Court File and Parties

NEWMARKET COURT FILE NO.: FC-16-52547-00 DATE: 20200612

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sabrina Alexandra Triestino, Applicant AND: Italo Triestino, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Amanda Cohen, Counsel for the Applicant Yaroslav Obouhov, Counsel for the Respondent

HEARD: June 8, 2020 by Teleconference

Ruling on Urgent Motion

[1] On May 27, 2020 this court granted a without notice request by the applicant (“the mother”) for an Order suspending in-person access by the respondent (“the father”) to the parties’ two children living with her.[^1] The children are 9 ½ and 4 ½ years old. Directions for service on the father were given as were filing of material and for scheduling this motion.

[2] The mother is requesting that the Court vary that part of a temporary Order made by MacPherson J. on September 3, 2019 dealing with in-person access by the father. He disputes that the motion is urgent and submits that there should be no change to the existing Order. The following evidence has been filed by the parties:

(a) Affidavits of the mother sworn on May 25, 29 and June 5, 2020 with exhibits;

(b) An affidavit from the father sworn on June 1, 2020 with exhibits; and

(c) An affidavit from the paternal grandfather sworn on June 1, 2020.

[3] The motion proceeded by teleconference on June 8, 2020. The parties audited.

Evidence, discussion and analysis

[4] The parties married on August 23, 2008 and separated on July 14, 2016. The mother and children left the matrimonial home and went to live with her parents. The father continued to live in the matrimonial home until the mother was able to obtain an Order in late 2017 for exclusive possession and its later sale. The father went to live with his parents.

[5] On September 3, 2019 MacPherson J. made an Order (“the Order”) dealing with the father’s access to the parties’ children, the terms of which were the following:

1. Italo Triestino (“Italo”) shall exercise parenting time with [the children] on Tuesday evenings from 5:00 p.m. to 8:00 p.m. and on Saturdays from 12:00 p.m. to 7:00 p.m., supervised by his parents, Anna Maria Triestino (“Italo’s mother”) and Frank Triestino (Italo’s Father”).

2. Paragraphs 3 to 10 below constitute the terms of Italo’s supervised access in paragraph 1 above.

3. Italo’s Mother and Italo’s Father shall be present during the entirety of the visits in paragraph 1 above to supervise.

4. Italo’s Mother and Italo’s father shall pick up and drop off the children from/to 57 Houseman Crescent, Richmond Hill, Ontario for Italo’s parenting time at the times listed in paragraph 1 above, unless the parties agree to alternate arrangements in writing.

5. Italo shall not discuss the follow with the children:

a. litigation/court;

b. family law issues;

c. “kidnapping”;

d. Sabrina Alexandra Triestino (“Sabrina”) and Erminia Vitale’s “mental health”;

e. Sabrina or Erminia Vitale needing a “supervisor”; or

f. Court Orders.

6. If Italo refuses/fails to return the children at the end of his parenting time in paragraph 1, Italo’s parenting time in paragraph 1 shall immediately cease.

7. Italo shall not leave either child alone in the bathroom for a bath or shower.

8. Italo shall provide his passport to his lawyer Jonah Paritzky of Paritzky Family Law to hold while this arrangement is in place.

9. Italo shall provide any and all keys to his vehicle to be held by one or both of his parents during his parenting time. His parents shall not return these keys to Italo until after the children have been returned to Sabrina.

10. Italo’s mother and Italo’s father shall immediately advise Sabrina if Italo is in breach of any of the above terms.

11. Italo’s nightly telephone discussions with the children shall continue, except on the dates he is exercising parenting time.

[6] This Order reflected the terms of a consent between the parties having a June 5, 2019 effective date. The context in which this unusually detailed Order was made is important.

[7] This is the relevant, mostly procedural, background to the mother’s motion:

(a) On January 5, 2017 Kaufman J. made an Order that the children principally reside with their mother and that the father have specified access. He was ordered to pay child support. This Order was made at a case conference at which the father did not appear;

(b) In January 2017 the York Region Children’s Aid Society (“the Society’) became involved with the family after contact from the local police. The Society recommended an immediate cessation of the father’s unsupervised access due to concerns about the father’s mental health and possible risk to the children. An investigation was undertaken;

(c) In May 2017 the Society verified concerns about the father’s mental health and its impact on the children. The Society recommended that the father have a mental health assessment. There is no evidence that this recommendation was followed by the father before mid-2018;

