COURT FILE NO.: FS-16-16844 DATE: 20230913
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Janet Mary Maceroni Applicant – and – Leo Frank Maceroni Respondent
COUNSEL: Jason Howie and Amy Johnson for the Applicant Brian Ludmer for the Respondent
HEARD: November 23-25, 2022; January 9, 10, 12, and 23, 2023; February 6, and 9, 2023; and March 14, 2023
Reasons for Judgment
MUNROE J.
[1] This is a protracted, high conflict case concerning two children of the marriage, twins now 16 years of age. The dispute is over parenting time and decision-making responsibility with father alleging alienation by mother. Mother seeks to continue the current shared decision making and 50/50 parenting time. Father seeks “protective separation” for at least 90 days meaning sole parenting time and decision-making with no contact between mother and the twins, to enable successful reconciliation therapy. According to father, upon success of the “protective separation,” it will end with the same shared arrangement sought by mother.
Overview
[2] The applicant, Janet Mary Maceroni (“applicant” or “mother”), now age 48, and the respondent, Leo Frank Maceroni (“respondent” or “father”), now age 50, were married on August 19, 2000. They had the following three children:
- Joseph Maceroni (“Joseph”), born August 18, 2003. Joseph is 20 years of age and is no longer a subject of this litigation;
- Mark Maceroni (“Mark”), born April 11, 2007. Mark currently is 16 years of age; and
- Sabrina Maceroni (“Sabrina”), born April 11, 2007. Sabrina currently is 16 years of age.
When all three of the children are discussed collectively, they will be referred to as the “children.” Mark and Sabrina will be referred to as the “twins” when they are discussed collectively.
[3] The parties separated on July 1, 2016. The Application was issued on September 6, 2016 when Joseph was 13 years old and the twins were 9 years old. The last day of the trial was on March 14, 2023 when the twins were 15 years old.
[4] The litigation has been intense with the children’s issues taking lead. It has now narrowed to the twins as Joseph reached the age of majority. There are no allegations or evidence of abuse, mistreatment, or risky behaviour such as substance or alcohol abuse. Both parents are well educated with good jobs – Frank is an executive with Chrysler Corporation and Janet is a high school teacher. Both parents love their children and the children love both parents. The twins are doing very well in high school.
[5] Mother commenced the case by application issued on September 6, 2016. Dawn Melville was mother’s counsel. Father answered on October 17, 2016. Mary Fox was father’s counsel.
[6] On consent at the case conference, a s. 30 psychological assessment by Dr. Catherine Lee was ordered on January 31, 2017. It was not completed for reasons unrelated to this litigation.
[7] The case was administratively dismissed by the registrar on September 7, 2017.
[8] The administrative dismissal was set aside on September 29, 2017, with the timelines extended to December 8, 2018.
[9] A Divorce Order was issued on May 11, 2018.
[10] On November 19, 2018, the timelines were extended to December 31, 2019.
[11] On consent, a s. 30 psychological assessment by Dr. D. Ashbourne was ordered on December 13, 2018.
[12] Another case conference, this time before Howard J., was held on December 1, 2020, with Brian Ludmer as father’s counsel. The issue of parenting time and the children’s relationship with father was raised. On consent, a holiday access scheduled was ordered.
[13] On February 5, 2021, father’s motions were dismissed for failure to file supporting materials in a timely manner.
[14] On February 10, 2021, another case conference was conducted before Howard J. The parties requested the appointment of a case management judge. A litigation timetable was ordered.
[15] On consent, and by written order dated February 18, 2021, Bondy J. (the case management judge) ordered the commencement of reconciliation therapy with Paula DeVeto. Included in the consent order were the following provisions:
4a. Both parents shall use their parental authority to compel the children’s attendance and good faith participation …. 4c. The parties and the children shall engage fully in the process of family reconciliation therapy in good faith, with urgency, and with a view to its successful reconciliation of healthy and involved family relations and a healthy family structure, and in that regard follow the directions of Ms. DeVeto on a timely basis.
A parenting schedule also was ordered on consent: every Tuesday and Saturday with alternating Sundays. A spring break parenting schedule was included. Transitions were to take place at mother’s home.
