COURT FILE NO.: FC-21-561

DATE: 2021/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER MAE JORDAN

Applicant

– and –

SARAH MARIE KELLY

Respondent

– and –

CHRISTOPHER JORDAN REUBEN LA RUSSA

Respondent

No one appearing for the Applicant

Kevin Kavanagh, for the Respondent

No one appearing for the Respondent

HEARD: November 24, 2021 via Zoom

rEASONS FOR DECISION

corthorn j.

Introduction

[1] Sarah Kelly and Christopher La Russa are married and are the parents of a boy, TLR, now eight years old. They are co-respondents to the paternal grandmother’s application for a contact order. The application was resolved on consent at a case conference in October 2021: see Jordan v. La Russa, 2021 ONSC 7049.

[2] In her Answer to the application, Ms. Kelly makes a claim of her own pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Ms. Kelly seeks relief related to (a) decision-making responsibility, (b) parenting time, (c) a no contact order for Mr. La Russa in relation to TLR, (d) permission to apply for a passport for TLR without Mr. La Russa’s consent, and (e) permission to travel internationally with TLR without Mr. La Russa’s consent.

[3] Ms. Kelly’s Answer, dated May 8, 2021, was served on Mr. La Russa. Mr. La Russa’s Answer is dated May 31, 2021. That Answer is restricted to providing support for the paternal grandmother’s application. Mr. La Russa does not make any claims of his own. He did not, in his Answer or in any other document, respond to Ms. Kelly’s claims. Mr. La Russa’s Answer was served on Ms. Kelly but was not filed with the court. A copy of Mr. La Russa’s Answer was made available to the court for the limited purpose of the October 2021 case conference.

[4] In December 2020, before the paternal grandmother commenced this proceeding, Mr. La Russa commenced an application for divorce and for relief related to TLR (“the Perth Proceeding”). Mr. La Russa did not serve the application on Ms. Kelly. She became aware of the Perth Proceeding when she received a notice of change identifying that Mr. La Russa is now self-represented in that proceeding.

[5] At the October 2021 case conference, Ms. Kelly and the paternal grandmother requested and were granted an order lifting the stay of this proceeding: see CLRA, s. 27. In addition, an order was made for Ms. Kelly’s claims to proceed to an uncontested trial.

[6] The uncontested trial proceeded on November 24, 2021. The court received evidence in the form of Ms. Kelly’s affidavit sworn on November 8, 2021 and heard submissions from her counsel.

Analysis

[7] I deal with the relief claimed by Ms. Kelly in the order in which it is listed in paragraph 2, above.

a) Decision-Making

[8] Pursuant to s. 20(1) of the CLRA, “a child’s parents are equally entitled to decision-making responsibility with respect to the child” except as otherwise provided in Part III of the Act. Section 21(4) of the CLRA provides otherwise. It addresses decision-making following separation and states as follows:

If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

[9] Based on the November 8, 2021 affidavit of Ms. Kelly, I make the following findings:

• TLR was five years old when his parents separated.

• Prior to separation, Ms. Kelly was TLR’s primary caregiver.

• From September 2019 to the present, TLR has resided with Ms. Kelly. She has been the sole decision-maker with respect to all aspects of TLR’s life.

• Since the date of separation, Mr. La Russa has made no meaningful effort to be involved in TLR’s life.

• Mr. La Russa has acquiesced with respect to Ms. Kelly’s role as the sole decision-maker for TLR.

[10] Decision-making falls within the scope of a parenting order: see CLRA, s. 21(1)(a). When making a parenting order, the court must consider the best interests of the child in accordance with the factors set out in s. 24 of the CLRA.

[11] The court is required to consider “all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”: see CLRA, s. 24(2). The “factors related to the circumstances of the child” are enumerated in the CLRA and include those listed in s. 24(3); the factors related to family violence, as set out in s. 24(4); and the past conduct of a parent if it is relevant to decision-making, parenting time or contact, as per s. 24(5).

[12] The court is also to “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”: see CLRA, s. 24(6).

[13] It is not necessary in this case to review each of the factors listed in ss. 24(3) and (4) in detail. Based on Ms. Kelly’s affidavit, I find that there is not a single factor in ss. 24(3) and (4) that would weigh in favour of anything other than the relief she seeks. In making that finding I have considered, for example, Mr. La Russa’s criminal lifestyle (some of which was witnessed by TLR), demonstrated lack of interest in spending time with TLR, historical physical violence towards Ms. Kelly (some of which occurred in front of TLR), historical verbal abuse towards both Ms. Kelly and TLR, and historical inability to care for TLR.

[14] I find that it is in TLR’s best interests that Ms. Kelly have sole decision-making responsibility with respect to TLR.

b) and c) Parenting Time / No Contact

[15] Ms. Kelly requests that she have sole parenting time with TLR. Put another way, Ms. Kelly requests that Mr. La Russa not be permitted to have any parenting time or contact with TLR.

