ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-19-96673-00
DATE: 2023 06 07
BETWEEN:
Jacqueline Bartucci
Paul Portman, Agent for the Applicant
Applicant
- and -
Prosper Mario Bartucci
Self-Represented Respondent
Respondent
HEARD: April 24th, 2023. Written submissions completed May 23rd, 2023.
REASONS FOR JUDGMENT
LEMAY J
[1] The parties were married on May 26th, 2007 and separated for the final time on November 21st, 2019. They were able to resolve the financial issues flowing from their separation but have been unable to resolve the issues of decision-making responsibility and parenting time in respect of the children. There are three children of the marriage, C.B. (15 years old), A.B. (12 years old) and K.B. (9 years old).
[2] The Office of the Children’s Lawyer (“OCL”) accepted a retainer to become involved with this family under section 112 of the Courts of Justice Act, R.S.O 1990 c. C 43. The OCL delivered its final report on April 1st, 2022. Shortly thereafter, the Applicant requested an urgent motion date, and sought a motion to implement the OCL’s recommendations on a final basis. The key recommendations were that the Applicant have sole decision-making responsibility and that the Respondent’s parenting time be limited to supervised parenting time by a third party for the foreseeable future. A timetable was established for the submission of materials and motion dates were fixed last year.
[3] This motion has been adjourned on several occasions and was finally argued before me on April 24, 2023. At the conclusion of the hearing, I advised the parties that I required updated information on the status of the children, including communications between the parties, details about recent parenting time visits and whether the Respondent had taken any of the courses recommended by the OCL. That information was provided to me by way of further Affidavits. The parties were also provided with an opportunity to provide further argument.
[4] I have determined that the Applicant should have sole decision-making authority for the children on a final basis. I have also determined that the Respondent’s visits should be limited to supervised visits at a supervised access centre until further steps are taken by the Respondent. I remain seized to consider the sufficiency of those further steps and whether parenting time should be expanded and ultimately moved to unsupervised parenting time.
Background
a) The Parties
[5] The Applicant, Jacqueline Bartucci, is a pharmacy technician at a Toronto hospital. The Respondent, Prosper (Mario) Bartucci was, at the time the OCL report was prepared, a warehouse supervisor in Brampton. More recent material suggests that he is unemployed, but I have no confirmation of that fact. They were married on May 26th, 2007. They separated for the final time on November 21st, 2019.
[6] There are three children of the marriage, C.B., A.B., and K.B. A.B. has diabetes and celiac disease, both of which need to be managed through diet and an insulin pump. I understand that the other children have asthma.
[7] The Applicant alleges that the marriage was a troubled one, with numerous instances of domestic violence and cruelty. The Respondent alleges that the Applicant has made most of the allegations of domestic violence up in order to obtain an advantage in the family law proceedings. The Respondent also alleges that there was some violence on the part of the Applicant. The parties separated for the final time when the Applicant and the Respondent got into an argument that led to a shoving match in November of 2019.
[8] The Peel Childrens’ Aid Society (“Peel CAS”) has been involved in this case on numerous occasions. The complete CAS records are not in the materials that I have been provided with. However, I have excerpts from their records and a summary of those records is contained in the OCL report.
[9] The information over and above what I have from the OCL suggests that the Peel CAS was involved with this family, but that they closed their file in late 2020. The information also suggests that some of the concerns that were raised about the Respondent in particular were verified. I will return to those issues below.
[10] I would also note that disclosure of the CAS file appears to have been provided to the parties on August 28th, 2020 by way of a letter from Deana DeGrace, who was the Director of Legal Services and Privacy Officer for the Peel CAS. Further disclosure orders were available from the Court. As a result, I am of the view that any party that wanted to dispute the summary of the CAS’s involvement with this family could have sought a further release and/or a disclosure order from the Court. For the purposes of this motion, therefore, I am accepting the OCL’s summary of the CAS records as correct.
b) The Litigation History
[11] The litigation in this matter commenced in late 2019. The Applicant brought an ex parte motion before Ricchetti J. (as he then was), seeking a restraining order and other relief. Although Ricchetti J. was persuaded that the Respondent was breaching his bail conditions, he dismissed most of the relief sought by the Applicant and scheduled a contested hearing for December 13th, 2019. Ultimately, a restraining order (on a temporary basis) was agreed to by the parties.
[12] On March 4th, 2020, the parties entered into a consent Order that resolved all of the financial issues in this case. The issues of parenting time and decision-making authority were not resolved.
[13] The March 4th, 2020 Order also set out, on an interim basis, parenting time for the Respondent. That parenting time was to be every Saturday and every other Sunday for set hours. The parenting time was to be supervised by the Respondent’s father, Carmine Senior or his brother Ernesto. The parties were also required to sign a consent to produce the records from the Peel CAS. The Respondent was required to unblock the Applicant’s cell phone number in order to facilitate parenting time.
[14] On April 24th, 2020, the Applicant brought a motion before Bielby J. to vary the March 4th, 2020 Order to have parenting time and contact at the direction of the CAS. That motion was dismissed. However, orders were issued at that time that the children were not to be subjected to any physical discipline, that they were not to be included in any adult conversations, and that they were not to be questioned about the children’s interactions with the other parent.
[15] After the April 24th, 2020 Order was made, there was an incident where the Respondent slapped C.B. in the head and struck him in the ribs. The police were called. On May 22nd, 2020, Bielby J. varied the order to make it clear that the supervised parenting time visits were to take place where the supervisor could hear and see what was going on. The length and number of visits were also reduced by this Order.
