COURT FILE NO.: FS-22-28271

DATE: 20220524

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Gabriel Valente

Applicant

– and –

Tania Elizabeth Cristello

Respondent

Olivia D’Ammizio, for the Applicant

Margaret Teixeira, for the Respondent

HEARD: May 12, 2022

Pinto J.

Reasons for Decision

Introduction

1On May 12, 2022, I heard and granted the father’s motion for expanded parenting time on a step-up basis for V, the parties’ 4-year old son. On May 20, I issued the related court order pending my decision on costs. These are my reasons for decision including with respect to costs.

2The parties were married on October 25, 2008. They separated on either December 18, 2018 (according to the applicant) or December 24, 2018 (according to the respondent). The parties continued to live separate and apart under the same roof until April 2019, at which time the father left the matrimonial home.

3There is no order or separation agreement in place between the parties regarding parenting time.

4The father alleges that the mother has severely limited his parenting time with V

5Currently, the father’s parenting time takes place every Sunday for 1 hour from 11:00 a.m. to 12:00 p.m., and every Thursday for 2.5 hours from 5:00 p.m. to 7:30 p.m. at Sherway Gardens shopping mall.

6Much of the argument at the motion revolved around whether and when the father asked for expanded parenting time. Upon the onset of the global pandemic in March 2020, the father claims that the mother made it clear that he would not be permitted to exercise any parenting time. On July 9, 2020, and again on November 20, 2020, the father requested expanded parenting time through counsel. In an attempt to obtain some greater parenting time, the father agreed to certain conditions on a without prejudice basis including seeing V at a shopping mall.

7The parties eventually attended a Case Conference on March 21, 2022 leading up to the present motion.

8V turned 4 on May 14, 2022 and will be enrolled in school in September 2022. The father argues that V is at a critical stage in his development and it is crucial that V have bonding time with him. He is seeking a gradual “step up” increase in parenting time as specified in his Notice of Motion.

9The mother opposes expanded parenting time for the father. She claims that:

a) The father’s parenting plan is motivated by his desire to control her and the child. His plan is contrary to the child’s best interests.

b) The parties’ relationship was volatile, acrimonious and painful and the father was abusive to her emotionally, financially, sexually and physically.

c) Post-separation, the father attended unannounced at the home.

d) During the marriage, the father did not engage in the child’s upbringing.

e) For 19 months post-separation, the father made no attempts to participate in the child’s life.

f) Since separation, the father has refused to pay child support.

g) The father’s main goal in the family litigation is financially driven.

10In reply, the father states that:

a) The mother has consistently opposed his relationship with V and threatened that he would have minimal time with the child.

b) The mother is relying on the status quo that she has largely created to argue that the father has minimal experience caring for V.

c) Contrary to the mother’s allegations, he has paid monthly utilities and the parties consented to an order whereby he pays $679.00 per month in child support on a without prejudice basis.

Applicable Law

Applicable Law

11The Divorce Act R.S.C. 1985, c. 3 (2nd Supp.) and the Children’s Law Reform Act R.S.O. 1990, c. C.12 set out several factors that are to be considered in the determination of the child’s best interests. In Mathew v. Barazmi, 2021 ONSC 7240 at paras. 13 to 16, Steele J. set out the law in respect of parenting decisions:

13. The relevant sections of the Divorce Act relating to parenting are:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including,

(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(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 cooperate, 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 cooperate 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.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

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 their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

14. The amendments to the Divorce Act provide that there is only one applicable standard: the best interests of the child. The interests of the parents are secondary. In determining the best interests of the child(ren), the court must give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. Further, the court is required to consider all the factors related to the circumstances of the children.

15. The list of best interest considerations set out in section 16 of the Divorce Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also “not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, her needs and the people around her”. See: Phillips v. Phillips, 2021 ONSC 2480 (at para. 47).

16. The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only where there are demonstrated circumstances of danger to the child’s physical or mental well-being. Further, the child has a right to contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

Analysis

Analysis

12My review of the evidence indicates that, contrary to the mother’s position, the father has consistently been requesting increased parenting time. The mother has simply refused. Her text messages demonstrate a steadfast determination that the father will never get expanded parenting time because, in her view, he is undeserving of it. Her position is strongly based on the father’s alleged psychological and physical abuse of her, and her belief that he simply wants to continue to control her and the child.

