Dominique v. Ierullo, 2019 ONSC 2783

COURT FILE NO.: FC-16-1036 HEARD : 2019/05/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL DOMINIQUE – Applicant v. WINONA IERULLO - Respondent

BEFORE: Linhares de Sousa J.

COUNSEL: Claudia Bordes, for the Applicant Gonen Snir, for the Respondent

HEARD: April 18, 2019

ENDORSEMENT

1On this motion and cross motion, the Applicant, Michael Dominique is seeking unsupervised access and weekend access to his young son, Cassius Claude Francesco Dominique (d.o.b. January 12, 2013).

2The Respondent, Winona Ierullo, contests the motion. She further seeks child support from Mr. Dominique on an imputed income of $30,000.

3Mr. Dominique is currently facing criminal charges of violence against another individual. It is anticipated that the criminal charges will be dealt with in or about February of 2020.

4There are allegations by Ms. Ierullo of violence against her by Mr. Dominique, as well as aggressive and impatient behavior towards their son when they have had electronic communication because of the child’s inattention to the contact. Mr. Dominique denies this.

5Ms. Ierullo also alleges that her observed steroid use by Mr. Dominique, in the presence of the child, continues to be troublesome and problematic to her and justifies continued supervision. Mr. Dominique denies this too.

6There is a long history of conflict between these two parents. There is an existing order of parenting. On June 29, 2016, Justice MacLeod, on consent, granted primary residence of the child to the mother. In that same order, Mr. Dominique was granted day access to his son every second Wednesday for 3 hours. Access was then to progress to every second Friday overnight by July 2016. Access was to take place in the home of the paternal grandmother and supervised by her.

7In the Order of Justice MacLeod, Mr. Dominique agreed to not use steroids and to submit to random steroid testing when requested by Ms. Ierullo. There was also a paragraph dealing with ensuring that the child would not be exposed to products to which he has a severe allergy.

8Mr. Dominique was requested to submit to steroid testing but did not comply. He has stated his reasons for this in his affidavit evidence which I do not find very convincing.

9During this parenting and access regime, conflict between the parties continued to arise. The parties attempted mediation and arrived at a mediated settlement for expanded overnight, unsupervised access which was then implemented. (See Affidavit of Mr. Dominique, dated Feb 12, 2019, tab 9B of the continuing record).

10In the mediated agreement, Mr. Dominique also agreed to pay $97.00 per month in child support, based on an estimated annual income of $15,000 per annum. Although there have been arrears on the payment of child support, Mr. Dominique maintains that his child support payments are current. Ms. Ierullo contests this.

11The mediated agreement was never turned into a court order.

12After Mr. Dominique was arrested on his current charges in October 2018, Ms. Ierullo stopped all access. Mr. Dominique is currently living with his sister, who is also acting as his surety.

13This is the factual context in which these interim proceedings arise. Except through electronic media, Mr. Dominique has not seen his son since his arrest except for some periods at Christmas and the child’s birthday.

14It is Mr. Dominique’s position that he would like to resume the access he enjoyed under the mediated agreement of the parties dated September 15, 2017. He is also requesting that he no longer be obligated to submit to random steroid testing upon the request of Ms. Ierullo.

15Ms. Ierullo takes the position that unsupervised access is premature. She has expressed confidence in either the paternal grandmother or aunt in supervising access.

16I am persuaded that supervised access should continue, until Mr. Dominique has met his consented to obligations to submit to steroid testing, when requested to do so. It is also in the child’s best interests not to resume unsupervised access until Mr. Dominique has dealt with his criminal matters.

17With respect to child support, until the required disclosure is completed by Mr. Dominique, this court is not able to deal with this issue in a thorough and fair way. As a result, the existing order for child support shall continue. Mr. Dominique shall have 30 days to complete the financial disclosure enumerated below, failing which, he is put on notice that this court can draw an adverse inference against him and impute the income of $30,000 per annum against him as is requested by Ms. Ierullo on this motion.

