Background

[1] The Respondent, Marlene Di Raimo, is the mother of the two children at issue in this matter, Savannah who is 12 and Nicholas who is 11. When the parties separated in 2018, the children remained in the care of the Respondent Mother. The Applicant, Benny Di Raimo, saw the children on weekends.

[2] The parties had lived in Etobicoke prior to separation. In March 2019, with the consent of the Applicant, the Respondent and the children moved to Barrie, and the children were enrolled in W.C. Little Public School.

[3] The Respondent acknowledges that she has suffered a number of health issues since a motor vehicle accident which took place in 2012. Unfortunately, as a result, the children have changed residency and school since they moved to Barrie:

a. On April 18, 2019, the Respondent was hospitalized for four days, and the children lived with the Applicant and commuted four hours per day to W.C. Little;

b. On May 23, 2019, Ms. Di Raimo asked the Applicant to take the children because she was ill. She was hospitalized and the children went back to their original school, St. Dorothy Catholic Elementary School in Etobicoke. They remained in that school for the remainder of the school year.

c. During the summer, the parties shared custody. In September 2019, the Applicant agreed that the children could return to W.C. Little and that they would primarily live with the Respondent.

[4] Throughout 2019, the Applicant and the Respondent negotiated a separation agreement between themselves with the assistance of counsel. That agreement was signed in November 2019. Significantly, and notwithstanding the instability that the Applicant says that the children suffered because of the Respondent’s health issues, the agreement provided that the children would reside with Ms. Di Raimo. The custody provisions recite that the children are attending W.C. Little in Barrie. Under the agreement, the parties had joint custody and Mr. Di Raimo received weekend time sharing.

[5] This did not last. Ms. Di Raimo was on a holiday in Cuba in March 2020, when COVID struck this province. The children were with Mr. Di Raimo. When Ms. Di Raimo returned to Ontario, she quarantined for 14 days and then requested the return of the children. Mr. Di Raimo refused. Then, before anything else could happen, Ms. Di Raimo was again hospitalized, this time for a six-week period which began in May 2020. It was impossible for her to care for the children and when she was released from the hospital, Mr. Di Raimo again refused to return the children to their mother. They have been with Mr. Di Raimo since then and they now see their mother on weekends.

[6] Mr. Di Raimo says that the children are better off with him and if they are returned to Ms. Di Raimo, they will just end up being returned to his care because of her unresolved health issues. He wants the children to live with him and attend St. Dorothy’s which had been their school until Ms. Di Raimo moved to Barrie in March 2019.

[7] Ms. Di Raimo says that the Applicant ought not to be able to change his mind and now claim custody. She says that he was always aware of her health issues and he gave her primary residence regardless. In any event, she says, she is stable now and in good health, and the children should be returned to her care as the parties agreed in November 2019.

[8] Because this matter involved a return to school and there are no case conference dates prior to November, I agreed to hear this motion in the absence of the matter having been case conferenced. The urgency surrounding the schooling issue is obvious.

Result

[9] For the reasons set out below, I have determined that, on a temporary basis, the children shall continue to remain in the primary care of the Applicant and shall attend St. Dorothy’s separate school in Etobicoke. The Office of the Children’s Lawyer shall be requested to provide assistance to these parties.

Discussion

[10] These parties signed a separation agreement in November 2019. That agreement provided that the Applicant and the Respondent would have joint custody of the children, but that the children would reside with the Respondent in Barrie during the week and the Applicant on weekends. It confirmed that the children lived in Barrie and were attending W.C. Little Public School. That was the state-of-affairs at the date of the agreement.

[11] The Applicant suggests that I can ignore that agreement in the best interests of the children and cites several cases to that effect. Counsel for the Applicant, Ms. Di Federico, relies upon s. 56 of the Family Law Act[^1] (FLA) which permits the court to ignore a separation agreement in the best interests of the children.

