Court File and Parties

Court File No.: FS-20-015092 Date: 2023-01-05 Superior Court of Justice - Ontario

Re: Julian De Santi, Applicant And: M. Micucci, Respondent

Before: Justice Sharon Shore Counsel: Niman, H. and Mamo, C., Counsel for the Applicant Boulby, S., and Weinberg, O Counsel for the Respondent

Heard: October 4, 2022

Endorsement

[1] The applicant father brought this motion for increased parenting time with the party's 7-year-old daughter. The parties are scheduled to begin a 21-day trial in May 2023, eight months from the hearing of this motion.

[2] The father currently has parenting time with the child 5/14 nights. He is asking for equal time, being one extra overnight each week. In the alternative he is requesting an evening with the child for dinner every other Monday, following the mother’s weekend with the child. Under the current parenting plan the father goes a full week without seeing the child.

[3] Although the Court does not often change the status quo in the face of an upcoming and pending trial, this is one of those cases where it is in the best interest of the child that an order be made changing the current parenting schedule. The father’s motion is granted, in part.

Brief Background:

[4] The parties were married on August 21, 2010 and separated on March 30, 2018. They were divorced on August 19, 2019. They have one child of the marriage, who is 7 years old.

[5] The parties attended mediation and signed a separation agreement on May 22, 2019, which gave the father parenting time with the child on Wednesday evenings and alternating weekends, from Friday after school until Sunday evening. The agreement provides that after April 30, 2020, the father's parenting time would be reviewed on a de novo basis, with a view to increasing his parenting time.

[6] On January 24, 2020, the father commenced an application seeking an increase to his parenting time and a section 30 assessment, among other relief. This time, the parties were not able to resolve the parenting issues with the mediator.

[7] The father brought a motion for a section 30 assessment on September 30, 2020. I granted the order. As a result of the order, the parties retained Joanna Seidel to conduct the assessment. Ms. Seidel has provided the parties with her report, dated December 7, 2021.

[8] Since January 2021, the father has had parenting time with the child 5/14 days every two weeks-alternating weekends and every Wednesday overnight. The matter has been scheduled for a 21-day trial on the parenting issues to commence in May 2023.

[9] The father brought this motion for increased parenting time pending trial.

Best interest of the child:

[10] Both the Divorce Act and the Children's Law Reform Act make it clear that the only criteria for determining parenting time is the child's best interests, with consideration of the child's condition, means, needs and other circumstances.

[11] Section 16 of the Divorce Act (and s.24 of the CLRA) sets out some of the factors relevant to this determination, including: the child's needs given the child's age and stage of development, the nature and strength of the child's relationship with each parent, each parent's willingness to support the development and maintenance of the child's relationship with the other parent, the history of care for the child, any plans for the child’s care, 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, and 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.

[12] Section 16(5) of the Divorce Act (and s.24(6) of the CLRA) provides that “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”.

[13] Both parties love the child very much. The child loves both of her parents. The child shows love and affection to both parents. Both parents are able and willing to meet the needs of the child. The mother has been the child’s primary caregiver for most of her life. However, on the evidence before me, I find the mother is not able or willing to support the father’s relationship with the child, and this clouds her judgment in being able to act in the best interest of the child. It affects her ability to meet the child’s needs and her ability to communicate and cooperate with the father on matters affecting the child. Despite this concern being raised in the past, the mother has not changed her behaviour. Leaving the status quo in place pending trial would jeopardize the child’s important relationship with her father. It is for this reason that I am prepared to amend the current parenting schedule at this time.

[14] In my endorsement from September 2020, I expressed concerns about the mother’s unsubstantiated criticisms regarding the father’s parenting abilities and questioned the mother’s submission that the Court should adhere to the wishes of a five-year-old:

“The mother...alleges that the father is irresponsible, but I am having difficulty understanding the facts that lead her to this conclusion. On the one hand the mother suggests that she encourages the child’s relationship with the father including providing him with additional time with the child but does not provide any meaningful examples. She also alleges that the child wants to spend less time with the father and the parties should listen to the five-year-old child’s wishes.... Although the mother suggests that the child is happy and well-adjusted, the child makes statements or exhibits behaviours that are not reflective of a well-adjusted five year old. Children at that age do not introduce their father to friends as ‘my rude father’.”

[15] Over the course of a year, in order to assist with the assessment report, Ms. Seidel conducted multiple interviews with the parties, the child, and several third parties including the child's teacher, therapists, and doctors. The court is not bound by Ms. Seidel’s report or recommendations. However, in her report, Ms. Seidel raises and reinforces the concerns I expressed in my endorsement. Without going into too much detail, Ms. Seidel made the following observations in her report:

a. The child’s list of complaints about the father sounded rehearsed. Her complaints seemed disproportionate to her actual experience and were not age appropriate.

b. The mother finds it challenging to support the child in her relationship with the father.

c. The child has a clear alignment towards her mother.

d. The mother’s statements about the father were inconsistent – at times she said he was a good father and other times she expressed grave concerns about his ability to parent.

e. The mother has shown a pattern of accusing people of harming the child.