[16] On September 24th, 2020, Bloom J. heard a motion by the Applicant for contempt and, in the alternative, to vary the orders of Bielby J. to require parenting time at a supervised access centre. The Respondent brought a cross-motion seeking various relief, including expanded parenting time. The Respondent also argued that the Applicant was breaching the Orders of Bielby J. denying him parenting time with the children.
[17] Bloom J. found that the Applicant had breached the Orders of Bielby J. and determined that she should be directed to comply with those Orders forthwith. Bloom J. dismissed the Applicant’s requests for relief as well as the Respondent’s requests for relief as he found that there had not been a material change in circumstances since the hearing before Bielby J. See Bartucci v. Bartucci, 2020 ONSC 6030.
[18] Ultimately, as a result of the further motions and cross-motions, the OCL became involved in this case and prepared a report. I now turn to that issue.
c) The OCL Report and Challenges to It
[19] On December 21st, 2020, the matter came back before Bielby J. for a further motion and cross motion. At that time, Bielby J. asked the OCL to become involved in this case. An extensive investigation was conducted by Kelly Schweitzer and a final report was prepared and dated March 28th, 2022. It was filed with the Court on April 1st, 2022. The cover letter states:
There were significant delays in completing this investigation; however, the investigation is now complete, and the Children's Lawyer Report is being filed with the court and with the parties today, April 1, 2022. A copy has also been enclosed for your review.
Given the severity of the issues that arose during this investigation, as well as concerns regarding the safety of Ms. Bartucci and the children, we wanted to ensure that you received the report directly and in a timely manner.
[20] In terms of parenting time[^1], the report itself provided the parties and the Court with the following recommendations:
Parenting Time: Mr. Bartucd's [sic] parenting time with the children should be supervised through the Peel CAS Supervised Access Centre. Parenting time should occur for 1-2 hours on a Saturday or Sunday every other weekend. C.B. should be able to make an independent decision about his parenting time with his father. Ms. Bartucci should provide for A.B.'s diabetic and celiac disease needs during parenting time.
Parenting time should transition from a Supervised Access Centre, to in-home supervision by the Brayden Supervised Access program, before consideration is given to Mr. Bartucci having unsupervised parenting time with the children in his home.
Mr. Bartucci should participate and complete the Caring Dad's program. This recommendation is made to further assist Mr. Bartucci in understanding the negative impact of his words and behaviour on the children.
The transition of parenting time, as referenced in recommendation #3 above, should only be considered after Mr. Bartucci has completed the Caring Dad's Program and the Cooperative Parenting and Divorce program (as recommended in #9) and has demonstrated his understanding of and ability to be child-focused during his time with the children. This includes a demonstrated ability to support A.B.'s diabetic and Celiac conditions.
Mr. Bartucci should not have telephone or any other form of virtual communication with the children until he completes the Caring Dad's program, as well as the Cooperative Parenting and Divorce program. Consideration should be given to telephone and other virtual communication only after Mr. Bartucci has demonstrated through counselling and during supervised parenting time that he can be child-focused in his communication with the children. Such contact with the children should only occur at the recommendation of the children's therapist.
Mr. Bartucci should participate in training offered through the Diabetic Clinic regarding A.B.'s diabetes. The training should include such things as: changing A.B.'s "guardian" site, completing glucose readings and effectively managing sugar levels. This recommendation is made as per Dr. Bahm's three priorities for the care of A.B.'s diabetic condition.
C.B., A.B. and K.B. should receive ongoing therapy. All recommendations regarding the children's therapy should be followed, including any issues pertaining to parenting time with their father.
Mr. Bartucci and Ms. Bartucci should complete the Cooperative Parenting and Divorce program offered through the Family Enhancement Centre. This program can be completed separately.
[21] The report explains that some of the delays in the preparation of the report were caused by a delay in receiving the Respondent’s signed collateral consent forms, the cancellation of the first observation visit by the Respondent and a delay in the Respondent providing his continuing record documents. There were other reasons for the delay, but it is clear that the Respondent contributed to the delays in preparing this report.
[22] In any event, the OCL concluded that only supervised parenting time should be provided to the Respondent until he had taken a whole series of steps. This supervision was to be done through a third-party supervisor, rather than one of the Respondent’s family members as the OCL had significant concerns about the ability of the Respondent’s family members to supervise him.
[23] On April 4th, 2022, the Applicant brought an urgent motion to have the terms of the OCL report in respect of parenting time and decision-making authority made into a final Order. By way of an e-mail endorsement dated April 7th, 2022, Trimble J. found that at least parts of the motion were urgent and directed that the Respondent file a reply and that a hearing take place before him on April 22nd, 2022.
[24] The Respondent opposed the relief sought by the Applicant and challenged the findings of the OCL. I pause to note that, if a party is going to challenge the findings of the OCL, then they have thirty (30) days to serve and file a statement disputing whatever portions of the report are being challenged. Section 21(e), Family Law Rules, O. Reg. 114/99, as am. The Respondent did not actually file such a challenge at the time that this matter was first heard on an urgent basis.
[25] The Applicant’s motion was heard by Trimble J. on April 22nd, 2022. At the hearing of the motion on April 22nd, 2022, some of the relief sought by the Applicant was adjourned to July 19th, 2022, while other portions of the relief sought by the Applicant was to be dealt with by way of a regular motion date to be arranged by the parties.
