Court File and Parties

Court File No.: FC-19-24 Date: 2021/02/10 Ontario Superior Court of Justice

Between: Jeanine Mary Silva, Applicant And: Brian Silva, Respondent

Counsel: Ben Fortino, for the Applicant Carmelo Runco, for the Respondent

Heard: February 8, 2021

Before: Turnbull, J.

Endorsement on Two Motions

[1] There are two motions before the court. In summarizing the facts, I have borrowed heavily from the helpful factum provided to the court by Mr. Runco.

The Motions Before the Court

[2] The respondent father, Brian Silva (“Mr. Silva”) brought a motion on February 18, 2020, seeking an interim order to expand his access to his two children, Ava Silva, born May 23, 2010, and Ella Silva, born September 6, 2013, from supervised to unsupervised, and to include every other weekend and mid-week access. He is also seeking corollary terms to the expansion of access including an order permitting him to communicate with third parties, non-relocation of the children, for the parties to use a communication book, a prohibition against negative communication of the parties in front of the children, and his legal costs to be paid by Mrs. Silva.

[3] The Applicant Mother, Jeanine Silva (“Mrs. Silva”) brought a cross motion, amended on September 1, 2020, wherein she is seeking an order to maintain Mr. Silva’s access on a supervised basis, to have Mr. Silva pay child support for the children, and for a further advance of monies from the proceeds of the sale of the matrimonial home that are being held in trust by the real estate solicitor. She, too, is seeking an order that her legal costs be paid by Mr. Silva. Her counsel Mr. Fortino advised during submissions that his client is not seeking spousal support on this motion.

Overview of the Facts

[4] Mr. and Mrs. Silva were married on October 6, 2005 and separated on or about June 26, 2019. They have two daughters, namely, Ava Silva, born May 23, 2010 (aged 10) and Ella Silva, born September 6, 2013 (aged 7).

[5] When the separation occurred, Mr. Silva agreed to leave the matrimonial home in Caledonia and he was forced to live with his mother in Mount Hope. Fortunately for the children, the distance between these residences is only about fifteen minutes by automobile.

[6] Mrs. Silva and the two children continued to reside in the matrimonial home in Caledonia, as the children were enrolled in school there.

[7] From the extensive affidavit material before the court, it appears that there was no domestic violence in the relationship, but there were serious financial problems that exacerbated the situation towards the end of the marriage.

[8] Shortly after separation, Mr. Silva had unsupervised access to his daughters. He had enjoyed a good relationship with them during the marriage and post-separation, notwithstanding he was self-employed and worked long hours. He is employed in the flooring installation business.

[9] During the marriage, Mrs. Silva ran a hair salon business from the home and earned an income from that work. A year or so before the marriage ended, she was accepted to a teacher’s college and has since become a fully accredited and employed teacher.

[10] After the parties separated, Mr. Silva sought treatment for mental health issues arising from the financial stresses during marriage and the emotional stress upon separation. He voluntarily allowed himself to be admitted to St. Joseph’s Hospital in Hamilton in the late summer of 2019 for in-hospital psychiatric treatment. Mr. Silva was released from St. Joseph’s Hospital on September 25, 2019 and continued to receive psychiatric outpatient services under the care of a treating psychiatrist, Dr. Henry J. Bibr.

[11] From the time of his hospital admission until late December 2019, he did not have any access visits with his daughters, although both parties made efforts to resolve the family law dispute with the help of their respective lawyers.

[12] Mr. Silva brought an interim motion returnable December 19, 2019, to seek interim access to the children. The motion was not argued as the parties arrived at minutes of settlement on a temporary and without prejudice basis. Nightingale J. made an order that day in accordance with those terms, including limited supervised access to Mr. Silva and an order requiring him to provide further medical disclosure.

[13] In her affidavit sworn December 16, 2019, Mrs. Silva acknowledged that following his discharge from hospital, she did not agree to provide Mr. Silva with any access to the children unless it would occur in an institutional access facility, due to her concern over his emotional health.

[14] Pursuant to the terms of the order of Nightingale J., Mr. Silva had supervised access for several hours at a time, a few times a week, in the former matrimonial home. The paternal grandmother and/or uncle were the paternal supervisors, and the maternal grandmother, aunt and/or uncle were the maternal supervisors.