(d) The father’s access was supervised by the Society until December 3, 2017;

(e) The father did not exercise access to the children between January and June 2018 for reasons never explained. He was undergoing counselling with a clinical psychologist who in May 2018 diagnosed that the father had an adjustment disorder with mixed anxiety and depressed mood. This counselling was required by the husband’s employer because the husband was on disability related to, or as a consequence of, the marriage breakdown;

(f) On March 5, 2018 Nelson J. struck the father’s pleadings and granted the mother leave to proceed to an uncontested trial;

(g) On March 7, 2018 McGee J. made an Order restraining the father from communicating with the mother and children except for supervised access purposes. Costs of $3,390 were awarded to the mother;

(h) A psychiatric report of the father was prepared on or about April 28, 2018 but was not provided to this Court. It is unknown whether that was shared by the father with the mother or the Society;

(i) The father began exercising access to the children through two supervised access centres from June 2018 to February 2019. The father did not exercise access between February and June 2019 for reasons never explained;

(j) The father returned to work on or about October 15, 2018;

(k) In a report dated May 27, 2019 the clinical psychologist whom the father had been consulting recommended that the father have unsupervised access;

(l) The parties signed the consent in June 2019 that led to the father having access supervised by his parents;

(m) In August 2019 the mother moved for an uncontested trial Order;

(n) The Order incorporating the parties’ June 2019 consent was approved by MacPherson J. on September 3, 2019;

(o) On September 19, 2020 Bennett J. directed that the mother’s request for an uncontested trial Order be served on the father. The father brought a motion to set aside the 2018 Order of Nelson J. striking his pleadings;

(p) On October 17, 2019 Bennett J. directed that the mother’s motion be heard as an uncontested trial due to the range of substantive relief sought by the mother and the voluminous material filed;

(q) On October 23, 2019 Charney J. awarded the mother costs of $5,379.08 arising from the Order of Nelson J. There was no evidence before this Court when the mother’s motion was argued whether these costs have been paid;

(r) On November 20, 2019 the father’s motion to set aside Nelson J.’s Order was dismissed by McGee J. but without prejudice to the father renewing it if he paid the outstanding $3,390 costs awarded by her to the mother on March 7, 2018 by January 10, 2020 failing which the mother could proceed with her uncontested trial;

(s) The father did not pay the $3,390 costs Order by January 10, 2020;

(t) In late December 2019/early January 2020 McGee J. ordered the father to pay $2,000 costs relating to the motion dismissed on November 20, 2019. It is common ground that these costs have not been paid and that, together with the costs awarded on March 7, 2018, the father owes the mother (at least) $5,590 in costs. He received $242,419.88 from the net sale proceeds of the matrimonial home in July 2018 and continues to live with his parents. No explanation was given to the court why the father has refused to pay the costs Orders;

(u) The mother advised that the uncontested trial ordered by Bennett J. was scheduled by court administration to proceed on April 1, 2020. That has had to be adjourned as a result of the Chief’s Notice[^2] closing the courts to in-person attendance and limiting proceedings to matters of urgency or pressing importance;

(v) On May 20, 2020 the father was charged with criminal harassment of the mother and maternal grandmother for repeatedly communicating with them (two separate offences) and disobeying the restraining Order of McGee J. One of the charges involves repeated texts or email to the mother while the children were with the father. A court appearance is scheduled for July 29, 2020 in the Ontario Court of Justice.

[8] The foregoing is not exhaustive of all the events in these proceedings. What is clear is that, after fours years, there has been no resolution of the substantive issues between the parties, in particular, the parenting issues.

[9] The wife’s motion was prompted by the alleged failure of the father to comply with the terms of the temporary Order of MacPherson J. and, more recently, the criminal harassment charges and alleged breach of the terms of the September Order by the father. Particularly concerning are the father’s unfounded allegations, often repeated to the mother and maternal grandmother, that the latter is a child-molester, had been charged with an offence involving child abuse, had been found in contempt of court, that the mother owed him spousal support and that an Order had been made ending her custodial rights, none of which is true. Counsel for the father had no reasonable explanation why the father was making allegations about Orders never made. Either the father knew that these allegations were false and utterly without foundation and was making them to intimidate, provoke and harass the mother and her mother, in which case his behaviour is unacceptable, or he was making them with the honest belief that such Orders actually existed, in which case the mother’s concerns about his mental health, and now those of the court, are amplified.

