Court File and Parties

COURT FILE NO.: FC-22-811 DATE: 20230413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Erika Auciello, Applicant AND: Angelo Auciello, Respondent

BEFORE: J.P.L. McDermot J.

COUNSEL: Naila Waheed, for the Applicant Anthony Di Battista, for the Respondent

HEARD: April 6, 2023

Endorsement

[1] Mr. and Ms. Auciello have been married for 17 years. They separated on July 12, 2022. There are two children of the marriage, Lukas (16) and Serena (12). The Applicant works at a construction firm, but the major wage earner in this marriage was the Respondent Father, who owns his own contracting firm.

[2] This matter can easily be described as high conflict. The Applicant Mother’s materials are replete with allegations of family violence and she describes herself as the “Respondent’s personal emotional punching bag.” The Applicant says that Mr. Auciello swore at her and name called throughout the marriage, going so far as calling her a c**t in front of Serena.

[3] After the parties separated, they continued to live under the same roof but separate and apart. In August, 2022, because of the alleged abuse, Ms. Auciello brought a motion without notice for exclusive possession of the home. That motion was eventually settled by Mr. Auciello moving into the basement and Ms. Auciello remaining upstairs. Those areas were supposed to be each party’s exclusive territory within the home.

[4] Mr. Auciello has now moved out of the home. He says that care of Serena was shared after dividing up the home up into separate territories. He deposes that the sharing of care was based upon a schedule that was set out in a letter from the Applicant’s lawyer dated August 5, 2022, which suggested that care of Serena be shared on the following basis:

Week 1 Sunday evening to Wednesday morning - with the Applicant Wednesday morning to Friday evening - with the Respondent Friday evening to Sunday Evening - with the Applicant

Week 2 Sunday evening to Wednesday morning - with the Respondent Wednesday morning to Friday evening - with the Applicant Friday evening to Sunday evening - with the Respondent

[5] The Respondent’s cross-motion asks that the parenting plan set out in the Applicant’s lawyer’s August 5, 2022 letter continue.

[6] The parties’ 12 year old daughter, Serena, is the only child who is in issue in this parenting motion. That is because the Respondent is estranged from his older son, Lukas, who refuses to talk to him. Mr. Auciello blames the Applicant for this, saying that she disclosed to Lukas the fact that Mr. Auciello had had an affair and was leaving her for his new partner. Ms. Auciello says that she never disclosed the new partner; the children found out about it on their own when the Respondent was at the trailer near Huntsville with his new girlfriend. She also says that Mr. Auciello was aggressive towards Lukas on one occasion, breaking his bike and tablet, which has also estranged him from his father. In any event, the parties acknowledge that Lukas is 16 and can make up his own mind about parenting time, although the parties are attempting reconciliation counselling through Family TLC. But this motion involves Serena only.

[7] This motion was scheduled as a result of the Respondent’s decision to leave the matrimonial home on April 1, 2023. The closing of the sale of the matrimonial home is set for June 29, 2023. He has, in fact, now moved out of the home and he says that he wishes to continue the shared parenting that he had prior to moving out of the basement of the home.

[8] As part of the parenting time motion, the Applicant submitted into evidence four transcripts of conversations between the Respondent and his daughter recorded during his parenting time. Three of the four conversations were surreptitiously recorded by the Applicant on her phone standing at the basement door when Serena was with the Respondent without the knowledge or consent of either the Respondent or Serena. The final conversation, recorded on January 4, 2023, was done with the knowledge of the Respondent who yelled up the stairs for the Applicant to go ahead and record the conversation. During argument of the motion, I conducted a voir dire on the admissibility of the first three transcripts which the Respondent claimed were illegally obtained and should be inadmissible for policy reasons. For oral reasons given during argument, I allowed the recorded conversations into evidence.

[9] As well as parenting time, the other issues set down by Douglas J. at the last settlement conference involved alleged breaches of a previous order by the Respondent that the Applicant wishes to have remedied. As well there are disclosure issues. A number of other issues, such as support, have been adjourned to July 6, 2023 by which time the Respondent’s income valuation report is expected to be ready.

[10] Disclosure was also a topic that was set down for argument. There was insufficient time to complete the argument on disclosure and the parties acknowledged that, other than the income valuation, there was sufficient disclosure to permit the motion on support to be argued on July 6, 2023.

Result

[11] For the reasons set out below, I have determined the following:

a. As indicated during the hearing of the motion, and for oral reasons previously delivered, the transcripts of the conversations shall be entered into evidence. b. The children shall have their primary residence with the Applicant; c. The child, Serena shall have parenting time with the Respondent as follows: i. In week one, from Thursday after school to the end of school on Friday with pickups and drop offs at the school; ii. In week two, from Friday after school to Monday morning with pickups and drop offs to take place at the child’s school. d. The breaches of the orders shall be addressed as follows: i. The Respondent shall reimburse the Applicant for the costs of a rental vehicle and for replacement of the locks on the matrimonial home. ii. The Respondent to reimburse the parties’ joint account for payment of interest under the line of credit. iii. The Respondent shall forthwith return the vehicle to the Applicant. iv. The Respondent shall replace money drawn down by him on the line of credit from his share of the net proceeds of sale; v. The Respondent shall continue to pay the expenses of the home. e. On consent, the Respondent shall provide authorizations for the Applicant to obtain banking information from the five major chartered banks in Canada. f. On consent, there shall be an order for questioning. g. The Office of the Children’s Lawyer shall be requested to become involved.