[12] Not so fast, says Mr. Schmidt, counsel for the Respondent. He says that s. 56 is inapplicable to divorce proceedings and that there is case law under the Divorce Act[^2] which requires evidence of a change in circumstances prior to the court refusing to apply the custody provisions in a fully negotiated separation agreement.

[13] Therefore, the court must consider the effect of the separation agreement on the result prior to determining the interplay between the agreement and the best interests of the children.

Separation Agreement

[14] The separation agreement signed by the parties confirmed that the children were going to W.C. Little and living in Barrie in the primary care of the Respondent Mother. The Applicant Father received access every weekend. The agreement was signed in the face of ongoing health issues of the Respondent which resulted in the children suffering some instability and changing schools at least once.

[15] The execution of a separation agreement is presumed to reflect the best interests of the children as perceived by the parties to it. As stated in Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA), [1996] O.J. No. 1975 (C.A.), “it is reasonable to think that at the time the separation agreement was made it reflected the parties’ views of the best interests of the children”. And if the parties thought that the mother having primary care of the children was in their best interests in November 2019, the question must be asked as to what has changed since then?

[16] However, the Applicant’s solicitor urges me that there need not be a change in circumstances to ignore the domestic contract signed by the parties. Ms. Di Federico urges me to rely upon s. 56(1) of the FLA which reads as follows:

In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

[17] The difficulty is that we are dealing with the application which was commenced by the Applicant under the Divorce Act. Once divorce proceedings are commenced, any proceedings under provincial legislation such as the Children’s Law Reform Act[^3] (CLRA) are stayed: see s. 27. Therefore, the provision in the FLA permitting the court to disregard provisions in separation agreements regarding custody of the children is ineffective to affect the determination of the best interests of the children under the Divorce Act or the effect of an agreement under provincial legislation.

[18] The leading case regarding the consideration of a domestic contract in divorce proceedings is Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, which set out an analysis of addressing a spousal support provision in a domestic contract under the Divorce Act. Essentially, the problem is that the Divorce Act, unlike the FLA, is silent on the effect of domestic contracts in a divorce application.

[19] In Hearn v. Hearn, 2004 ABQB 75, Slatter J. applied the Miglin analysis to a custody agreement that had not been reduced to a court order. He suggested that, when Miglin was used to determine the enforceability of a custody agreement, the court should undertake a two-stage analysis using the best interests of the children as a substitute for whether the agreement met the support objectives of the Divorce Act:

Firstly, the court must determine:

a. Were there any circumstances concerning the negotiation of the agreement which would cause the court to discount it?

b. Does the substance of the agreement substantially comply with the best interests of the children? It is to be noted that, in determining this, parents who have negotiated an agreement are in the best place to determine the children’s best interests and the court should recognize the importance of allowing parties to settle their own disputes.

Secondly, the court must determine:

a. Does the agreement still reflect the intentions of the parties? Have there been any unforeseen changes in circumstances which might undermine the parties’ agreement?

b. Assuming that there are such changes, is the agreement still in “substantial compliance with the best interests of the children?”

[20] In all of this, Hearn confirms that separation agreements cannot just be ignored by the court, especially shortly after they have been negotiated. Parties negotiating a separation agreement concerning their children are presumed to know what is in their children’s best interests, and it is important to confirm that fact that parties should have the autonomy to contract as to their children and as to their matrimonial separation. It is also important to affirm a negotiated settlement unless it is clearly not in the best interests of the children; without doing so, parties will litigate rather than negotiate in order to obtain the protection of a final court order which can only be changed through s. 17 of the Divorce Act.

[21] This case has been adopted by at least one Ontario court in Chin Pang v. Chin Pang, 2013 ONSC 2564 (although that particular case considered a proposed change to a consent order, which would require a “material change in circumstances” under s. 17(5) of the Divorce Act, while the Hearn analysis is applicable to agreements not reduced to court orders).

Part One of Analysis

[22] This stage requires the court to address the negotiation of the agreement, as well as whether the agreement, as originally negotiated, met the best interests of the children.

