Court File and Parties

COURT FILE NO.: FS-20-20794-00

DATE: 20221012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KYLE SANVICTORES, Applicant

AND:

NANCY SANVICTORES, Respondent

BEFORE: M.D. Faieta J.

COUNSEL: Nadia Warsi, for the Applicant

No one appearing for the Respondent

HEARD: October 6, 2022

ENDORSEMENT

[1] The Applicant father brings this urgent ex parte motion for the following relief:

(1) An Order that, pursuant to section 35(1) of the Children’s Law Reform Act and section 46(1) of the Family Law Act, the Respondent mother, Nancy Sanvictores (“the Respondent mother”) shall be restrained directly or indirectly, including via third parties:

i. Annoying or harassing, the Applicant father, Kyle Sanvictores (“the Applicant father”)

ii. Communicating with the Applicant father in person or by any electronic means, including via text message, iMessage, email or any social media, except for the sole purpose of dealing with parenting time as it relates to the supervised access centre, solely via the Our Family Wizard app.

(2) An Order that, pursuant to section 35(1) of the Children’s Law Reform Act and section 46(1) of the Family Law Act, the Respondent mother shall be prohibited from attending at or within 150 metres of:

i. The place of residence of the Applicant father.

ii. Any place where the Applicant father is known to be.

iii. Any place where the Applicant father is known to frequent, including but not limited to, 2 Rean Drive, North York, Ontario.

iv. The children’s school, namely Lester B. Pearson Elementary School, located at 7 Snowcrest Avenue, North York, ON, M2K 2K5.

(3) An Order that this restraining order be effective until varied or terminated by further court order.

(4) In the alternative to paragraphs 1-3 above, an Order that the Respondent mother be prohibited from attending within 150 meters of the children’s school.

(5) An Order that the Respondent mother forthwith deliver to the Applicant father any and all documentation for the children, namely Callie Sanvictores, born August 10, 2013, and Jonathan “Luke” Sanvictores, born October 26,2 015 (“the children”) including, but not limited to, the children’s passports, health cards and birth certificates.

(6) An Order that the parties sign all documents necessary to facilitate any update to any and all documentation of the child, Johnathon “Luke” Sanvictores, as required to facilitate the name change to Johnathon Sanvictores to “Luke Sanvictores” on all paperwork.

(7) In the alternative, that the Respondent mother does not provide the documentation at paragraph 5 above or in the event that she does not cooperate with signing the documents at paragraph 6 above, then an Order that the Respondent mother’s consent and signature is dispensed with, and further, an Order that the Applicant father’s signature be deemed sufficient to issue the children’s health cards and passports.

(8) An Order that the Respondent mother pay costs to the Applicant father on a full recovery basis plus all applicable taxes.

BACKGROUND

[2] There is lengthy history in this matter which is punctuated by the Respondent mother’s repeated and deliberate non-compliance with various Orders which has led to her Answer being struck other than in respect of parenting time: See Sanvictores v. Sanvictores, 2022 ONSC 5157.

[3] There are three recent decisions that are particularly relevant on this motion.

[4] First, an Order dated September 13, 2022, in respect of a motion heard on June 23, 2022, granted the Applicant father’s motion to strike the Respondent mother’s pleadings on the following terms:

1. The Respondent’s Answer shall be struck other than in respect of her claim for parenting time as shown in paragraphs 3, 4, 6 and 7 of the Answer.

2. An uncontested trial shall be scheduled in respect of all the Applicant’s claims other than parenting time.

3. Subject to paragraph 4 below and the direction of the trial judge holding the uncontested trial, the Respondent mother is not entitled to notice of, nor to participate in, nor to initiate, any step in this case, other than a motion, a Trial Management Conference or a trial in respect of parenting time.

4. The Respondent shall not be entitled to participate in, nor initiate, any step in this case, nor shall the Respondent bring any motions unless she complied with all Orders of this Court, including all Orders issued after June 23, 2022.

5. The Applicant shall deliver his costs submissions, maximum three pages, and an outline of costs by September 21, 2022.

See Sanvictores v. Sanvictores, 2022 ONSC 5157.