Analysis

[12] There are two major issues before the court:

a. What parenting time concerning Serena should each of these parents have? b. Is the Respondent in breach of certain portions of the order and if so, what penalty can and should be imposed under rule 1(8) of the Family Law Rules?

Parenting Time and Decision Making

[13] This is an issue that was raised in the Applicant’s motion; however, this really arises because Mr. Auciello decided that he was going to move out of the home and wished the shared arrangement that he says was agreed to when the house was divided up. The motion before the court was brought by the Applicant for primary care but the Respondent has brought a cross-motion for shared parenting. Although the parties argued about whose motion should be heard prior to the attendance in court, there was no serious argument that the two temporary parenting plans were both properly before the court. In short, the Applicant requests primary care of the child with midweek evening parenting time and biweekly weekend parenting time to the Respondent. The Respondent asks for shared care on a 2-2-3 basis.

[14] Under the parenting time issue, I was asked to admit into evidence certain recordings of the Respondent’s interactions with the child which were recorded by the Applicant without the Respondent’s knowledge. I admitted them and gave oral reasons for this decision. I will expand on my oral reasons given during the motion after which I will address parenting time for both of the parties.

Admission of Surreptitious Recordings

[15] The Applicant began this proceeding with a motion without notice for exclusive possession of the home. On August 4, 2022, Justice Eberhard set an early case conference before Justice Douglas on notice to the Respondent.

[16] Pursuant to the consent court order of Douglas J. dated August 15, 2022, the parties divided up the home: the Respondent and children were to live in the basement and the Applicant had the upstairs floors of the home. Mr. Auciello deposed that the parties agreed to shared care of Serena according to a plan submitted by the Applicant’s counsel in an August 5, 2022 letter and noted above which was, in essence, a 2-2-3 arrangement. However, that was not what Justice Douglas’ August 15 order said: he ordered that the mother and the two children “shall move back into the main and upper levels of the matrimonial home” and that “[t]he children will be able to freely access either part of the home to spend time with both parents.” There was no specified parenting time in the court order and the only agreement between the parties was in the order, which called for an ad hoc parenting arrangement, allowing the children to go back and forth between the two exclusively occupied portions of the home.

[17] Because of Lukas’ estrangement from the Respondent, the only child who went into the basement of the home was Serena. Although not set out in the affidavit, it appeared from the recordings that she spent time with the Respondent according to the schedule in the August 5 letter although she continued to sleep in the upper levels of the home with her mother and Lukas and the Respondent and Serena argued about Serena doing her homework in the upstairs levels of the home.

[18] The Applicant as already keeping a journal of what was taking place after the home was divided up. However, when she heard loud interactions and Serena crying through the basement door, she began recording these interactions on her phone at the top of the stairs and through the door. She provided transcripts of four recordings, taken on October 5, November 26 and December 21, 2022 as well as January 3, 2023. All of the recordings were transcribed by a certified court reporter.

[19] The parties agreed during argument that the Respondent was aware he was being recorded on January 3, 2023. Indeed, he speaks of it in yelling upstairs to the Applicant during the recording. It is also agreed that the three 2022 recordings were surreptitious and that neither the Respondent nor Serena were aware they were being recorded on those dates. The January 3 recording was therefore admitted on consent; the others were argued.

[20] The Respondent argued that these recordings should not be admitted on two grounds:

a. They were unreliable and in fact were fabricated and pieced together by the Applicant to create a false narrative. b. The recordings were illegal and offend both the law and policy against entering surreptitious recordings into evidence.

[21] Because the January 3 recording was admitted, I listened to that recording on a shared screen in the Zoom hearing. It did not appear to be pieced together or contrived as the court could hear the Respondent and Serena through the door on a videorecording that did not change as the recording progressed. However, counsel for the Respondent argued vigorously that I should not listen to the other three recordings and this position prevented me from verifying whether those three recordings were doctored in any way by the Applicant. Certainly, they were competently transcribed by an independent court reporter. The Respondent claimed that he did not say what was in the recordings but did not offer his own version of what he did say. The reliability of the earlier recordings was corroborated by the January 3, 2023 recording which appeared to be one continuous recording which was unaltered. Because I was not permitted to verify the 2022 recordings by listening to them, I am not able to make a finding that the Applicant altered those recordings in any way.

[22] The policy reasons against the admission of these recordings are more serious. The law was set out in Sordi v. Sordi, 2011 ONCA 665 where the court stated [at para. 12]:

With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issues before him.

[23] There is no question that there are sound policy reasons to discourage parties from recording conversations. The practice has been called “odious” (Seddon v. Seddon, [1994] B.C.J. No. 1062 (S.C.) at para. 25) and “strongly discouraged” (Hameed v. Hameed, 2006 ONCJ 274). This is all apart from the fact that recording a private communication without consent may be a criminal offence under s. 184 of the Criminal Code. [1]

[24] However, with the availability of cell phones that have sound and video recording capabilities, there has been a virtual explosion of these types of recordings. [2] More and more often, courts are called upon to admit surreptitious recordings because there are so many of them.

