COURT FILE NO.: FS-18-41735
DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lisa Cacace
Applicant, Mother
– and –
Carmine Cacace
Respondent, Father
E. Vine, for the Applicant
Carmine Cacace, Self-Represented
HEARD VIRTUALLY BY ZOOM: April 8, 9, 12, 19, 20, 21, and 22, 2021
REASONS FOR JUDGMENT
MILLS J.
[1] The parties are engaged in high conflict litigation and arguably higher conflict parenting of their four boys, currently aged 10, 12 and 14 year old twins. Both parents seek to diminish the impact of their post-separation conduct, but the fact remains they have been disrespectful in their communications with each other, they have failed to meaningfully cooperate and they have both involved the police and/or the Halton Children’s Aid Society (“CAS”) in an effort to further their own interests in this litigation. The parties have not always engaged in child focussed parenting following the dissolution of their marriage and they have not always behaved in a manner that is truly in the best interests of the children.
[2] With a final parenting plan in place, the parties must, for the benefit of their children, put this litigation behind them and refocus their efforts on parenting in a safe, secure and stable manner for the benefit of their boys. The children are entitled to a life without the constant burden of family conflict. As was noted by Backhouse J., the exposure of children to high levels of parental conflict is “the single most damaging factor for children in the face of divorce” (Graham v. Bruto, [2007] O.J. No. 656, aff’d 2008 ONCA 260).
[3] The trial proceeded under the provisions of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.) to formalize a parenting plan, to quantify child support obligations and to determine spousal support entitlement. Due to the primacy of child support obligations, the Applicant seeks no spousal support payments to be made at this time.
[4] Mr. Cacace seeks equal parenting time on a week about basis. Mrs. Cacace takes the position the status quo of one evening per week and alternating weekends should continue with just two overnight stays over a fourteen day period. I must ascertain what is in the best interests of the children and allocate parenting time solely on that basis. The quantum of child support payable will be determined by the structure of the parenting plan.
[5] The property issues were previously resolved by the parties. Decision making authority and contact/communication issues were determined by final order of Conlan, J. dated March 12, 2020.
[6] The Applicant seeks an order for divorce. The parties were married on July 5, 2003 and separated on August 26, 2018. I am satisfied from the evidence of the parties that they have been living separate and apart without any reasonable prospect of reconciliation. Therefore, an order shall issue granting a divorce.
The Evidence of the Children
[7] The views and preferences of the children have been documented in the Voice of the Child Report (dated August 8, 2019) and the s. 112 Courts of Justice Act Investigation Report (dated February 26, 2021), both authored by Tricia Ryan, a clinical investigator with the Office of the Children’s Lawyer (“OCL”).
[8] Mr. Cacace maintained the OCL is biased against him and failed to fairly consider any of the efforts he made to provide a stable home for the children, or to the extensive parenting and anger management courses he has voluntarily taken. Ms. Ryan gave evidence at the trial. Although she displayed a more antagonistic demeanour towards Mr. Cacace under cross-examination as opposed to the demeanour she displayed when giving her evidence in chief, there is no evidence to support Ms. Ryan undertook anything but an objective assessment of the family. She was confident in her evidence and certain her reports accurately reflect the views and preferences of the children as expressed by each of the boys. I accept her evidence in this regard and conclude Ms. Ryan’s reports are a true account of her interactions with the children. I reject Mr. Cacace’s allegations of bias.
[9] Ms. Ryan acknowledged Mr. Cacace is on an excellent path and that he has undertaken a very good start to changing his past behaviours, but that these efforts need to be continued. She did not believe Mrs. Cacace had influenced the boys respecting their preferences for a parenting plan.
[10] All four boys express different views and preferences to the OCL of what they would like to see in a parenting plan going forward. Their views and preferences have changed over time and they have been influenced by circumstances at both homes. I have listened to their voices and I have carefully considered the views and preferences they have expressed. I have placed greater weight on the s. 112 Report as it was completed just six weeks prior to the commencement of the trial. It is a more current reflection of the views and preferences of the children.
[11] The CAS has also been involved with the family. Sabrina Harvey, a Supervisor Child and Youth Services gave evidence at the trial in respect of her investigation and report of January 7, 2019 (incorrectly dated January 7, 2018), initiated as a result of a referral by Mrs. Cacace. Ms. Harvey interviewed the boys independently at their school, without the presence or influence of either parent. She noted the boys expressed to her that the verbal fighting and arguing between their parents made them feel sad, angry, and/or scared. Ms. Harvey verified the boys had been subjected to inappropriate physical discipline at the hands of Mr. Cacace. Ms. Harvey was professional, and her evidence was credible. I accept that her report and her recollection of the investigation she conducted are accurate accounts of the information provided to her by the children.
[12] Lisa Potts also gave evidence on behalf of the CAS. Ms. Potts is a Child Protection Worker who conducted an investigation in October 2019 as a result of a referral by Mrs. Cacace with respect to an alleged altercation between Mr. Cacace and one of the children in a hotel room. This investigation was conducted together with Sergeant Colin Grierson of the Halton Regional Police. Both Sergeant Grierson and Ms. Potts were professional and credible in giving their evidence and I accept their testimony as being accurate with respect to their dealings with the children. All four boys were interviewed; three of the interviews were documented on videotape. Sergeant Grierson testified that each boy provided an honest and forthcoming statement, but there were significant discrepancies. He believed that something happened between Mr. Cacace and one of the children on September 13, 2019, but he was unable to make a solid determination as to what had actually happened. Ms. Potts verified the allegation that Mr. Cacace had pulled on the ear of one child and pushed him. Mr. Cacace was cautioned to refrain from using physical discipline. No criminal charges were laid. The police and CAS files were closed with respect to this incident.