[5] Second, a temporary parenting Order was heard on September 13, 2022 in respect of a motion heard that day arising from the Respondent mother’s refusal to permit the children to attend their new public school. The Endorsement, dated September 13, 2022, grants the following Order:

(1) The children, namely Callie Sanvictores, born August 10, 2013, and Johnathon “Luke” Sanvictores, born October 26, 2015 (“the children”), shall reside with the Applicant Father on all weekdays.

(2) Subject to paragraph 5 below, the children shall spend time with the Respondent Mother every other weekend from Friday after school until Sunday at 4:30pm. When the children are not in school on Friday, they shall spend time with the Respondent Mother from 4:30pm on Friday until 4:30pm on Sunday.

(3) Pursuant to section 141 of the Courts of Justice Act and section 36 (2) of the Children’s Law Reform Act, the Ontario Provincial Police, the local Police Service, the Toronto Police Service, the Royal Canadian Mounted Police, and/or any other law enforcement agencies having jurisdiction to enforce the provisions of this Order in the Province of Ontario and/or in the area where the children are located, shall assist as required in enforcing this Order, and shall specifically take all such action as required to locate, apprehend and deliver the children, namely Callie Sanvictores born August 10, 2013 and Jonathan “Luke” Sanvictores born October 26, 2015, to the Applicant, Kyle Sanvictores, including, but not limited to, the powers of search and entry at any time.

(4) Paragraph 3 above shall remain in effect until March of 2023.

(5) If paragraph 3 is used, the Respondent Mother’s time with the children shall be supervised at a Supervised Access Centre.

(6) The Respondent shall pay costs of $6,356.25 to the Applicant forthwith.

[6] Third, a temporary Order dated October 4, 2022, in respect of a parenting motion heard on July 29, 2022, provides that:

(a) The Children shall:

(i) primarily reside with the Applicant father.

(ii) reside with the Respondent mother every other weekend from Friday after school until Sunday at 4:30 pm. When the Children are not in school on Friday, they shall reside with the Respondent mother from 4:30 pm on Friday until 4:30 pm on Sunday.

(iii) reside with the Applicant at all other times.

(b) Each party shall immediately subscribe to Our Family Wizard. The parties shall communicate with one another only through this platform. The parties shall respond promptly to each other's messages and, in any event, within 24 hours of receiving a message, unless there is urgency, and a quicker response is required.

(c) The Applicant father shall have sole decision-making responsibility for making significant decisions about the Children’s well-being, including such decisions in respect of health, education. culture, language, religion and spirituality and significant extra-curricular activities. The Applicant father shall make such decisions only after consulting with the Respondent mother. The Respondent mother shall have seven days to provide her views to the Applicant and shall communicate her views using Our Family Wizard. The Applicant father shall notify the Respondent mother of his decisions.

(d) The Applicant father shall have sole responsibility for making medical and dental appointments and taking the child to these appointments and will keep the Respondent mother informed of all diagnosis and treatment.

(e) In a health emergency, the party with care of the Children at that time will make the treatment decision, on the advice of a medical health professional. If a party makes an emergency health decision, the party who has made the decision must immediately contact the other party.

(f) During the period when the Children are living with or in the care of a party, that party can make day-to-day decisions about the Children, for example about, doing homework, meals, visiting with their friends and the use of a computer.

(g) Each party shall share information with the other party on a regular basis about the Children’s welfare, including their education and schoolwork, medical needs, health and dental care, counselling, extra-curricular activities and other important issues.

(h) The Respondent mother shall forthwith deliver all government-issued documentation for the Children in her possession or control to the Applicant father who shall retain all government government-issued documentation for the Children. The Applicant father shall provide the Respondent mother with a copy of the Children’s health card.

(i) Neither party shall discuss this litigation with the Children.

(j) Neither party shall denigrate the other in front of the Children or in front of third parties when either of the Children are present or allow any other person to speak negatively or denigrate the other party in the presence of the Children.

[7] The Order dated October 4, 2022 further provides, in respect of parenting time, that:

(a) A Trial Management Conference shall be held on June 21, 2023, at 10:00 a.m.

(b) An Exit Trial Management Conference shall be held on October 25, 2023, at 10:00 a.m.

(c) The trial of this case shall commence on November 13, 2023, for up to two weeks.

See Sanvictores v. Sanvictores, 2022 ONSC 5308.

