COURT FILE NO.: FS-16-87745-00
DATE: 20200130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michaela Spadano
Self-Represented
Applicant
- and -
Tony Lee Spadano
Self-Represented
Respondent
HEARD: October 8-10, 2019
REASONS FOR JUDGMENT
André J.
[1] The Applicant, Michaela Spadano, seeks an order granting her sole custody of the children of the marriage and child support. The Respondent, Tony Lee Spadano, also seeks sole custody of the children or alternatively, increased access.
BACKGROUND FACTS
[2] The parties were married on July 22, 2011 and separated on May 19, 2016.
[3] The parties have two children: Lili, who was born on December 30, 2013, and Benicio, who was born on May 27, 2017.
[4] Lili and Benicio have lived with Ms. Spadano since the parties separated.
[5] Mr. Spadano has had access to the children since separation but following recommendations from the Children’s Aid Society (CAS) on May 7, 2015, has had no overnight access to the children.
[6] Ms. Spadano has been a teacher employed by the Peel District School Board since 2004. She earns $99,000 annually.
[7] Mr. Spadano is a Broadcast Technician and is employed by a company called GS Broadcast Services.
COURT ORDERS
July 14, 2017
[8] Paragraph 2(c) of the Endorsement ordered that Mr. Spadano serve and file his Supplementary Trial Record, Document Brief and Case Brief by January 5, 2018. He failed to comply with this order.
March 5, 2018
[9] Emery J.’s endorsement indicated that the case would proceed to trial on the issues of custody of the children as well as access by the Respondent to each of the children. His endorsement indicates that there “are no further issues relating to any equalization or property claim.”
January 31, 2019
[10] A Trial Management Conference was held on this day. Ms. Spadano attended and filed a Case Conference Brief. Mr. Spadano did not attend, neither did he file a Case Conference Brief. The Trial Management Conference was adjourned to March 22, 2019.
March 22, 2019
[11] Mr. Spadano failed to file a Trial Management Brief. The Conference was adjourned to April 30, 2019. Mr. Spadano was ordered to serve and file his Trial Management Brief by March 29, 2019. He was ordered to pay costs fixed in the amount of $1,814 to Ms. Spadano to be enforced as child support. Mr. Spadano did not file his Trial Management Brief as ordered.
April 30, 2019
[12] A Trial Management Conference was held. Van Melle J. ordered payment of monthly child support in the amount of $811 based on Mr. Spadano’s income of $57,329 in 2018.
October 7, 2019
[13] The endorsement of Doi J. following an exit pre-trial conference indicates that Mr. Spadano indicated that “equalization is still an issue.”
ANALYSIS
This trial raises the following issues?
(1) Should Ms. Spadano be granted sole custody of the children of the marriage?
(2) If so, should Mr. Spadano be granted access to the children, and, on what basis?
(3) Should the court address Mr. Spadano’s related claim for an order regarding equalization of net family property?
Should Ms. Spadano be granted sole custody of the children of the marriage?
THE LAW
[14] Section 16(8) of the Divorce Act, R.S.C. 1985, c.3 (2nd supp.) states that the best interests of the child are to be determined with “reference to the conditions, means, and other circumstances of the child”.
[15] Section 24(c) of the Children’s Law Reform Act R.S.O. 1990, c. C. 12, states that in determining the best interests of a child, the court shall consider all of the child’s needs and circumstances including the following:
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[16] Subsections 24(3)-(5) provide that:
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[17] Section 16(10) of the Divorce Act stipulates that in making an order for custody or access, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” However, in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at para. 153, the Supreme Court of Canada concluded that if the maximum contact principle compromises the child’s best interests, the principle should be modified to accord with the best interests of the child.
THE PARTIES’ POSITIONS
Mr. Spadano
[18] Mr. Spadano provides the following reasons why the court should not grant custody of the children to Ms. Spadano:
a) Ms. Spadano has verbally and physically abused Lili to the point that Lili has engaged in self harming behaviour;
b) Ms. Spadano has manifested a great deal of animosity towards the children and is both controlling and overbearing towards the children. She also uses foul and aggressive language to the children and;
c) With his mother or sister’s assistance, he can provide a loving and nurturing environment for the childen.