[13] Two additional referrals were made to CAS alleging inappropriate conduct by Mr. Cacace. In June 2020 Mrs. Cacace made a call that was investigated and dismissed as being not verified. An unidentified caller made a report in October 2020 which was not investigated. In both cases, the files were closed.
[14] Rani Chhatlani, a Community Child Protection Worker became involved with the family on December 11, 2020 when the school contacted CAS to report concerns respecting excessive force physical discipline of the children by John Millett, an individual Mrs. Cacace allowed to reside in the home with his wife and child free of charge in exchange for assisting to maintain the house. The allegations of physical abuse had previously been investigated by Ms. Harvey at the request of Mr. Cacace. The abuse allegations were determined to be unfounded as the child making the claim said he exaggerated the events because he was mad at his mother. During this investigation however, Ms. Chhatlani testified the children raised concerns and expressed frustration about Mrs. Cacace forgetting things. They also commented on her low motivation. Ms. Chhatlani confirmed the post separation conflict was causing anxiety and emotional harm for the children. At this time, two of the children had stopped going to Mr. Cacace’s house; one because he found it boring, the other because it found it boring and because Mr. Cacace asked too many questions. The other two boys said they both liked going to their father’s house as there were lots of outdoor activities and indoor games. Ms. Chhatlani recommended the children receive therapy and that Mrs. Cacace be provided with ongoing support from CAS. Ms. Chhatlani was also very professional and credible in giving her testimony. I accept her testimony accurately reflects the information conveyed to her by the children.
[15] Klara Rietberg, a Child Protection Worker with CAS, was recently appointed to provide ongoing support services to Mrs. Cacace in addressing her physical and mental health issues. Ms. Rietberg also provides support to the children to ensure their safety and wellbeing. She is most concerned with their emotional wellbeing as the children are very aware there is a battle raging between the parents. In her opinion, it is affecting the mental and emotional health of the children. Ms. Reitberg placed her concern for the family conflict on par with Mrs. Cacace’s mental health.
[16] Ms. Rietberg was very confident and balanced in her testimony. She continues to work with the family and appears to genuinely care for them. She was honest and forthright. I accept her testimony is an accurate reflection of her interactions with the parties and the children.
[17] The evidence of the children has therefore been received from the Voice of the Child and s. 112 reports produced by the OCL, and from the testimony of Ms. Ryan. I also accept the evidence and the testimony of the CAS child protection officers who interviewed the children when conducting the above referenced investigations. Their evidence is reliable, independent and it is inherently trustworthy.
Parenting Time and the Best Interests of the Children
[18] The recent amendments to the Divorce Act set out the factors to be considered in determining the best interests of the child when making a parenting order. This framework of analysis codifies the common law test set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52. There is a substantive guide for the court to follow when faced with the challenging task of fixing a parenting plan for a family. The only consideration for the court when making a parenting order is what is in the best interests of the children.
[19] Subsection 16(2) of the Divorce Act mandates that when considering the best interests of the children, the primary consideration must be to their physical, emotional and psychological safety, security and well-being.
[20] Subsection 16(6) provides that when allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This provision does not presume equal parenting time. The best interests of the child will determine how the parenting time is to be allocated.
[21] The factors to be considered when determining the best interests of the child are enumerated in s. 16(3) of the Divorce Act. The court is required to consider these factors related to the circumstances of the child, but the list is intended to be non-exhaustive. Any factor that is relevant to the circumstances of the child may be considered in the determination of the best interests of the child.
16(3)(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability
[22] The needs of the children are to have a safe, loving and stable relationship with both parents. According to the OCL, the boys are old enough and mature enough to understand the ongoing conflict is having a negative effect on everyone in the family and they want it to stop. The boys need to feel they are the primary focus of their parents as opposed to it being the ongoing battle of this litigation. It is hoped that with a reduction in conflict around parenting time, the boys will be permitted to settle into a routine that focusses on their needs.
[23] Each of the four boys has different needs as reflected in their different personalities. The OCL reports that two of the boys are more sensitive and reserved while the other two are more outgoing and extroverted. Jeffrey Miller and Daniel Fineman, personal friends of Mr. Cacace, gave evidence and described the boys as being rambunctious when at play and unruly at times but also warm and loving.
[24] Mr. Cacace purchased the matrimonial home after Mrs. Cacace required it be listed on the open market, to provide stability for the boys and to ensure they could remain attending their local schools. He feels strongly that he should play an integral role in raising the children. He has shown a keen interest in their academic success and is frequently in contact with the school administrators. He is teaching the boys to cook during their weekly dinners and has established a structured routine with the boys. He encouraged and supported them in establishing a neighbourhood lawn cutting business.
[25] Mrs. Cacace has always been the primary caregiver for the children. She has a warm and comfortable relationship with all four boys. Her attention to their needs has waned of late but to the extent it has been required, the maternal aunt, Catherine Paquette, has stepped in to ensure the boys are properly clothed, and that their medical and educational needs are being met. Mrs. Paquette gave evidence she is providing daily support to Mrs. Cacace in dealing with the children, and in managing her own medical and mental health issues. Mrs. Paquette was honest and forthright in her testimony. She expressed great concern for her sister and her nephews, but not in a way that was disparaging of Mr. Cacace. Mrs. Paquette was credible in her testimony and she was unshaken in cross-examination. I accept her evidence as being reliable.