[26] The Respondent sought an adjournment of the July 19th, 2022 hearing on the basis that he was prepared to enroll in the courses proposed by the OCL and that he had just retained new counsel. Over the Applicant’s objections, the matter was adjourned to April 24th, 2023 for a three hour motion.
[27] Prior to the hearing on July 19th, 2022, the parties consented to the following relief:
a) The Respondent was required to participate in the Caring Dad’s program.
b) The Respondent was required to participate in training offered through the Diabetic Clinic regarding A.B.’s diabetes.
c) The children of the marriage were to receive ongoing therapy and the recommendations of the therapists in respect of parenting time with the Respondent were to be followed.
d) Both parties were required to complete the Cooperative Parenting and Divorce Program offered through the Family Enhancement Centre.
[28] As of the July 19th, 2022 hearing, the Respondent had not advanced any formal written challenges to the OCL report. In his Affidavit of August 18th, 2022, the Respondent stated that he was not familiar with Rule 21(e) of the Family Law Rules and that he was in the process of bringing a motion seeking an order extending the time for filing an “Affidavit in Dispute of the OCL Report.”
[29] On November 25th, 2022, a motion seeking an extension of the time to file a dispute of the OCL’s report was heard by Mirza J. Based on the submissions, Mirza J. determined that an extension should be granted for the Respondent to file a dispute of the OCL report. The Respondent was given until December 16th, 2022 to serve his statement in writing on the OCL and the Applicant, and file that statement with the Court. If there is a dispute, section 112 of the Courts of Justice Act, R.S.O. 1990, c. C 43 gives the Court the power to require the person who prepared the report to attend the hearing or trial as a witness.
[30] No statement of dispute was ever served or filed by the Respondent. While the Respondent’s submissions and Affidavits dispute certain parts of the OCL report, neither the OCL nor the Applicant were given a proper opportunity to respond to those disputes. For this reason, and for other reasons set out below, I accept the factual underpinnings of the OCL’s report. I am mindful of the principle that a trial judge is not required to accept either the factual findings or the recommendations contained in the OCL’s report. Their recommendations are only recommendations. Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721.
d) My Request for Further Information
[31] Before the hearing started on April 24th, 2023, I confirmed with the parties that they both understood that I was determining the question of decision making and parenting time on a final basis. They both acknowledged that my understanding was correct and that this was what they were asking me to do.
[32] I also confirmed with the parties that the most recent Affidavit information I had on file was the September 30th, 2022 reply Affidavit from the Applicant. After hearing argument, I determined that I required more information before I was prepared to make a final decision on the issues in this case. At the hearing on April 24th, 2023, I did make an order granting the Applicant sole decision-making authority in respect of the children on an interim basis.
[33] Given my view that more information was necessary, I required the parties to each file a further Affidavit providing updated information about the parenting time that the Respondent has had since September 1st, 2022. These Affidavits were to be served and filed by May 8th, 2023, and responding Affidavits were to be filed by May 15th, 2023. Any supplemental argument was to be served and filed by May 23rd, 2023.
[34] After the hearing had been completed, I provided the parties with a further endorsement, giving permission to the Respondent to provide proof that he has enrolled in, or attempted to enroll in, courses either suggested by the OCL or ordered by the Court. That material was to be included in the Affidavits that were to be filed by the parties.
[35] I received additional information from the parties. Both parties provided an Affidavit and a responding Affidavit, as my endorsement stipulated. I had also given the parties permission to file written submissions to supplement the submissions made at the hearing. Those submissions were due by May 23rd, 2023. I received nothing from the Applicant, and a further factual Affidavit from the Respondent.
[36] As a result, on May 31st, 2023 I had my judicial assistant contact the parties and inquire as to whether there were going to be any further submissions from either side. My judicial assistant has not received anything from the parties and nothing has been added to CaseLines. As a result, I decided to proceed with my decision.
Issues
[37] There are two issues to be determined in this case:
a) Should the Applicant be given sole decision-making authority over the children of the marriage?
b) What parenting time, if any, should the Respondent be given in respect of the children of the marriage?
[38] I will deal with each issue in turn.
Issue #1- Decision Making Authority
a) The Law
[39] This case is being decided after the amendments to the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp), as am. came into effect. These amendments are mirrored in amendments to the Children’s Law Reform Act, R.S.O. 1990, c. C. 12. However, I will focus on the Divorce Act provisions.
[40] The provisions of the new section 16.1 allow me to make an order in respect of parenting time and/or decision-making authority in respect of the children. In making both types of Orders, the best interests of the children are the only consideration: See section 16(1) of the Divorce Act and D.D. v. H.D., 2015 ONCA 409 at paras. 76-77. In this portion of the decision, I will address decision-making authority.
[41] In considering that issue, there does not appear to be anything that supersedes the older authorities about when joint decision-making would be appropriate. In that regard, I note the decision of the Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625, (2005) 249 D.L.R. (4th) 620. In that case, the Court stated:
[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.
[42] With these considerations in mind, I now turn to the question of whether joint decision-making authority would be appropriate and, if not, which parent should have sole decision-making authority.
b) Applying the Law to This Case
[43] I start with the question of whether decision-making authority should be joint or sole. As part of my consideration of this case, I directed the parties to file the communications over parenting time in the past year for me to review. That review was instructive, and I will discuss it more fully below. It is clear, however, that the parties are unable to have any meaningful communications over issues in respect of the children. The written discussions over the issue of parenting time show the parties arguing about who should be responsible for driving the children to parenting time visits, as well as who the supervisor should be.
