, except to the extent necessary for the purposes of this interim ruling.
[27] Moreover, I note that counsel for each of the parties objects to the very same conduct by counsel opposite (e.g., relying on hearsay evidence from the children and others, and so-called opinion evidence, etc.) that they have engaged in themselves.
Analysis
Status quo
[28] The applicant father argues that the respondent mother’s intervention on August 24, 2018, disturbed the status quo that had previously existed in the parenting arrangements.
[29] I do not doubt that that is correct – as far as it goes. As I have said, it is common ground that following separation the parties came to an agreement on the parenting schedule, pursuant to which the father had the children with him every Friday from after-school until Monday morning’s drop-off at school, and the mother had the children with her at all other times.
[30] Indeed, the respondent mother very fairly recognized and conceded that “[t]his parenting arrangement was doing okay until in [or] about [the] end of 2017.” [6]
[31] I also accept the position of counsel for the applicant father that there is a heavy onus on the party who seeks to disturb an interim status quo. A party wishing to change an interim status quo must establish cogent and compelling evidence to show that the physical, mental, or moral welfare of a child would be in danger in maintaining the status quo. Justice Mitrow in Miranda v. Miranda summarized the law as follows:
A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests. [7]
[32] However, the salient point is that both children subsequently began to display troubling behaviours after implementation of the originally agreed-upon parenting arrangements. As I have said above, both parent-parties acknowledge the existence of those behaviours in their children, although the cause of those behaviours is in dispute (and need not be conclusively determined for the purposes of the instant interim motions).
[33] That said, in my view, the emergence of the troubling behaviours in the children constitutes cogent and compelling evidence that shows that the physical and/or mental welfare of the children would be in danger if the status quo were maintained.
[34] Indeed, the self-harming behaviours of Aythen in particular, commencing apparently when the boy was but five years old, is of particular concern to the court. To suggest that the previous status quo should continue on notwithstanding such troubling behaviours – that is, to suggest that, in effect, the court should simply ignore the emergence of such behaviours – and, again, I note that the father’s original affidavit did not raise the concern of the children’s troubling behaviours – is, in my view, a telling factor to be considered in reviewing the applicant father’s position. Further, such a suggestion is also inconsistent with established jurisprudence of this court and its parens patriae jurisdiction.
Self-help
[35] The applicant father argues that the respondent mother’s resort to the self-help remedy of her denial of his access on August 24, 2018, must not be countenanced but, rather, must be denounced by the court.
[36] There is no doubt but that the court will not reward a parent who has unilaterally tried to create a new status quo for the purposes of an interim motion. [8]
[37] However, in my view, that does not accurately characterize the events and circumstances of the instant case.
[38] In the instant case, the respondent mother observed their nine-year-old daughter starting to develop behavioural issues, acting out against authority figures such as the school authorities (as reflected in Alyssa’s report card) and herself. She also observed her then five-year-old son beginning to engage in alarming self-harming behaviours and then subsequently talking of suicide. As the mother herself said, “I did not really think this could have been directly related to [the applicant father], but that the children were somehow still struggling with our separation. However, as time went by I realized that Jorge’s behaviour was not helping the children deal with their symptoms and it could have been a factor in worsening it.” [9]
[39] The respondent mother then sought medical attention for the children, as recommended by their family doctor.
[40] To that end, there was a referral made on August 9, 2018, by the family doctor to the Children’s Hospital on account of the doctor’s diagnosis of “anxiety and family stress.”
[41] A nurse at the Children’s Hospital subsequently contacted the respondent mother on August 16, 2018, in response to the referral and explained that due to the children’s symptoms and age, the programs at the Children’s Hospital would not be suitable for the children. Instead, the mother was referred to Vanier Children’s Services and Merrymount Family Support and Crisis Centre.
[42] The mother then contacted both Vanier and Merrymount and left voice-mail messages requesting a return call. An intake worker from Vanier called the mother back, did an initial assessment, and then booked an intake appointment for Wednesday, September 9, 2018.