[26] The twins are now in high school and like many others, have been struggling with online learning during the Covid-19 pandemic. Video games have become a significant distraction and a source of conflict at home. Mrs. Cacace was unable to effectively address this issue, but Mrs. Paquette has intervened to implement practical solutions to ensure the boys are not compromising their education with excessive online video gaming. Ms. Rietberg has also provided assistance to Mrs. Cacace in finding child focussed ways to deal with the conflict at home.
16(3)(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life
[27] In the s. 112 Report, the boys note their mother has always been their primary caregiver, but they feel loved and safe with both parents.
[28] There is a history of physical discipline of the children by Mr. Cacace. There is distrust that will need to be overcome but all four boys told Ms. Ryan they feel safe with their father. Mr. Cacace acknowledges the inappropriateness of his past behaviour but appears to diminish the long-term negative emotional and psychological impact it had on the children. He has voluntarily attended several parenting programs and individual counselling since the breakdown of the marriage. The children confirm he has changed the way in which he disciplines them, but they have expressed a fear of life going back to the way it was before.
[29] The four boys are close in age and are close with each other. Each of the twins has developed a particular bond with one of their younger brothers and they are protective of each other. Two of the boys regularly and consistently spend time with Mr. Cacace; the other two have been less committed to maintaining their scheduled visits. The online gaming issue may have been a factor in these boys preferring to stay with Mrs. Cacace. There is a divide between the boys, but that may be due to the ongoing family conflict.
[30] There is family support for both parents. The extended families clearly want what they view to be the best for the children and are prepared to assist the parties in achieving that goal.
[31] Mrs. Paquette and her husband Michael have been providing support to Mrs. Cacace. In their testimony Mr. and Mrs. Paquette assured me they will continue to provide support to Mrs. Cacace as long as is necessary. They have a close and loving relationship with the children. Mr. Paquette believes the boys like and respect him. He was looking forward to spending more time with the boys at the Paquette cottage once the pandemic restrictions are lifted.
[32] Mr. Cacace’s father also gave evidence in support of his son. It was apparent they have a close and loving relationship. The children are loved by their paternal grandparents. Mr. Cacace Sr. appeared to be a caring, family focussed man who was understandably concerned for the negative portrayals of his son in this litigation. He abjectly denied even the possibility that Mr. Cacace may have been aggressive with Mrs. Cacace or the boys. Regrettably, given the evidence of the OCL and CAS which I have accepted as being credible and reliable with respect to the excessive physical discipline, I have determined there was family violence inflicted on the boys. I do however accept Mr. Cacace Sr.’s evidence that the most important thing to him is family and that he will provide support to Mr. Cacace in caring for and raising the children.
16(3)(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse
[33] Both parties have failed in this regard. The ongoing family conflict has led to the parties undermining the development and maintenance of the relationships the children have with both their parents.
[34] Mrs. Cacace has refused to allow the children any additional time with Mr. Cacace except in the most exceptional cases. She has demanded strict adherence to a parenting schedule put in place post-separation when Mr. Cacace lived with his parents, approximately two hours away. Mr. Cacace purchased the matrimonial home and the children are now close enough to bicycle over for a visit but there has been very limited flexibility by Mrs. Cacace to allow the relationship between Mr. Cacace and the children to heal and to develop.
[35] Mr. Cacace has questioned the children with respect to what goes on at Mrs. Cacace’s home and admits asking the children about her, under the guise of expressing concern for her well-being. The children believe Mr. Cacace is fishing for information to use against their mother in these legal proceedings.
16(3)(d) the history of care of the child
[36] As noted above, Mrs. Cacace has been the primary caregiver of the children since they were born. The parents had a traditional marriage where she cared for the children while Mr. Cacace worked and regularly travelled for business. The children have always resided with Mrs. Cacace and she has historically attended to their medical, social and educational routines. Her recent medical and mental health issues have impacted the care provided to the children, but Mrs. Paquette is assisting in this regard.
[37] Mr. Cacace testified he has been engaged with extra-curricular activities and has in past served as a house league coach for the boys’ soccer teams. Since the separation and particularly since purchasing the matrimonial home, Mr. Cacace has endeavoured to be more involved in the daily routines of the boys and is very engaged in their schooling. This was confirmed by Ms. Rietberg.
[38] With the impacts of the Covid-19 pandemic over the last fifteen months, the routines of the children have been anything but usual and the parents’ inability to effectively communicate has made it more difficult for Mr. Cacace to be actively involved in the daily routines of the children.
16(3)(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
[39] To the extent possible, the views and preferences of the boys should be respected while ensuring they stay together on the same schedule to preserve and protect their sibling bond. The children are entitled to have a say in the future dynamics of their family to ensure a successful transition to their new reality (Medjuck v. Medjuck, 2019 ONSC 3254).