18For all of the reasons given, I make the following order on a temporary basis:

Parenting

1. On a temporary basis, the Mother, Ms. Winona Ierullo, shall make all major decisions regarding the child Cassius Claude Francesco Dominique d.o.b. January 12, 2013 (“the Child” or “Cassius”).
2. The Mother shall consult with the Father in writing at least 7 days, if possible, before any major decisions is made, and will consider his opinion.
3. The Mother shall advise the Father on her decision.
4. The child’s primary residency shall be with the Mother.

Physical Access

5. On a temporary basis, the Father shall parent the child every other weekend on Saturday from 8:00 a.m. until 4:00 p.m. and on Sunday between 8:00 a.m. and 4:00 p.m.
6. Commencing August 1, 2019 the father shall parent the child every other weekend from Saturday 8:00 a. m. until Sunday 4:00p.m.
7. Access shall be monitored by the paternal grandmother or the paternal aunt who will ensure that the child is not exposed to any material and food that the child is allergic to.
8. An Epi Pen case shall travel with the child and the father shall carry it always during the access.
9. The pickup and drop-off shall be at the paternal grandmother’s home.
10. Police forces having jurisdiction to enforce the access order shall do so.

Telephone Access

11. The Father shall have video access to the child every Tuesday and Thursday at 7:00 p.m. by face time.
12. The Father shall not speak ill about the Mother in these video conferences and will not involve the child in adult matters. If the Father involves the child in the adult matter or speak ill about the Mother, the Mother shall terminate the call.

Steroid Testing

13. The Father shall not use steroids at all.
14. The Father shall attend random testing for steroids upon receiving a written request from the Mother with at least 48 hours’ notice. Requests, for testing shall be made by the mother a maximum of once every 30 days.

Child Support

15. The parties mediated agreement relating to child support shall be incorporated into this order, namely, based on an estimated annual income of $15,000, the father shall pay child support in accordance with the Child Support Guidelines, in the amount of $97.00 per month commencing October 1, 2017. If any arrears are owing on this order then they are to be paid up within 30 days.
16. In addition to the ongoing child support, commencing October 1, 2017 the father shall pay his proportionate share of the child’s section 7 expenses. Based on the father’s estimated income of $15,000 per annum and the mother‘s declared annual income of $39,000 for the year 2018, the father’s proportionate share of those expenses is 27%.
17. The support order shall be enforced by the Director of Family Responsibility Office.

Disclosure

18. The Applicant Father shall produce the Respondent Mother within 30 days of the following documents: (a) Notice of Assessment for the years 2015, 2016, 2017 and 2018 (when available). (b) Income Tax and TI/T4 for the years 2015, 2016, 2017 and 2018 (when available). (c) Bank statements, credit card statements, savings statements, and investment statements from the year 2016 to date. (d) His Business Calendar/Agenda for the years 2016-2019. (e) Resume. (f) Certificate as a personal trainer. (g) Results of all substance drugs, alcohol, and steroids that were taken in the last 4 years. (h) All rental agreements of residency or for business purposes since 2016 and up to date. (i) All information regarding charges in the past and present, and jail time spent in Canada and outside of Canada. (j) All information regarding to participation in counselling, parenting training, and addiction or rehabilitation programs that the Applicant participated in. (k) All documents to support the Applicant Father’s financial statement dated/signed April 9, 2019. (l) Proof of all the efforts of the Applicant Father since 2016 to find employment. (m) Proof that all child support payments are current and that no arrears are outstanding.

Costs

19The last issue is that of costs. Mr. Dominique shall have two weeks to serve and file his written submissions on costs, including offers to settle. Ms. Ierullo shall have two weeks from that date to serve and file her written submissions on costs, including offers to settle. Mr. Dominique shall then have one week from that date to serve and file a reply if he thinks it advisable.

Linhares de Sousa J.