Ms. Spadano
[19] Ms. Spadano has denied that she abuses the children and has called evidence to show, on a balance of probabilities, that she takes good care of the children.
ANALYSIS
[20] For the following reasons, I do not accept Mr. Spadano’s evidence that Ms. Spadano verbally and physically abuses the children and is therefore disqualified from being granted custody of the children.
[21] First, Roya Nang, a Peel Region child protection worker employed by the Children’s Aid Society, testified that she was the assigned case worker for the Spadano family since May 29, 2018 and that she visited the children every thirty days at Ms. Spadano’s home. She described the children as healthy and well taken care of. She testified that the children expressed no concerns about their wellbeing under the care of their mother. Neither did they express any child protection concerns about their parents. She never observed any evidence that Ms. Spadano had coached her children to say the right things to her. Ms. Nang testified that: “I can say that throughout my involvement I never observed the children to have any hygiene problems.” She described them as always being well groomed.
[22] Ms. Nang testified that she sent emails to Mr. Spadano on April 27, 2018; May 2, 2018 and September 8, 2019, but that she received no response. She left a voicemail for him on September 5, 2018 but did not receive a return call from Mr. Spadano. She also sent him a letter on October 10, 2018 but again got no response. She left him another telephone message on February 11, 2019 and finally heard from him on March 25, 2019.
[23] Ms. Nang testified about an investigation commenced by the CAS about allegations of sexual abuse which Lili Spadano made against Mr. Spadano. She referred to a Peel CAS letter dated May 7, 2018, which made the following conclusions about the abuse allegations:
The Society’s position is that Lili’s requested, detailed and clear disclosures are valid. The concerns that Lili experienced sexual harm by Mr. Spadano are verified by the Society;
During the investigation, additional concerns were reported indicating that Mr. Spadano used inappropriate physical discipline with Benicio Spadano; this information was found to be valid and the concerns were verified.;
During the investigation, information showed that Ms. Spadano had been putting the children at risk of emotional harm as a result of exposing them to on-going post-separation conflicts and as such, these concerns were also verified.
[24] Second, Dranomira Steranka, an aunt of Ms. Spadano, testified. She holds a Ph.D. in Law from her native country of Slovakia and has known the children since they were born. She described them as very well cared for and happy. She testified that she did not witness Mr. Spadano in any family activities with the children. She testified under cross-examination that Lili did not want to stay overnight at Mr. Spadano’s home.
[25] Third, Mr. Spadano submits that it is not in the children’s best interests to be placed in Ms. Spadano’s custody given that they have been chronically absent from school. Mrs. Spadano has given reasonable explanations for these absences. Both children suffer from post-separation anxiety thereby necessitating medical attention. Lili has had ongoing issues with one of her legs and has had to have a number of medical appointments to correct the problem. As a result she now wears orthopedic insoles. Lili also has had to seek professional help for speech and language support. Despite these issues, Ms. Spadano has enrolled the children in swimming, karate, tennis, soccer, basketball and floor hockey and pays for their participation in all of these programs.
[26] I am not persuaded that it is in the best interests of the children for Mr. Spadano to receive sole custody of them. He presently resides in his parents’ four-bedroom home. The children’s bed is in his bedroom and he sleeps with them in his lower level room. His parents and sister are prepared to assist him if he is granted custody of them. However, because he resides in Hamilton, it would be necessary to remove the children from their school, friends and the area where they have lived for many years.
[27] Additionally, I find that Ms. Spadano has been the main caregiver for the children for many years. She has taken care of their myriad needs. They are in need of special care as a result of their medical issues and to that extent, it is imperative that they are not exposed to any unnecessary disruption in their lives.
[28] For these reasons, I grant Ms. Spadano sole custody of Lili and Benecio.
ACCESS
[29] As indicated in s.16(10) of the Divorce Act, maximum contact is typically in the best interests of child. However, it may not be, if, for example, one parent is unable to meet the special needs of the child or adversely impacts the child’s mental or emotional wellbeing.