[16] TLR has seen Mr. La Russa once since the parties separated in September 2019. He did so in July 2020. Ms. Kelly’s evidence is that she permitted Mr. La Russa to have parenting time on that occasion for two reasons. First, Ms. Kelly understood that the parenting time would be supervised by the paternal grandmother. In the end, the paternal grandmother was not present for the entirety of Mr. La Russa’s parenting time. Second, Mr. La Russa held out the ‘carrot’ of consenting to Ms. Kelly having sole decision-making authority if Mr. La Russa could see TLR. That promise was not kept.

[17] I accept Ms. Kelly’s evidence and find that Mr. La Russa has not, since July 2020, made any effort to have parenting time with TLR.

[18] In any number of decisions, it is made clear that denying parenting time is a remedy of last resort: see e.g., Jennings v. Garrett (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), at para. 128; Van v. Palombi, 2018 ONSC 6228, at para. 73; and Byrne v. Hann, 2020 ONSC 7116, at para. 36. In these same decisions, emphasis is placed on first attempting other options for parenting time and resorting to a no contact order where the other options have failed: see Jennings, at para. 148; Van, at para. 73; and Byrne, at para. 37.

[19] For the reasons that follow, I find that it is not in TLR’s best interests to order supervised parenting time for Mr. La Russa before resorting to a no contact order.

[20] First, Mr. La Russa has had several opportunities to pursue parenting time with TLR through requests made of Ms. Kelly or by way of a court order. Mr. La Russa has not taken steps with respect to either of those options. As an example, in the Perth Proceeding Mr. La Russa made a claim for joint custody. Yet, he never even served the notice of application.

[21] As another example, Mr. La Russa has known, since the spring of 2021 when he was served with Ms. Kelly’s Answer, that Ms. Kelly is seeking a no contact order. Yet, Mr. La Russa did nothing in response to Ms. Kelly’s claims. Parenthetically, I note that he never filed his Answer to his mother’s application – a document in which he supported his mother’s request for a contact order.

[22] Mr. La Russa could also have sought to enforce the statutory stay of Ms. Kelly’s claims in this proceeding. The statutory stay arose by virtue of s. 27 of the CLRA.

[23] Last, I highlight that Mr. La Russa was given an indulgence by this court. Even though he did not file his Answer and is in default, he was given notice of the October 2021 case conference and the right to participate in the case conference if he filed a brief. Mr. La Russa did not file a brief and did not participate in that case conference. I note that he also did not file a brief for or participate in the August 2021 case conference in this proceeding.

[24] Mr. La Russa was not only given notice of the October 2021 case conference and served with Ms. Kelly’s case conference brief, but Ms. Kelly’s counsel also took the extra step of providing Mr. La Russa with a copy of Ms. Kelly’s October 2021 Affidavit for an Uncontested Trial.

[25] In summary, Mr. La Russa was well aware, before the October 2021 case conference, that Ms. Kelly intended to pursue a no contact order and that the next step would be an uncontested trial. I find that Mr. La Russa has not participated in any meaningful way in three proceedings related to TLR: the Perth Proceeding, his mother’s application for a contact order, and Ms. Kelly’s claims.

[26] Second, I consider the one occasion on which Mr. La Russa had parenting time with TLR subsequent to the date of separation more than two years ago. The agreement between Ms. Kelly and Mr. La Russa was that the paternal grandmother would be present to supervise throughout that visit. After the fact, Ms. Kelly learned that the paternal grandmother did not supervise the entire visit.

[27] Ms. Kelly learned from TLR that the unsupervised portion of the parenting time occurred at a park. TLR reported that while at the park, he suffered multiple bee stings and that his father failed to care for him in relation to the stings.

[28] Third, the past two-plus years do not represent the only extended period during which Mr. La Russa has had little or no contact with TLR. Based on Ms. Kelly’s evidence, I find that Mr. La Russa was incarcerated for the first two years of TLR’s life. While incarcerated, Mr. La Russa had no contact with TLR. In summary, Mr. La Russa has effectively been an absent parent for 50 per cent of TLR’s life.

[29] If a no contact order is made, it will be open to Mr. La Russa to bring a motion to change once six months have passed from the date of the order. In all of the circumstances, I am satisfied that an order for supervised parenting time is not a prerequisite to making a no contact order.

[30] I turn, then, to consider whether denying Mr. La Russa parenting time is the appropriate relief in this proceeding.

[31] Even following the recent changes to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the CLRA with respect to the best interests of children, the 2004 decision of Blishen J. in Jennings continues to be cited as the authority with respect to termination of parenting time.