[25] There are circumstances which would permit the admission of private recordings. As set out in Sordi, the obvious prejudice, both to the participant in the private communication and to public policy grounds, must be set off against the probative value of the communications. This has been set out in several different ways under the case law. In Hameed, for example, Sherr J. said that the recorded conversations could be admitted where there were “compelling reasons” for doing so. In Reddick v. Reddick, [1997] O.J. No. 2497 (Ont. Gen. Div.), Bell J. said [at para. 24] that surreptitious recording could be admitted where the contents were “relevant, reliable and probative.” And importantly, in A.F. v. B.J.A., 2017 ONCJ 108, following Toope v. Toope, 193 Nfld. & P.E.I.R. 313 (U.F.C.), Sager J. suggested that secret recordings were admissible where they directly addressed the best interests of the children involved in the case.

[26] That is the case in the present matter. In these the recordings, it is apparent that the Respondent is attempting to maintain what he perceives as his parenting time in the face of Serena’s desire to go upstairs to do her homework in her mother’s portion of the home. At one point in a recording, he tells Serena that the Applicant will use her going upstairs to do her homework against him in court. He is observed to frequently use obscenities in the presence of the child including calling the mother a c**t in front of the child (in the admissible January 3 recording).

[27] The contents of the recording go directly to the father’s inability to isolate the child from his own hurt feelings and his attempts to obtain the cooperation of the child in demonstrating the status quo that he said existed. They also show that the father did not hesitate in asking Serena to convey negative messages to her mother, a serious parenting concern in a motion addressing parenting time and decision making. The recordings directly address the child’s best interests. In my view, the recordings therefore contain sufficient probative value to be admitted notwithstanding the clear policy reasons against this, and they address Serena’s best interests. Furthermore, it is always difficult to obtain reliable evidence as to the best interests of children in an interim motion where there are conflicting affidavits and these recordings are as good as it gets. I accordingly admitted them into evidence on this motion.

Parenting Time and Decision Making

[28] Mr. Auciello asks for an order that care of Serena be shared on a 2-2-3 basis as set out above. He says that he was an involved father who equally cared for his children prior to separation, and that he continued the shared care of Serena according to the correspondence from Applicant’s counsel of August 5, 2022 when the matrimonial home was split into zones for himself and the Applicant.

[29] The issue of parenting time must be according to the best interests of the children as provided for in the Divorce Act, [3] s. 16(1). The factors concerning the child’s best interests are set out in s. 16(2) and (3) of the Divorce Act as follows:

(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.

(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.

[30] It can be seen that family violence is an issue that is important as to whether the parties can share care of a child. For obvious reasons, sharing time and decision making concerning a child becomes problematic in cases where there is family violence. Family violence is defined in the Divorce Act, s. 2(1) as follows:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

[31] In an interim motion, where there are conflicting affidavits, it is difficult to make a finding of family violence. Although some of the elements of family violence may appear in the evidence on such a motion, it is difficult to decide of whether those elements result in a party fearing for their own safety of the safety of another as also required by the section.

[32] However, in both of the Applicant’s affidavits in support of this motion, as well as the affidavit in support of exclusive possession of the home sworn August 4, 2022, she outlines events that would fit within the definition of family violence. She outlines that the Respondent Father punched holes in walls, broke his son’s bike and tablet, called her a c*** in front of the children and exerted financial control by emptying the parties’ line of credit. She said in her affidavit that she was “unsure of what he may be capable of doing, out of anger and resentment towards me” and asked for his removal from the home. After a conference, the parties agreed to the order of August 15, 2022, which divided the home into exclusive zones with the Respondent residing in the basement, and the Applicant and the children living in the two upstairs levels.

[33] These allegations are borne out by the recorded conversations, specifically the conversation which was recorded on January 3, 2023. On that date, the Respondent was aware that the conversation was being recorded; yet he embarked on a vicious course of vitriol and insults against the Applicant in front of his daughter. At one point, Mr. Auciello yelled up the stairs to the Applicant Mother, all in front of Serena who was visiting with her father:

I’m fuckin’ throwing shit in the garbage, you fuck. [Indiscernible]. Fuck you. Go fuck yourself. Fuckin’ cunt. Fuckin’ bitch. [Indiscernible]. Record all you fuckin’ want. Record it all. Take me to fuckin’ court. Let’s do this shit. All my shit, you can keep it all. Keep everything. Keep it all. Fuck. [Indiscernible] fuckin’ suitcase [ph] is fuckin’ gone right [ph] now. [Indiscernible] bitch. [Indiscernible]. What are you crying for? Go upstairs. Go.

[34] The last line of that exchange was directed at Serena who was crying and upset. The majority of the tirade is obviously directed against the Applicant at the top of the stairs.

[35] Later during that same recording, he continues his rant against the Applicant Mother, again in front of Serena:

Get the fuck outta here [ph]. [Indiscernible]. Get a life. Get a life. Leave me alone. Get the fuck outta here. Leave me the fuck alone. Fuckin’ left you for a reason and you’re still in my fuckin’ life. When the fuck are you gonna get the [indiscernible] to leave? When? Get your ass up and fuckin’ go. You fuckin’ hear me? Get the fuck outta here. Sell this fuckin’ house. Fuckin’ dummy. Fuckin’ idiot. Divorced you for a reason and you’re still in my life. Go on. Free yourself. What’s it gonna take for you to leave? What’s it gonna take? What’s it gonna take for you to leave my life? Get the fuck outta my life. [Indiscernible].