[15] In his affidavits sworn February 18, 2020 and April 27, 2020, Mr. Silva stated that over the next several months, supervised visits took place in the matrimonial home. He felt that the visits went well and without any major incidents, save for a few squabbles between the parties as to the quality and quantity of the visits. While spending time with the children in the lower/basement level of the home, Mr. Silva would play with them, interact with them, feed them and prepare meals for them.

[16] Not surprisingly, the affidavits of Mrs. Silva and her mother painted a different picture. The tension during the supervised visits in the matrimonial home continued to escalate. Neither party wanted to have the visits in the home, but they could not agree on an alternate site. There were some challenges with the visits on both sides. Mrs. Silva allegedly cancelled some visits without sufficient notice or reason. Mr. Silva was accused of snooping in the home and not willing to leave the home when asked to at the end of visit.

[17] After the government imposed the COVID-19 measures in mid-March 2020, problems continued to arise between the parties. Mrs. Silva alleged that Mr. Silva had left the home on multiple occasions for non-urgent reasons. Mr. Silva answered that he had left the home on several occasions for legitimate reasons.

[18] As a result, Mr. Silva brought another motion to the court which was heard on May 12, 2020. After submissions were made, Harper J. reserved his decision and ultimately released written reasons found at Silva v. Silva, 2020 ONSC 3073. He summarized the situation surrounding this unfortunate case in his reasons and made an order that changed the location of the supervised visits from the former matrimonial home to the paternal grandmother’s home, as well as requiring Mr. Silva to provide Mrs. Silva with an updated letter from his psychiatrist.

[19] The parties continued to exchange accusations not only about each other, but also about the other party’s dysfunctional family life. [^1]

[20] At the end of August 2020, the parties agreed to continue arguing for the relief they each sought in the May 12, 2020 motion. On September 4, 2020, Justice Nightingale made an order requiring Mr. Silva to produce further financial disclosure and medical disclosure.

[21] Subsequent to that motion, the parties agreed to sell the matrimonial home. However, there has been a disagreement as to whether certain repairs made to the home by Mrs. Silva’s brother were necessary, or whether Mr. Silva could have been allowed into the home to make the necessary repairs himself.

[22] The home was sold on or about October 2, 2020, and the net proceeds of sale, which counsel advised me are approximately $204,000, are being held in trust by the real estate lawyer, Larry Humenik. Both parties received an equal advance of funds from the proceeds of sale.

[23] In late October 2020, Mr. Silva produced some of the financial disclosure ordered by Justice Nightingale, as well as some of the medical disclosure. A copy of a letter dated September 25, 2020 from Henry Bibr, the respondent’s treating psychiatrist, was provided to the court. It was addressed to Mr. Runco and attempted to respond to a series of pertinent questions. In it, Dr. Bibr advised that the prescribed medications have stabilized his mood, cleared his symptoms of psychosis, permitted the respondent to return to work and that he has little or no side-effects from the medication. Dr. Bibr stated that upon his hospital admission, Mr. Silva was not suicidal or homicidal. At page 3, paragraph 15 of his report, Dr. Bibr stated:

Since my initial assessment and contact with patient 9/10/2019, patient has totally recovered. I am not aware of any concern of his ability to parent, but I am not justified to make parenting assessments.

[24] Part of the current motion was heard on November 5, 2020. At that time, Henderson J. made an interim order requiring Mr. Silva to pay Mrs. Silva support for the two children in the amount of $546.00 per month, based on an imputed net income for Mr. Silva in 2019 of $36,750.00. The balance of the motions were adjourned to be argued on the return of these motions which has taken place today before me.

[25] On January 26, 2021, Mr. Silva produced some more of the financial and medical disclosure to Mrs. Silva, through counsel. However, as I pointed out to Mr. Runco, the financial disclosure was not anywhere near complete. He did not provide a statement of income and expenses for the year 2020 from his business. He did not provide copies of invoices rendered to customers nor the expenses associated with each job. In other words, the ability of the court to ascertain his true net income for child support purposes was lacking. He did provide the medical records from his hospitalization at St. Joseph’s Hospital and clinical attendances. He did provide a signed financial statement dated January 25, 2021.