[43] The evidence of the mother was that, in the interim, inter alia, she noticed the children displaying increased anger and sadness throughout the week, and both children allegedly voiced concerns about and fears of their father’s anger and the way he treats them. The mother spoke with the children about their feelings. The mother maintains that, “[a]fter a lot of research and prayer, I had to make a very difficult decision in order to protect both kids. … I called Children’s Aid Society with my concerns, cancelled work for the weekend, and sent my lawyer an email with my concerns. I had picked a lawyer through Legal Aid and unfortunately that week she was moving offices and the next week she was on vacation, she was not available to meet with me until today [September 6, 2018].” [10]
[44] However, it appears the respondent was able to reach her lawyer on or about August 28, 2018, while counsel was still on vacation, and the two of them then spoke, and counsel then spoke with the applicant father the following day about his emergency motion filed August 28th in order to, inter alia, set up temporary access pending the motion.
[45] The upshot of all of this was that the applicant father was denied only one weekend’s access with the children, on the weekend August 25-26, 2018, before the respondent mother was able to connect with and speak to her legal counsel. Subsequent access was then established through agreement of the parties and the interim order of Henderson J. dated September 5, 2018.
[46] The court must always remain vigilant not to countenance any party’s resort to self-help remedies. However, in the particular circumstances of the instant case, it would not be appropriate to permit the fact of the mother’s resort to a self-help remedy, which was made before she could properly consult with legal counsel, and which resulted in the father losing only one weekend’s access to the children, to completely overwhelm the analysis in the instant case. In short, it is a factor in my determination but not the determinative factor.
Exposure to adult conflict
[47] The respondent mother is very concerned that the applicant father has exposed the children to the adult conflict.
[48] The applicant father flatly denies that accusation. He maintains that:
I do not discuss the separation between myself and the Respondent with our children, much less spread lies about the Respondent to them. Those conversations are not appropriate for our children. However, I believe it is quite natural for the children to be curious about the Respondent’s behaviour post-separation, especially since the Respondent has been unreasonable with the effects of the matrimonial home and with matters such as changing the locks on our home. [Emphasis added.] [11]
[49] I must say that I am somewhat troubled by the father’s expressed belief that it is “quite natural” for the children to be curious about their mother’s behaviour post-separation. His statement does not give me great comfort that he fully accepts that particulars of the parents’ conduct post-separation are an “off limits” subject that should not be shared with their children, or that a parent should not be feeding into or attempt to satisfy the children’s so-called “quite natural” curiosity about such matters.
[50] In any event, in my view, there is clear evidence before the court that the two children in this case have been exposed to the adult litigation.
[51] In the respondent mother’s recount of the events of April 11, 2017, which, she maintains, was the date of the separation of the parties, when, she says, the applicant father abruptly left the family home after the parties had put the children to bed, the father’s departure was preceded and precipitated by an argument between the parties over the father’s proposal that – and the mother’s objection to – the family should move to Mexico.
[52] The mother’s evidence is that on April 11, 2017, she and the father had a discussion, which turned into an argument, about moving the family to Mexico, which the father was in favour of because of “finances and his increased back pain during our Canadian winters.” The mother’s evidence is that she disagreed with her husband, explaining that their marriage “needed quite a lot of work and that we needed to be in a better place in our marriage before I would feel comfortable moving our family so far away.” [12]
[53] The mother’s evidence is that, “[u]nfortunately, the children witnessed this interaction.” [13]
[54] The father’s evidence is that the argument ensued as soon as he brought up his planned move to Mexico. He says that, “[u]pon mentioning the move, the Respondent replied ‘I’m not going anywhere with you, I hate our marriage’ in front of the children.” [14]
[55] As such, while the parties may disagree upon how the argument unfolded or who was responsible for the argument, both parties agree that a conversation took place on April 11, 2017, that the subject-matter of the conversation was the applicant’s proposal to move the family to Mexico, that an argument then ensued between the parties, and that the argument was conducted by the parties in front of the children. That incident implicates both parties.