[44] In addition, the OCL report and the text messages both show problems with the Respondent’s approach to parenting. A.B.’s combination of diabetes and celiac disease mean that she cannot eat gluten. There was an incident around Christmas time in 2021 where the Respondent fed and/or provided candy that had gluten to A.B. The Applicant’s lawyer raised this issue with the Respondent. The OCL report contains the following passage in respect of this issue:
He expressed frustration regarding Ms. Bartucd's [sic] "spitefulness" towards him, offering the example of receiving a lawyer letter regarding A.B. getting Christmas candy while with him, and comparing it to A.B. receiving Hallowe'en candy while with her mom. In response, he stated that he "refused to co-parent with this psycho".
[45] It is clear from this passage that it will be difficult for the Applicant and the Respondent to co-parent.
[46] It is also clear that the Respondent believes that the communications issues are all the responsibility of the Applicant. In his May 8th, 2023 Affidavit, the Respondent states “I strongly believe that the Applicant and I can communicate with one another if the Applicant upholds her commitment to maintain respect in her communications and she keep [sic] the communication child-focused moving forward.”
[47] There are three significant problems with this statement. First, it demonstrates that the Respondent is blaming the Applicant for the current poor state of communications. He has no understanding of his responsibility for the ongoing problems. Second, it is inconsistent with the Respondent’s continued demeaning comments about the Applicant, as set out at paragraph 22.
[48] Finally, in the Respondent’s interviews with the OCL, he insisted that the OCL clinician call the Applicant “the mother” rather than “Jackie”. This is in keeping with other occasions where the Respondent has referred to the Applicant as “Jane Doe”. The Respondent acknowledged that it was inappropriate to do this in his August 18th, 2022 Affidavit. However, the Respondent failed to demonstrate any understanding of the effect his lack of respect for the Applicant has on their ability to communicate.
[49] There is one other issue that illustrates the inability of the parties to make decisions jointly. In January of 2022, the Applicant sought consent to have the children vaccinated against COVID-19. The Respondent provided his written consent for this vaccine in January of 2022 and then withdrew his consent in February of 2022. This type of indecision on important issues on the part of the Respondent makes joint decision-making impossible.
[50] I would be irresponsible if I left decision-making as a joint exercise in this case. Decision-making must be made by one parent.
[51] I have determined that the Applicant should have decision-making authority for all of the children of the marriage for all issues. I have reached this conclusion for the following reasons:
a) The Applicant has primary residency of the children and has been, since the separation, primarily responsible for their day-to-day care and management.
b) As will be seen, the children have spent very little time with the Respondent since separation. He is not as aware of their needs as the Applicant is.
c) As I will also detail, there are significant problems with the Respondent’s parenting skills. As a result, I am of the view that the Applicant is better positioned to make the decisions for the children.
[52] As a result, an Order granting the Applicant sole decision-making authority on a final basis will issue. This Order is not subject to the review process I have described below for parenting time. It is a final order.
[53] Given my conclusions that the Respondent should have only supervised parenting time at this point, my disposition applies to both major decisions and day-to-day decisions when the children are with the Respondent. The Respondent will remain responsible for ensuring that A.B. receives proper care for her diabetes.
Issue #2- Parenting Time for the Respondent
[54] The more important issue for me to determine in this case is whether the Respondent should have parenting time and, if so, whether it should be supervised or unsupervised. I will briefly address the law on this issue, and then consider the circumstances of this case.
a) The Law
[55] As I have noted at paragraph 38, the provisions of the Divorce Act in respect of parenting time have been amended. They include the ability for the Court to make determinations as to whether parenting time is supervised and unsupervised. However, the principles the Court considers remain largely the same.
[56] As I have noted above, the Court considers the best interests of the children in making a parenting order. The key principles that the Court should consider include the ones set out in section 16(3), which states as follows:
(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,
o (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
o (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.
[57] One of the key changes for this case is the addition of exposure to family violence as a specific consideration. I have also considered the provisions of section 16(4), which set out factors for the Court to consider when deciding upon the impact of any family violence.
[58] I also note that, in the Knapp decision, the Court of Appeal also addressed the changes in the Divorce Act in respect of their effect on the maximum contact principle. At paragraph 34, the Court stated:
[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
[59] An understanding of the “maximum contact principle” is now exclusively focused on the best interests of the child. Indeed, the Supreme Court has provided further guidance on this issue in Barendregt v. Grebliunas, 2022 SCC 22:
[134] Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can and should restrict contact”: Gordon, at para. 24; see also para. 49. But in the years since Gordon, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14 (); Slade v. Slade, 2002 YKSC 40, at para. 10 (); see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.
[135] These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.
[60] In other words, the inquiry that I must conduct is focused on how much parenting time, if any, is in the best interests of these children. See also R.L. v. M.F., 2023 ONSC 2885 at para. 163 and following.
[61] With those considerations in mind, I now turn to the facts of this case.
b) Analysis of This Case
[62] The eldest child of the marriage, C.B., is now fifteen years old. In a note filed by the Applicant, his therapist states that C.B. does not want his father involved in his therapy as C.B. does not have a relationship with his father, the Respondent. In the materials that were filed, it was clear that there has not been parenting time, even supervised parenting time, with C.B. for almost two years. It appears that visits had stopped prior to the OCL report being completed.