[23] This agreement was negotiated with the assistance of counsel between January and November 2019. Neither party questioned the negotiation of the agreement or whether it should be discounted because of its negotiation.

[24] Did the agreement reflect, at the time of its negotiation, the best interest of the children? It is to be noted that there is no single answer to this question: whether the agreement addressed the best interests of the children is not necessarily answered by answering what the court would have done at the time. Instead, the court needs to determine whether the agreement is “within the range of solution that were, at the time of execution, in the best interests of the children” [Hearn at para. 66].

[25] In the present case, the Applicant signed the agreement with some reluctance. On August 17, 2019, he issued an application which was not served until recently, citing the Respondent’s health issues. He deposes that the parties discussed between themselves the health issues in August 2019, and the Respondent asked him to “give her a chance” to prove that her health issues were behind her. He deposes that he did so, and he regrets that decision because her serious and ongoing health issues continued.

[26] That being said, if the parties had agreed at the time to give the Respondent “one last chance” as suggested by the Applicant’s material, that is not reflected in the terms of the agreement. In fact, with the Respondent’s health issues in the background, these parties had agreed that the children live in the care of the Respondent. Mr. Di Raimo agreed to this with his eyes open and knowing that the Respondent had some serious health issues including issues related to a 2012 injury suffered during cohabitation. He also knew that the Respondent was less than open about her health issues and that she was not forthcoming regarding her medical health.[^4]

[27] Mr. Di Raimo’s concerns were set out in his affidavit; notwithstanding those concerns, he says that he signed the agreement for the sake of the children and allowed the move to Barrie because the children were shown the Respondent’s new apartment and were excited for the move. He says that he “did not want the separation to be any more difficult for the children.”[^5]

[28] However, even if the parties thought the custodial arrangement in the separation agreement to be in the children’s best interests, this is not the same as enforcing a bad deal that a party may have made, for example on property; in that case, the party is generally stuck with that bad deal assuming proper financial disclosure and negotiation and that the agreement is not unconscionable. If the parties make a patently bad agreement concerning the children, it is not the parties who are stuck with the result; it is the children. The court will not approve an agreement which is clearly outside the range of the children’s best interests because it is the duty of the court to ensure that the children’s needs for stability and care will continue to be met.

[29] In the present case, subsequent events proved that the Applicant’s reservations were well founded. There was a lengthy hospitalization in May and June of 2020 with the children remaining in the Applicant’s care. There is some evidence of subsequent health issues: the Applicant notes that Ms. Di Raimo may have been hospitalized during the week of July 14 resulting in the cancellation of an access visit. The medical evidence filed by Ms. Di Raimo is inconsistent as to whether the C difficile has been “cured” or whether it continues to be treated. There is also no explanation as to why Ms. Di Raimo was mis-diagnosed with Crohn’s Disease: if Ms. Di Raimo was showing symptoms of Crohn’s Disease, what caused it?; what was the treatment?; and what is the prognosis for the actual illness causing those symptoms?.

[30] Ms. Di Raimo also remains close-mouthed about her medical condition. She admitted that she was not willing to disclose to the Applicant her medical issues in a text on July 21[^6] because “u have used pretty much everything I have told u against me just to take the kids from me.” The Applicant was left not knowing whether the Applicant had been hospitalized between July 14 and 17, 2020.

[31] I might have been more understanding were Ms. Di Raimo honest with the court about whether she had been hospitalized during the week of July 14; unfortunately, she was not. In responding to the statements by the Applicant alleging that she had been hospitalized between July 14 and 17, she did not answer whether she, in fact, had been in the hospital. She acknowledged getting a COVID test which is not a hospitalization event. She produced a report from a discharge doctor at the hospital dated July 23, but that report does not confirm as to whether she was hospitalized but only that she had “recovered” from the C difficile infection and that she was not, herself, infectious for either C difficile nor COVID. Nowhere in her affidavit does she answer the question of whether she was actually hospitalized between July 14 and 17 as alleged by the Applicant. And if she cannot be forthright with the court on this subject, how can the court be assured that she will be honest with the joint custodian of the children and the children themselves?