[36] Later, again in the same exchange, Mr. Auciello is heard to give a message for Serena to convey to her mother:

Get on with this shit. Ready [ph]? Huh? Tell your mother to go sign the [indiscernible] papers instead of recording my shit. Tell her to give me my fuckin’ money that she owes me. Thought you were ready. What are you doing? Did you [indiscernible]? Huh? [4]

[37] Throughout the exchange, Serena can be heard to be crying. The mother, at the top of the stairs recording the interaction, says nothing.

[38] I do not know how to characterize this as anything other than verbal abuse which could easily result in a finding of family violence. And for Mr. Auciello to calmly state in his affidavit that he and his wife can co-parent a child when he is willing to say these things to the mother of his children is to me, ludicrous.

[39] As well, the Respondent’s parenting style leaves much to be desired. Throughout the recorded interactions, the Respondent swears without restraint in front of his daughter. He tells the daughter to convey a message to her mother about the parties’ separation. He has no idea of the duties of a parent to isolate their children from the separation and his own hurt and angry feelings.

[40] The Respondent says that the parties had a shared status quo prior to separation and that the parties continued this arrangement after August 15, 2022. I have my doubts. The evidence clearly is that the Respondent ran his construction company which permitted the parties an upper middle class lifestyle. The family car is a late model Jaguar SUV. There is a summer sports car, a Mazda 380Z. The parties own a comfortable home, a condominium in the Bahamas and a trailer in Muskoka. The uncontradicted evidence is that the Respondent worked full time in the construction business and worked long hours, but that the Applicant Mother was more often at home and was the primary caregiver of the children. No particulars are given in the father’s affidavit as to the role he played in the children’s lives prior to separation, but it is unquestioned that the primary wage earner was Mr. Auciello who operated his own contracting firm.

[41] The Respondent says that the shared arrangement was continued after the parties separated according to the August 5, 2022 letter providing for a 2-2-3 arrangement. However, that was not what the order of August 15, 2022 said. That order provided as follows:

Effective Wednesday August 17, 2022 at 5:00 pm, the Applicant, Erika Auciello, and the children, namely: Lukas Auciello, born December 11, 2006; and Serena Auciello, born August 16, 2010, shall move back into the main and upper levels of the matrimonial home, being the property municipally known as 2600 Gilford Road, Gilford, Ontario ("the matrimonial home").

[42] Later, the order speaks of parenting time:

The children will be able to freely access either part of the home to spend time with both parents.

[43] This order states, in other words, that the children and the mother shall live in the upper two floors of the home and that they will have exclusive possession of that portion of the home. The children could “spend time” with either parent, but they lived in the upper floors of the home with the Applicant Mother. It was acknowledged that Serena continued to sleep in her mother’s portion of the home where her bedroom is.

[44] That order was continued under the order of Justice Douglas dated August 23, 2022 and is still in force today.

[45] My perception of the order was not that of the Respondent Father. The recorded messages make it clear that he thought that his parenting time were the times set out in the letter from Applicant’s counsel and he took exception to Serena leaving to go upstairs during his parenting time to do her homework in her mother’s portion of the home. That was a theme in the recorded messages from both October 5, November 26 and December 21, 2022.

[46] On October 5, 2022, the Respondent’s perception that he has fixed time sharing to Serena is made evident by his statement to Serena who wants to go upstairs into the mother’s space to do her homework:

That, that mom has you certain days of the week and I have you certain days of the week, and those days do not conflict with each other unless we discuss that with your mom, unless mom and I discuss that, we know that you’re gonna be with her on a particular day or I’m gonna be with you on a particular day, do you understand? I know it’s, I know it’s -- uh, I know it’s a -- it’s not fair. It’s not fair to everybody, but this is the way it is. And, and you do have choice, absolutely. You do have choice. No one’s saying that you don’t have a choice here. Your choice matters the most.

[47] However, that is not Serena’s perception of the order. It is clear that she continues to want to do her homework in her mother’s portion of the home, which she perceives as her home. She becomes increasingly upset during the October 5 conversation as she does not want to bring her homework into her father’s space. Later in the conversation, her father says, “ If you’re gonna cry, go get your homework and bring it down stairs”. But Serena continues to cry and when her father asks why, she says it is because she wants to do her homework upstairs. When her father asks why, she yells at him that it’s because “it’s my house” which implies that Serena perceives that is where she lives, with her mother in the upstairs floors.

[48] Then, when Serena says it’s not a big deal where she does her homework, Mr. Auciello says it is a big deal, again drawing Serena into the dispute between the parties:

It is a big deal, yeah, because your mom is using it against me in court. Your mom’s saying that she has you 50 percent... [5]

[49] It is notable that throughout this conversation, Serena is alternatively crying or is angry.

[50] This theme is continued in the messages from November 26 and December 21, 2022. On December 21, Mr. Auciello says:

when it’s five days and you -- and somebody’s used an excuse that there’s so much homework? I need to fuckin’ see it. I want to know what is so much homework? Let me see it.

