COURT FILE NO.: 39/19 (Welland)
DATE: 2022/07/20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ELIO PAONESSA Applicant
– and –
JOSIE SANDERSON Respondent
Paul Bauerle, Counsel for the Applicant
Edward Kravcik, Counsel for the Respondent
HEARD: June 21, 22, 23, 24 and 27, 2022
GIBSON, J.
REASONS FOR JUDGMENT
Overview
[1] The Applicant father Elio Paonessa and the Respondent mother Josie Sanderson are the parents of the child Laura Lynn Paonessa, born May 14, 2014 (“Laura”). The parties, who were never married, have had a turbulent relationship since they met in 2013. The parties separated in 2017, subsequently reconciled, and then finally separated again in 2019. Laura has been residing with her father since that time. She has not had contact with her mother since December 21, 2019. Ms. Sanderson wants to have a relationship with Laura, commencing with supervised parenting time and moving promptly to unsupervised time.
[2] This trial concerned the Respondent Josie Sanderson’s Motion to Change the Order of Walters J. dated December 5, 2017. The Order of Justice Walters, made on consent, gave custody of Laura to the Applicant father, with access to be afforded to the Respondent mother at the father’s discretion. The Respondent’s parenting time with Laura was suspended pending trial pursuant to the Order of Ramsay J. dated August 15, 2020. The Respondent mother now seeks an Order for parenting time with Laura and for the sharing of information.
[3] The Applicant father opposes the motion. He does not say “never”, but rather, “not now”. For the reasons which I shall explain, having regard to the best interests of Laura, I consider that this is the appropriate disposition of the motion to change.
Summary of Facts
[4] Three witnesses were called by the moving party Respondent mother to give evidence: the Respondent Josie Sanderson; Dr. Imran Naqbi, her treating psychiatrist; and Sanya Velemirovich, a family enrichment worker with FACS Niagara.
[5] Four witnesses were called by the responding party Applicant: the Applicant father Elio Paonessa; Barbara Hotson, a social worker clinician who completed a s.112 assessment in 2019 on behalf of the Office of the Children’s Lawyer (“OCL”); Mr. Paonessa’s current partner Annette Campbell; and Francesca Paonessa, his sister.
[6] The Respondent’s evidence depicted a tumultuous life and high-conflict relationship with the Applicant both prior to and after Laura’s birth. Ms. Sanderson worked as an escort before meeting Mr. Paonessa, then again after they first separated in 2017, then again in 2019. This has led her to associate with a number of unstable and sometimes violent individuals. She has had a continuing history of drug use, including cocaine and crystal meth, and has issues with alcohol and mental health challenges. She has criminal convictions for mischief, property damage, breach of conditions, and for assaulting Mr. Paonessa. She is currently living in assisted housing and is on ODSP.
[7] Dr. Naqbi is a psychiatrist with the Niagara Health System who has been following the Respondent for addiction-related issues. He first met Josie Sanderson on April 15, 2020, when she had been admitted to the St. Catharines Hospital mental health unit. He saw her as an outpatient four times in 2020, three times in 2021, and twice in 2022. In his report dated July 13, 2020, he diagnosed her with the DSM V diagnoses of polysubstance dependence disorder, and substance induced psychosis. He prescribed anti-psychotic medication. He indicated that she has been relatively stable, but recently suffered a relapse in use of crystal meth. Dr. Naqbi indicated that he had previously been unaware that Ms. Sanderson has obtained a prescription for medical marijuana from some other source, and expressed a concern that the paranoia exhibited by Ms. Sanderson, a symptom of her substance induced psychosis, might be exacerbated by her frequent use of marijuana due to the effect of THC, its psychoactive ingredient.
[8] Ms. Velemirovich described the extensive history of FACS engagement with Ms. Sanderson and her children.