[30] In this case, Mr. Spadano stopped seeing the children in January 2018 and recommenced seeing them only recently. He currently sees them one day per week. He desires increased access and overnight access but Ms. Spadano has opposed the latter based on the recommendation of the CAS.
[31] There is no doubt that Mr. Spadano desires increased access to the children. However, that is not the central consideration. If Mr. Spadano is granted increased access, I must be satisfied that such access is in the children’s best interests.
[32] Given a) the children’s medical needs, b) Mr. Spadano’s limited interaction with them since January 2018, c) the distance between the residences of both parties; and d) the CAS’s recommendation regarding overnight access, it would be inappropriate, in my view, to grant Mr. Spadano overnight access to the children at this stage. Before this can occur, a period of time must elapse to enable Mr. Spadano to rebuild his relationship with his children.
[33] I therefore conclude that Mr. Spadano should continue to have access to the children once weekly for the next six (6) months with generous electronic access during the week between 7:00 p.m. and 10:00 p.m.
[34] Following the six months prior, he shall be permitted to have overnight access, one night per week, on a day that is mutually convenient to Ms. Spadano and himself.
CHILD SUPPORT
[35] On May 11, 2019, Van Melle J. set table amount of child support at $811 monthly based on an annual income of $57,329.
[36] On May 14, 2019, Van Melle J. ordered that an adverse inference should be drawn against Mr. Spadano if he did not provide Ms. Spadano with his Notice of Assessment for 2018 prior to the trial.
[37] Mr. Spadano did not file a Notice of Assessment before the trial and maintained that he did not have it. Instead, he produced an Income Tax and Benefit Return from the Canada Revenue Agency which indicates his 2019 income as $57,329.
[38] There is no additional information concerning Mr. Spadano’s income that justifies a change of the quantum of child support ordered by Van Melle J. in her May 2019 order. As a result, Mr. Spadano is ordered to pay $811 monthly in child support to Ms. Spadano for Lili and Benecio Spadano.
EQUALIZATION OF NET FAMILY PROPERTY
[39] On October 7, 2019, a day prior to the commencement of this trial, Mr. Spadano told a pre-trial judge that equalization of net family property is a live issue in the upcoming trial.
[40] I declined to hear submissions on this issue for the following reasons:
On March 5, 2019, Emery J. noted in his endorsement following a pre-trial conference that there “are no further issues relating to any equalization or property claim;”
Mr. Spadano has repeatedly failed to comply with court orders requiring him to provide financial disclosure to Ms. Spadano;
Mr. Spadano only announced his desire to make equalization of net family property an issue at trial on October 7, 2019, thereby depriving Ms. Spadano of any notice that this was the case.
RETROACTIVE CHILD SUPPORT
[41] Ms. Spadano is not seeking any retroactive child support given that for a period of time, Mr. Spadano paid child support in an amount which far exceeded the table amount he was requested to pay based on his income.
COSTS
[42] Neither party is seeking an order for costs in this trial.
ORDERS
[43] Based on the above, I make the following orders:
The Applicant, Michaela Spadano, is awarded sole custody of Lili Katarin Spadano born December 30, 2013 and Benecio Matteo Spadano, born on May 27, 2012.
The Respondent, Tony Lee Spadano, will have access to Lili Spadano and Benecio Spadano every Saturday from 10:00 a.m. to 8:00 p.m., commencing on the first Saturday in February 2020. Mr. Spadano will have overnight access to Lili and Benecio Spadano commencing on Saturday, August 1, 2020 from 12:00 midday to Sunday, 12:00 midday and every consecutive Saturday thereafter.
Mr. Spadano will have electronic access to the children from 7:00 p.m. to 10:00 p.m. on a schedule arranged by Ms. Spadano and Mr. Spadano;
S.D.O to issue;
There shall be no order regarding costs.
André J.
Released: January 30, 2020
COURT FILE NO.: FS-16-87745-00
DATE: 2020 01 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michaela Spadano
Applicant
- and –
Tony Lee Spadano
Respondent
REASONS FOR JUDGMENT
André J.
Released: January 30, 2020