[32] In Jennings, Blishen J. reviewed the relevant case law and distilled the factors to be considered when a request is made to terminate parenting time. At paras. 135-136, Blishen J. summarized the factors most commonly considered by the courts:

a) Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

b) History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being.

c) Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

d) Ongoing severe denigration of the other parent.

e) Lack of relationship or attachment between noncustodial parent and child.

f) Neglect or abuse to a child on the access visits.

g) Older children's wishes and preferences to terminate access.

[33] The factors discussed in relation to decision-making (see paras. 11-12, above) are relevant to the request to deny Mr. La Russa parenting time. When the specifics of Mr. La Russa’s conduct, as described in Ms. Kelly’s affidavit, are considered, it is clear that factors (a), (b), (d), (e), and (f) from Jennings are present in this case.

[34] TLR is only eight years old. His express views are not before the court. I am, however, satisfied based on Ms. Kelly’s evidence that the possibility of Mr. La Russa’s involvement in his life is a matter which has a negative impact on TLR’s well-being.

[35] The paternal grandmother consented to resolve her application on the basis of very limited contact with TLR. She did so because she recognized the distress it was causing TLR for her to be more present in his life. The paternal grandmother’s selfless approach to resolution of her application speaks volumes about the impact on TLR of contact that is one step removed from contact with his father.

[36] At para. 143 of Jennings, Blishen J. listed factors to be balanced against those listed in para. 32, above. The balancing factors include, for example, the maximum contact principle, the right of the child to know and have a relationship with each parent, and the commitment of the ‘access’ parent to the child. I find that the balancing factors do not weigh in favour of granting Mr. La Russa parenting time.

[37] Based on Ms. Kelly’s evidence, I find that since the date of separation and because of Mr. La Russa’s absence from TLR’s life, TLR’s well-being has improved. For example, he no longer has recurring dreams about being taken away from his mother during the night. As another example, TLR no longer gets up during the night and asks to sleep with Ms. Kelly.

[38] I accept Ms. Kelly’s evidence and find that TLR experiences anxiety associated with the mention of his father’s name or the possibility that he might spend time with his father.

[39] In summary, I find that there would, at this time, be no benefit to TLR if Mr. La Russa were granted parenting time.

[40] To her credit, Ms. Kelly made an effort to accommodate the paternal grandmother’s desire for contact with TLR. It subsequently became clear that TLR’s contact with the paternal grandmother had a negative impact on TLR; both Ms. Kelly and the paternal grandmother realized that an alternative arrangement was required.

[41] In light of the efforts Ms. Kelly made with respect to the paternal grandmother, I accept as true Ms. Kelly’s statement at para. 9 of her November 8, 2021 affidavit as follows: “It is possible that Mr. La Russa could be present in TLR’s life at some point in the future if he overcomes his addictions and leaves his life of criminality behind. But there is no indication that this is going to happen”.

[42] Based on Ms. Kelly’s evidence, I find that the physical violence, verbal abuse, and criminal behaviour to which TLR was exposed prior to the date of separation are such that it is in TLR’s best interests that Mr. La Russa has no parenting time or contact with TLR. I find that TLR’s emotional and psychological well-being would be negatively affected if Mr. La Russa were to have either parenting time or contact with TLR.

[43] Ms. Kelly shall have sole parenting time with TLR; Mr. La Russa shall have no parenting time or contact with TLR.

d) and e) Passport/Travel

[44] In all of the circumstances it is both reasonable and in TLR’s best interests for Ms. Kelly to be entitled to obtain a passport for and travel internationally with TLR without Mr. La Russa’s consent.

Order Made

[45] For the reasons set out above, I order as follows:

1. Sarah Marie Kelly shall have sole decision-making authority with respect to TLR.

2. Christopher Jordan Reuben La Russa shall have no parenting time and no contact with TLR.

3. Sarah Marie Kelly shall be entitled to apply for a passport for TLR without the consent of Christopher Jordan Reuben La Russa.

4. Sarah Marie Kelly shall be entitled to travel internationally with TLR without the consent of Christopher Jordan Reuben La Russa.

Costs

[46] Ms. Kelly requests and I find it reasonable to award her costs of $2,000 inclusive of fees, disbursements, and HST. This amount reflects costs related only to her claims against Mr. La Russa; costs related to the paternal grandmother’s application are not included in that amount.

[47] Therefore, paragraph 5 is added to the order made above as follows:

5. Christopher Jordan Reuben La Russa shall pay to Sarah Marie Kelly her costs of this proceeding in the amount of $2,000.00 inclusive of fees, disbursements, and HST.

Madam Justice Sylvia Corthorn

Released: December 16, 2021

COURT FILE NO.: FC-21-561

DATE: 2021/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JENNIFER MAE JORDAN

Applicant

– and –

SARAH MARIE KELLY

Respondent

– and –

CHRISTOPHER JORDAN REUBEN LA RUSSA

Respondent

REASONS FOR DECISION

Madam Justice Sylvia Corthorn

Released: December 16, 2021