[9] Ms. Sanderson has another child, A.S., born [...], 2021. Ms. Sanderson does not recall the name of the father. A.S. was apprehended by the FACS at birth and has been in the care of FACS since that time. Child protection court proceedings in respect of A.S. were commenced in July 2021 and are currently pending. The Society is seeking to have A.S. made a Crown ward. Ms. Sanderson is waiting to undergo a parenting capacity assessment in Toronto with Dr. Dean Whittenburg. Ms. Sanderson sees A.S. periodically for supervised access visits.
[10] The OCL clinician Ms. Hotson completed a s.112 assessment. The disclosure meeting took place in December 2019. Ms. Hotson made a number of recommendations in that report, including some parenting time for the Respondent. She confirmed that she has not seen Laura since December 13, 2019 and is concerned about the time that has elapsed since then. She felt that a further assessment would be beneficial.
[11] Ms. Campbell gave evidence about the current home life of Laura, who now resides with Mr. Paonessa and Ms. Campbell. She indicated that Laura appears to be thriving, and no longer suffers from the distress that she used to exhibit.
[12] Ms. Paonessa described the distress of the family when Ms. Sanderson disappeared with Laura at one point, and how well Laura appears to be doing now that she is living with Mr. Paonessa and Ms. Campbell.
Positions of the Parties
[13] The moving party Respondent mother’s position is that the Order of Walters J. should be varied such that: she have supervised parenting time with Laura weekly for three hours at SPTN, formerly SVEN; that she be drug tested monthly; that after providing four months of clean drug tests, her parenting time with Laura be expanded and liberalized so that she has unsupervised parenting time in the community every Saturday from 11:00 a.m. to 3:00 p.m.; after providing proof of a further four months of clean drug tests, her parenting time shall occur on alternate Saturdays from 11:00 a.m. until Sunday at 5:00 p.m.; after a further four months of clean drug tests, to expand to alternate weekends, two weeks each summer, and sharing of Christmas holidays; Zoom, video or telephone contact every Wednesday after school; and use by the parties of Our Family Wizard to communicate respecting the child, and sharing of school and medical reports.
[14] The responding party Applicant father’s position is that the interim Order made by Ramsay J. on August 15, 2020, should continue in force. Parenting time by Ms. Sanderson with Laura should continue to be suspended. The Applicant does not submit that it would be appropriate for the Court to order that parenting time should be terminated. The father is not saying “never”; rather, he submits, the appropriate disposition is “not now”. The proposal of the Respondent for resumption of parenting time is too much, too fast. Or, in the alternative, he submits the motion to change could be dismissed, leaving the status quo.
Issues
[15] The main issue in this trial of the motion to change is what, if any, contact between Ms. Sanderson and Laura is in Laura’s best interests at this time?
Law
[16] The assessment of what parenting time of the Respondent mother with Laura is appropriate must be governed by consideration of the child’s best interests, as specified at s.24 of the Children’s Law Reform Act. In determining the bests interests of a child, the court shall consider all factors relating 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.
Section 24 provides:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall 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. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(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;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(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 co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time
(6) In 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. 2020, c. 25, Sched. 1, s. 6.
Application to related orders
(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.
Analysis
[17] One must have empathy for Ms. Sanderson. She has had a difficult life. She struggles with drug addiction and mental health issues. But she has made many bad choices. She has criminal convictions for assault, mischief and property damage. Her pursuit of escort work and immersion in the drug subculture has led her to her recurrent association with many unstable and potentially violent and dangerous persons that Laura should not be exposed to. This propensity continues. She has repeatedly demonstrated very poor judgment in this regard, only recently seeking FACS’ agreement to move in a man who subsequently assaulted her.
[18] She has led a transient lifestyle, marked by poor choices and poor decisions.
[19] This past conduct is relevant to the exercise of her decision-making responsibility, parenting time or contact with respect to the child, because it speaks to her judgment and stability.
