COURT FILE NO.: FC-10-00000558-0001 DATE: 2023-06-08

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Jason Romanelli Applicant – and – Rosa-Maria Regis Respondent

Counsel: J. Nadeau, for the Applicant Self-represented M. VanderSpek, for the Office of the Children’s Lawyer

HEARD at St. Catharines: May 17, 23, 24 and 26, 2023

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR JUDGMENT

INTRODUCTION

[1] Both the applicant, Jason Romanelli (the “applicant”), and the respondent, Rosa-Maria Regis (the “respondent”), bring motions to change the final order of Justice Ramsay, dated June 25, 2015 (“the 2015 order”). The issues involve the primary residence of their daughter, Ariana Maria Romanelli, born May 28, 2010 (“Ariana”), decision-making responsibility, parenting time, child support, and s.7 expenses.

[2] The primary residence of Ariana was initially with the respondent. The 2015 order provided that the applicant would have parenting time with Ariana from after school every Friday until her return to school the following Monday. The 2015 order also directed the applicant to pay child support to the respondent of $163 per month based upon his income of $25,300 per year.

[3] Ariana came into the applicant’s primary care in March 2020 with the assistance of Family and Children’s Services Niagara (“FACS”) when the respondent suffered a mental health breakdown that caused her to be unable to care for Ariana and her other two children. Ariana’s primary residence has been with the applicant since that time. The applicant and Ariana have lived together in Brampton since approximately October 2020, while the respondent has continued to live in the Niagara Region. I note that a temporary order dated August 6, 2020 provides for Ariana to be in the temporary care of the applicant.

[4] The temporary order also provides for the respondent to have parenting time on alternate weekends from Friday until Sunday. Despite that provision, the respondent has had very little parenting time with Ariana since March 2020.

[5] The applicant submits that Ariana has thrived in his primary care, and that the 2015 order should be changed accordingly. In summary, the applicant requests orders that the applicant have sole decision-making responsibility for Ariana, that primary residence of Ariana be with the applicant in Brampton, that the respondent have parenting time once per month supervised through Pathstone Mental Health (“Pathstones”), that the respondent pay Guideline child support to the applicant, and that s.7 expenses be shared in accordance with the respective incomes of the applicant and the respondent.

[6] The respondent submits that Ariana should be returned to the respondent’s primary care and that the respondent should have sole decision-making responsibility for Ariana. She requests that the applicant have no parenting time with Ariana, but she is willing to accept an order that the applicant have parenting time on alternate weekends. She also requests orders that the applicant pay Guideline child support to the respondent and that the applicant pay retroactive child support.

FINDINGS OF FACT

[7] I find that the parties never cohabited with one another. Ariana was born on May 28, 2010, after a brief physical relationship between the applicant and the respondent. Parenting issues between the parties were the subject of several court orders in Ariana’s early years, culminating in the 2015 order.

[8] The respondent has a history of both mental and physical health problems. No medical evidence was called by either party about the respondent’s medical issues, and accordingly I can only make general findings on this topic.

[9] I find that the respondent has had mental health problems for many years. The respondent has described those problems at different times as borderline personality disorder, post-traumatic stress disorder, and depression. The respondent’s mother, Roseanne Davis, testified that the respondent suffers from borderline personality disorder. I accept that the respondent has taken medications and engaged in counselling for her mental health. I find that she continues to suffer from ongoing mental health problems related to one or more of the abovementioned conditions.

[10] Regardless of her precise psychological diagnosis, I find that the respondent is prone to periodic mental health breakdowns. She is also prone to suicidal ideations. I find that on at least two occasions since 2014 her behaviour has resulted in police officers detaining her and taking her to a hospital for her own safety pursuant to the Mental Health Act.

[11] Regarding her physical health, it is unclear as to whether the respondent currently suffers from multiple sclerosis. She testified that she was diagnosed with multiple sclerosis in 2017, but that by the end of 2018 she did not have any significant symptoms. In her sworn Change Information Form she deposed that she had been diagnosed in error. For the purpose of this decision, I find that the respondent was diagnosed with multiple sclerosis in 2017, and that as a result she had difficulty with her mobility. I also find that this disease has been in remission in the respondent since the end of 2018.