Issues on this Motion

[26] Counsel helpfully identified the issues for the court’s consideration as follow:

a. Access of the respondent to see his children. b. Child support c. Property issues including: 1. a release of some or all of the funds held in trust from the proceeds of sale of the matrimonial home. 2. recovery of some of the carrying costs borne by Ms. Silva from separation to the date the matrimonial home was sold.

[27] I will deal with each of those issues in the order in which counsel have so helpfully suggested.

Issue A: Respondent’s Access to his Children

[28] The present access regime was established by Nightingale J. in December 2019. The location of the supervised visits was changed by Harper J. in May 2020 but the access days and times remained the same. They are:

a. Every Sunday from 10:00am to 1:00pm. b. Every Tuesday from 5:00pm to 7:30pm c. Every Friday from 5:00pm to 7:30pm.

[29] In his submissions, Mr. Runco explained that the respondent seeks unsupervised, overnight access visits with his daughters every other weekend as well as mid-week unsupervised visits from 4:00pm to 8:00pm on Tuesdays and Thursdays. Mr. Runco emphasized that for approximately 17 months, his client has not had an unsupervised visit with his daughters nor the chance to spend an overnight with them. He argued that the medical issues surrounding Mr. Silva’s mental health have been dealt with and Dr. Bibr’s report verifies that fact. I do note that Mr. Silva voluntarily admitted himself to the hospital with the support of his extended family and it appears that he has been compliant in taking whatever medications have been prescribed to assist him.

[30] In response, Mr. Fortino advised that despite what is stated in her affidavit of January 31, 2021, Mrs. Silva is now agreeable to unsupervised access visits but feels that the transition to unsupervised access should be gradual to help the children with the changes and to permit her to be satisfied that the visits are to a home where the living arrangements are known. Underlying the expressed concerns of Mrs. Silva are her worries with respect to her perception of the erratic and inconsistent behaviour of the respondent. She has noted at paragraph 10 of her affidavit of January 31, 2021, that the respondent has missed almost every one of the scheduled Sunday afternoon access visits since September 2020. She remarked that there were other access visits which were also missed. She feels it is important for the well being of the girls that the respondent show that he can consistently attend access visits without disappointing his daughters due to last minute or unexplained cancellations. She also expressed concern about his inflexibility in changing access from time to time to permit the girls to participate in their dancing activities. She recounted how she agreed to allow the children to spend Christmas Eve with him, but he refused. Mrs. Silva feels that the respondent’s behaviour is erratic, his communications with her are not child focused and that he is not acting in the best interests of the children.

[31] Mrs. Silva suggested in paragraph 45 of her affidavit of January 31, 2021 that the following access schedule be implemented by the court:

a. Every Saturday and Sunday from 10:00am to 4:00pm b. Every Tuesday and Thursday from 4:00pm to 8:00pm c. The Respondent’s access time with the children be reviewed in four months.

Analysis

[32] Mr. Silva has sought out and obtained appropriate medical treatment. The letter from Dr. Bibr dated September 25, 2020 states that he has recovered, is not suicidal nor homicidal. Mr. Silva has returned to running his flooring business as a self-employed businessman.

[33] There clearly have been difficulties with respect to access. Mr. Silva has used intemperate language in the electronic communications filed as exhibits in Mrs. Silva’s affidavits. He has missed many visits, especially the Sunday visits. Having said all that, he wants to spend more time and more meaningful time with his daughters. Our courts Gordon v. Goertz, [1996] 2 SCR 27 and legislative provisions recognize that the maximum amount of contact with each parent should be encouraged, absent compelling reasons to the contrary and provided such access is in the best interests of the children.

[34] Section 16(10) of the Divorce Act, R.S.C. 1985, c.3, s. 16(10) provides that in making an order for custody and/or access, a 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 and, for that purpose, shall take into consideration the willingness of the person to facilitate such contact.