[16] Justice Bondy entered another temporary consent order on May 3, 2021. The following was included in said order at para. 6:
In support of the reconciliation therapy with Ms. Paula Deveto, which has commenced, the parties shall exercise their full parental authority in support of the therapy process and the parenting time Orders [including to adhere to the maxim: ‘The job of a parent is to parent.’].
[17] On November 19, 2021, Bondy J. filed his Case Management Conference Notes and Endorsement, Maceroni v. Maceroni, 2021 ONSC 7664. Included were the following:
- This case involves extremely high conflict. Each parent is taking a very hard-line position regard the children, and neither is prepared to compromise. At the centre of the conflict is an assertion by the applicant mother that the children do not want to have contact with the respondent father. There is a corresponding assertion by the respondent father that the applicant mother is deliberately alienating the children from him and that alienation has significantly and negatively impacted his parenting time with the children. The respondent father also maintains that the applicant mother makes decisions without consultation and that those decisions often exacerbate the alleged alienation.
- The first case management conference after my appointment as case management judge was held on February 18, 2021. At that time, the parties agreed that reconciliation efforts should be made as between the children and their father. Consistent with that professed agreement, a consent order was made for reconciliation therapy to commence immediately with Paula DeVeto. …
- At the April 16 and May 4, 2021, conferences, the respondent father maintained that no progress had been made regarding reconciliation therapy. …
- The respondent father also maintained that as of that time nothing had changed with respect to his parenting time. …
- The respondent father maintains that the applicant mother continues to alienate the children from him.
- The applicant mother denies having stifled the reconciliation therapy and denies alienating the children from their father.
- In the end, it was not clear to me whether the children dislike their father for objective reasons relating to his treatment of them, or whether they are being deliberately alienated from him, or whether there are elements of truth to both allegations.
- Given the applicant mother’s failure to fulfil reconciliation therapy prerequisites on two separate occasions, I found it possible that she is simply attempting to run down the clock until the children are old enough to make their own decisions. To be clear, I am not making a finding of fact in that regard, but rather only observing that it is a very real possibility in the circumstances.
- The current intervention of Dr. Schnayer and Ms. DeVeto with these children is unfortunately not the first time these children have been treated or assessed. Dr. Daniel Ashbourne … completed a parenting plan evaluation report dated July 3, 2020 pursuant to s. 30 of the Children’s Law Reform Act ….
- Dr. Ashbourne conclude that the children’s relationship with their father is seriously strained. Dr. Ashbourne was unfortunately unable to decide whether the economy of the children’s parenting time with the father was the result of objective concerns relation to the father or of alienation by the mother. Accordingly, Dr. Ashbourne suggested four potential options, which I summarize here: a) eliminate the children’s time with their father; b) allow the children to make their own decisions as the applicant mother had done in the past; c) move to a 50/50 parenting time and responsibility arrangement; d) put the mother’s time with the children on hold allowing the father to assume full-time care of the children and rebuild his relationship with them.
- While Dr. Ashbourne’s report does not make any definitive conclusions as to whether it is the mother, the father, or both parents at fault, it does make very clear that these children are suffering significantly because of the toxic relationship that exists. It follows that the children’s best interests might be best served by the elimination of either the mother or the father from their lives if one is found to be primarily at fault. If not, then as was suggested by Dr. Ashbourne, something in the middle might be more appropriate.
- Given the significant ongoing harm being done to these children with each passing day, and given the slow progress of the reconciliation therapy, I find this matter to be quite urgent. …
- The applicant’s counsel expressed a desire to have the children re-examined by yet another expert in order to counter what she perceives will be the evidence of Ms. DeVeto. I reiterate that Ms. DeVeto is the reconciliation counsellor who has been attempting to repair the relationship between the children and their father. She was appointed on consent. I find it inappropriate to have yet another professional poke and prod these children …. 33b. [I order] that trial shall be scheduled for ten … days. The trial will be number two on the April 18, 2022 trial list behind a one-day trial.