[12] An incident occurred in early March 2020, just before the COVID-19 pandemic arrived, that changed the parenting status quo. At that time, Ariana and her two younger half-sisters, Amara and Aveah, were living with the respondent. FACS became involved after FACS workers were informed that the respondent was again having problems with her mental health. During the FACS investigation, the respondent informed the FACS workers that she was struggling and felt overwhelmed. She told FACS that she was not mentally well and that she could not care for her children.

[13] I find that the respondent sent a text to the applicant asking him to take over full-time care of Ariana, and the applicant agreed to do so. Then, the FACS workers assisted the respondent by facilitating the transfer of Ariana’s care from the respondent to the applicant. Since early March 2020, Ariana has remained in the full-time care of the applicant with the consent of FACS.

[14] At approximately the same time, Amara began to live with her biological father. Amara now lives with her father in Brampton. Aveah was initially placed in foster care but is now once again living with the respondent.

[15] The applicant has worked in Brampton for many years. I accept that the applicant sold his house in St. Catharines and attempted to move to Brampton in August 2020, but that the respondent brought an urgent motion to prevent the move. As a result, the applicant and Ariana moved to Welland where they remained until they permanently moved to Brampton in October 2020.

[16] The respondent has had sporadic contact with Ariana since March 2020. I find that the applicant has made good faith attempts to facilitate contact between Ariana and her mother, with mixed results.

[17] To his credit, when he moved to Brampton the applicant set up a dedicated telephone line and a dedicated email address that would allow the respondent and Ariana to contact each other privately at any time. I accept that these private dedicated communication lines remain in place, but that they are rarely used by the respondent or by Ariana.

[18] Reconciliation counselling for the respondent and Ariana was set up in early 2021. However, I find that the counsellor chose to discontinue reconciliation counselling after approximately two months. The discontinuation was at least in part because of the respondent’s criticism of the counsellor’s decision to meet with each of the parties separately by teleconference.

[19] The first attempt at in-person parenting time for the respondent, after March 2020, was in September 2020, at which time the applicant drove Ariana to the respondent’s home for a visit. It did not go well. I accept the applicant’s evidence that Ariana was very anxious about the visit, as she was still extremely upset about the March 2020 incident. Ariana did not want to get out of the car to see her mother, resulting in a conflict between mother and child, and then between the applicant and the respondent.

[20] I find that there were four attempted in-person visits in a park setting in the summer of 2021. On three of those occasions Ariana in fact was able to visit with her two sisters and her mother while the applicant remained generally in the vicinity of the park. On at least two of those occasions, however, Ariana either arrived or left very upset. I accept the applicant’s evidence that Ariana was anxious about the possibility that she would be removed or stolen away from the applicant.

[21] Finally, there was a visit arranged in June 2022 at Boston Pizza. Ariana was able to visit with her two sisters and the respondent while the applicant remained in another part of the restaurant. I accept the applicant’s testimony that this meeting was better than the others as Ariana was getting older, but that Ariana was still a little bit flustered.

[22] There has been no in-person contact between the respondent and Ariana since June 2022. The only evidence of a request from the respondent for parenting time in the past year is her testimony that in July 2022 she asked a Superior Court Justice about her parenting time on the return of the respondent’s unsuccessful motion for contempt.

[23] The applicant, through counsel, has confirmed that he has been in favour of in-person parenting time for the respondent provided that the respondent respected Ariana’s request for safeguards, including having the applicant present in the vicinity, having a planned activity, and giving Ariana the discretion to end the visit early. The respondent would not agree to those safeguards, and therefore there has been no parenting time for the respondent since June 2022.

ARIANA’S VIEWS AND PREFERENCES

[24] The FACS records show that Ariana felt traumatized by the events of March 2020 which involved Ariana watching her younger sister being removed from the home and taken away from her. As a result, I find that she currently has an anxiety problem that is associated with visiting her mother. Specifically, she is fearful that if she visits her mother, she will not be permitted to return home to her father.