[8] The effect of the above Orders in respect of parenting time is that:

(a) The Children shall primarily reside with the Applicant father, including on all weekdays.

(b) The Children shall reside with the Respondent mother every other weekend from Friday after school until Sunday at 4:30pm. When the children are not in school on Friday, they shall spend time with the Respondent Mother from 4:30pm on Friday until 4:30pm on Sunday.

(c) Until March 2022, the police shall enforce this parenting time schedule by returning the Children to the Applicant father. In the event that police enforcement is used, then the Respondent mother’s time with the Children shall be supervised at a Supervised Access Centre.

[9] The Applicant father brings this motion given recent events that followed the striking of most of the Respondent’s pleadings (other than in respect of parenting time), the temporary order that granted the Applicant father sole decision-making responsibility and the temporary order that limited the Respondent mother’s parenting time to every other weekend as a result of her refusal to permit the children to attend their new school.

Wednesday, September 14, 2022 – Respondent Removes Children from School

[10] On September 14, 2022, the Applicant dropped the Children off at their new school, Lester B. Pearson Elementary School (“Pearson”). The Applicant states that he called the police at the behest of schools staff after the Respondent grabbed the Children in the front lobby of the school from him. This action created a scene in the school in front of other children, The Respondent mother took the children into her car and drove away.

[11] The Applicant father called police to have the Children returned to him.

[12] This incident led Pearson’s Principal, Donna Kowalchuk, to tell the Applicant father to have the Children take the day off until the school obtained a restraining order against the Respondent mother from attending at Pearson as the “school was terrified” by the Respondent’s conduct.

[13] The Principal told the Applicant that: (1) she had spoken with the Respondent and her mother and that they had threatened to attend Pearson again; (2) she had spoken with Police Officer Toburski regarding these incidents.

[14] An email from the Principal to the Applicant on September 16, 2022 states that the police had told her that they cautioned the Respondent and her mother, Sarah Elyas, to not come to the school. Nevertheless, the Respondent mother contacted Pearson and spoke to its secretary on September 16, 2022.

[15] On September 19, 2022, the Applicant states that he was told by the Principal that the Respondent had used her phone and her mother’s telephone to harass the school.

[16] Given the Respondent’s actions, and fear that she may repeat those actions, the Principal has adopted a safety plan whereby the Applicant passes the Children from his hands and into the Principal’s hands every morning and vice versa at the end of the school day.

[17] On September 24, 2022, the Principal told the Applicant that the school could not obtain a restraining order and that the Applicant would have to do so given the ongoing family law proceeding. Nevertheless, the Applicant states that the Principal asked him to obtain an Order restraining the Respondent mother from attending at the school.

Friday, September 23, 2022 – Police Report

[18] Since the September 14, 2022 incident at the school, the Applicant father has taken the position that the Respondent’s parenting time is now required to be supervised at a supervised access centre given paragraph 5 of the Order dated September 13, 2022.

[19] The Respondent mother apparently disregards paragraph 5 of the Order and takes a different view. As a result, the Respondent complained to police when the Applicant father did not deliver the Children for parenting time on the weekend of September 23-25, 2022. The Respondent mother attended at 33 Division and provided the police with Orders of this Court. The police contacted the Applicant who then provided them with a copy of the Order dated September 13, 2022 which they did not have. The police took no further action in response to the Respondent’s complaint.

[20] The Respondent mother has not seen the Children since September 14, 2022 as she has refused to see the children in a supervised access centre.

ANALYSIS

[21] A restraining order is available under s.46 of the Family Law Act, R.S.O. 1990, c. F.3 and s. 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 if the moving party has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody”.

[22] I adopt the views expressed by Desormeau, J., in Daleman v. Daleman, 2021 ONSC 7193, at para. 134 and135:

[135] To obtain a restraining Order, the Mother must satisfy me that there are reasonable grounds for her to fear for her own physical or psychological safety or for the safety of the children: Docherty v. Melo, 2016 ONSC 7579 (Ont. S.C.J.). The standard of proof is lower than the criminal standards to charge, prosecute or convict, and is lower than the civil standard of a balance of probabilities: L.A.B. v. J.A.S., 2020 ONSC 3376 (Ont. S.C.J.), at para. 23. However, a restraining Order cannot be imposed lightly given the respondent's liberty interest and the potential for imprisonment if the Order is breached: Stave v. Chartrand, 2004 ONCJ 79 (Ont. C.J.), at para. 19: See JK v RK, 2021 ONSC 1136, at para 29.

