COURT FILE NO.: FS-20-98252-00
DATE: 2020 09 11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Viviana Daniela Lima da Costa Moreira v. Sergio Moreira
BEFORE: D. E. Harris J.
COUNSEL: L. Simeone for moving party, Applicant V. Moreira M. Newton for responding party, Respondent S. Moreira
HEARD: September 1, 2020 by videoconference
ENDORSEMENT
[1] The mother, Viviana Moreira, moves for access and shared residency with the father of their daughter, Clara, who, ironically, turned 10 years old on the day of this hearing. No case conference has been held. The mother has had limited access to the child since the time she left the matrimonial home on July 11, 2020 as a result of marriage breakdown. The child has been living in the matrimonial home with the father for two months now. In the circumstances, I have no difficulty arriving at the conclusion that this matter is urgent within the meaning of Rule 14 (4.1) of the Family Law Rules: see Rosen v Rosen, [2005] O.J. No 62 (S.C.J.); Hood v. Hood, [2001] O.J. No. 2918 (S.C.J.); Porter v. Maclennan, 2011 ONSC 5298, [2012] W.D.F.L. 1543 at para. 6. The longer the mother has such limited access to the child, the greater damage there likely will be to their relationship. It is urgent that the current situation be examined.
[2] The parties have been married for 10 years. The mother stayed home with her daughter for about two years and then began to work at several different jobs. It appears she is well regarded by her employers. According to her, she is the primary caregiver for Clara. The father claims that he is the primary care giver. Ms. Moreira alleges that the father was domineering and verbally abusive. She also alleges that the father, who is in the IT business, hacked into her phone.
[3] After several years of trouble in the marriage, the mother sought help from a social worker. With the social worker’s support, she told the father at the end of June 2020 that she wanted to leave the relationship permanently. The mother and her mother who was living with the couple, moved out of the matrimonial home on July 11, 2020 and took up residence in a two-bedroom apartment nearby. She has set up a bedroom in the apartment for Clara. On July 13, 2020, according to her affidavit, the mother went to see Clara at the home. On that occasion, as stated in her affidavit, the father would not allow her to see Clara or even talk to her on the phone. The mother called the police. The Children’s Aid Society got involved and later interviewed the child and the mother and, it seems, the father as well. There has been nothing filed to relay the contents of those interviews.
[4] There are many other circumstances which I do not intend to delve into in these reasons. Suffice it to say, there is a great deal of bad feeling coursing through the extended families involved in this litigation.
[5] Since the time of the mother leaving the matrimonial home, the father has refused to let the mother see Clara outside the house. She sees Clara at the home with the father present although he is not generally in the same room. The mother talks to Clara on the phone, often with the father being heard in the background. According to the mother, Clara asks on the phone whether she can come and see her. Prior to the motion date being obtained, the mother was seeing Clara on Sundays at the father’s home, as well as on some other days. But father has not always allowed this.
[6] According to the mother, Clara is confused and sad. The mother is very concerned that the father is actively alienating the child from her.
[7] The record on this motion is marred by allegations of morning to night marijuana use against the mother. It is alleged that she is an addict. There are also allegations back against the father of marijuana and cocaine use, as well as magic mushrooms. These allegations are largely denied, although there is some admission by the mother of moderate “recreational” marijuana use. The father’s parents join in the chorus, supporting their son’s allegations. This is of little assistance given the absence of cross-examination and the concern that they may well be favouring their son.
[8] The credibility of each of the parties is very much a live issue. I can do no better than refer to the platitude that most likely the truth resides somewhere in the middle. Any more specific finding is impossible on a paper record.
[9] The mother filed a letter from her doctor. It states, amongst other things, that the mother suffers from a major depressive order and has since at least 2012. She has been on medication for depression. The doctor states that the mother does not have suicidal thoughts. Some psychotherapy has been administered by the doctor. The doctor is also Clara’s physician. She states that when she saw the mother and daughter together some time ago, she observed normal interaction. The doctor states that she has no concerns with respect to the mother parenting the child.