[35] A parent who seeks to reduce normal access will usually be required to provide a justification for taking such a position and the greater the restriction sought, the more important it becomes to justify that restriction. The most restrictive form of access is supervised access. M. (B.P.) v. M. (B.L.D.E.) (1992), 59 O.A.C. 19 Our courts have also held that for obvious reasons, supervised access is not intended to be a long-term solution to access problems. In this case, as noted above, it is over seventeen months since the respondent has had unsupervised time with his daughters, despite having sought out medical help, following his doctor’s advice and reaching a recovery level sufficient to have his doctor say that he has recovered.

[36] Having considered the matter carefully, the affidavits filed and the submissions of counsel, I concur with the applicant’s submissions that a graduated, increasing access schedule between the children and the respondent is in the best interests of the children. It is ordered on a temporary, without prejudice basis as follows:

1. The respondent shall have unsupervised access visits with his daughters as follows: a. Every Saturday and Sunday from 10:00am to 4:00pm commencing February 13, 2021. b. Every Tuesday and Thursday from 4:00pm to 8:00pm. c. The Respondent’s access time with the children shall be reviewed on Friday March 12, 2021 at 10:00am by Zoom Call before me as the presiding judge. At that time, each party may file short affidavits with respect to the access visits, the reaction of the girls to the extended visits, and any other matter relevant to this issue. Mr. Silva shall also provide information with respect to his living arrangements, where he is living and if he is planning to move to other accommodations, particulars of those living arrangements and the sleeping arrangements for the girls. If March 12, 2021 at 10:00am is not convenient for counsel, a suitable time for the return of this motion before me via Zoom shall be arranged with the Trial Co-ordinator. If a time cannot be agreed by counsel, I will fix the date and time.

Issue B: Child Support

[37] On the cross-motion of Mrs. Silva, Mr. Fortino urged the court to vary the order of Henderson J. and impute income to the respondent of $60,000 per year for child support purposes. He emphasized that Mr. Silva has paid nothing for child support pursuant to the order of Henderson J. In fact, Mr. Silva has also paid nothing towards the carrying costs of the former matrimonial home or for Section 7 extraordinary expenses. Furthermore, he has not produced the financial information ordered by Nightingale J. on September 4, 2020 with respect to his business.

[38] Mr. Runco urged the court not to revisit this issue on this motion as Henderson J. has already dealt with it in detail when it was before him on this very same motion. He asked that his client be permitted to obtain his 2020 tax information and get it appropriately organized so that meaningful disclosure can be given.

[39] In my view, Henderson J. has dealt with child support on a temporary basis. When the financial production is completed, the applicant can bring a motion to vary the order of Henderson J. based on a full record and failing that, the trial judge can make the appropriate order based on evidence at trial and make it retroactive to the appropriate date.

[40] In the circumstances, I decline to vary the order of Henderson J. despite the failure of the respondent to comply with proper production of business records.

[41] However, I do not consider it appropriate to allow the respondent to simply ignore his child support obligations. Justice Henderson ordered monthly child support to be paid on the first day of each month in the amount of $546.00 per month commencing November 1, 2020. That means that at the date of hearing these motions, the respondent is in arrears of his child support payments for four months or $2,184.00.

[42] Due to COVID-19, counsel have advised that the payments of child support through the Office of the Director of Family Responsibility (FRO) are significantly slowed. In the circumstances, I order as follows:

a. Larry Humenik, Barrister and Solicitor, shall pay to counsel for the applicant the sum of $2,184 from the respondent’s entitlement to one half of the net proceeds from the sale of the matrimonial home. This amount represents the arrears of child support to this date.

Issue C: Property Issues

A. Release of Funds from Matrimonial Home Proceeds

[43] Mr. Fortino based this request on several grounds, all of which I found compelling and logical.

a. His client has accumulated approximately $35,000 of debt since the date of separation while the financial statement of the respondent sworn January 25, 2021 shows that he has $20,959.81 in various bank accounts. b. the respondent has paid nothing for child support since the date of separation even though ordered to do so by Henderson J. in late 2020. c. The applicant has had to rent accommodations for her and the children at an expense of approximately $2,300.00 per month. Her financial statement shows her annual expenses at approximately $63,000.00 per year. Mr. Silva’s expenses are shown as approximately $36,000 per year largely because he has been living with his mother and because he has not had the expenses associated with caring for the children. d. there is no likelihood that either party will owe the other a significant sum on the equalization of family property.