[56] Secondly, with respect to the incident that occurred on Sunday, August 26, 2018, at the parties’ Christian religious meetings and, in particular, the interaction between the parties following Aythen’s greeting with his father at the meeting, the evidence of the respondent mother is that after the mother had asked Aythen to return to her so that they could enter the hall and take their seats, the father “then proceeded to continue with causing a scene as he left he was upset and was calling me evil and accused me of serving Satan the devil, all while in the presence of Alyssa, Aythen, my dad, as well as other onlookers.” [15]
[57] In his responding affidavit, the applicant father maintains that while it was the respondent mother who was escalating the situation that day at their church, “her father became aggressive as well. At that point I encouraged the children to return to their mother to defuse the situation. Shortly thereafter, the Respondent’s father attempted to be a barrier between myself and the children. At that point I stated privately to him that he was evil for acting this way and possibly possessed by the devil. That remark was not directed at the Respondent as she alleges.” [16]
[58] Again, while the parties may disagree upon how the incident precisely unfolded, both parties agree that an altercation took place on Sunday, August 26, 2018, at their place of worship, that the incident involved heated words spoken by the applicant father – whether to the respondent mother or her father – involving the applicant father admittedly calling (either the respondent mother or her father) “evil” and saying that she/he was “serving Satan the devil” (the mother’s recollection) or “possessed by the devil” (the father’s recollection).
[59] In any event, the mother alleges that this exchange occurred in front of the children. The father’s affidavit does not specifically contradict or even challenge the mother’s evidence on this point. I am satisfied that if the altercation did not take place in front of the two children, the father would have expressly said so in his affidavit. The absence of such a challenge is, in my view, telling. As such, I accept that the father made these statements, whether to the mother or her father, in the presence of the children.
[60] In my view, that shows a willingness of the father to engage in adult conflict in front of the children, or at least an indifference to whether the children are present or not. I emphasize that in respect of the incident of August 26, 2018, there is no allegation by any party that it was the mother who engaged in such offensive discourse. Not at all. Indeed, both parties agree that it was the children’s father who said that the person opposite in the conversation was “evil” and was either “serving Satan the devil” or was “possessed by the devil” – the parties simply disagree as to whether the applicant husband was directing those comments to the respondent wife or her father.
[61] But clearly those unfortunate comments were made by the applicant father, and they were made in front of the children.
[62] Thirdly, even more telling are the circumstances surrounding the telephone conversation between the applicant father and the children on November 20, 2017.
[63] The circumstances surrounding the telephone conversation were referenced in the respondent mother’s first affidavit, sworn September 6, 2018.
[64] November 20, 2017, was a Monday, and in accordance with the parties’ parenting arrangements, the children were residing in the care of their mother that evening. It appears that, consistent with the parties’ agreed-upon phone-access arrangements, the applicant father had called in the evening to have his phone-access with the children before they went to bed. It appears that at least part of the conversation was conducted while the father was on speaker-phone. It also appears that the conversation was recorded, as more fully described below. I was advised that the respondent mother was present in the room with the children while they were having phone-access with their father, and she witnessed the conduct of the children.
[65] The mother described the incident in para. 14 of her affidavit of September 6, 2018, in the following terms:
Aythen did not want to speak on the phone with Jorge [the father] because he was distracted by our cat, Jorge used of [sic] promises to lure Aythen to the phone, such as saying that he had a surprise for him, once Aythen was on the phone with Jorge, Jorge started questioning him in an aggressive way as to why he did not want to talk to daddy, how he was disappointed in Aythen and that he had just spent a weekend having fun with Aythen and since he was behaving this way the next weekend there would be no fun, that it was not fair to him for Aythen to do this to daddy because mommy spends more time with him [than] daddy and it was just not fair and more, when Aythen turned apologetic, Jorge did not accept his apology and said “nope if you want to be like that that is fine, daddy is sad” and Aythen kept apologizing and crying and Jorge went “no, no, no, that’s fine, put your sister back on the phone.[“] Aythen was clearly affected by that interaction. That is just an example of how the interactions go. [17]
[66] Counsel for the applicant objected to the court receiving this evidence on the grounds that the affidavit did not specify the source of the information. I dismiss that objection. The source of the information is the mother herself, who was present during the conversation, and who observed the reactions of Aythen and what was being said.
[67] In his responding affidavit sworn October 17, 2018, the applicant father did not specifically address, much less challenge, the mother’s account of the November 20th telephone conversation, as set out in para. 14 of her earlier affidavit. In fairness, the father did say in para. 2 of his affidavit, as an initial blanket statement, that he disputes “many of the facts asserted by the Respondent in her Affidavit of September 6, 2018.” [18] However, it is not clear whether the mother’s account of the November 20th phone call is one of the “many” facts that the applicant actually disputes. His affidavit certainly does go on to challenge various specific paragraphs in the mother’s September 6th affidavit; however, his affidavit does not specifically challenge or even mention her para. 14 or the November 20th conversation.