[25] Cynthia Katz is a clinician for the Office of the Children's Lawyer who was appointed to ascertain Ariana’s views and preferences. Ms. Katz met with Ariana on six occasions over the course of approximately 18 months during which she talked with Ariana about Ariana’s relationship with both of her parents.

[26] I accept Ms. Katz’s evidence that Ariana was composed, friendly, and polite, and that Ariana has very strong views and preferences about parenting time. Those views and preferences have been consistently expressed to Ms. Katz since their first meeting.

[27] Ms. Katz testified that Ariana felt that her mother was not well during the time that Ariana was living with her. Ariana told Ms. Katz that her mother slept a lot and spent a lot of time in bed. As the eldest child, Ariana felt that she was responsible for caring for the home and for her younger siblings. At one point, Ariana told Ms. Katz that she did not want to see her mother until her mother was able to “fix” what was wrong with her.

[28] Regarding in-person contact with her mother, Ariana consistently told Ms. Katz that she fears that if she meets with her mother in an unsafe environment, her mother will take her back to her mother's house and not permit her to return home to her father. She also stated that on one occasion her mother tried to “bribe” her into returning to her care by offering her gifts that she could only keep if she agreed to live with her mother.

[29] In summary, Ms. Katz testified that Ariana strongly prefers to live with her father in Brampton. She has no immediate interest in visiting with her mother, but she is willing to see her mother if it is done in a safe manner. By this she means that her parenting time with her mother would be in a public setting, with a planned activity, with her father nearby. She also does not want to be forced to see her mother; she wants to have the discretion to decide whether she will in fact see her mother and the discretion to end the visit early.

[30] Ariana has also expressed a strong desire to maintain a relationship with her two younger sisters, not necessarily in the presence of her mother. Ariana seems to have a good relationship with her maternal grandmother, Ms. Davis, and is willing to see her sisters in the presence of Ms. Davis.

[31] The respondent testified that she does not believe that Ariana wishes to continue to live with her father, and not with her. She believes that the applicant has manipulated Ariana and has alienated Ariana against her.

[32] I reject the respondent’s submission that Ms. Katz's evidence does not represent Ariana’s true views and preferences. There is no evidence of deliberate alienation. Further, in support of her submission, the only evidence adduced by the respondent is her testimony that she had a good relationship with Ariana until March 2020 and her belief that the applicant must be responsible for manipulating Ariana’s views since then. I find that the respondent is not in a good position to ascertain Ariana’s true views and preferences as the respondent has had little contact with Ariana over the past three years. The respondent’s belief has no foundation.

[33] Moreover, I find that Ms. Katz conducted a thorough and independent investigation. I find that Ms. Katz was able to accurately determine Ariana’s thoughts, views, and wishes. I rely on the testimony of Ms. Katz on this issue.

ANALYSIS

(a) Parenting Issues

[34] The overriding consideration in making any decision as to primary residence, parenting time, and decision-making responsibility is the best interests of the child.

[35] Regarding primary residence, I find that the current status quo favours an order that Ariana remain in the applicant’s primary care. Ariana has been living in Brampton with the applicant since October 2020. She is doing very well academically and socially. Ariana’s anxiety issues have improved since she initially came into her father’s care. A move now from her father’s home in Brampton to her mother’s home in Niagara would cause disruption to Ariana’s schooling, her social relationships, and her extracurricular activities, all of which would not be in her best interests. Further, it is clear that in March 2020, the respondent agreed that Ariana should live with the applicant.

[36] Another strong factor in favour of the applicant’s request is the fact that Ariana has strong views and preferences. She is content with her present situation, and she wishes to continue to live with her father in Brampton. She remains fearful and uneasy about being alone with her mother. I accept that Ariana is justifiably anxious because of the March 2020 incident, and she is just starting to get over that anxiety. I find that it would not be in Ariana’s best interests to ignore her views and preferences. In my opinion, to order Ariana to live with her mother would only increase her fears about being stolen away from her father.

[37] The respondent was asked on the witness stand why she believed that it was in Ariana’s best interests to be in her care. Her response was that the applicant was not acting in Ariana’s best interests because the applicant did not pay child support for the child’s first eight years. In my view, that response indicates that the respondent’s request for primary residence of Ariana is based on self-interest, not on the best interests of the child.