[40] In the OCL s. 112 Report, the Voice of the Child Report, to Ms. Chhatlani and to Ms. Rietberg, all four boys have expressed their views and preferences with respect to a proposed parenting schedule. The views and preferences of the boys changed over the period of the various assessments and reports, but they were strong and independent in expressing their wishes. The options ranged from wanting to spend the majority of time with Mr. Cacace (due to ongoing conflict when Mr. Millett lived in Mrs. Cacace’s home), to an equal sharing arrangement, to more time during the weekdays with Mr. Cacace, to every weekend with Mr. Cacace, and to a continuation of the status quo which is 2.5 out of 14 days. During certain periods, two of the children refused to spend any time at Mr. Cacace’s home. None of the boys expressed identical views or preferences to the OCL. Therefore, I conclude the views and preferences are independent and were provided without effect of any manipulation by the parties.
[41] The children have consistently and most recently said to Ms. Ryan that they all want to remain living primarily with Mrs. Cacace. The boys appear to have a warm and loving relationship with their mother, and they feel safe in her care. The boys all said they are worried about their mother’s health and her memory loss. Each child independently said he felt a need to take care of his mother.
[42] Mrs. Cacace is suffering with medical and mental health conditions which have caused memory issues and poor concentration. There were no doctors called as witnesses at the trial, but the medical documents reviewed by Ms. Ryan and Ms. Rietberg during their investigations indicates there is nothing to suggest the health issues impact Mrs. Cacace’s ability to properly parent the children. Mrs. Cacace acknowledges she requires support at home, and she is willingly accepting help from Mrs. Paquette and Ms. Rietberg. The CAS is confident the children are “safe enough” with their mother, having regard to their ages and stages of development.
[43] I do not doubt the views and preferences of the children were influenced to some degree by the overriding concern they have for Mrs. Cacace’s physical and mental health and their fear that she is unable to cope or manage on her own. The children are all minors and must not to be placed in the position of being caregivers for their mother.
16(3)(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
[44] This is a neutral factor when considering the best interests of the children. Both parties have committed to raise the children in the Catholic faith and the boys attend Catholic public schools. They have strong relationships with the extended families and are exposed to their cultural heritage in both homes. There is no compelling evidence to suggest the children’s cultural, linguistic, religious or spiritual upbringing will be positively or negatively impacted by parenting time with either party.
16(3)(g) any plans for the child’s care
[45] Neither party put forward a written parenting plan for care of the children. There was no creative nor collaborative strategy proposed by either party as to how they can parent in the future for the best interests of the children. The ongoing family conflict has resulted in both parties being entrenched in their own legal position.
[46] Mrs. Cacace’s plan is essentially to continue doing what she has always done, but with the added support of Mrs. Paquette, Ms. Rietberg or an independent caregiver. There was no outline of how she will care for the children while caring for herself with her own medical and mental health issues. Mrs. Cacace would like the existing schedule of one evening per week and alternating weekends to be maintained, but she would agree to the weekday visit now being with an overnight stay. Holidays would be shared equally, and summer vacations would be limited to two non-consecutive weeks.
[47] Mr. Cacace believes he can do a better job of parenting four boys than Mrs. Cacace. He believes the stress of having primary childcare responsibilities is negatively affecting Mrs. Cacace’s memory and her mental health. Mr. Cacace believes he will be better at supporting the boys with their academic goals and in engaging them in more productive activities than online video gaming. He would like to have an equal division of parenting time on a week about basis with three consecutive weeks during the summer for vacation. The holidays would be equally shared.
[48] In these circumstances, equal parenting time would not be effective nor would it promote the stability the boys need in their lives. In D.G. v. A.G.D., 2019 ONCJ 43, Sherr, J. noted at paragraph 131 that “[a]n equal-parenting time plan requires a high level of communication and coordination between the parties … This should not be ordered where the evidence indicates that implementing such a plan given the dynamics between the parties would be an invitation to conflict and chaos, and would be destabilizing for the child.”
[49] The parties do not trust each other, and the evidence supports they have engaged in confrontational communications over text messages. Mrs. Cacace has preferred the communications to be through her counsel. The parties are subject to a court order directing they have no contact other than by text or email, and only with respect to child related issues. This is not conducive to the level of communication and coordination required for effective equal parenting.
[50] Equally, to impose limited parenting time would not be in the best interests of the boys, nor would it be consistent with their views and preferences. I am of the view Mr. Cacace should have greater parenting time and overnight parenting time. Increasing Mr. Cacace’s parenting time is consistent with the intentions of s. 16(6) of the Divorce Act and is in the best interests of the children.
16(3)(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child
[51] Both parties have expressed a sincere willingness to care for the children. Mrs. Cacace wants to continue with primary care while Mr. Cacace would like a shared parenting arrangement. Both parents have inherent challenges to their ability to care for the children. Mrs. Cacace requires daily outside support to meet the needs of the children while Mr. Cacace has a history of violence to overcome. Both have taken steps to address their challenges.
[52] Mrs. Cacace now has the support of Mrs. Paquette and Ms. Rietberg to assist with ensuring the children’s needs are being met. Efforts were underway by Mrs. Paquette to hire a private caregiver to provide daily assistance to Mrs. Cacace. She is now taking medication to address her mental health concerns. It is hoped the medication, together with ending the stress of these proceedings, will result in an improvement to Mrs. Cacace’s mental health and cognitive issues.
[53] Mr. Cacace has voluntarily attended several parenting courses. He supports the recommendations of Ms. Ryan and Ms. Rietberg that the family undergo intensive counselling to deal with the issues of the past and with the ongoing family conflict.