[63] It is also clear why that has happened. The OCL report documents C.B.as stating that the last time he visited his father was in April of 2021. On that visit, the Respondent made C.B. dust his condominium and clean the two bathrooms. C.B. then skipped a visit and went back a couple of weeks later. He was given the same chores to do. For that and other reasons, C.B. stopped visiting the Respondent.
[64] The Respondent’s response to C.B.’s decision to stop visiting him was set out in the OCL report as follows:
Mr. Bartucci does not understand why C.B. stopped coming to parenting time. He said that maybe one day, C.B. will say "sorry" to him. As far as he is concerned, "until you are 18, you follow the rules, you can say fuck all, you do what I say, what you're told to do".
[65] This passage indicates that the Respondent has limited insight as to the effect his parenting approach has on his children. It also makes it clear that the relationship between the Respondent and C.B. is not likely to be repaired in the near future.
[66] C.B.’s preferences are a factor that should be considered in determining whether to require him to attend parenting time. See R.G. v. K.G., 2017 ONCA 108, 136 O.R. (3d) 689 at para. 67.
[67] Given C.B.’s age and the other factual findings I have made in this case, I am of the view that the contact between him and the Respondent should be left to C.B. to arrange should he wish to do so. The Applicant is to provide C.B. with the Respondent’s contact details to facilitate any contact that C.B. wishes to have with his father. There is no requirement for anyone to provide the Respondent with C.B.’s contact information unless C.B. wishes to have it provided to the Respondent. My ruling in this matter is informed by my findings of how the Respondent has parented all three children.
[68] This brings me to the two younger children of the marriage. In order to determine whether, and to what extent, they should have contact with the Respondent, it is helpful to answer three questions:
a) Does the OCL report accurately depict the manner in which the Respondent has parented the children?
b) If so, are there sufficient concerns with the Respondent’s parenting of the children to justify supervised parenting time with a third-party supervisor?
c) If supervised parenting time is appropriate, should the Respondent be given an opportunity to move towards unsupervised visits?
[69] I will deal with each question in turn.
The OCL Report
[70] I have already explained at paragraph 30 that the Respondent has not filed any formal challenge of the OCL’s report and that I accept its’ factual underpinnings because they have not been properly challenged and for other reasons. The other reasons why I accept the factual underpinnings of the OCL’s report are as follows:
a) The report is consistent with contemporaneous notes and reporting from the CAS. For example, the CAS stated that they had verified concerns about Mr. Bartucci’s use of inappropriate discipline with the children as far back as the fall of 2020. This is a concern that is also expressed in the OCL’s report.
b) Portions of the report, including concerning conduct on the part of the Respondent, are admitted by the Respondent. For example, the OCL’s statements that the Respondent was making disparaging comments about the Applicant to the children were verified in his own interview with the OCL. Specifically, during a call with A.B. and K.B., the Respondent called the Applicant “fat”. He then told the OCL clinician that there was no hiding this fact, and observed that the OCL clinician had seen the Applicant.
[71] The OCL report details a number of concerning instances of conduct on the part of the Respondent, and I now turn to those issues in my discussion of the question of whether supervised parenting time should be ordered.
Should Supervised Parenting Time be Ordered?
[72] Yes.
[73] I have reached that conclusion based on six different concerns that come out of the materials that have been filed on this motion. Those concerns are:
a) The Respondent’s inappropriate discipline of the children.
b) The Respondent’s disrespect and disparagement of the Applicant.
c) The threats of violence towards the Applicant.
d) The Respondent’s involvement of the children in the adult conflict.
e) The Respondent’s lack of insight into his contribution to the issues in this case.
f) The Respondent’s lackadaisical approach to the training suggested by the OCL.
[74] I will deal with each issue in turn. While I have done a comprehensive review of the materials that have been filed, I do not intend to review every fact and every allegation. Instead, I will provide illustrations to support the reasons for my conclusions.
Inappropriate Discipline of the Children
[75] The Respondent has acknowledged that he used to hit the children with a wooden spoon as a form of discipline. He also advised the OCL that he stopped this behaviour when he was told by the CAS that it was an inappropriate approach to parenting. I accept this acknowledgement. However, it is not the only inappropriate parenting approach the Respondent has adopted. There are two others that should be discussed.
[76] First, there is the allegation that the Respondent has pulled the children’s hair as a form of discipline. This has been reported to the OCL by both C.B. and A.B., and the Respondent’s response has been to say that it was an accident. I am concerned that it is not an accident but, instead, indicative of the Respondent’s approach to parenting the children.
[77] Second, there is the issue with C.B. discussed at paragraph 63. Disciplining a child for not visiting you by requiring them to clean the house the next time they visit is not an appropriate parenting approach. It ignores the reasons for the child’s behaviour and imposes the Respondent’s will on the child. Given the underlying facts, this could only serve to unnecessarily damage the Respondent’s relationship with C.B.
[78] In the OCL report, they also document an occurrence that the Peel Police investigated on April 11th, 2021. I note that this specific incident was not challenged by the Respondent. The OCL report states:
Peel Police records include a report regarding an occurrence on April 11, 2021. Police spoke with A.B., who confirmed that her dad had made multiple comments that made her "feel sad today". Further, "her father told her to light a napkin on fire and set the place on fire". When police spoke with Mr. Bartucci, he told them that the actions were a form of "discipline" and "an expression of his disappointment" in his children, including A.B., whom he told would be going to hell. He denied telling her to light a napkin on fire, and accused her of being a "chronic liar". Police expressed that this type of discipline is unacceptable, and the record indicated "Prosper was uncooperative with police and disagreed in regards to his methods of discipline".