13As a starting proposition, I find that it cannot be in V’s best interests to experience “parenting” from the father by walking around a mall for a few hours a week. This effectively makes it impossible for the father to build a meaningful relationship with the child. Both the location and meagre amount of parenting time is contrary to the best interests of V under family law legislation.

14Second, I have difficulty reconciling how the father wanting to spend more time with the couple’s 4-year old son represents ongoing control of the mother.

15Third, the available evidence, while contested, does not support the mother’s contention that, because the father was not engaged in V’s upbringing at all, he does not deserve expanded parenting time.

16Of course, the father contests all of the mother’s allegations of abuse and poor parenting. He has provided significant evidence from text messages of what can only be termed vitriolic and abusive messages from the mother. The mother claims that these text messages occurred in the first few months after separation when she found out about the father’s infidelity and should be contextualized.

17On balance, the preponderance of the mother’s evidence is not focused on the best interests of V. It is unreasonably preoccupied by the belief that, if the father wants to spend more time with V, it is for some ulterior reason. For example, the mother states that, during the Holidays, the father wanted to “show off” V to his family. The mother processes all the father’s actions through the filter of it being motivated for the wrong reasons or to control her life. I find, on the evidence presented, that there are a number of altruistic explanations for the father’s conduct and, in any event, none of the facts tend towards demonstrating that increased parenting time will have negative consequences for the child.

18The court must remain focused on what is in the best interests of the child on a go-forward basis. V is only 4 years old. The “best interests of very young children are usually best served by stable custody and access arrangement, and the formation of strong relationships with both parents”: DG v. AF, 2014 ONCA 436 at para. 34.

19I find the father’s step-up parenting proposal to be reasonable involving an immediate increase to 10 hours a week then, commencing June 18, 2022, an increase of another 4 hours on Saturday, and then commencing on July 16, 2022, the introduction of an overnight on Saturday night. As well, the regular parenting time schedule shall be automatically reviewed on or before September 1, 2022. V starts school in September 2022. It is important, in the best interests of V, that he have significant bonding time with his father before that date and the father’s proposal represents a reasonable arrangement to ramp up to a schedule that meets the objective of maximum contact with parents subject to the child’s best interests.

Costs

Costs

20The applicant is requesting $16,000 on a substantial indemnity basis. The respondent opposes the costs order and requests that no costs be payable or, in the alternative, that a nominal amount be payable, or that costs be deferred to the trial judge. The respondent argues that the applicant’s costs appear to be excessive in that, whereas Ms. Teixeira is a 2010 Call to the Bar whose hourly rate is $350, Ms. D’Ammizio was called to the Bar in 2018 and is charging $435 an hour. Ms. D’Ammizio’s colleague Laura Paris was called to the Bar in 2016 and is charging $495 an hour.

21I find the applicant’s lawyers’ hourly rates somewhat excessive. As well, I find Ms. D’Ammizio’s time of 45.5 hours spent on the motion excessive. The Respondent’s Bill of Costs on a Full Indemnity basis was $11,469.50 or $8,602.13 on a substantial indemnity basis.

22In J.L. v. D.L., 2022 ONSC 1003, Engelking J. stated, with respect to costs:

39The Ontario Court of Appeal has held that the Family Law Rules on costs are “designed to foster three fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants.”

40Rule 24(12) of the Rules sets out a list of factors the court shall consider in determining an appropriate amount of costs, including that there be reasonableness and proportionality in any costs award. Factors to be considered include each parties’ behaviour, their time spent, any offers to settle, legal fees, expert witness fees and any other properly paid expenses. Rule 18(14) provides that there are cost consequences to not accepting an offer if the criteria in that rule are met. [footnotes and authorities cited omitted]

23Rule 24(1) of the Family Law Rules directs that there is presumption that a successful party is entitled to the costs of a motion. The moving party was entirely successful in his parenting motion. I do not find any basis to deny the applicant his costs or defer the determination of costs to the motions judge.

24The respondent was completely inflexible in her position on parenting time. The issue was of significant importance to both parties as no previous interim parenting order was in place. I also note that the father proposed a review after a period of 6 months which was another indication of his reasonableness.

25In all the circumstances, I find that costs of $12,000 (all-inclusive) are appropriate and should be paid by the respondent within 30 days of the release of these reasons. While this amount is higher than the respondent’s full-indemnity costs, I find that significant effort was required by the applicant’s counsel in terms of the preparation of motion materials and I am also considering that the applicant provided Offers to Settle that, had they been accepted, would have involved less parenting time than what the applicant requested in his Notice of Motion and what has been ordered.

Pinto J.