[54] I do have some concerns as to the health, safety and well-being of the children. However, I accept Ms. Rietberg’s assessment they are “safe enough” (the CAS standard) in both homes, having regard to their ages and stages of development.
16(3)(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child
[55] The parties have failed to respectfully communicate and cooperate on matters affecting the children. They have both filed reports with the police and the CAS to investigate what turned out to be unsubstantiated concerns respecting the children. They have a history of communicating through child protection services. It is not child focussed nor is it an acceptable way to engage in parental communication or cooperation.
[56] The parties have involved the children in the parenting conflicts.
[57] All four boys indicated to the OCL they have been inappropriately questioned by Mr. Cacace about life at home with their mother and about his wishes for a shared parenting plan. The children also said to Ms. Ryan that they were questioned by Mr. Cacace and his father about the views they expressed to the OCL, and the Voice of the Child report was discussed with them. Mr. Cacace has improperly and inappropriately brought the children into the adult conflict in an effort to manipulate them and their views respecting the future parenting plan.
[58] Mrs. Cacace, while certainly not as intrusive as Mr. Cacace, has also involved the children in the ongoing conflict. She was twice admonished during the trial (conducted by Zoom) to not set up in a location where the proceedings could be overheard or interrupted by the children. She also appeared indifferent to having the children delivered to Mr. Cacace’s home while he was still cross-examining her, despite confirming to counsel and the court that she had made arrangements to delay the drop off. The children advised Ms. Ryan that they know when Mrs. Cacace has received communications from Mr. Cacace. Mrs. Cacace admitted to having discussed some of the communications with at least one of the older children. The s. 112 Report documents that the reports to police and CAS by Mrs. Cacace have led the older boys to conclude she is initiating investigations in order to gain leverage on Mr. Cacace in these proceedings. Mrs. Cacace confirmed in cross-examination that the boys have been told their visits with Mr. Cacace must strictly comply with the provisions of the court order, even when they have requested additional time with their father.
[59] As noted by Klara Rietberg, the Halton CAS support worker, the children are very aware there is a raging battle between the parents. It is having an effect on the entire family and the children quite properly just want the adults to sort it out. The boys have indicated that neither parent is dealing well with the family conflict.
16(3)(j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child
[60] “The fact parents have an acrimonious relationship is a factor to be considered in determining an appropriate parenting plan. Conflict, domestic violence and/or abuse, whether it be physical, psychological or verbal, is relevant to a person’s ability to parent. Children learn what they live, and it is well documented that children who live with conflict, domestic violence and/or abuse are significantly impacted by such experiences.” (Ackerman v. Ackerman, 2014 CarswellSask 511 (Sask C.A.), at para. 41).
[61] I have no doubt the children were directly exposed and subjected to family violence. While he was the primary contributor, I do not believe Mr. Cacace was the only offending party. I accept Mrs. Cacace has also used inappropriate disciplinary measures with the boys.
[62] The family violence was frequent, and it was serious. All the children report to the OCL they were routinely hit by Mr. Cacace. They said they were slapped, spanked and shaken, had their ears aggressively pulled and were lifted off the ground by their heads.
[63] Mrs. Cacace was accused by Mr. Cacace of being verbally abusive to the children and of behaving poorly with some of her discipline measures and responses. When confronted with allegations at trial of destroying the electronic devices of the children in anger and of smearing feces on one of the children as a punishment for soiling his pants, Mrs. Cacace did not appear shocked or surprised, nor did she dispute the allegations. Rather after very long pauses, she just claimed to have no recollection of the behaviour. I found that when giving her evidence, Mrs. Cacace frequently could not remember things or events that might be viewed negatively or as being not supportive for her case. She had a very selective memory, typically when confronted with evidence that challenged her narrative. I also acknowledge, however, that she appeared to become fatigued from being questioned by Mr. Cacace and on occasion may have responded that she did not know or could not remember in order to just to move on with the process. Mrs. Cacace’s evidence with respect to her own abusive behaviour is not reliable and it is not credible.
[64] Mr. Cacace also had a rather selective memory when his narrative was challenged in cross-examination or by the evidence of the OCL. He accepts responsibility for some of his past behaviour but blames Mrs. Cacace and her family for manipulating the children and for fabricating allegations of abuse. He denies any abuse of Mrs. Cacace, physical, emotional or economic, and rejects all suggestions that he was controlling during the marriage. He maintains that on the rare occasion when he was physical with Mrs. Cacace, it was only in response to first being hit by her. Mr. Cacace claims the allegation that he is responsible for Mrs. Cacace’s PTSD diagnosis is entirely unfounded and more likely caused by a series of tragic family losses suffered by Mrs. Cacace over a very short time period prior to the breakdown of the marriage.
[65] The boys were interviewed on several occasions by the OCL and the CAS. They independently and repeatedly said Mr. Cacace was frequently angry and regularly physically aggressive when imposing discipline upon them. One of the boys advised he witnessed Mr. Cacace aggressively pull on the hair of Mrs. Cacace. They all spoke of loud fighting between their parents on a regular basis and each commented on how much better and more peaceful life is now that the parties have separated.
[66] None of the boys indicated any concerns to the OCL as to Mrs. Cacace’s parenting and none of them witnessed or experienced any physical violence initiated by her. The boys said Mrs. Cacace often tried to intervene and stop Mr. Cacace from physically disciplining them. When Mrs. Cacace imposed discipline by breaking their personal belongings and technology devices, the children professed to deserve it. They did not appear to view this behaviour as being inappropriate for an adult.