[79] The fact that at least some of these incidents took place in the presence of the Respondent’s parenting time supervisor supports the conclusion that neither his father nor any other member of his family would be appropriate as a parenting time supervisor for the Respondent.
Disrespecting and Disparaging the Applicant
[80] At paragraph 70(b), I have already set out the incident where the Respondent called the Applicant fat. He has admitted to this incident. C.B. and A.B. have both confirmed that there have been occasions when the Respondent has used the words “fat”, “pig” and “whale” to describe the Applicant. There are other occasions where he has made disparaging comments about the Applicant.
[81] The Respondent has explained that these disparaging comments happen because it is important for the children to know how he feels, or that it is important for the children to know what the truth is. The problem with this approach is that the children are half of each of their parents. Disparaging comments about one parent are often seen by the children as disparaging comments about them.
[82] These types of comments also make it more difficult for the children to have a good relationship with both parents and make it more likely that the children will be drawn into adult conflicts.
[83] I would also note that the fact that these comments seem to be being made while the Respondent is in the presence of his supervisor would suggest that having a family member supervise the Respondent’s parenting time is not going to work.
Threats of Violence and Violence Towards the Applicant and the Children
[84] The Respondent has been criminally charged as a result of allegations made by the Applicant. I do not know what the outcome of those allegations is. Therefore, I do not intend to wade too deeply into making findings of fact about those allegations, as I do not wish to impinge on the decision-making functions of the criminal court. I will, however, review the evidence sufficiently to demonstrate that I have serious concerns about domestic violence on the part of the Respondent in this case.
[85] I start with the one allegation that was confirmed by the CAS. It was set out in the OCL report in the following terms:
Peel CAS worker, Ms. Marques', confirmed verification of emotional harm when Mr. Bartucci told the children he wished for their mother to be dead and in a box, "six feet under". The children reported to CAS that their father told them that he wished he had a gun because their mom deserves to be in a box six feet under. When CAS asked him if he understood the impact of his words on the children, Mr. Bartucci explained to Peel CAS that the children need to know how he feels.
Ms. Marques reported to OCL that when the children saw Mr. Bartucci after sharing this information with CAS, Mr. Bartucci punished them for what they disclosed and warned them that visits would continue in the same way until they told the police they lied. CAS expressed concern about the impact of Mr. Bartucci’s messages to the children, especially on A.B. CAS expressed concern about Mr. Bartucci’s lack of insight into the impact of his words on the children.
[86] Both the statements about the Applicant and the Respondent’s decision to discipline the children for sharing this statement with others demonstrate someone who is prepared to engage in controlling and potentially violent behaviour to get his way. It is conduct that is very concerning to the Court. The fact that this conduct may have gone on while the Respondent was being supervised is yet another reason to conclude that the Respondent’s family is incapable of supervising him.
[87] When the provisions of section 16(4) are considered, both the seriousness of this conduct and the risk of harm to the children are significant. This is another factor that strongly favours limiting the Respondent’s parenting time to supervised time with a third party supervisor.
[88] I draw further support for that conclusion from the comments made about violence to the OCL by A.B., as follows:
In reflecting on this, A.B. said she does not hate her mom. She "follows" a lot of things her dad does, such as "violence". She said she is trying to stop herself from doing her daddy's "violence", like hitting, kicking, punching. She has seen her daddy do those things. He has done them to her, her sister, her brother, her mom and their first dog, Ebony. A.B. said she has done those things to her siblings when she is really angry, and she is trying not to do them.
A.B. said her dad wants her and her siblings to live with him because he said she is "unsafe" with her mom. Her dad said her mommy has hurt him. She does not believe him.
Her mom wants her to live with her and to see her dad at other times.
A.B.said she sometimes feels "safe" going to see her dad, and sometimes she does not feel safe going there. She would not feel safe if her Nonno and Joyce were not there. She said she would not feel safe without them there because her daddy is "really aggressive".
[89] What can be drawn from these passages is that the Respondent has engaged in violent behaviour and that A.B.is, on occasion, modeling this behaviour. A.B.’s comments in a private interview with the OCL about this problem are consistent with the behavioural observations that are reported in the Applicant’s Affidavits. They are also consistent with statements made by C.B. in his private interviews.
The Respondent’s Involvement of the Children in the Adult Conflict
[90] Many of the observations about this involvement have been set out already. To summarize, the Respondent involves the children in the adult conflict because it is important for the children to know how he feels and to know what the truth is.
[91] The children should, as much as possible, be kept away from the adult conflict and should be allowed to be children. The fact that the Respondent does not seem to understand this fact is another reason for concern about his approach to parenting.
The Respondent’s Lack of Self-Awareness
[92] I have already given one significant example of this problem, which is the Respondent’s approach to his conflict with C.B. The OCL Report and the Affidavits filed by the Respondent are replete with other examples. I will highlight a couple of them to illustrate my concerns in this regard.
[93] First, in November of 2022, the children were given the opportunity to participate as marchers, and on a float, in the Santa Claus parade. This event landed on a day when the Respondent was supposed to have parenting time. The Applicant advised the Respondent that the children would not be available and explained what they were doing.
[94] The Respondent advised the Applicant that K.B. had advised him and his fiancée at dinner that she did not want to go and that “she started crying at the dinner table because she misses me.” Rather than telling K.B. to go and have fun at this opportunity, the Respondent insisted that K.B. should be dropped off for parenting time.