[51] Just after this statement, he says “Come and sit down, open your books, show me what fuckin’ homework is.” [6]

[52] I find that the status quo, at least since separation is that the Applicant Mother was the primary caregiver of Serena and that Serena has continued to live primarily with her in her section of the home. Serena’s outlook was that the upstairs portion of the house was her home and that is where she felt comfortable doing her homework notwithstanding the pressure brought to bear by the Respondent. And the Respondent’s allegation that Serena was somehow “coached” was unsupported by any evidence in his affidavit other than his bare allegation.

[53] I am concerned with the Respondent’s anger as expressed to Serena in the transcribed recordings. I am also concerned that the Respondent did not hesitate in having Serena convey hostile messages to the Applicant Mother, which is, for obvious reasons, completely unacceptable behaviour. Finally, it appears that the Respondent did not hesitate in deprecating, insulting and name calling Serena’s mother in the child’s presence, again completely unacceptable behaviour and poor parenting. This is apart from the continual use of obscenities in the course of parenting Serena.

[54] I am also concerned about the Respondent’s lack of respect for court orders. Although not related to the parenting issues, a particularly egregious and blatant example was the Respondent’s removal of the family vehicle, a Jaguar SUV, from the possession of the Applicant Mother. The order of Justice Douglas made on August 23, 2022 provided that the “Applicant will continue to use the family vehicle, the 2018 Jaguar.” However, in December, 2022, the Respondent removed that vehicle from the home resulting in the Applicant having to rent a vehicle. He returned it but then removed it again on January 3, 2023 (the same day he was recorded insulting and berating the Applicant in front of Serena) and when the Applicant was told she could go and get it “temporarily” after a case conference on March 17, 2023, she found it with a steering wheel lock on it making it unusable. The Applicant says that she has incurred in excess of $3,000 in vehicle rental fees as a result.

[55] When I commented on this during argument of the motion, the Respondent’s response was revealing. He was heard to say in the background that “she has another car” and therefore he was justified in taking the Jaguar. That means that the Respondent feels that if he has a good excuse to do so, he feels justified in breaching a court order. In his own affidavit, he suggests that the order had insufficient specificity to be obeyed (what, indeed, was meant by “the family vehicle”?). Unless the parties own a second 2018 Jaguar, the order was clear in its intent that the Applicant could use it and the Respondent purposefully breached it by depriving the Applicant of possession of the vehicle.

[56] This does not bode well for a shared coparenting arrangement as requested by the Respondent. To successfully coparent, each party needs to have an ability to comply with the requirements of the arrangement as reflected in agreements and court orders. If he does not, that invites police enforcement for the return of the child after parenting time comes to an end or the breach of clauses that parties may have agreed upon or ordered such as a non-deprecation clause. If the Respondent cannot even obey a court order regarding vehicle usage, how can he be trusted to comply with a co-parenting arrangement requiring cooperation and at least some measure of communication?

[57] Finally, communication is key to a co-parenting arrangement: see Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.). And it is obvious that these parties cannot communicate as disclosed in the record. The recorded calls, especially the January 3 recording, illustrate that well. The Applicant also alleges that the Respondent told her that he would “rather burn everything before I give any of it to you” [7] and that Serena told her that the Respondent told Serena that “Your mom better figure out how to make the Nissan into a 3-seater because he was taking the Jaguar and selling it for a pickup truck.” [8] More importantly, there is no evidence since separation that the Applicant and the Respondent have any history of communication regarding either of the children. Without that, it is difficult to suggest that the parties co-parent these children and, specifically, Serena.

[58] All of these factors mean that these parties cannot make decisions concerning the children together. This is a high conflict matter and the parties cannot be trusted to communicate between themselves if a decision is necessary. That job must be left with the primary caregiver of the children, the Applicant Mother.

[59] As well, these factors militate against a shared care regime. Such a regime requires some element of cooperation between the parties, and there is absolutely none in the present case. This is apart from the Respondent’s obvious disrespect for both the Applicant and the court process.

[60] Although the Divorce Act provides that the court should maximize contact between parents and a child, that is subject to the child’s best interests. As well, the court hesitates in giving a party a leg up in parenting litigation by providing for primary care, but again that is subject to the best interests of the child. Without any degree of respect and cooperation, Serena would be going between two houses, blind to one another like ships in the night. Serena needs consistent and firm parenting and only the Applicant can provide that. The Applicant shall have primary care of Serena.

[61] The Applicant Mother, to her credit, has offered generous parenting time to the Respondent. Serena has already had overnight parenting time with the Respondent since he moved out. She could have asked for much more restrictive parenting time under the circumstances. She has offered two evenings a week from 5:30 p.m. to 9:00 p.m. As well, she has offered every second weekend to the Respondent.

[62] I agree that homework was a source of stress to Serena as indicated by the recorded interactions. However, this occurred when the parties were under the same route and Serena really wanted to go upstairs to do her homework. Once parenting time has been established, I do not believe that this stress will continue. However, I believe that it would be in Serena’s best interests to replace two evening visits with at least one overnight visit during the week.

[63] To avoid conflict, pickups and drop-offs should be at the school. These parties should not be meeting to exchange Serena.