[68] In my view, in such circumstances, it is not unfair to say that the mother’s account of the November 20th conversation was unchallenged by the applicant father. However, I would not rest my determination on that basis alone.
[69] The respondent mother subsequently delivered a reply affidavit sworn October 18, 2018, in which she provided further particulars of the November 20, 2017, conversation. In fact, the mother’s reply affidavit provides a transcription of the conversation of November 20, 2017, which is attached as an exhibit to a sworn affidavit of a professional transcriptionist, Ms. Jennifer Marr, who attests to the fact that she was provided with an audio-recording file by the respondent mother, that she carefully listened to the audio-recording of three main speakers identified as Jorge, Alyssa, and Aythen, and that she then prepared an accurate and complete transcription of the recording. [19]
[70] Counsel for the applicant advanced some objection to the court receiving the evidence of the transcription, primarily based on rule 14(20) of the Family Law Rules. [20] I do not believe that reliance on the restrictions on evidence permissible on a motion, as set out in rule 14(20), assists the applicant father in the present circumstances. More to the point, I do not perceive a violation of rule 14(20) in the instant case. The respondent mother raised the subject of the November 20, 2017, conversation in her initial affidavit of September 6, 2018. The father’s responding affidavit did not specifically challenge or address the impugned conversation. However, I understand that there were subsequent questions raised by the court as to the absence of a reliable transcript of the alleged recordings. In response to that concern, the respondent mother delivered a reply affidavit that provided further particulars of – and a transcript of the recording of – the November 20th conversation that had first been described in the mother’s September 6th affidavit.
[71] In these circumstances, I see no violation of rule 14(20).
[72] Further, the reply affidavit of October 18th was delivered in a timely fashion. If counsel for the applicant father needed more time to respond to the affidavit, counsel was at liberty to request an adjournment of the motions to permit him to do just that. Indeed, my initial comments to counsel that, in my view, the motions should more properly be adjourned to a special appointment would have facilitated any such concern, if it existed. But no such request was made.
[73] In all of these circumstances, I find that the transcription of the audio-recording of the telephone conversation of November 20, 2017, is properly admissible on the motions before me.
[74] In my view, the transcription of the November 20th phone call is telling. A review of the transcription reveals that the applicant father lured Aythen to the phone and then directly spoke to the child about issues concerning the parents’ separation in an apparent attempt to make the child feel guilty about not wanting to speak with the father.
[75] I note, in particular, the following exchanges between the father and the children in the transcription:
Jorge: Hi, what happened? Alyssa: I don’t know, my hair must have touched the button. Jorge: Oh, okay. Alyssa: That’s why I put you on speaker. Jorge: I’m on speaker again, now? Alyssa: No. That’s why I like … Jorge: Oh, okay. Alyssa: … to put you on speaker. Jorge: No, don’t put me on speaker. I want to just talk to you. … Jorge: No, you guys aren’t going to bed any time soon? Alyssa: No. Jorge: No? Because it’s already past eight o’clock. Alyssa: Yeah. Jorge: Let me talk to Athen [sic] for a second. Alyssa: Okay. Athen. Athen: What? Alyssa: It’s (1:53) Athen: I don’t want to. Alyssa: He doesn’t wanna talk. Dad, he doesn’t wanna talk. Jorge: Yeah? Alyssa: Yeah. Jorge: Really? He doesn’t want to talk to me? Alyssa: No. Jorge: Put it – put it close to him for a second. Tell him I want to say something to him. Alyssa: Athen, he wants to say something to you.