[95] When K.B. went to the parade, she then told the Respondent that the Applicant had “forced” her to go to the parade as she wanted to see the Respondent. The Respondent ended his exchange by saying “if you say this false information! Are you saying that K.B. is lying to me?” This is both an example of the Respondent drawing the children into the adult conflict and of not considering the effect he has on the children.
[96] Second, there was an exchange between the Respondent and the Applicant about A.B.’s disrespect. The Respondent wrote to the Applicant and said:
I’m not sure your aware? But A.B. attitude towards me is very disrespectful. Saying to me last night I only respect those who respect me. As her father respect should be given. I haven’t done anything wrong to her, but the disrespect is getting worse. What are your plans fon [sic] fixing this situation? Any idea would help?
[97] This passage seems to be an unfortunate, but typical example of the Respondent’s approach to parenting. It demonstrates to me that the Respondent does not understand the effect of his actions on his children or that he might be responsible for how they behave when they are with him. It also demonstrates that the Respondent is not prepared to accept responsibility for his actions, either past or present.
The Respondent’s Lackadaisical Approach to the OCL Recommendations
[98] The OCL recommended that the Applicant should undertake the following training before parenting time should move from an access centre to in-home supervised parenting time:
a) Participation in and completion of the Caring Dad’s program.
b) The Cooperative Parenting and Divorce Program offered through the Family Enhancement Centre.
c) Training on Diabetes through the Diabetic Clinic.
[99] In his August 18th, 2022 Affidavit, the Respondent confirms that part of the reason that he had sought an adjournment of the motion before Trimble J. in July of 2022 was so that he could take this training. In paragraph 21 of his August 18th, 2022 Affidavit, the Respondent states that he has enrolled in the Caring Dad’s program but that it does not start until September of 2022.
[100] I specifically provided the Respondent with the opportunity to update the courses he had taken as part of the post-hearing submissions. He has advised me:
a) That he has enrolled in the Cooperative Parenting and Divorce Program with a registered psychologist. He started this program at the end of March 2023 and had completed three of the eight sessions as of April 20th, 2023.
b) That he attended the Pediatric Diabetes Education Centre on February 9th, 2023 and that topics were reviewed.
[101] There is no indication that he ever enrolled in the Caring Dad’s program, much less that it was completed last September when he said he enrolled in it. The Respondent’s failure to address that course at all is a troubling indication of the lackadaisical approach he takes to these issues.
[102] Similarly, the fact that the Respondent didn’t even enroll in the other courses for six months after he provided his August 18th, 2018 Affidavit suggests that he did not view these courses as either urgent or serious and that he was just going through the motions in enrolling in them.
Supervised Parenting Time at Home
[103] It will be clear from my reasons above both what my concerns with the Respondent’s parenting are and the reasons for my finding that supervised parenting time is, at least at the start, required. I will briefly explain why I am of the view that a third-party supervisor is also required.
[104] Briefly put, a number of the inappropriate incidents that I have described above (such as calling the Applicant fat), have taken place in front of the Respondent’s supervising family member. The supervisor has not intervened to stop these events from happening. As a result, I am not persuaded that having a family member supervise the Respondent’s visits will assist in managing the issues in this case.
[105] From this conclusion, it follows that I have concluded that the Applicant’s position that the Respondent’s fiancée should not be supervising the children is a reasonable one. The Respondent’s concerns that the Applicant is not accepting his fiancée as a supervisor at this point are not supportable and I reject them.
Should the Respondent Be Allowed to Move Towards Unsupervised Parenting Time?
[106] I am not prepared at this point to provide the Respondent with unsupervised parenting time. I am not even prepared to consider that possibility without both significant additional information and a demonstration that the Respondent has significantly changed the way he parents and interacts with the Applicant. The directions that follow in this section refer only to A.B. and K.B. I have already indicated that C.B.’s parenting time shall be at his discretion. The provisions set out below do not apply to him.
[107] I start with the observations of McGee J. from S. v. A., 2021 ONSC 5976 where she stated, at paras. 24 and 25:
[24] A history of family violence has always been an important factor in the adjudication of parenting disputes. An Order for decision making is never appropriate when there is evidence that it will be misused to frustrate or control the other parent or a child in a manner that is not in the child’s best interests. A history of family violence is also relevant when deciding a parenting plan, specifically, its impact on the ability and willingness of the parent who engaged in family violence to care for and to meet the needs of the child, and to cooperate with the child’s other parent.
[25] Children must first and foremost be safe in their parents’ care. The Divorce Act amendments recognize this primal need in Section 16(2) by making a child’s physical, emotional, and psychological safety, security, and wellbeing the primary consideration. No conduct by a caregiving parent that deliberately undermines a child’s sense of safety or self should be sanctioned or permitted to continue.
[108] The threats of violence, at a minimum, in this case are significant. In addition, at this point, the parenting skills of the Respondent are insufficient to permit him to have unsupervised parenting time. The willingness of the Respondent’s family to police his conduct and act as appropriate supervisors is also insufficient to permit them to supervise his children.
[109] It might be argued that the Respondent has had the children in his home and that I should not be going backwards to third-party supervised parenting time in terms of parenting time. The problem with this argument is that it does not take into account the very concerning aspects of the Respondent’s parenting style that I have reviewed in this decision. In my view, the Respondent needs to have a complete reset in terms of how he deals with his children.