[20] There is a particular concern that arose from the conduct of the trial. This trial was conducted virtually on the Zoom platform. The demeanour and conduct of Ms. Sanderson during the trial must give rise to significant concerns about her maturity, stability and judgment. She frequently acted inappropriately, making obscene gestures and mouthing obscenities at the witnesses for the other party, for which she had to be remonstrated by the Court. Her gestures and affect were peculiar and occasionally chaotic, giving rise to a concern that she may have been impaired by alcohol or drug use during the trial. Her testimony was frequently incoherent and occasionally lapsed into long rants about topics unrelated to the trial. She lacks sufficient maturity and self-awareness to behave with even a minimum degree of propriety and self-restraint during Court proceedings. This must inevitably give rise to significant concerns about her maturity and about her judgment in relating to a child.
[21] Her inappropriate behaviour in Court during this trial strongly suggests that she lacks insight into her own conduct and condition. The evidence also raises concerns about her cognitive capacity at present. She has demonstrated a track record of impulsiveness and acting without thinking of the consequences. Potential exposure to this is not what Laura needs right now.
[22] Ms. Sanderson continues to have serious and significant struggles with alcohol and drug use. These problems are insidious. This clearly impacts upon her ability to properly care for and relate to a child, and to make child-focused decisions.
[23] The difficulties of her life are not the ultimate issue in this trial. Nor is it what Ms. Sanderson might wish for herself. What the Court must attempt to discern, and what must govern, are the best interests of Laura concerning her physical, emotional and psychological safety, security and well-being.
[24] There is also a concern about family violence. Ms. Sanderson has a criminal conviction for assaulting Mr. Paonessa.
[25] Children need stability and continuity. Laura needs to know what to expect.
[26] Laura appears, at long last, to have the stability and safety in a loving home environment with Mr. Paonessa and Ms. Campbell that she needs and deserves. The turmoil of her time living with the Respondent, and the disturbance for Laura that manifested from that, has abated. She reportedly no longer experiences the anxiety that she exhibited.
[27] Supervised parenting time is not a panacea. I accept the submission of the Applicant that, at present, contact with Ms. Sanderson would not be in Laura’s best interest. At the present time, the Respondent is too much of a wild card. The potential for it to adversely affect Laura outweighs the potential benefit to her. Laura’s best interests must not be subordinated to those of a parent.
[28] In the current circumstances, the proposal advanced by the Respondent that she should move rapidly to unsupervised parenting time with Laura is completely unrealistic. It is, at best, premature. It would be inimical to Laura’s best interests. The Respondent has not consistently demonstrated a commitment to the necessary requisites of being a parent. The intervals for each stage of drug testing that she proposes are too brief, and the methodology of the tests she suggests is insufficiently reliable.
[29] Considering all factors relating to the circumstances of the child, I find that it would not be in Laura’s bests interests for parenting time with the Respondent to resume at present.
Conclusion
[30] I agree with the submissions of the Applicant father. It is too soon to make a final order terminating contact by the Respondent with Laura. A parenting capacity assessment has not yet been completed. The child protection proceedings in respect of A.S. have not been completed. The Respondent should be afforded the opportunity to amass a track record of clean drug tests over a more extended period to demonstrate her commitment to sobriety. But parenting time should continue to be suspended pending a clear improvement in the prospects that the exercise of parenting time by the Respondent with Laura will accrue to her best interests. The status quo pursuant to the Orders of Walters J. and Ramsay J. will thus continue to prevail for the present: the Applicant father will have decision-making responsibility for Laura, Laura will reside with him, and parenting time with Laura by the Respondent is suspended pending any further Order of the Court.
[31] Ms. Sanderson may make sufficient progress over time concerning her issues to make the resumption of parenting time more realistic and in Laura’s best interests in the future. I hope that this proves to be the case.
Order
[32] The Respondent’s Motion to Change is dismissed.
Costs
[33] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Applicant may have 14 days from the release of this decision to provide his submissions, with a copy to the Respondent; the Respondent a further 14 days to respond; and the Applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Applicant’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson, J.
Date: July 20, 2022
COURT FILE NO.: 39/19 (Welland)
DATE: 2022/07/20
ONTARIO SUPERIOR COURT OF JUSTICE
ELIO PAONESSA
– and –
JOSIE SANDERSON
REASONS FOR JUDGMENT
Gibson, J.
Released: July 20, 2022