[18] On January 13, 2022, Bondy J. filed his Case Management Conference Notes and Endorsement for the case management conference held on the same date. Included were the following:
- The pervasive and daily damage to the children continues notwithstanding several orders made at case management conferences. In other words, there is no possibility the parties will make any headway whatsoever resolving these issues without a trial.
- In the end, I concluded that a lack of cooperation [by the mother] made it impossible to create a safe environment for the children through the case management process. I also concluded that given the significant ongoing psychological injury to the children, a trial was necessary. … [A] trial date of April 18 or at the latest April 19 was secured with the consent of counsel.
- [T]his court’s focus is the best interests of the children. It necessarily follows that as long as progress is being made, the reconciliation counselling should continue.
[19] By Endorsement, Maceroni v. Maceroni, 2022 ONSC 565, Bondy J. dismissed mother’s motion to appoint independent Office of the Children’s Lawyer counsel for the children.
[20] The trial scheduled to commence on April 19, 2022, was adjourned by Carroccia J. on April 12, 2022 at the request of mother’s counsel who will be on medical leave and was unavailable. Trial was rescheduled to the running list beginning on June 27, 2022, with priority.
[21] By Justice Bondy’s Combined Pretrial and Settlement Conference Notes and Endorsement of April 29, 2022, the court ordered the continuation of reconciliation therapy with Ms. DeVeto, on consent. Jason Howie appeared as counsel for mother.
[22] Justice Bondy issued a Case Management Endorsement following an April 29, 2022 conference. He reluctantly granted mother’s request to adjourn the trial set for June 27, 2022, stating that Mr. Howie advised of mother’s willingness to expand children’s parenting time with father noting, “I found what appears to be an abrupt and significant change in the applicant’s conduct, possibly related to or change in legal representation, tended to reduce the level of urgency.” A new trial date was set: November 21, 2022 for ten days.
[23] By Justice Bondy’s Combined Pretrial and Settlement Conference Notes and Endorsement of May 16, 2022, the court ordered an extension of weekend parenting time with father and scheduled another conference.
[24] By Justice Bondy’s Combined Pretrial and Settlement Conference Notes and Endorsement of May 26, 2022, the court ordered 50/50 parenting time during the summer. On consent, said equal parenting time continues.
[25] The trial commenced before me on November 23, 2022 and continued for nine more days: November 24 and 25, 2022, January 9, 10, 12 and 23 and February 6 and 9, 2023 and ending on March 14, 2023. Judgment was reserved.
The Uncontested
[26] The parties were married on August 19, 2000, and separated on July 1, 2016. They still lived in the matrimonial home separately until mother and the children moved out on September 1, 2016. At that time, Joseph was 13 years old and the twins were 9 years old having been born in 2003 and 2007 respectively.
[27] At the time of the trial the parties are divorced and living in separate homes in the same community: Tecumseh, Ontario.
[28] There are no allegations or evidence of abuse (physical or verbal), mistreatment, or risky behaviour such as substance or alcohol abuse.
[29] Both parents are university educated with good jobs – father is a financial analyst with Chrysler Corporation, and mother is a high school teacher.
[30] Both parents love their children and the children love both parents.
[31] As phrased by father, the children are “succeeding and accomplished.” There are no allegations or evidence that any of the children have mental health issues, or are truants, substance abusers, or misbehavers at school or in the community.
Mother
[32] Mother was born in Windsor, Ontario. Her parents are retired and also live in Tecumseh. She has two siblings: a brother, also a high school teacher, and a sister, an electrical engineer. Both live in Windsor.
[33] Mother is proudly of Croatian heritage. She is Roman Catholic and attends Croatian mass.
[34] Currently mother is a learning support teacher at the Honourable W.C. Kennedy Collegiate Institute (“Kennedy”) in Windsor. Her bother Michael teaches chemistry at the same school.
[35] Mother’s mother, the maternal grandmother, helped with the children.
[36] Mother took one year leaves of absence on the birth of Joseph and on the births of the twins.
Father
[37] Father also is from Windsor and has a close family.
[38] Father works at Chrysler. He started in human resources in Windsor. He internally transferred to the finance department in Windsor. In 2004, father’s work took him to Auburn Hills, Michigan, where he commuted to and from work from Windsor. The commute was an hour to one hour and a half each way.