[110] As a result, the only alternative is supervised parenting time with a third-party supervisor. As will be seen from my reasons, I have concluded that most, if not all, of the responsibility for the problems in this case rests with the Respondent. I am also not satisfied that the Respondent understands the very significant problems with his conduct.
[111] Therefore, before I am prepared to even consider supervised parenting time in the Respondent’s home, I require the following to be done:
a) The Respondent will have at least three months of supervised visits at a supervised parenting centre. The notes from those visits are to be provided to the Applicant as the visits are completed and to me before I am to make another decision in this case.
b) The visits described in paragraph (a) shall take place once a week, on Saturdays or Sundays, depending on the children’s schedule and the availability of the supervised parenting centre. The visits are to be no more than two hours in length each time.
c) The Respondent will attend the Caring Dad’s course and provide both a statement that it has been completed as well as a statement from the course instructor confirming that the Respondent has understood and accepted the course content.
d) The Respondent will provide documentation to confirm his completion of the Cooperative Parenting and Divorce Program as well as any notes that the clinician conducting the course is prepared to provide to the Court outlining the discussions with the Respondent.
[112] If the Respondent completes all of these activities within six months of the release of these reasons, I will then be prepared to consider ordering supervised parenting time in the Respondent’s home. If the Respondent does not complete all of these activities within six months of the release of these reasons, then the order limiting the Respondent to supervised parenting time in a supervised parenting centre shall become final.
[113] In that respect, I note that there may be a backlog at the Peel Supervised Access Centre. To that end, I would suggest that the Respondent consider using Brayden Supervision Services or some other private parenting time supervisor. Either way, the responsibility for finding this service, organizing it and paying for it rests with the Respondent. Once he has proposed a plan, the Applicant shall have seven (7) calendar days to approve it.
[114] In his Affidavit of May 8th, 2023, the Respondent states (at paragraph 28) that it is his understanding that the Applicant was also required to complete the Cooperative Parenting and Divorce Program course. My orders did not permit the Application to file this proof. However, she is directed to do so within ninety (90) days of today’s date.
[115] That being said, I accept the OCL’s recommendation that this course should be completed by the Applicant as well as the Respondent, and I am directing that she enroll and complete it within six months of the release of these reasons.
Conclusion
[116] For the foregoing reasons, I am ordering as follows:
a) On a final basis, that the Applicant shall have sole decision-making authority for the children of the marriage.
b) On a final basis, that the Respondent’s parenting time with C.B. shall be at C.B.’s discretion and shall be arranged between C.B. and the Respondent if C.B. so wishes.
c) On a temporary basis, that the Respondent’s parenting time shall be limited to one supervised visit at a supervised access centre per week.
d) The visits described in paragraph (c) shall be on Saturdays or Sundays at a time that works best for the children’s schedule. If there are any issues in choosing the date, I retain jurisdiction to select it.
e) In terms of the supervised parenting time, the Respondent may choose either the Peel Supervised Access Centre or Brayden Supervised access services for the parenting time visits if they will accept the case. If there is a different supervisor sought, then it must either be approved by the Applicant or by the Court.
f) The costs of the supervised parenting services shall be the Respondent’s sole responsibility.
g) The Respondent shall, within six months of the release of these reasons provide proof of completing the Caring Dad’s course along with any notes that the persons conducting the course are prepared to provide.
h) The Respondent shall, within six months of the release of these reasons, provide proof of completion of the Cooperative Parenting and Divorce program along with clinical notes in respect of this program.
i) The Applicant shall, within ninety (90) days of the release of these reasons, provide proof of completion of the Cooperative Parenting and Divorce program.
j) The Respondent shall serve and file proof of completion of the courses identified in paragraph (d) in an Affidavit within four (4) weeks of completion. Proof shall mean documentation from the course provider of both enrollment and satisfactory completion of the course.
k) In the event that the Respondent fails to comply with paragraphs (d) to (h) and (j) of this Order, the temporary order limiting parenting time to supervised access at an access centre shall become final.
l) If the Respondent complies with all of the requirements in paragraphs (d) to (h) and (j) of this Order, a date can be obtained from the Trial Office to speak to me for timetabling consideration of the next step in access in this case.
[117] This brings me to the subject of costs. The parties are encouraged to agree on the issue of costs, if possible. If not, then the following timetable will apply for costs submissions:
a) The Applicant shall have ten (10) calendar days from the release of these reasons to serve and file her costs submissions. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.
b) The Respondent shall have ten (10) calendar days from the date that he receives the Applicant’s submissions to serve and file his costs submissions. Those submissions are to be no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.
c) For the purposes of this Order, the parties are to both upload their costs submissions to CaseLines and provide a copy to my judicial assistant.
d) If I do not receive costs submissions in accordance with this timeline, then there shall be no costs for this motion.
[118] Finally, although I remain seized of this matter, the parties are to arrange the date for the appearance before me through the trial office. There is no need, or authorization, to contact my judicial assistant in that regard.
LEMAY J
Released: June 7, 2023
COURT FILE NO.: FS-19-96673-00
DATE: 2023 06 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jacqueline Bartucci
Applicant
- and -
Prosper Mario Bartucci
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: June 7, 2023
[^1]: At the time the case was started, the old terminology of access and custody was used. I will use parenting time and decision making authority in these reasons unless I am quoting directly from a report or document. Where I am quoting directly, I will reproduce what was written at the time.