[64] Therefore, the parenting time schedule for the Respondent shall be as follows:

a. In week one, from Thursday with pick up after school to Friday with drop off at the school; b. In week two, from Friday with pick up after school to Monday morning with drop off at the commencement of school

[65] Lukas shall reside primarily with the Applicant Mother. He shall have parenting time with his father according to his wishes.

[66] The parties shall communicate through Appclose, Our Family Wizard or a similar parenting communication program.

[67] There shall be a non-deprecation provision in the order. As well, the Respondent says that he does not know where the Applicant is moving to and therefore the order shall provide that each party is obliged to advise as to where they are spending parenting time with the children.

Breaches of Orders

[68] The Applicant says that the Respondent is in breach of the order of Justice Douglas made on consent on August 23, 2022. And the Respondent acknowledged, at times, that he did disobey the order, but makes excuses for these breaches.

[69] The Applicant says that she wishes a monetary penalty (her costs of the various breaches) to be imposed by the court against the Respondent. This is, however, not a contempt motion; it can be more properly classified as an enforcement motion under rule 1(8) of the Family Law Rules. Under that rule, the court may make the following orders:

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

[70] The only place where the court has specific jurisdiction to address a fine or monetary penalty is under the contempt provisions of the Family Law Rules. There is a conflict in the case law as to whether there is jurisdiction to impose a monetary penalty under rule 1(8) above.

[71] In DiPoce v. DiPoce, 2022 ONSC 2099, Shore J. considered a situation where the respondent was in breach of a disclosure order. The motion was not framed as a contempt motion but Shore J. determined that an order imposing a fine against the Respondent could be made. She followed the decision of Chappel J. of Levely v. Levely (2013), 2013 ONSC 1026 which suggested that, in making an enforcement order a liberal interpretation of the rules is necessary to do achieve a just result under rule 2(2). Shore J. determined that she had jurisdiction to impose a daily fine against the person in breach of the order until the disclosure order was brought into good standing.

[72] The Applicant is not asking for a fine. She is asking that she be reimbursed for the Respondent’s breaches of the order where appropriate. Mr. Auciello suggested in his own affidavit that these are unimportant issues as far as he is concerned and a waste of the court’s time: see para. 4 of his affidavit sworn March 31, 2023 where he says that “the Applicant chooses to waste court time and resources on issues that could have been resolved on consent and others that could have been addressed through post-separation adjustments once the sale of our home closes.” The courts have suggested that a contempt motion is a last resort based upon the fact that it is quasi-criminal in nature and extremely confrontational: see Moncur v. Plante (2021), 57 R.F.L. (8th) 293 (Ont. C.A.). If these are minor issues as suggested by the Respondent, a contempt motion is the veritable sledge hammer being used against a gnat.

[73] I also doubt that these issues could have been settled at a conference. Justice Douglas ordered these issues to a motion after a conference where they were, presumably, discussed. I note the attitude of Mr. Auciello towards court orders as noted above and as set out in his affidavit. It is my impression that Mr. Auciello has little respect for orders of this court and I am not going to make Ms. Auciello wait for a final agreement or order on post-separation adjustments to reimburse her for clear breaches of the order. Also based upon Mr. Auciello’s attitude, it is unlikely that the parties would agree on these issues. A contempt motion would be disruptive and an excessive use of the court’s process. I am therefore willing to consider and make an order reimbursing Ms. Auciello in respect of her costs of remedying the breaches of the Respondent of the court order as requested.

Use of Family Vehicle

[74] The Respondent removed the Jaguar vehicle from the home in December, and then again on January 3, 2023 contrary to the order of Douglas J. dated August 23, 2022 which gave Ms. Auciello the use of that vehicle. The Applicant still is not using the vehicle. I have already commented on the circumstances of this event above.

[75] During the argument of the motion, Mr. Auciello excused his breach of the order when he stated that the Applicant already had another vehicle. In saying this, he was doubling down on what he said in his affidavit sworn March 31, 2023:

The consent order of the Honourable Justice Doulas (sic.) dated August 23, 2022 simply states that the Applicant shall continue to use the family vehicle. The vehicle is owned by my concrete paving company, A.I. Roadtech, note (sic.) me nor the Applicant. She does not pay for insurance, she does not pay for its financing, she pays nothing for the vehicle other than her own gas. In and around January 2023, I informed the Applicant that I required use of the vehicle as I no longer had a vehicle of my own. I have other work trucks, but these are used for job sites and used by my works during jobs.

[76] That is nothing other than an excuse for a breach of the order. Mr. Auciello’s narrative seems to be that the order was insufficiently certain to give his wife the exclusive use of the vehicle and that it does not specify the vehicle. The order does, in fact, specify that the vehicle in question was the 2018 Jaguar and there is no evidence that the parties owned another vehicle of that description. There was no evidence that, even though owned by the Respondent’s company, the Jaguar was not the family vehicle and the Respondent does not deny that it was the family vehicle. The fact that the Applicant had another vehicle at her disposal, a two-seater sports car, is no basis for allowing the Respondent to breach the order. Neither is the fact that the Respondent feels that the order is unfair to him; he agreed to it. And if the Respondent is using the “family vehicle” this effectively deprives the Applicant of the use of that vehicle in breach of the August 23 order.