[giggles] [laugher in background] Athen: Big lady bug [in background laughing] Female in background: Athen. Jorge: Hello. Alyssa: Yeah. Jorge: What’s going on? Alyssa: Oh, Sophie just found a lady bug. It’s flying around the house and she’s just chasing it. Jorge: Okay. Did you put the phone to Athen, so I could talk to him? Alyssa: No. Athen. You got to talk to Dad, he wants to say something to you. Athen: I don’t want to. [whining] Alyssa: Hah, he doesn’t want to. He won’t even let me. Jorge: Just tell him I want to say something to him. Alyssa: Athen, he wants to say something to you. Athen: No. Alyssa: Athen, just talk to him for one minute. Athen: I already know what it is. Alyssa: He said he already knows what it is. Jorge: Wow. Female in background: For one minute, yes. [child whining in background] Jorge: Tell him I’m really sad because I wanted to tell him a surprise and … Alyssa: Athen, Dad wants to tell you a surprise. Athen: Come here. Alyssa: Okay, now he does. Here. Athen: Hi. Jorge: What’s the matter, Athen? Why are you mad at me? Athen: I’m tired. Jorge: Okay, listen to me. I don’t care if you’re tired, okay. You can say hi to Dad. If you don’t want to say hi to Dad, then Dad won’t do nothing with you next weekend. Because that makes me very upset that you don’t want to talk to me. That makes me very, very sad. I spent all weekend with you. I took you to the pool and we did a whole bunch of stuff together. And we cuddled together, and now when you’re at Mom’s, you don’t want to talk to me? Athen: Hmm [cry sound]. Jorge: That’s not nice, Buddy, that makes me very, very sad. I miss you so, so much and I’m not going to see you for like, four days. And I want to talk to you and I want to say hi to you and I want to see how your day was. And I want to tell you that I love you, and you don’t even talk to me. So, that’s fine. Hand me back to Alyssa. Athen: Sorry. Jorge: No, that’s fine, Athen. I’m, I’m, I’m sad. Athen: Sorry [sobbing]. Jorge: That makes me very, very sad, Athen, and it hurts my feelings a lot. [Athen sobbing] Jorge: Daddy misses you. Mommy and Daddy are separated, and Daddy doesn’t get to see you as much as Mom. [Athen sobbing] Jorge: And Daddy misses his little boy very, very, very much. It makes me very sad when I hear that Athen would rather sleep with the cat than talk to Daddy. [Athen sobbing] Jorge: So that’s fine, Buddy, got to bed. Athen: I’m sorry [crying]. Jorge: That’s fine. That’s fine. I’ll talk to you some other day. [Athen sobbing very hard] Jorge: Pass the phone to Alyssa. Athen: Okay [sobbing]. [Athen sobbing] Alyssa: Okay. Jorge: All right, so call me when you’re doing the prayer. Okay, Alyssa? Alyssa: Okay. Jorge: Okay. I love you. Alyssa: I love you, too. Jorge: Bye. Alyssa: Bye. [hangs up phone] [Emphasis added.] [21]
[76] I must say that, upon first reading the transcription of the telephone conversation, I was struck by the overtly manipulative and passive-aggressive manner taken by the father with his son, who was then but five years of age.
[77] I would also note that, comparing the transcription of the telephone conversation with the respondent mother’s summary of the call as set out in para. 14 of her September 6th affidavit, the mother’s recount of the phone call was, in my view, an essentially accurate and fair summary of the conversation.
[78] Moreover, the evidence of the father’s dealings with Aythen on the November 20th conversation as set out in the transcription – when measured against his stark denial that “I do not discuss the separation between myself and the Respondent with our children” as set out in para. 11 of his October 17th affidavit – gives me serious cause to question the applicant’s credibility. I must reconsider the totality of his evidence with that concern in mind.
[79] In sum, on the basis of the totality of the evidence before me, I am satisfied that the applicant father has exposed the children to the adult conflict.
[80] In my view, the best interests of the children are better served by restricting their exposure to the father’s conduct. However, I am mindful of the mother’s observations that the children “do share a parent/child bond with Jorge.” [22]
[81] Under the previous parenting arrangements, the applicant father had the children for every weekend. The position taken by the mother in her notices of motion is that the father should continue to have weekend access with the children but no overnight access. However, in argument before me, counsel for the respondent mother adopted a more compromising position and argued that the parenting arrangements under the interim interim without prejudice order of Mitrow J. dated October 3, 2018, should continue to govern until the OCL disclosure. Those interim interim parenting arrangements also contemplated that the children would be with their father for, essentially, the entire weekend. The difference is that the father would not have the children for Friday evening and overnight and Sunday overnight. In the circumstances, I find that the compromise proposal of the mother would best serve the interests of the children.