[10] The father states that Clara does not feel safe to be around her mother alone at this time. The father says that the CAS worker met with Clara and that Clara told the worker that she wanted to be with her mother only when someone else she trusted was present. This hearsay is unconfirmed. Counsel for the father wrote the CAS worker on August 21, 2020 to ask that a letter be provided with respect to her interviews but it has not yet been provided.
[11] Section 24(1) of the Children’s Law Reform Act R.S.O. 1990, c. C.12 places the best interests of the child be at the centre of the custody and access decision-making process. Section 24(2)(a) requires consideration of the love, affection and emotional ties between each parent and the child. Subsection (b) requires taking into account the child’s views and preference if they can be ascertained. Subsection (d) turns the focus to “the ability and willingness of each person applying for custody of the child to provide the child with guidance and education.” Sub. (e) refers to each parent’s plan for the child’s care and upbringing. Subsection (f) requires examination of the permanence and stability of the family unit with which it is proposed that the child will live. Subsection (g) relates to “the ability of each person …to act as a parent.” Lastly, subsection (h) requires the court to consider “any familial relationship between the child” and her parents.
[12] I do not doubt that the mother and her daughter have a strong bond. There was no contrary indication prior to separation two months ago. Although it is said through the hearsay evidence of the father that the child is uncomfortable being with the mother outside the home, without input from the CAS worker about this conversation, this is not something upon which significant reliance ought to be placed. The motive on the father’s part to exaggerate his daughter’s words in the context of a marital breakdown looms large. Furthermore, if the daughter did say something of this kind, it could be a function of the confusing divided parent arrangement the child now finds herself in.
[13] While the mother has not been highly specific about her plan for the child, she has set up a bedroom for her. The medical evidence indicates that although she has mental health issues, she is well capable of parenting Clara.
[14] The situation the parties find themselves in is at least partially attributable to circumstance. If the father had left the matrimonial home, the tables would be turned. If that had happened, the mother would be the primary parent, not the father. One parent should not be placed in an advantageous position simply by a twist of circumstance.
[15] There are no safety concerns justifying the virtual exclusion of the mother from the child’s life. While the drug use is concerning, marijuana is a soft drug. It can certainly be abused, like any other drug, but mere use is not in itself a major problem. Its demonization ended with legalization.
[16] For the foregoing reasons, I made the following orders:
- On a without prejudice basis: a. The visits of the mother to the daughter in the matrimonial home should continue with the father’s co-operation. b. Commencing on Saturday, September 19, 2020, until and including Saturday, October 17, 2020, the child shall reside with the Mother as follows: (i) Each Saturday from 8:00 a.m until 5:00 p.m.; and (ii) Each Wednesday, from 5:00 pm to 8:00 p.m. c. Commencing Sunday, October 18, 2020 up to and including Sunday, November 22, 2020, the child shall reside with the Mother as follows (i) Each Friday from 5:00 pm. until Saturday at 8:00 p.m. and, (ii) Each Wednesday from 5:00 pm to 8:00 p.m. d. Commencing Monday November 23, 2020, the child shall reside with the Mother as follows: (i) Every other Friday from 5:00 p.m to Sunday at 8 p.m. and then each Wednesday from 5:00 p.m. Thursday 8:00 a.m.
- The parties are to co-operate with respect to transfers and, it that is not possible, a neutral third party will have to be used.
- Each parent is prohibited from using marijuana or non-prescription drugs while the child is in their care.
- The parties shall not discuss the litigation with the child.
- The parties shall not speak negatively about the other parent in the presence of the child, nor allow any other person to speak negatively about the other parent in the child’s presence.
- On an urgent basis, the Office of the Children’s Lawyer is requested to become involved.
Harris J.
DATE: September 11, 2020
COURT FILE NO.: FS-20-98252-00
DATE: 2020 09 11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Viviana Daniela Lima da Costa Moreira v. Sergio Moreira
BEFORE: D. E. Harris J.
COUNSEL: L. Simeone for moving party, Applicant V. Moreira M. Newton for responding party, Respondent S. Moreira
ENDORSEMENT
Harris J.
DATE: September 11, 2020