Court File and Parties

Newmarket Court File No.: FC-14-45215-00 Date: 2020-06-23 Superior Court of Justice – Ontario – Family Court

Re: Jennifer Grace Sanginesi, Applicant And: Benjamin Patrick Maher, Respondent

Before: The Honourable Madam Justice H. McGee

Counsel: C. Wirdum, Counsel for the Applicant T. Roll, Counsel for the Respondent

Heard: June 22, 2020 – In writing

Endorsement

[1] Mr. Maher seeks leave for an urgent motion on parenting issues. His original 14B Motion, and Ms. Sanginesi’s (married Eaglesham) response appear not to have been fully informed by the current practice direction. Counsel are referred to https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-ce-family-matters/.

[2] This 14B Motion can only request an urgent motion or a Case Conference. The case management judge is to be identified, if known, and the materials supporting the motion are to be brief and include a description of efforts to resolve the issue prior to the request for court assistance. The test for an urgent or pressing matter, as well as the threshold test for settlement efforts can be found in Clemente v. O'Brien, 2020 ONSC 3075.

[3] Mr. Maher deposes in his affidavit of June 12, 2020 that the exercise of his parenting time pursuant to the final Order of August 1, 2018 has always been difficult; and that since April 10, 2020 Ms. Sanginesi has intermittently withheld their three children: M. (13), J. (11) and G. (9) from seeing him in person.

[4] The final Order of August 1, 2018 was preceding by a lengthy, high conflict parenting dispute in which the Office of the Children’s lawyer conducted a section 112 assessment.

[5] In his June 12, 2020 affidavit Mr. Maher sets out his attempts to address Ms. Sanginesi’s concerns regarding COVID-19 – which he states were successful - until he unilaterally reduced his child support to reflect a change in his income as of June 1, 2020. He believes that Ms. Sanginesi responded to his reduction in child support by stopping the children from seeing their father that weekend. He seeks an Order for make-up time.

[6] The responding materials filed by Ms. Sanginesi on June 19, 2020 provide context for Ms. Sanginesi’s breach of the final Order. As briefly set out below, the evidence not only answers Mr. Maher’s misapprehension, but in my view, is sufficient to support a Rule 15 Motion to Change, a potential next step for either party, as each are in breach of the current final Order: Mr. Maher has not paid the court ordered child support and Ms. Sanginesi has not complied with the terms for access.

[7] Please note that I cannot address Mr. Maher’s breach of support terms in this Endorsement because I have no information whether the terms for support are being enforced by the FRO. If so, it is a matter of enforcement and not the subject matter of this proceeding.

Request for an Urgent Motion Does Not Meet the Threshold

[8] Ms. Sanginesi’s June 19, 2020 affidavit relates a very different sequence of events since April 10, 2020. Her narrative is supported by the report of a private investigator who recorded long standing, multiple breaches of social distancing protocols that had been agreed to by the parties and communicated to the children in March of 2020.

[9] Ms. Sanginesi deposes that it was not the cutting in half of the June support cheque (and the next day trip to the golf course) that led to the withholding of access, but rather, distress caused to the children over time by their father’s actions.

[10] Ms. Sanginesi sharply contrasts the terms of the party’s agreement on COVID-19 protocols and Mr. Maher’s subsequent actions. The divergences are significant. Mr. Maher is shown to have said one thing and done quite another. The reader is struck by the gap between Mr. Maher’s pretense and his actions, and the inevitable anguish that such a gap would create for M., J. and G. They were repeatedly told that they did not see what they had seen, or were not to tell their mother.

[11] Children are particularly vulnerable to the changes that have been forced upon them by the pandemic. Their schools have closed, their parents’ work schedules have changed, there may be financial strains on the family, and their time with friends has diminished if not altogether disappeared.

[12] Children made anxious by these changes are in need of consistent, stable parenting; more so if there is a history of exposure to adult conflict. It is wrong to place them in the position of being torn between a forced loyalty to a parent and doing what they have been told is necessary to protect themselves, each other and their family.

[13] In Ribeiro v. Wright, 2020 ONSC 1829 Justice Pazaratz J. assured parents that:

“[j]udges won't need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there's a problem. What we're looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”

[14] Citing Ribeiro, Justice Jarvis wrote in Balbontin v. Luwana, 2020 ONSC 1996 that:

Parents cannot ignore the other parent’s inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant.

[15] Some social distancing guidelines have been relaxed since Ribeiro and Balbontin were each released, and it is possible that aspects of Mr. Maher’s conduct after April 10, 2020 did not offend public health directives. But rather than have a further conversation with Ms. Sanginesi and adjust their agreed terms for safety, the materials indicate that he ignored their agreement and dismissed his children’s concerns.

[16] The test for urgency is set out in the now familiar case of Thomas v. Wohleber, 2020 ONSC 1965, and the subsequent test “pressing” as set out in the Central East May 19, 2020 Notice was defined by me in Clement v. O’Brien, 2020 ONSC 3075. Counsels are referred to both cases.

[17] When deciding whether to grant leave for an urgent or pressing motion, the judicial vantage point is the child’s best interests and not that of the parent. While it is not acceptable that the parenting terms in the August 1, 2018 final Order have been breached, neither is it acceptable that the children have been placed in a loyalty bind between their parents because their father places no value on his agreement.

[18] In these rather unusual circumstances, I do not find the make-up time sought by Mr. Maher to be an urgent or pressing issue sufficient to grant leave for an urgent motion. The motion for leave is dismissed. Costs are reserved to the next step in the proceeding.

Next Steps

[19] I would first suggest that counsels assist the parties through this interim period of COVID-19 restrictions by negotiating directly or referring the matter to a mediator to develop a temporary parenting plan that accommodates Mr. Maher’s actual lifestyle. Make-up time could be worked into a temporary plan, or into the period following the lifting of restrictions.

[20] If such settlement discussions reach the threshold of genuine, broadly optioned and diligent, (again see Clemente v. O’Brien, 2020 ONSC 3075); and no resolution is achieved, Mr. Maher may again seek leave for a motion for make-up time, subject to any subsequent Notices to the Profession. He may also wish to issue a Motion to Change the support terms.

[21] Alternatively, either party may issue a Motion to Change to vary the parenting terms in the final Order given the material changes resulting from the pandemic and the longer-term concerns that each have identified in their materials. One or both of the parents could ask for the assistance of the Children’s Lawyer in that new proceeding.

[22] Before taking any further steps, is it strongly recommended that each party first make a Rule 18 Offer to Settle.

Justice H. McGee Date: June 23, 2020