[82] The father denies that his conduct is responsible for the emergence of the children’s problematic behaviours. That will be an issue for trial.
[83] However, what is clear at this stage is that the applicant father has exposed the children to the adult conflict. Indeed, there is compelling evidence of that.
[84] Whether or not the exposure to the adult conflict is responsible for the apparent behavioural issues of the children will have to be determined at trial. But it is clear that the children have been exposed to the adult litigation. That must stop. An order must issue prohibiting such conduct. In the circumstances, especially at this interim stage, the order should be made mutual, to apply to both parties.
Conclusion
[85] For all of these reasons, an order shall issue in accordance with the following:
a. Subject to sub-paragraph (b) below, there shall be a temporary order that the applicant father shall continue to have parenting time with the two children of the marriage, namely, Alyssa Ella Goffi, born May 17, 2009, and Aythen Alejnadro Goffi, born June 8, 2012, in accordance with the interim interim without prejudice order of Mitrow J. dated October 3, 2018, that is, every Saturday from 10:00 a.m. until Sunday at 8:00 p.m. At all other times, the children shall remain in the care of the respondent mother.
b. The parties shall continue to have a five to ten minute telephone access with the children each night while the children remain in the care of the other parent. All communication during such telephone access shall comply with the directions in sub-paragraph (d) below.
c. In the event the Office of the Children’s Lawyer accepts the request set out in the court’s referral order dated October 3, 2018, the parenting schedule under sub-paragraph (a) above shall continue in place until the disclosure of the OCL report and the parties’ prompt consideration of same. In the event the OCL declines the request set out in the said referral order, the parties shall review the parenting schedule under sub-paragraph (a) above and its ability to continue to meet the best interests of the children as soon as reasonably possible following notice that the OCL has declined the request set out in the said referral order.
d. Both parties shall comply with the order of Henderson J. dated September 5, 2018, and shall not disparage the other party, discuss adult issues, or discuss this litigation in the presence of the children. In particular:
i. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage any third person to do so in the presence of the children or any one of them. Neither parent shall post any disparaging or negative comment about the other parent in social media platforms.
ii. Neither parent shall discuss with the children or any one of them, or with any third person in the presence of any one of the children, any present or past legal proceedings or any issue between the parties related to any present or past legal proceedings, including any issue relating to the parenting of the children, the breakdown of the parties’ relationship, the conflict between the parties, or financial matters consequent to the breakdown of the parties’ relationship.
iii. Neither parent shall leave out or make accessible to the children, or any one of them, any information, document, or electronic file pertaining to any issue arising from the parties’ separation and divorce, and neither party shall permit the children, or any one of them, access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the children shall not have access to information regarding the parties’ separation and divorce by password-protecting any area of their personal computers or related devices that hold such information.
iv. Neither parent shall do anything that would estrange the children, or any one of them, from the other parent, injure the opinion of any child as to their mother or father, or impair the natural development of the children’s love and respect for each of their parents.
e. Except in the event of emergency, the parties shall communicate with each other only through the “Talking Parents” communication protocol, or such other internet-based communication protocol as the parties may agree. All such communications shall be respectful, focussed on issues of the parenting of the children only, and shall, in any event, comply with the directions in sub-paragraph (d) above.
f. Neither party shall make or allow any third person to make any form of audio-recording or video-recording of the parties’ conversations or interactions with each other or of the other party’s conversations or interactions with the parties’ children, without the express consent of the other party.
[86] Based on her proposed draft order, which sought the continuation of the parenting schedule established by the interim interim without prejudice order of Mitrow J. dated October 3, 2018, the respondent mother was the more successful party on the motions before me and is presumptively entitled to her costs.
[87] If the parties are unable to agree on the issue of costs, they may file brief written submissions with the court, through the TCO, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:
a. the respondent mother shall deliver her submissions within twenty (20) days following the release of this endorsement;
b. the applicant father shall deliver his submissions within twenty (20) days following service of the respondent’s submissions;
c. the respondent mother shall deliver her reply submissions, if any, limited to two (2) pages, within five (5) days following service of the applicant’s submissions;
d. if either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs.