[77] It appears that the Respondent was making good on his threat made to Serena to tell her mother to add another seat to the sports car “because he was taking the Jaguar and selling it for a pickup truck.” And that is what I find truly offensive about the Respondent’s actions: he deprived the mother of the vehicle that she used to transport the family contrary to a court order. He only agreed to return the vehicle at the case conference on March 17, 2023, more than 10 weeks later and then left it unusable due to a steering wheel lock. He was thumbing his nose, not just at the Applicant, but also at the court.

[78] There shall be an order that the Respondent reimburse the Applicant for the rental costs that she incurred in obtaining a replacement vehicle during the time that she was deprive of the use of the vehicle.

[79] The Respondent represented on the record that the vehicle is safe to drive. The minor damage to the vehicle does not confirm to me that it is unsafe to drive and the Applicant can pick up the vehicle and determine whether it drives safely. If the Applicant’s mechanic eventually finds that it is unsafe the Respondent shall reimburse the Applicant for the inspection and any costs to bring it into safe condition.

[80] The Respondent shall forthwith provide possession of the vehicle to the Applicant and provide all spare keys of the vehicle to the Applicant.

Household Costs

[81] The Applicant requests in paragraph 3 of her motion that the Respondent continue to pay all costs of the matrimonial home pending the closing of the transaction. This would include increases in the mortgage payment and for the internet.

[82] As well, the Applicant requests an order for reimbursement of $778.81 for the missed payments of household expenses.

[83] Paragraph 8 of the order of Douglas J. reads as follows:

The Respondent shall pay for all household carrying costs commencing immediately and until the sale of the home as follows:

a) Mortgage: $2068.35: 1st of each month, next payment being September 1, 2022 b) Property Tax: Next payment of $1895.00 due in September 28th, 2022, subsequently interim payments thereafter. c) Innpower bill: $257.14: 17th of each month, next payment being September 17, 2022 d) Vianet bill: $204.30: 10th of each month, next payment being September 10th, 2022

[84] The Respondent says that he is paying the bills; the Applicant has filed a spreadsheet showing that certain bills have not been paid. It is unclear to me whose evidence is true. The Applicant says that bills have been left unpaid; the Respondent says that she has not provided evidence of this.

[85] However, the evidence is from the Applicant is detailed as set out in the spreadsheet attached as Ex. H. The Respondent has provided no details whatsoever or proof of payment of the expenses.

[86] The Respondent says that the Applicant had the Vianet representative go into the basement and cut the wires to the internet server. The Applicant says that the Respondent did this. It is extremely unlikely that an internet provider would terminate service by leaving the server in place and physically cutting wires. I also cannot comprehend why the Applicant would cut off her own internet service which she and the children were using. Moreover, the Respondent’s obvious anger as shown by his own actions in removing the car, the statements to Serena and in his statements in the recorded conversations make it more likely than not that it was the Respondent who cut the cables to the internet out of malice.

[87] The Respondent has moved out of the home. He is not paying support and that will not be addressed until July 6, 2023. I am concerned that the Respondent will stop paying the bills. I am therefore ordering that the Respondent continue paying the household accounts to the date of closing as requested in paragraph 3 of the Applicant’s Notice of Motion.

[88] It is unclear to me as to how the amount of $778.81 was arrived at. That is not apparent from the spreadsheet attached as Ex. H: nowhere in that spreadsheet does the Applicant show where she borrowed money to pay household accounts. She shows where certain payments came from, but does not specify the amounts that she covered from her own resources. That will be left as a post-separation adjustment. Paragraph 4 of the Applicant’s motion is dismissed without prejudice.

Changing of Locks

[89] The Applicant claims $615.85 for the costs of changing the locks. The Respondent denies that this cost was incurred and says that his son changed the locks.

[90] The order of August 23, 2023 states that the Applicant is to change the locks and the Respondent is to reimburse her for the costs. The Applicant sent a copy of the quotes for the lock changes to the Respondent on August 25, 2023, each of which were more than the $615.85 that she is claiming. I do not believe that the parties’ son was qualified to change the locks throughout the home, especially the keypad for the alarm.

[91] There shall be an order as requested in paragraph 5 of the Applicant’s Notice of Motion.

[92] Related to this is the fact that the Respondent has now moved out of the home and the Applicant still does not have access to the basement which remains locked. That may put the children at risk in the event of an emergency which may require access to the sump or electrical panel for the home.

[93] There shall be an order that the Respondent provide the Applicant with a key to the basement of the home. The Applicant shall only enter the basement for necessary maintenance for the home or in the case of an emergency requiring access to the basement.

Line of Credit

[94] Paragraph 6 of the order of Douglas J. states that the Respondent shall not withdraw money from the Line of Credit:

Joint Line of Credit funds to be returned and deposited back into the parties' joint line of credit at National Bank, bearing account number 70-023-96, by the Respondent, in the amount of $45,000.00, no later than August 26, 2022. The Applicant is free to withdraw up to $45,000.00 from the account. Otherwise, neither party shall withdraw any further funds from the account unless or until written consent by parties, or Court Order.

[95] The Applicant deposes that after this date, the Respondent withdrew $4,502.52 from the line of credit.