[10] In its April 27, 2020 letter to the parents[^3] the Society confirmed that it had become re-involved with the family on February 4, 2020 after a referral from the York Regional Police. The father had just been charged with criminal harassment. Upon investigation by the Society, the children reported discussions with their father prohibited by the Order and conflict in their paternal grandparents’ home where the father also resided. When the Society worker tried to speak to the father, he told her that she was impersonating a person in authority and that she would be charged. Then he hung up the phone. The father never responded to this incident in his material.

[11] Interviews with the parents, who were to supervise the children’s access time with their father at all times, disclosed that they had difficulty managing his behaviour and that he didn’t listen to them. The paternal grandfather provided an affidavit disputing the Society’s information. He stated that there were no difficulties with his son’s compliance with the Order.

[12] There were two further referrals to the Society by the police after February 4 leading the worker to conclude (following further investigation) that the children had been exposed to verbal conflict while having access with their father.

[13] In his responding material, the father (perhaps wisely due to the criminal charges) offered no explanation for the conduct which led to the criminal charges but what is particularly remarkable about his evidence is the absence of any insight into the children’s distress around access and how his behaviour might contribute to that distress. While there is no doubt that the father loves his sons, I am not satisfied on the evidentiary record before this court that he is able to place their emotional needs before his, that he can reliably comply with paragraph 6 of the Order restricting what can be discussed with the children and that his parents can adequately supervise him. Even if I am wrong about the parent’s ability to supervise their sons compliance with the Order what begs the question is the paternal grandparents’ whereabouts when it was alleged the children were with their father in their home, under their supervision and the father is alleged to have repeatedly made the phone calls that led to him being charged with criminal harassment. Neither the father nor paternal grandfather made any effort in their material to deny the mother’s evidence in that regard or try to in some way contextualize it in a less problematic light.

Analysis

[14] As observed in Smith v. Ainsworth,[^4] supervised access is, at best, a short-term expedient. In V.S.J v. L.J.G.,[^5] Blishen J. observed that it is “seldom viewed as an indefinite order or long term solution.” It is an appropriate solution to consider to,

“…protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children.”

[15] There may be situations, however, where a more-prolonged use of supervised access can be in the best interests of children. That appears to be the situation in this case but the most reliable evidence before the court is that, notwithstanding the mother’s efforts, the children have continued to be exposed to emotional harm when in the presence of their father, even when supervised by his parents (the effectiveness of which I doubt). This harm is verified (to the extent that can be possible in the absence of a viva voce hearing) by the Society: the criminal charges, while only allegations at this juncture, are factors that this court cannot ignore. The father’s make-believe court Orders are, to put it mildly, concerning. I am unable on the evidence to attribute fault to the mother as the father contends.

Disposition

[16] The mother does not seek to terminate the father’s access but to manage it at this time in the best interests of the children. That is sensible but not a long-term solution. The mother has requested that in-person access supervised by the husband’s parents be suspended until supervised access facilities are permitted to re-open safely and that the father have daily and nightly videocalls with the children initiated by her. She has also asked for an Order that paragraph 6 of the Order remain in full force and effect (that deals with prohibited topics that the father may discuss with the children). While there is no need to make another Order replicating terms, that paragraph does merit re-emphasis.

[17] Pursuant to the Court’s direction, the parties agreed on costs depending on their respective success of the motion.

[18] The following is ordered:

(a) As per paragraphs 1 to 5 of the mother’s Notice of Motion dated May 29, 2020;

(b) The father shall pay to the mother her costs in the amount of $4,000 plus HST. These shall be paid forthwith from the remaining funds held in trust from the sale of the matrimonial home.

[19] I don’t doubt that the father loves the children and was keenly distressed by the breakdown of the parties’ marriage but he needs to take pro-active steps to deal with his emotional issues to be able to safely and supportively co-parent the children with their mother. The mother says that when he engaged counsel, the father’s behaviour seemed to improve and he appeared to have taken appropriate steps to deal with his emotional issues. It is not for this court to prescribe what the father should do. He should continue to benefit from legal assistance and, of course, comply with court Orders, even ones for costs. They are not suggestions.

[20] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval by the father is dispensed with. The mothers may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis

Date: June 12, 2020

[^1]: 2020 ONSC 3311. [^2]: See 2020 ONSC 3311, para. 1. [^3]: Exhibit A to the mother’s May 25, 2020 affidavit: see also 2020 ONSC 3311, para. 2. [^4]: 2016 ONSC 3575. [^5]: (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.).