Martins v. Paul-Davies, 2022 ONSC 6741

COURT FILE NO.: FS-20-113

DATE: 20221130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eduardo Moniz Martins, Applicant

Neela Paul-Davis, Respondent

BEFORE: Van Melle J.

COUNSEL: Nickolas Grunow, for the Applicant

Barbara Barnett, for the Respondent

HEARD: November 24, 2022 (by zoom)

E N D O R S E M E N T

1The applicant, Eduardo Martins, moves for increased parenting time with the child J. born August 17, 2020. The respondent, Neela Paul-Davis resists the motion and asks that the current schedule continue until the OCL has finished its investigation.

2The parties were in a relationship although J. was born after the parties’ relationship had ended.

3The parties attended mediation with Cynthia Waite and were able to agree to a temporary parenting schedule. J. is with Eduardo 3 times per week for 2 hours at a time.

4Eduardo wants to increase the parenting time on a graduated basis as follows:

• The first four weeks would involve his parenting time occurring three times per week for 5-1/2 hours per time except the Saturday would occur Saturday at 9 a.m. until Sunday at 7:30 p.m. in Week 1 and 5 – ½ hours three times per week in week 2.

• The following four weeks Eduardo would have parenting time 3 times per week except that there would be an overnight every week on the Saturday night.

• For the next four weeks the parenting time would occur in Week one on Tuesday and Thursdays from 2 p.m. until 7:30 p.m. and Friday at 6 p.m. until Sunday at 7 p.m.; and in week 2 Tuesday at 2 p.m. until Wednesday at 7:30 a.m., Thursday at 2 p.m. until Friday at 7:30 a.m. and Saturday at 9 a.m. until Sunday at 7:30 p.m.

• After that and on a permanent basis the scheduled would be week 1: Sunday at 7 p.m. until Tuesday at 7 p.m.; Thursday at 7 p.m. until Sunday at 7 p.m. and in week 2: Tuesday at 7 p.m. until Thursday at 7 p.m. until returning to Neela’s care on Sunday of week 1, at 7 p.m.

• Christmas/Winter Break parenting time.

5Neela submits that an increase in Eduardo’s parenting time should not take place until the completion of the section 112 report by the Office of the Children’s Lawyer.

Eduardo’s Position

6Eduardo says that he has three children from previous relationships and that he is capable of caring for J. He has evidence that he has attended co-parenting courses, (including Triple P and Up to Parents) and that he has attended Anger Management courses.

7Eduardo attaches evidence to his affidavit demonstrating that the CAS has no concerns regarding his ability to parent J. and that the CAS’ is in fact concerned about the child being exposed to conflict between both parties.

8Eduardo has been charged with 12 criminal offences all relating to Neela. 10 of the charges predate J.’s birth and the other 2 arise from incidents between the parties and do not involve J. directly.

9Eduardo points out that the parties jointly retained Stephen Cross to conduct a section 30 parenting assessment. He says that Neela terminated Mr. Cross’s involvement by making a complaint about him to his governing college because Neela was afraid that Mr. Cross’s recommendations would not support her position. He submits that but for Neela’s termination of Mr. Cross’s retainer, a report would now be available for the court and that his parenting time would be increased accordingly.

10He says that the delay in getting an assessment is directly attributable to Neela and that he should not be penalized by having his time with J. limited because of this.

Neela’s Position

11Neela says that the OCL will be completed its investigation within 90 days of the date it accepted the file (October 27, 2022) and that an increase in parenting time should wait until that has occurred. She says that she terminated Mr. Cross’s retainer because of his behaviour and manner of communication and because he did not contact the collaterals (the CAS and the police reports) in a timely fashion.

12Neela says that she is concerned about J. in his father’s care given Eduardo’s behaviour and the violence he has shown towards her, sometimes in J.’s presence.

Analysis

13Eduardo submits that this is a “he said, she said” situation and that I have no independent evidence, other than that of Mr. Cross and the CAS.

14In that regard I do not accept that Mr. Cross’ report is independent. Neela did not find him to be independent and he was asked to terminate his involvement prior to completing his assessment. His interim report is not independent in those circumstances. I do share Eduardo’s concerns that examples of the issues that Neela had with Mr. Cross’ behaviour are not set out in her affidavit. I would have preferred to have been in a position to evaluate whether or not the termination of the retainer was reasonable or in fact, engineered to cause delay.

15I agree that Neela’s affidavit should have been clearer. In places she makes bold allegations without stating the source of her information and belief as is required. In those places where the source of her allegations are not set out, I have ignored those comments. However, she has attached texts from Eduardo where he admits to having struck his 15-year-old daughter and giving her a black eye. She also attaches a photograph of the daughter with the black eye and a text from Eduardo’s ex-wife to Neela:

“If you think this is a bruise [referring to the daughter’s black eye] that simply needs to be iced your [sic] wrong! He gave her a fuckin black eye? Her father gave his daughter a black eye? He is not a good person. Eddie has a history of hitting women and if you think this is his last time your [sic] mistaken.”

16Eduardo’s submission that any alleged violence was not against J. ignores the amendments to the Children’s Law Reform Act directing courts to take family violence into account when determining the best interests of children. It is not necessary that the violence be directed toward the child.

17The information that I have before me is that Eduardo caused his daughter Claire to sustain a black eye. In his Reply affidavit, he says that she was injured “accidentally” as Eduardo “reached back to separate her from her brother when they were fighting”. I do not accept that simply separating Claire from her brother would have caused a black eye and this is but one instance that the OCL will have to investigate.

18More information is required to assess both parties’ ability to care for J.

19I am dismissing Eduardo’s motion for the increased parenting time he seeks in his Notice of Motion. I suspect that both parties are underestimating their own contribution to the conflict between them. The investigation by the OCL will be extremely helpful to the court.

20In order to ensure that this matter does not languish I adjourn this motion until January 27, 2023 at 9:00 a.m. in front of me to be heard virtually. I expect to be provided with an affidavit from each party updating the situation. In the updated affidavits they are to deal only with events occurring between today and the date that the affidavit is sworn. The history of this matter need not be repeated. I expect to have received the report of the OCL. Relevant excerpts from questioning may be appended.

21I will want to hear what efforts have been made by the parties to arrange for Eduardo to have additional parenting time over the Christmas break.

22I considered Eduardo’s position that he is unable to maximize the bond that he could have with J. given the limited time that he is with J. I considered Eduardo’s position that his family is unable to form a bond with J. during the limited time that Eduardo has with J.

23These are valid concerns. This is one of the reasons that I am having the parties come back to me in January.

24I am granting leave for questioning and I am hopeful that the parties will conduct questioning before January 27, 2023.

25I will deal with the issue of costs on or after January 27, 2023.

26The parties are requested to provide a copy of this endorsement to the OCL forthwith.

___________________________

Van Melle J.