[136] So, while the court must assess the applicant's subjective fear, it must only grant the Order where that fear has a "legitimate basis": Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. S.C.J.), at para. 31-32. While the Mother need not establish that the Father has harassed or harmed her, I must be able to connect or associate the Father's actions or words with the Mother's fears: Khara v. McManus, 2007 ONCJ 223 (Ont. C.J.), at para 33: See JK v RK, supra, at para. 30.

[23] I am satisfied that the request for a restraining order in respect of the Children is urgent and requires ex parte relief. The actions of the Respondent mother in removing the Children from Pearson on September 14, 2022 provide a legitimate basis for the Applicant’s subject fear for the safety of the Children. The fact that the Respondent mother chose to remove the Children from school itself is shocking. First, the Respondent did not have parenting time with the Children on that day which was a result of an Order made one day earlier. Second, the fact that the Respondent then forcibly removed the Children from the school. Third, she has continued to contact Pearson about the children when directed not to do so. raises concern for both their physical and psychological safety These actions, when considered in the context of the history of this litigation, demonstrate a legitimate basis for the Applicant’s subject fear for the safety of the Children.

[24] On the other hand, I adjourn the Applicant father’s ex parte motion for other relief, including a restraining order in respect of himself. The urgency to hear these aspects of his motion on an ex parte basis is not made out on the materials.

[25] I note that the materials shows that the Respondent mother continues to disregard this Court’s Orders that require that communication between the parties is to occur though Our Family Wizard rather than by text, telephone or any other electronic means.

[26] Three further matters.

[27] First, given the lack of detail in the existing Order regarding arrangements for parenting time at a supervised access centre, I shall Order on a temporary basis that the Respondent mother shall have parenting time with the Children on October 22, 2022 for up to one hour at a supervised access centre operated in Toronto by Brayden Supervision or by Access for Parents and Children in Ontario, if available, with such supervised visits to be repeated every second week in the same manner.

[28] Second, the Respondent mother despite being directed not to contact the Court continues to send email messages often, sometimes more than one message in a day, to Court staff for my attention. This is entirely inappropriate, and I will not respond to any such communication. If the Respondent mother seeks to bring a motion to vary parenting time or any other motion, then she should seek leave to do so.

[29] Third, the Respondent was represented by counsel earlier in this proceeding. It would be sensible for the Respondent to re-consider whether she should seek legal advice if not legal representation once again.

ORDER

[30] Order to go as follows pursuant to the Family Law Act:

(1) On a temporary, temporary basis, the Respondent shall not come within 150 meters of the Children’s school, namely, Lester B. Pearson Elementary School, 7 Snowcrest Ave, North York, Ontario M2K 2K5, at any time or for any purpose until this Court otherwise orders.

(2) The Applicant’s motion is adjourned to October 27, 2022 at 2:30 pm. The Respondent may make submissions as to why the motion should not be granted at that time. One hour is set aside. The Respondent’s motion for leave to bring a motion for parenting time or any other purpose shall also be heard on October 27, 2022 at 3:30 pm. One hour is set aside.

(3) In respect of the Applicant’s motion, the Applicant shall serve this Endorsement and his motion materials on the Respondent within forthwith. The Applicant shall serve and file any additional affidavits by October 17, 2022. The Respondent shall serve and file any responding affidavits by October 21, 2022. The Applicant shall serve and file any reply affidavits by October 24, 2022. Each party shall serve and file a Factum by October 26, 2022.

(4) In respect of the Respondent’s motion for leave, if any, the Respondent shall serve and file her motion for leave and any affidavits by October 17, 2022. The Applicant shall serve and file any responding affidavits by October 21, 2022. The Respondent shall serve and file any reply affidavits by October 24, 2022. Each party shall serve and file a Factum by October 26, 2022.

(5) Neither party shall directly or indirectly communicate with a Judge by email or other means unless I have directed that you do so. Costs of today are reserved.

Mr. Justice M.D. Faieta

Date: October 12, 2022