[38] I also have grave concerns about returning Ariana to the respondent because of the respondent’s periodic mental health breakdowns. I find that the respondent’s mental health issues are still present and occasionally result in significant periods of incapacity. Without further medical evidence, and without evidence that the respondent can parent Ariana on a full-time basis, it would be unwise to place Ariana in the respondent’s full-time care.

[39] In support of this finding, I rely on the evidence of Ms. Davis, the maternal grandmother, who testified on behalf of the respondent. I found that Ms. Davis’s testimony was open, honest, and frank. She clearly wishes to support her daughter, the respondent. She also clearly wishes to have a good relationship with her three granddaughters, including Ariana.

[40] I accept Ms. Davis’s testimony that she has had an on and off relationship with the respondent over the years. She said, and I accept, that there are occasions in which the respondent will become angry at her and will decide not to talk to her. During these periods, Ms. Davis has very little contact with her three grandchildren.

[41] Ms. Davis also testified that she thought that her daughter was generally a good parent “when she is mentally and physically well”. I accept this to be an accurate statement. That is, I accept that the respondent is a good parent when she is physically and mentally up to the task. However, I also accept that there are times in which the respondent is not well, and this limits her ability to parent.

[42] On the other hand, I find that the applicant has demonstrated a good ability to act in Ariana’s best interests. In setting up parenting time for the respondent he has tried to respect the wishes of Ariana regarding safeguards. He has arranged for and facilitated visits between Ariana and her grandmother, Ms. Davis. He has also facilitated some visits between Ariana and her younger sister, Amara, in Brampton.

[43] The applicant has also arranged counselling for Ariana so that she can deal with her anxiety. Ariana has been attending school more regularly since the move to Brampton and she is doing well academically. Further, the applicant and Ariana have been involved in activities together, including swimming and basketball. Overall, Ariana is doing well in the applicant’s care.

[44] Considering all of these factors, in my view, it is in Ariana’s best interests for her primary residence to be with the applicant in Brampton.

[45] Regarding decision-making, I find that the respondent has not been involved in Ariana’s life to any great extent for the past three years. All of the recent decisions for Ariana have been made by the applicant, and those decisions have generally been beneficial for Ariana in terms of improving her mental and physical well-being.

[46] It is not appropriate to order joint decision-making responsibility if the mother and father of the child cannot work together. In the present case, I find that the respondent is bitter and angry towards the applicant. The respondent also blames the applicant for problems with her mental health, and for problems with her relationship with Ariana. I find that it is unlikely that the applicant and the respondent will ever be able to work together to make decisions that are in Ariana’s best interests.

[47] Furthermore, Ariana distrusts her mother. Given that distrust, the respondent’s mental health issues, and Ariana’s wishes, it is not in the best interests of the child to give any independent decision-making responsibility to the respondent.

[48] Therefore, I will order that sole decision-making responsibility for Ariana be with the applicant, although I will add a term that requires the applicant to consult with the respondent with respect to any major decision for Ariana.

[49] Regarding parenting time for the respondent, I find that Ariana still has anxiety and fears that are associated with the time she lived with her mother. Ariana has expressed the view that she is willing to have some contact with her mother, but she wants some safeguards.

[50] Ariana is willing to see her mother if the parenting time with the respondent is in a public setting, with a planned activity, with her father nearby. She wants to have the discretion to decide whether she will in fact see her mother and the discretion to end the visit early. Further, she only wants to spend a short amount of time with her at first. In my view, Ariana’s views should be respected and acknowledged, although all of these conditions may not be necessary for every visit.

[51] I find that it is necessary to impose some limits on the respondent's parenting time. In consideration of Ariana’s wishes, the concerns about the respondent’s mental health, the history of problematic in-person visits, and the nature of the present relationship between Ariana and her mother, I believe that, at present, any parenting time for the respondent should be supervised and for short periods of time.

[52] The applicant requests supervised parenting time once per month at Pathstones, which is an institutional supervised access program. I find that this is an appropriate way to start the re-introduction of contact between mother and child.