[67] I am satisfied from the evidence of the parties, the OCL and the CAS, that both parents have engaged in family violence with respect to the children, but the frequency and severity was much more at the hands of Mr. Cacace.
[68] Mrs. Cacace claims to have been subjected to coercive and controlling behaviour by Mr. Cacace. He denies the allegation. The evidence provided by Mrs. Cacace to support her allegation was not compelling.
[69] Mrs. Cacace claimed to have been forced to sell a beloved VW Jetta in 2006 after the birth of the twins and was then left without a vehicle for twelve years. She entirely forgot a minivan was purchased in 2009 for her use and that she had free use of Mr. Cacace’s company car when he travelled for business. Mrs. Cacace claimed the grocery bills were scrutinized by Mr. Cacace, but the only evidence offered was alleged complaints for buying candy and desserts for the children and the purchase of a $10 salad. Mr. Cacace is accused of returning or re-gifting presents given to the children. Mrs. Cacace acknowledged the parties maintained a joint bank account and that big-ticket purchases were always discussed between them. Annual family vacations and summer camping trips were taken. Mrs. Paquette gave evidence that Mr. Cacace was frugal and prudent with money management. None of this evidence amounts to coercive or controlling behaviour.
[70] The children confirmed to the OCL and to the CAS that Mr. Cacace has stopped all physical discipline and that he has better control over his anger. They report feeling safe with him and appear to enjoy the time they spend with their father. There is no fear expressed by the children for their safety but quite understandably, they have some trust issues. The children need to trust Mr. Cacace has indeed changed his parenting ways and that he will never revert to using physical violence. With the extensive parenting courses voluntarily taken by Mr. Cacace, he appears now to understand the importance of child focussed parenting and has endeavoured to implement new strategies for dealing with conflict and for imposing discipline. Mr. Cacace appears to be on a much better path for parenting and the risk of future physical, emotional and psychological harm to the children has been significantly mitigated by Mr. Cacace’s active involvement in individual and group therapy sessions.
[71] Mrs. Cacace has not attended any parenting programs to address her issues, however she has recently acknowledged she is struggling with parenting the children and is currently receiving ongoing support services from Ms. Rietberg and Mrs. Paquette. Mrs. Cacace is also undergoing individual therapy for a diagnosis of depression. None of the children expressed any concern to the OCL or to CAS for their safety while with their mother and I do not believe they are at risk of physical harm while in her care.
[72] The resolution of these proceedings and the corresponding reduction in the parental conflict will undoubtedly reduce the risk of further emotional and psychological harm to the children.
16(3)(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child
[73] Charges for assault and forcible confinement were laid against Mr. Cacace in November 2018 in respect of alleged historical incidents involving Mrs. Cacace. Mr. Cacace denied the allegations and the charges were resolved without an admission of guilt. Mr. Cacace accepted a peace bond with no contact conditions which expired on March 19, 2020, without incident. He claims to have agreed to the peace bond simply to dispense with the matter and to limit the legal costs of defending the charges at a trial. As a result of these charges, Mr. Cacace’s visits with the children were limited by court order to 3.5 hours per week and they were required to be supervised. Further court order removed the supervision requirement and extended the parenting time to one evening per week and alternating weekends.
Conclusions re: Parenting Time
[74] Having considered all the factors under s. 16(3) and 16(4) of the Divorce Act, and having regard to the views and preferences expressed by the children, all of whom are old enough and mature enough to provide independent and thoughtful opinions, I am of the view it would be in the best interests of the children to have greater parenting time with Mr. Cacace, but for the children to remain residing primarily with Mrs. Cacace. Equal parenting time on a week about basis would not support the emotional or psychological wellbeing of the children. The history of conflict between the parties and their inability to communicate or cooperate in parenting the children has had a damaging effect on the boys and is not conducive to the essential requirements of an equal parenting plan.
[75] In the s. 112 Report, Ms. Ryan recommended Mr. Cacace have parenting time every Thursday after school to Friday at 8:30 p.m. and alternate weekends from Friday after school to Sunday at 8:30 p.m., with appropriate extensions of time if the Friday or Monday were school holidays. Mrs. Cacace was to have the children the rest of the time during the school year. Holidays are to be equally shared. Ms. Ryan also recommended a support person to be with Mrs. Cacace when the children are with her to ensure their safety and wellbeing, for assistance with day to day parenting responsibilities.
[76] I have largely accepted Ms. Ryan’s recommendation however, to reduce the necessity for the parties to have personal interactions, I am of the view the parenting time should be extended to Monday mornings to permit the exchange of the children to be done at the school when possible. Also, Mrs. Cacace requested the Thursday parenting time not be extended to Friday at 8:30 p.m. as that would impact her ability to plan any weekends away with the boys. Mr. Cacace regularly travels for business. He advises his schedule is flexible but historically he would depart on Sunday night or Monday morning and return later in the week. I have taken into account the requests of both parties in fixing a parenting schedule.
[77] To reduce further family conflict, the exchanges should take place at the children’s schools if school is in session. Unless the parties agree otherwise, each party should drop the children off curbside at the other party’s home at the end of their parenting time. Continuing to involve third parties to facilitate the pick up and drop off of the children is unnecessary and will only serve to increase the risk of further conflict between the parties, inevitably causing emotional instability for the children.
