COURT FILE NO.: FS-19-96673
DATE: 2020 10 05
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jacqueline Jennifer Lillian Bartucci Applicant
Prosper Mario Bartucci Respondent
BEFORE: Bloom, J.
COUNSEL: Paul Portman, for the Applicant
Leonardo Mongillo, for the Respondent
HEARD: September 24, 2020
E N D O R S E M E N T
I. INTRODUCTION
[1] Before me are cross-motions. I can summarize the relief sought as refined in oral argument. The Respondent seeks to vary orders by Justice Bielby of this court granting him access to the three children of the parties, to expand that access, and in the alternative seeks an order to remedy alleged breaches of those orders by the Applicant, denying him access.
[2] The Applicant seeks an order that the Respondent be held in contempt of Justice Bielby’s orders, and in the alternative seeks to vary those orders to require supervised access at a Peel Children’s Aid Society Supervised Access Centre.
[3] I have considered the evidence before me and, in particular, the Respondent’s affidavits of August 12, 2020 and September 15, 2020, and the Applicant’s affidavits of May 11, 2020 and September 10, 2020.
II. PROCEDURAL BACKGROUND AND FACTS
[4] The parties have three children: Carmine Bartucci born April 10, 2008, Alyssa Bartucci born January 10, 2011, and Katelyn Bartucci born June 10, 2014.
[5] Justice Bielby of this court on May 22, 2020 made an order that provided, inter alia, his orders of March 3, 2020 and April 24, 2020 were to remain in force, subject to certain changes he specified; supervised access was to continue; there was to be no physical discipline or play-fighting; and the parties were to make best efforts to obtain disclosure of the Peel Children’s Aid Society records from April 24, 2020 forward.
[6] It is uncontested that the Applicant has denied access to the Respondent as provided for by Justice Bielby’s orders. She, however, takes the position that that denial of access was justified in law.
[7] On August 28, 2020 the Peel CAS delivered to the parties a letter and over 250 pages of notes of their interviews with the parties and the children. The letter, signed by the Director of Legal Services, stated that, although the CAS had verified concerns with the Respondent’s use of inappropriate discipline of the children, it did not have concerns regarding his ability to protect and keep them safe. Further, the letter stated that the children wished to have ongoing parenting time with him. Finally, the letter asserted that the children were not in need of protection; and consequently, the CAS would not supervise access.
III. ANALYSIS
[8] The Applicant invoked Rule 60.11(1) of the Rules of Civil Procedure pursuant to FLR 1(7) for the proposition that only Justice Bielby, as Case Management Judge in the proceeding, could hear her contempt motion. In my view, even if Rule 60.11(1) applies, I have jurisdiction under that rule as “a judge in the proceeding in which the order to be enforced was made.”
[9] Further, the evidence adduced by the Applicant in support of her contempt allegations does not prove them on the applicable standard of beyond a reasonable doubt. To the contrary, the CAS letter of August 28, 2020 stands as a strong basis for reasonable doubt. Accordingly, I dismiss the Applicant’s motion for an order that the Respondent be held in contempt of Justice Bielby’s orders.
[10] Neither party has proven on a balance of probabilities a material change in circumstances that affects or is likely to affect the best interests of the children so as to allow me to consider changes in the access provisions of Justice Bielby’s orders. That threshold question applies whether an access order is made under the Divorce Act or the Children’s Law Reform Act.
[11] Based on the evidence before me, and particularly the CAS letter of August 28, 2020, the circumstances have not changed from those on which Justice Bielby’s orders were based.
[12] Accordingly, I dismiss both the Applicant’s and Respondent’s motions to vary Justice Bielby’s orders.
[13] Lastly, I find that the Applicant has denied access to the Respondent as provided for by Justice Bielby’s orders. She has not proven a lawful basis for non-compliance with those orders. Assuming without deciding that the need to protect the children could justify such non-compliance, in light of the August 28, 2020 letter from the CAS I am not satisfied that the Applicant has proven that need.
[14] I find that an appropriate remedy for the Applicant’s non-compliance is that I order that she comply with the access provisions in those orders immediately; and that she pay costs of the cross-motions to the Respondent on a substantial indemnity basis. I make that order under FLR 1(8) including paragraph (a).
[15] I will receive written submissions from the parties on the quantum of costs and when they should be paid, and on any related costs issue. Those submissions should be no more than 3 pages, excluding a bill of costs. The Respondent is to serve and file his submissions by one e-mail to the Applicant and my assistant, Sara Stafford, at Sara.Stafford@ontario.ca within 14 days of release of this endorsement. The Applicant is to serve and file her submissions within 14 days of service of the Respondent’s submissions, by one e-mail to the Respondent and Ms. Stafford. There shall be no reply.
Bloom, J.
DATE: October 5, 2020
COURT FILE NO.: FS-19-96673
DATE: 2020 10 05
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jacqueline Jennifer Lillian Bartucci Applicant
Prosper Mario Bartucci Respondent
BEFORE: Bloom, J.
COUNSEL: Paul Portman, for the Applicant
Leonardo Mongillo, for the Respondent
HEARD: September 24, 2020
ENDORSEMENT
Bloom, J.
DATE: October 5, 2020