[53] However, if the parenting time through Pathstones goes well, I find that supervised parenting time should be increased to include more frequent visits and visits in the community. I find that Ms. Davis would be an appropriate supervisor in the community. Ms. Davis is willing to accept that responsibility. The applicant agrees that Ms. Davis would be an appropriate supervisor, and the respondent, although reluctant, will accept Ms. Davis if that is the “best option” for her.

[54] Therefore, I will order that the parties attempt to arrange additional parenting time for the respondent, supervised by Roseanne Davis, at times and on terms that are agreed upon by the parties.

[55] Regarding sibling access, it is clear that Ariana wishes to have a relationship with her sisters and would like to see them as well. I cannot order sibling access as the biological parents of all of the children are not parties to these proceedings and there is no pleading that requests sibling access. However, I hereby direct that the applicant use his best efforts to facilitate access between Ariana and her siblings at times and on terms that are agreeable to Ariana and the applicant.

(b) Financial Issues

[56] Regarding the applicant’s request for child support, I find that the respondent’s only current source of income is from ODSP. Although she testified that she hopes to find full-time work in the future, I find that the respondent’s mental and physical health issues limit her ability to work. I have no evidence on which I could conclude that the respondent is deliberately underemployed. Therefore, I do not accept the applicant’s submission that I should impute income to the respondent at the rate of a minimum wage full-time job.

[57] Because of the respondent’s limited income, I will not make any order that the respondent pay child support to the applicant at this time. Similarly, I will not make any order for the respondent to contribute to s.7 expenses at this time.

[58] Regarding the respondent’s request for payment of child support arrears owed by the applicant, the respondent has not provided a particularized calculation of the arrears. She simply alleges that there are substantial arrears. Counsel for the applicant requests that I make an order that there are no arrears, but the applicant also did not provide any specific calculations or details.

[59] In my view, I am governed by the 2015 order that states that child support payable by the applicant shall end on June 30, 2015, and that “no child support is payable thereafter until the respondent discloses her income.”

[60] I have no evidence as to whether the respondent has disclosed her income since 2015, to what extent disclosure has been made, or when it was made. I also have no evidence as to what child support, if any, has been paid by the applicant since June 30, 2015. Further, I have no information as to the time period for the alleged arrears, or the reason why this issue has not been dealt with prior to 2023.

[61] Accordingly, I am unable to make any finding as to what child support, if any, is owed by the applicant for the period prior to March 2020. To assist, I will make an order that the applicant's obligation to pay child support for Ariana to the respondent terminates as of March 8, 2020, the date on which Ariana started to reside with the applicant.

[62] I will also order that both parties provide annual income disclosure to each other.

CONCLUSION

[63] For the abovementioned reasons, I make the following orders:

1. The primary residence of Ariana Maria Romanelli, born May 28, 2010, shall be with the applicant in Brampton.
2. The Regional Municipality of Peel is hereby declared to be Ariana’s place of habitual residence.
3. The applicant shall have sole decision-making responsibility for Ariana. The applicant shall consult with the respondent prior to making any major decision regarding Ariana, however, if the parties disagree, the applicant shall have the right to make a final decision.
4. The respondent shall have supervised parenting time with Ariana once per month at Pathstone Mental Health or another supervised parenting time facility at the discretion of Ariana. The respondent shall be responsible for all costs associated with same.
5. The parties shall attempt to arrange additional parenting time for the respondent, supervised by Roseanne Davis, at times and on terms that are agreed upon by the parties.
6. The applicant shall use his best efforts to facilitate access between Ariana and her siblings at times and on terms that are agreeable to Ariana and the applicant.
7. The applicant's obligation to pay child support for Ariana to the respondent terminates as of March 8, 2020.
8. The applicant and the respondent shall provide updated income disclosure to each other, annually within 30 days of the anniversary of this order, in accordance with s.24.1 of the Child Support Guidelines (Ontario).

[64] If either party requests a costs order, I direct that the party seeking relief shall deliver written submissions by email addressed to the Judicial Assistants at St.Catharines.SCJJA@ontario.ca within 14 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the costs issues as between themselves.

Justice J. R. Henderson

Released: June 8, 2023