[78] In order to facilitate more respectful and responsive communication between the parties, and as recommended by the OCL, the parties are directed to use an online parenting communication tool. The communication should be monitored by an independent party on a monthly basis for one year to assist the parties in making child focussed communications. The independent monitor should not be Mrs. Paquette as that may invite further family discord. If the parties cannot agree on an independent monitor, a service may be retained for this purpose.
[79] The children shall reside primarily with the mother Lisa Cacace.
[80] The father Carmine Cacace shall have parenting time with the children as follows:
a. Every Thursday from after school or at 4:00 p.m. if there is no school, until Friday with a return to school in the morning, or at 4:00 p.m. if there is no school;
b. On alternate weekends from Friday after school or 4:00 p.m. if there is no school until Monday, with a return to school in the morning or at 8:30 p.m. if there is no school;
c. If he is not travelling for business, on the Monday following Mrs. Cacace’s weekends from after school, or 4:00 p.m. if there is no school, until 8:30 p.m.
d. Such further access as agreed upon by both parties;
e. Pick up and drop off of the children shall be at the children’s school, if school is in session, and if not at school, then both parties shall drop off the children at the end of their parenting time to the other parent’s home, curbside.
[81] The parties shall share holidays as follows, which holiday schedule shall override the parties’ regular parenting time:
a. New Year’s Eve & Day – The children shall reside with Mrs. Cacace on even-numbered years and with Mr. Cacace on odd-numbered years from 4:00 p.m. on New Year’s Eve until 4:00 p.m. on New Year’s Day.
b. Family Day Weekend – The children shall reside with Mrs. Cacace on odd-numbered years and with Mr. Cacace on even-numbered years, from Friday after school or at 9:00 a.m. if there is no school, until their return to school on Tuesday morning or at 9:00 a.m.
c. March Break – The children shall reside with Mrs. Cacace during the March Break in even-numbered years and with Mr. Cacace in odd-numbered years. March Break shall be defined as including only one weekend plus Monday to Friday at the usual exchange time (whichever weekend is normally that parent’s weekend).
d. Easter Weekend – The children shall reside with Mrs. Cacace odd-numbered years and with Mr. Cacace in even-numbered years, from Thursday after school or at 9:00 a.m. if there is no school, until their return to school on Tuesday or at 9:00 a.m.
e. Victoria Day Weekend – The children shall reside with Mrs. Cacace on even-numbered years and with Mr. Cacace on odd-numbered years, from Friday after school or at 9:00 a.m. if there is no school, until their return to school on Tuesday morning or at 9:00 a.m.
f. Summer Vacation – Each party shall be entitled to three weeks (Monday to Sunday inclusive), but not more than two weeks are to be taken consecutively during the children’s summer holidays. The vacation weeks are to include the party’s regular weekend. Mrs. Cacace shall have first choice on odd-numbered years and Mr. Cacace shall have first choice on even-numbered years, with the choice being communicated by May 1st of each year.
g. Canada Day -- The children shall reside with Mrs. Cacace on odd-numbered years and with Mr. Cacace on even-numbered years, from 4:00 p.m. on June 30th until 10:00 a.m. on July 2nd.
h. Civic Day Weekend – The children shall reside with Mrs. Cacace on even-numbered years and with Mr. Cacace on odd-numbered years from Friday 4:00 p.m. until Tuesday morning at 10:00 a.m.
i. Labour Day Weekend – The children shall reside with Mrs. Cacace on odd-numbered years and with Mr. Cacace on even-numbered years from Friday 4:00 p.m. until Tuesday morning return to school or 9:00 a.m.
j. Thanksgiving Weekend -- The children shall reside with Mrs. Cacace on even-numbered years and with Mr. Cacace on odd-numbered years from Friday after school, or at 9:00 a.m. if there is no school, until their return to school on Tuesday morning or at 9:00 a.m.
k. Christmas Eve & Day – The children shall reside with Mrs. Cacace on odd-numbered years and with Mr. Cacace on even-numbered years from 4:00 p.m. on December 24th until 4:00 p.m. December 25th.
l. Boxing Day – The children shall reside with Mrs. Cacace on even-numbered years and with Mr. Cacace of odd-numbered years from 4:00 p.m. December 25th until 9:00 a.m. on December 27th.
m. Mother’s Day – The children shall reside with Mrs. Cacace from 9:00 a.m. until 8:30 p.m.
n. Father’s Day – The children shall reside with Mr. Cacace from 9:00 a.m. until 8:30 p.m.
[82] If either parent takes the children away on a vacation that will last at least three overnights, then notice shall be provided to the non-travelling parent at least 48 hours in advance including the address and phone number where the children may be contacted.
[83] The children’s passports and health cards shall be held by Mrs. Cacace unless the passports are required for an agreed upon international trip with Mr. Cacace, after which the passports shall be immediately returned to Mrs. Cacace. Mr. Cacace will sign and return any passport renewal documentation required for the children’s passports to Mrs. Cacace within 14 days of being provided with said documentation.
Child Support
[84] Mr. Cacace’s employment income in 2020 was $124,129. The Covid-19 pandemic has not negatively impacted his earning capacity. Commencing June 1, 2021 and each month thereafter, Mr. Cacace shall pay child support of $2,735 per month to Mrs. Cacace on behalf of the children, M. Cacace and M. Cacace, L. Cacace and A. Cacace, based on Mr. Cacace’s 2020 T4 income of $124,129 and in accordance with the Federal Child Support Guidelines. Child support shall be payable on the first day of each month.