[16] Ultimately, Ms. Seidel concludes that increased time with the father is needed, to mitigate the negative influence on the child’s perception of her father. However, the father needs take on more responsibility and to become more involved in the child’s life. Ms. Seidel concludes as follows:

In summary, things need to shift for this family. With the increased time, [the child] will have the opportunity to spend more time with her father, and disengagement will be achieved by limiting direct exchanges between the parents. Ms. Micucci is encouraged to support the increased parenting time, and this is her duty as a responsible parent. If things continue the current trajectory, [the child’s] relationship with her father is at jeopardy.

[17] While the mother and father agreed to increase the father’s time with the child in January 2021, to include the Sunday overnight on alternate weekends, the mother did not allow the father any additional time over the summer. While there may be some circumstances where the father’s parenting can be criticized, the mother’s animosity goes far beyond any concern I would have about the father’s parenting abilities.

[18] I have also considered the family’s involvement with the Children’s Aid Society (CAS). The mother has made several complaints to CAS about the father’s parenting of the child. None of the allegations were ever verified and CAS did not express concern about the father’s parenting. CAS also indicated that the mother does not approve of the father having more time with the child but “does not appear to have sufficient reasoning for this. Melissa herself presents with a great deal of anxiety regarding her daughter's access with Julian but she has been encouraged to not get involved in any situation involving Julian and [the child], for which she may not agree or is not up to her own standards, but it's also not necessarily harmful in any way to her daughter.”.

[19] Finally, the child has shown symptoms of anxiety from being exposed to the conflict between her parents. Both CAS and Ms. Seidel expressed concerns that the child will be emotionally harmed by being exposed to ongoing conflict between the parties.

[20] The mother submits that the father is only seeking increased time with the child out of jealousy, because she was involved in a new relationship. She ended up marrying and then separating from her new partner. In her recent affidavit, she submits that the father’s focus is the child’s reintegration with his own parents. On consent, the child is to have no contact with the paternal grandfather. I do not agree that reintegration of the child with his parents is the father’s motivation in bringing this motion. I am also not prepared to change the order regarding the terms related to the father’s parents.

[21] It is in the best interest of the child that the mother appreciates that the father is an equally important parent to the child and that both parties are involved in the child’s life. The mother’s perception of the father is negatively affecting her ability to act in the best interest of the child. She is not a bad mother. To the contrary, she is a wonderful mother to the child. However, the child has two parents. Two wonderful parents, albeit with different parenting styles. And it is in the best interest of the child to have both parents involved in her life. Without the mother appreciating and accepting the father’s role in the child’s life, I am concerned the divide will deepen and the child may become too aligned with the mother for the relationship with the father to be repaired. For this reason, I am increasing the father’s time with the child pending trial, as set out below.

[22] However, I am not prepared to order equal time on an interim basis. The child has been in the primary care of the mother for most of her life. Further, I cannot ignore that the evidence before me is untested and has not been subject to cross-examination. There have been some circumstances where the mother’s concerns may have merit. Some additional time with the father is warranted, on an interim basis, so the mother can appreciate that the father has and will continue to have a vital role in their daughter’s life. However, whether to expand the schedule to equal time is best determined by the trial judge, with the benefit of viva voce evidence and cross-examination.

[23] Costs of this motion should be determined by the trial judge. My decision is limited to the evidence before me on the long motion. I do not have the benefit of an entire record, which will be subject to cross-examination. The trial judge is not bound in any way by my findings. The trial judge may arrive at a different conclusion. The trial is only a few months away. Costs of this motion are reserved to the trial judge.

[24] Order to go as follows:

1. Effective immediately, the Father, Julian De Santi, shall have interim parenting time with the child, A. De Santi, as follows:

a. Alternate weekends from Friday after school, returning the child to school on Monday morning;

b. Every Wednesday from after school returning the child to school on Thursday morning;

c. Alternate Mondays, following a weekend when the child was with the Mother, Melissa Micucci, from after school until her return to school on Tuesday morning.

2. The parties shall equally share the child’s school holidays. If the child was not with the Father for half of winter break, then the Father shall have the child for the next weekend when the child is otherwise scheduled to be with the Mother (even if this means the child is with the Father for 3 weekends in a row). If the parties are unable to agree on the division of the school holidays, then the child shall be with the Father as follows:

a. For March break - if the regular schedule has the child with the Father for the first weekend of March break, then the child shall be with the Father from Friday after school until Wednesday at noon. If the regular schedule has the child with the Father the second weekend of March break, then from Wednesday at noon until the child’s return to school on Monday morning.

b. If the regular schedule has the child with the Father for Family Day, then the child shall stay with the Father until the child’s return to school on Tuesday, otherwise, the child shall remain with the Mother for the weekend, until the child’s return to school on Tuesday.

3. Costs of this motion shall be determined by the trial judge.

Justice Sharon Shore

Date: January 5, 2023