[44] Mr. Runco agreed that it would not be inappropriate to grant an order permitting payment out of court of an equal amount to each party. He noted that while some of the debt incurred by the applicant was for the carrying costs associated with the matrimonial home from date of separation to date of sale, his client arguably has a claim for occupation rent which will possibly put forward. Mr. Fortino noted that a motion for payment out has not been made by the respondent and that a claim for occupation rent has not been made to this stage of the proceedings.

[45] The judges or our court are to do what is just and reasonable and to use the tools at our disposal to deliver justice as quickly, cheaply and fairly as possible. To require the respondent to bring a motion for payment out would simply mean additional legal expenses for him to attain a result which would be granted in any event. I am not satisfied that a partial payment out to Mr. Silva will unfairly prejudice the rights of Mrs. Silva.

[46] It is ordered that the sum of $50,000 be released to the applicant’s counsel Ben Fortino from the applicant’s entitlement to one half of the net proceeds from the sale of the matrimonial home being held by Mr. Larry Humenik, Barrister and Solicitor.

[47] It is ordered that the sum of $20,000 be released to the respondent’s counsel Carmelo Runco from the respondent’s entitlement to one half of the net proceeds from the sale of the matrimonial home being held by Mr. Larry Humenik, Barrister and Solicitor. Mr. Silva is to make certain that he pays child support in a timely manner to the applicant from these funds, failing which the court will entertain a motion to have the child support paid directly by Mr. Humenik from the share of the respondent’s funds still held in trust for him.

B. Other Property Issues

[48] Mr. Fortino agreed not to pursue the other two property issues on the return of these motions. One of those claims relates to an account of approximately $4,500.00 rendered by the applicant’s brother for renovations to the matrimonial home to prepare it to be sold. If the parties can not resolve that before the return of this motion, I will hear submissions on that issue at that time.

[49] The second property issue related to approximately $19,000.00 carrying costs incurred by the applicant for the matrimonial home from the date of separation to the date of its sale. In my view, that issue should best be dealt with by the trial judge or by terms of settlement worked out by the parties with the assistance of counsel.

Conclusion

[50] It is ordered on a temporary, without prejudice basis that the respondent shall have unsupervised access visits with his daughters as follows:

a. Every Saturday and Sunday from 10:00am to 4:00pm commencing February 13, 2021. b. Every Tuesday and Thursday from 4:00pm to 8:00pm. c. The Respondent’s access time with the children shall be reviewed on Friday March 12, 2021 at 10:00am by Zoom Call attendance before me as the presiding judge and the information stipulated at paragraph 30 (1) c above shall be served and filed prior to the return of that motion.

[51] It is ordered that Larry Humenik, Barrister and Solicitor, shall pay to counsel for the applicant the sum of $2,184.00 from the respondent’s entitlement to one half of the net proceeds from the sale of the matrimonial home which are held in trust by Mr. Humenik’s law firm.

[52] It is ordered that Larry Humenik, Barrister and Solicitor, shall pay to counsel for the applicant the sum of $50,000.00 from the applicant’s entitlement to one half of the net proceeds from the sale of the matrimonial home being held in trust by Mr. Humenik’s law firm.

[53] It is ordered that Larry Humenik, Barrister and Solicitor, shall pay to counsel for the respondent the sum of $20,000.00 from the respondent’s entitlement to one half of the net proceeds from the sale of the matrimonial home being held by Mr. Humenik’s law firm.

[54] This motion is otherwise adjourned to Friday March 12, 2021 at 10:00am to proceed by Zoom Conference Call.

Costs

[55] Unless counsel can agree on costs, I will receive brief written costs submissions (no more than three typewritten pages) from counsel together with their Bill of Costs, their docketed hours for these motions heard by me (not by Henderson J. or any other judge) and any relevant offers to settle. I would appreciate receiving these submissions prior to the return of this matter before me on March 12, 2021, at which time I may have additional questions of counsel relating to their costs submissions.

“Signed Electronically”

Turnbull, J.

Released: February 10, 2021

[^1]: Affidavit of Jeanine Silva, paras. 95-97, sworn February 23, 2020; Affidavit of Brian Silva, paras. 32-33, sworn August 25, 2020