[32] Moreover, the Respondent confirmed with the Applicant in writing that she now has two PSWs assisting her. However, she also says in her affidavit that the only role of the personal support worker is to assist her with the pressure stockings that she has to wear; that raises of course the question why she needs two PSWs to assist her with her pressure stockings, or why she would say to the Applicant that she has “2 extra people who can help me out now” when she also says that the only function of the PSW is to assist with pressure stockings.

[33] In sum, this agreement was signed in the face of the Respondent’s health issues, which resulted in instability for the children and one change of school near the end of the 2018-2019 school year. These ongoing health issues resulted in at least two hospitalizations prior to the agreement being signed and have resulted in at least one, and probably two subsequent hospitalizations subsequent to the agreement being signed.

[34] As well, the Respondent continues to be less than forthcoming about her health issues. Although several doctors have said that the Respondent can fulfill her custodial duties, I am still confused about her ongoing health issues and as to whether she is, in fact, in good health. I don’t believe that the Respondent has been honest with the court about certain health issues, and my impression is that she would downplay her own health issues in order to regain care of the children; she said as much to the Applicant in the text noted above.

[35] I therefore do not find that the separation agreement is within the “range” of addressing the best interests of the children. It does not address the instability caused to the children by the Respondent’s health concerns; it also does not address the Respondent’s inability to care for the children because of those health concerns. To provide Ms. Di Raimo with primary residence of the children when she suffers from serious health concerns is not in the best interests of the children. This is especially so where Ms. Di Raimo has failed to be honest about her illness or her hospitalizations, leaving the Applicant and the children wondering what the future holds and who will be caring for the children. I therefore find that the agreement as it is drafted does not reflect the best interests of the children in November 2019, even though the parties presumably felt that it did when they signed it.

[36] As a result, the agreement does not bind the court as to its terms concerning custody and access and the court may, therefore, make a determination which conflicts with the custodial terms of the agreement.

Part Two of Analysis

[37] The second part of the analysis requires the court to review whether there has been a change in circumstances and whether the agreement still meets the needs of the children taking that change into account.

[38] It is probably unnecessary to consider the second part of the analysis where I have found that the agreement as originally drafted fails to meet the best interests of the children.

[39] However, I wish to outline several other changes that have taken place concerning the Respondent, none of which are for the better.

[40] Firstly, the Respondent has entered into inappropriate discussions with the children by way of texts. On June 3, 2020, the Respondent sent Savannah several text messages while demanding that Savannah call her. She said, “I guess I must be like the other side thinks… a bad mother…I guess daddy and his family will be betterbfor (sic.) u because I’m obviously not good enough.” She also said “i will leave u alone from now on savannah. U don’t have to worry about me or even talk to me anymore…I get it. Maybe they will love u more and treat u better and maybe u can be happier without me… goodbye savannah.” Finally, she ends up stating, “if u ever want to talk to this horrible mom, u know where I am.”[^7] Savannah’s distress at these text messages is apparent.

[41] It is also apparent that the Respondent is attempting to convince the children to move to Barrie and to live with her. On June 19, the children’s 23-year old stepbrother, Matthew wrote Savannah asking, “Why don’t u want to move back to Barrie with mommy”; “I guess U don’t want to see me anymore” and “I can’t see you when ur at daddy’s and it’s a lot safer in Barrie.” Later, he says that “U really hurting mommy’s feelings.”[^8] Again, this was distressing to Savannah and it is concerning that Matthew, the Respondent’s adult son, would engage in attempting to convince Savannah to move to Barrie. It has to be asked whether the Respondent put Matthew up to this under the circumstances.

[42] Ms. Di Raimo excuses these conversations, stating that she has been “emotionally devastated” by Mr. Di Raimo’s withholding of the children. She essentially says that she had to correct misinformation provided to the children by the Applicant. There is no excuse for talking to your children in the manner set out in the text messages. There is also no attempt to correct misinformation in those text messages; the messages discuss Ms. Di Raimo’s hurt feelings and asks her daughter to address those hurt feelings.