[85] Mrs. Cacace was working part-time at a physiotherapy clinic. She was let go by her employer when the pandemic necessitated a shut down of the clinic. She was in discussions with her employer about returning to work when circumstances allow, but at the time of trial she was not earning any income. There was no evidence as to whether she was collecting the federal government income assistance. Based on her financial disclosure, Mrs. Cacace’s 2019 T4 income was $11,577 from her part-time employment and in 2020 her T4 income was $1,756.48. When testifying under cross-examination, she could not recall if she earned any investment income.
[86] In his closing submissions, Mr. Cacace asks for the court to impute income to Mrs. Cacace in the amount of $28,000 on the basis she is employed but presently off work due to the pandemic. Also, she has significant funds from an inheritance and from the equalization of net family property that could be invested to earn income. This issue was not raised in his pleadings nor was it raised during the trial. I have no evidence before me to support an imputation of income to Mrs. Cacace of $28,000.
[87] Mrs. Cacace seeks an order to compel Mr. Cacace to pay 100 percent of the s. 7 expenses based on the parties’ current respective incomes. To avoid the potential for any mischief and to promote a fair and equitable contribution by the parties towards the s. 7 expenses, Mrs. Cacace’s income shall be established at a minimum of $11,500 per year in accordance with her historical earnings. For the purposes of s. 7 expenses, the parties shall share based on their respective incomes, with Mr. Cacace’s income at $124,129 and Mrs. Cacace’s income fixed at $11,500 commencing June 1, 2021.
[88] The parties shall provide each other with continuing and annual financial disclosure pursuant to s. 21 of the Child Support Guidelines. This information shall be provided prior to May 1st of each year. The parties shall then use the information to recalculate the amount of monthly child support payable which payment sh.all change on June 1st of each year based on the party’s prior year’s income. Each party will advise the FRO of the new amount payable in writing on or before June 1st of each year.
[89] A Support Deduction Order shall issue.
Spousal Support
[90] Mrs. Cacace asserts a claim for spousal support on a needs and compensatory basis. The evidence of the parties support they had a traditional marriage lasting fifteen years. Mrs. Cacace remained outside of the workforce for most of the marriage. Mr. Cacace established his career and regularly travelled for business, while Mrs. Cacace cared for the children and managed the household. Mr. Cacace admitted he took a leadership role in the marriage, but that Mrs. Cacace was responsible for the hard work in the kitchen. She admitted he was a good breadwinner and provided financial stability for the family.
[91] Mr. Cacace was economically advantaged by the marriage while Mrs. Cacace was economically disadvantaged by the breakdown of the marriage. He was able to build a successful professional career. She was entirely reliant on Mr. Cacace for her financial wellbeing. Mrs. Cacace had stopped working outside of the home once the twins were born in order to care for the children. She has recently returned to part-time employment, but the Covid-19 pandemic has led to Mrs. Cacace’s current unemployment. Mr. Cacace earns $124,129 per year. There is no present ability for Mrs. Cacace to earn sufficient income to approximate the standard of living she enjoyed during the marriage.
[92] Having considered the factors and objectives for spousal support referenced in s. 15.2(4) and (6) of the Divorce Act, I am satisfied Mrs. Cacace is entitled to spousal support on a compensatory basis and she is entitled to spousal support based on need.
[93] The child support payments for the four children received by Mrs. Cacace eliminates the spousal support obligation at this time. The amount ordered for spousal support is therefore $0, but Mrs. Cacace is otherwise entitled to spousal support on both a needs and compensatory basis.
Miscellaneous Matters
[94] Mr. Cacace consented to maintaining benefits through his employment related insurance for the children, and for Mrs. Cacace until the divorce is granted. A copy of the court order shall be provided to the group benefits insurer. For so long as the children are entitled to child support, all claims for reimbursement of medical/dental/extended health/drug expenses for the children shall be submitted to Mr. Cacace’s group benefits insurer for coverage under his medical/dental/extended health/drug insurance benefits, together with all information required (such as the full names and dates of birth of the children, their full address, and the name and date of birth of Mr. Cacace and his employer). Any claim reimbursement payment or notice of refusal of reimbursement is to be directed to the party who paid the initial expense. The group benefits insurer shall not release any personal information of Mr. Cacace to Mrs. Cacace without an order of this Court authorizing the release of such information.
[95] Mr. Cacace shall maintain a life insurance policy in the amount of $250,000 based on his estimated future child and spousal support obligations, with Mrs. Cacace named as the irrevocable beneficiary. There is no basis to require Mrs. Cacace to obtain life insurance.
[96] I would strongly urge the parties to resolve the issue of costs as neither party was entirely successful in obtaining their proposed parenting plan. If they are not able to do so, written submissions not exceeding three pages may be filed in addition to a Costs Outline and any Offers to Settle. The Applicant shall have 30 days to file her submissions and the Respondent shall have 20 days thereafter to file his submissions.
Mills J.
Released: July 13, 2021
COURT FILE NO.: FS-18-41735
DATE: 20210713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lisa Cacace
Applicant, Mother
– and –
Carmine Cacace
Respondent, Father
REASONS FOR JUDGMENT
Mills J.
Released: July 13, 2021