Original signed by Justice J. Paul R. Howard
J. Paul R. Howard Justice
Date: November 15, 2018
[1] The two motions of the mother seek essentially the same relief. The only real differences between the motion dated September 6, 2018 [T5] and the motion dated September 27, 2018 [T8] concerns paras. 2 and 7 of the latter motion. Paragraph 2 of the latter motion expressly clarifies that except when the children have parenting time with the father, they should continue in the primary care of the mother. In para. 7 of the latter motion, the mother seeks an order that the parties’ phone-access to the children while under the care of the other parent shall continue but that the applicant father shall refrain from using his phone-access to the children to criticize the respondent mother, etc.
[2] Continuing Record, Tab 6, Affidavit of Chantal Goffi sworn September 6, 2018, Exhibit “A,” page 1 of 4. Initially, counsel for the applicant took some objection to the court receiving the report card on the grounds that it constituted hearsay. However, counsel ultimately conceded that the court could receive the report card in evidence.
[3] Ibid., at para. 25.
[4] Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] Argument on the motions commenced at about 12:05 p.m. and concluded at about 1:00 p.m.
[6] Continuing Record, Tab 15, Affidavit of Chantal Goffi sworn October 18, 2018, at para. 4.
[7] Miranda v. Miranda, 2013 ONSC 4704 (S.C.J.), at para. 26. The decision of Mitrow J. in Miranda has been followed or cited with approval on this point in Wilson v. Bedard, 2016 ONSC 2653 (S.C.J.), at para. 45; J.Q. v. A.R., 2018 ONCJ 386 (O.C.J.), at para. 29; Khan v. Khan, 2017 ONSC 318 (S.C.J.), at para. 16; Krasaev v. Krasaev, 2016 ONSC 5951 (S.C.J.), at para. 30; and Lambert v. Limoges, 2015 ONSC 6487 (S.C.J.), at para. 11.
[8] See Howard v. Howard, [1999] O.J. No. 3164, 1 R.F.L. (5th) 375 (S.C.J.), at para. 4 per Aston J., citing LiSanti v. LiSanti, [1990] O.J. No. 3092, 24 R.F.L. (3d) 174 (Prov. Ct., Fam. Div.) at paras. 10-11 per Vogelsang J. See also McPhail v. McPhail, 2018 ONSC 735 (S.C.J.), at para. 16; Jean-Francois v. Barnes, 2012 ONCJ 124 (O.C.J.), at para. 37; Windsor-Essex Children’s Aid Society v. T. (E.), 2012 ONCJ 109 (O.C.J.), at para. 11; and Nyari v. Velasco, 2008 ONCJ 272 (O.C.J.), at para. 16.
[9] Ibid., at para. 4.
[10] Continuing Record, Tab 6, Affidavit of Chantal Goffi sworn September 6, 2018, at para. 29.
[11] Continuing Record, Tab 10, Affidavit of Jorge Goffi sworn October 17, 2018, at para. 11.
[12] Ibid., at para. 4.
[13] Ibid.
[14] Continuing Record, Tab 10, Affidavit of Jorge Goffi sworn October 17, 2018, at para. 5.
[15] Continuing Record, Tab 6, Affidavit of Chantal Goffi sworn September 6, 2018, at para. 43.
[16] Continuing Record, Tab 10, Affidavit of Jorge Goffi sworn October 17, 2018, at para. 31.
[17] Continuing Record, Tab 6, Affidavit of Chantal Goffi sworn September 6, 2018, at para. 14.
[18] Continuing Record, Tab 10, Affidavit of Jorge Goffi sworn October 17, 2018, at para. 2.
[19] Continuing Record, Tab 15, Affidavit of Chantal Goffi sworn October 18, 2018, at paras. 15-16, and Exhibit “A,” being the affidavit of Jennifer Marr sworn October 17, 2018.
[20] Family Law Rules, O. Reg. 114/99.
[21] Continuing Record, Tab 15, Affidavit of Chantal Goffi sworn October 18, 2018, Exhibit “A,” being the affidavit of Jennifer Marr sworn October 17, 2018, attaching Exhibit “A,” transcription of telephone conversation of November 20, 2017, pp. 1-4.