[96] The Respondent does not deny that he did this. He says in his affidavit:

I agree that I need to pull money from our line of credit at times to make such payments because I had no money. There is no allegation that I took the funds for my personal use. The line of credit is in good standing. It is a joint line of credit, seeking relief that I be responsible solely for the line of credit is not only improper, but is a post-separation adjustment which is properly stated in this head of relief in the Applicant’s notice of motion, it is unclear why a motion should be required on this issue.

[97] He also says that the Applicant withdrew $6,000 from the line of credit.

[98] This appears to be an acknowledgement that he drew down the funds as alleged. The Applicant was entitled to withdraw the $6,000 complained of by the Respondent. According to the order, the Applicant may withdraw up to $45,000 from the line of credit and that otherwise, neither party shall withdraw any amount from the line of credit. The fact that the funds he drew down were not for his personal use is unimportant; the prohibition is absolute.

[99] Upon the sale of the matrimonial home, the sum of $4,502.52 shall be applied to the repayment of the line of credit from the Respondent’s share of the net proceeds of the matrimonial home prior to the amount being released to the Respondent under paragraph 4 of the consent attached to the endorsement of Douglas J. dated March 17, 2023.

[100] The Respondent to forthwith reimburse the parties’ joint account for the payment of $785.73 in interest charges removed from that account for payment of interest on the line of credit.

[101] There shall be an order to go as requested in paragraph 8 of the Applicant’s notice of motion.

Questioning, Disclosure and OCL

[102] The parties have agreed to mutual questioning as requested by the Applicant.

[103] The parties also both requested the OCL. I agree with the Respondent that a Voice of the Child report may leave unanswered questions under the circumstance. I will request an investigation or child representation by the OCL.

[104] Finally, the Respondent agreed that an order could go as requested by paragraph 11 of the Applicant’s Notice of Motion as he had already requested that of the Applicant.

[105] The parties acknowledge that all disclosure necessary to argue the support motion has been made although the Respondent’s income valuation report needs to be served prior to that motion.

Order

[106] There shall therefore be a temporary order on the following terms:

a. The Applicant shall have the right to make major decisions concerning the children provided that she shall provide 10 days knowledge of any major decision to be made concerning the children to the Respondent and shall consult with the Respondent as to the proposed decision. If there is a disagreement, the Applicant shall have the right to make the decision. b. The Applicant may make day to day decisions concerning the children without consultation. c. The Applicant shall have primary residence of both of the children. d. The parties’ son, Lukas, shall have parenting time with the Respondent according to his views and preferences; e. The parties’ daughter, Serena, shall have parenting time with the Respondent as follows: i. In week one, from Thursday with pick up after school to Friday with drop off at the school; ii. In week two, from Friday with pick up after school to Monday morning with drop off at the commencement of school f. The parties shall keep each other advised of the address where the children shall be residing or exercising parenting time. g. Neither party shall deprecate the other or permit deprecation of the other to the children or in the presence of the children. h. The parties shall continue to communicate through Our Family Wizard, Appclose or any other similar parenting communication program. i. The children shall continue to attend their present school after the closing of the sale of the matrimonial home. j. Pursuant to the Order of August 23rd, 2022, an Order that the Respondent shall immediately return the family vehicle, the 2018 Jaguar, his spare keys and lock nut keys and bolts, to the Applicant for her uninterrupted use until a further Court Order. k. Order to go as per paragraphs 3, 5, 6 and 8 of the Applicant’s Notice of Motion found at tab 21 of v. 2 of the Continuing Record; l. Upon the sale of the matrimonial home, the sum of $4,502.52 shall be applied to the repayment of the line of credit from the Respondent’s share of the net proceeds of the matrimonial home to be released to the Respondent under paragraph 4 of the consent attached to the endorsement of Douglas J. dated March 17, 2023. m. The Respondent to forthwith reimburse the parties’ joint account for the payment of $785.73 in interest charges removed from that account for payment of interest on the line of credit. n. The Respondent shall forthwith provide the Applicant with a key to the basement of the home. The Applicant shall only enter the basement for necessary maintenance for the home or in the case of an emergency requiring access to the basement. o. On consent, order to go as per paragraph 11 of the said Notice of Motion; p. On consent, both parties shall have the right to questioning of the other in respect of financial issues; q. The Office of the Children’s Lawyer shall be requested to become involved in either providing counsel or an investigation as to the best interests of the children;

[107] The Applicant has been successful in this motion and shall have her costs of the motion. The parties shall provide submissions as to the quantum of costs on a 10-day turnaround, the Applicant first and then the Respondent. Costs submissions to be no more than 3 pages in length excluding bills of costs and offers to settle.

McDERMOT J. Date: April 13, 2023

Footnotes

[1] R.S.C. 1985, c. C-46

[2] See Van Ruyven v. Van Ruyven, 2021 ONSC 5963, where Kurz J. describes at para. 39 these recordings as having gone from a “trickle to a gusher”.

[3] R.S.C. 1985, c. 3 (2nd Supp.)

[4] Recorded conversation from January 3, 2023 filed as Ex. E to the Applicant Mother’s affidavit sworn March 29, 2023

[5] Recorded conversation from October 5, 2022 filed as Ex. B to the Applicant Mother’s affidavit sworn March 29, 2023

[6] Ibid., recorded conversation from December 21, 2022 filed as Ex. D.

[7] Affidavit of the Applicant sworn March 29, 2023, para. 40.

[8] Ibid., para. 39(e).