[43] As well, Ms. Di Raimo now suggests that if she needs assistance, she will now seek it from her parents, who live in downtown Toronto. That is concerning, if only because the children have lived with Mr. Di Raimo for a significant period of time, and he should continue to be the alternate caregiver. If Ms. Di Raimo is relying on the separation agreement, she must also accept that Mr. Di Raimo remains the joint custodian of the children and should be the individual to co-parent the children with her.

[44] Ms. Di Raimo also suggests that there is a change insofar as she says that the medical evidence now demonstrates that she is in a position to care for the children. I have already commented on the fact that there are conflicting statements made in the medical letters filed in this matter. I remain confused by what the Respondent’s underlying health issues are and as to her present medical condition. As well, several of the doctors have opined that Ms. Di Raimo is able to fulfil her custodial duties concerning the children; however, these doctors can only comment on the Respondent’s medical condition and not on what she can or cannot do. They are not qualified as experts in anything other than being “fact experts” qualified in giving an opinion as to the Respondent’s health condition and not on what custodial duties the Respondent can carry out. I note that the Applicant testified that the Respondent was having mobility issues at an access pickup and the Respondent did not deny this to be the case.

[45] The agreement still does not presently address the best interests of the children; if anything, it is less reflective now of those best interests than when it was signed in November 2019.

Conclusion

[46] For these reasons, I find that the separation agreement did not, and does not presently, address the best interests of the children. It never did. I give it little or no weight in determining the result in this motion.

[47] I note that Mr. Schmidt suggests that I should not determine these issues on an interim motion and suggests that the children be returned to his client pending a viva voce hearing. Unfortunately, that is not realistic as there is a large backlog of trials before the court because of the COVID closure that occurred in March and the absence of trial sittings in 2020. The Miglin analysis has been used on temporary motions in respect of spousal support: see Baudanza v. Nicoletti, 2011 ONSC 352. There is no reason why the Hearn analysis cannot be applied to interim care of the children, especially where it is unlikely that a viva voce hearing can be held within a reasonable time.

[48] Therefore, I find that the agreement carries little weight in the determination of temporary care of the children. The children shall continue to reside with the Applicant and shall attend St. Dorothy Catholic Elementary School. I am going to reverse the time sharing as set out in the agreement: the children shall reside with the Applicant during the week and with the Respondent on weekends.

[49] I am going to request involvement from the Office of the Children’s Lawyer, as they are older and should be heard without influence or interference of either of the parties.

[50] Therefore, temporary order to go:

a. The parties shall have joint custody of the children;

b. The children shall reside with the Applicant and shall attend St. Dorothy Catholic Elementary School for the coming school year;

c. The children shall spend weekends with the Respondent from Friday evening to Sunday evening, to be extended to Monday in case access falls on a long weekend; and,

d. The Office of the Children’s Lawyer shall be requested to become involved in this matter. Draft order to be prepared by Applicant’s counsel to be signed by me.

[51] The parties may provide written submissions as to costs, to be provided by the Applicant first and then the Respondent on a 10-day turnaround. Costs submissions to be limited to three pages in length excluding any offers to settle and bills of costs. The submissions to be filed with the judicial assistant in Barrie.

McDermot J.

Date: September 1, 2020

[^1]: R.S.O. 1990, c. F.3.

[^2]: R.S.C. 1985 c. 3 (2nd Supp.).

[^3]: R.S.O. 1990, c. C.12.

[^4]: See paragraph 19 of the Applicant’s affidavit sworn August 11, 2020.

[^5]: Ibid., para. 16.

[^6]: Ibid., Ex. “H”.

[^7]: Ibid., Ex. “I”

[^8]: Ibid., Ex. “J”

Di Raimo v. Di Raimo, 2020 ONSC 5233

Case Summary

Background

Result

Discussion

Separation Agreement

Part One of Analysis

Part Two of Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 3