[39] Father is proudly of Italian heritage. He is Roman Catholic.
[40] Father was actively involved with the Ciociaro Club (“the Club”) for over 25 years until approximately 2021. He was on the board of directors from 1995 to 2006, and again from 2012 to 2015. He was president from 2007 to 2012 and vice president from 2019 to 2021.
[41] Currently, father is working virtually from home and can parent the children.
Joseph
[42] Joseph is described as reserved or quiet and shy.
[43] As a child, Joseph was involved in horseback riding, music lessons and summer swimming lessons. Father coached him in soccer camps. Joseph also attended an Italian language program on Saturday mornings at the Club.
[44] Joseph attended Kennedy. He did extremely well with marks of 88 to 90 percent. He was involved with the band, drama and announcements.
[45] Joseph was finishing his second year at University of Windsor at the time of trial. He is studying music and education.
[46] Joseph is a skilled percussionist. He plays the drums and is involved in a jazz ensemble. His first public performance was in December 2021.
[47] Joseph has a part-time job at Zehrs, working Fridays and Saturdays. Between school and his job, Joseph’s schedule is heavy.
[48] Joseph took two 2022 summer vacations with father and the twins, one to Toronto and the other to Niagara Falls.
[49] Joseph continues to sleep at mother’s house.
[50] Joseph stopped attending set visitations at father’s house when he turned 18, in August of 2021. Joseph occasionally sleeps over at his father’s house.
[51] Father drove Joseph to university until Joseph got a car in early 2022. Mother bought the car for Joseph. He now provides his own transportation.
[52] Mother describes Joseph’s current relationship with his father as brief and superficial.
Sabrina
[53] Sabrina is strong and charismatic. She is strong academically with a 92 average.
[54] She is involved in student government and has done announcements.
[55] Sabrina excels at horseback riding. She plays basketball and volleyball for the high school team.
Mark
[56] Mark is friendly, kind and quiet. He loves technology and computers. Mark’s grades are very good: 92/93 average.
[57] Mark is on the executive for the student body. He is on the high school volleyball team and runs cross-country in the spring. In addition, he was on the LaSalle Rowing Club team.
Parenting Time
[58] At first, the parties attended Bridging Family Conflict and agreed to transition the children as a family unit with family dinners at restaurants. This lasted for three to four months until roughly January 2017. These dinners did not go well. The children put their heads down in father’s presence.
[59] Through the lawyers, the next arrangement was Tuesdays and Saturdays but not overnight.
[60] From 2016 to 2019, the children attended only about 15 percent of the scheduled parenting time with father, maybe four to five hours each month.
[61] In 2019, the children eliminated all parenting time with father. The children were given the choice by mother. From November 2019 to June 2021, the children did not really see father.
[62] Beginning with the Christmas parenting time order of Howard J. in December 2020, the children did not follow the parenting time court orders. This continued even after the parenting order of Bondy J. in February 18, 2021. Mother continued to allow the choice of the children.
[63] In late May or early June 2021, mother started to drive the children to father’s home in compliance with the February 18, 2021 parenting schedule. During that time, the children did not engage with father.
[64] By January 2022, the children were not seeing father at all.
[65] Then by June 2022, the children were back seeing their father.
[66] The parties agreed to equal parenting in or about June 2022. That schedule continues to date.
[67] The twins have been joining father for meals and engaging in periodic activities around the house. This past Christmas, they attended father’s sister’s house and interacted with the paternal family. They attended at father’s mother house and interacted with her.
[68] Since working with Ms. DeVeto, father acknowledged positive interactions with the children:
- Father and the children played Monopoly together;
- Father taught the children an Italian card game; Joseph taught father spoons and sevens;
- Father and the children went bowling;
- The children played cards with Uncle Livio and watched a movie;
- The children visited the paternal family;
- The children attended father’s mother’s home;
- The children and father watched movies;
- Sabrina sat in the front seat of father’s car;
- Father and the children watched Canada play in a World Cup qualifying match;
- The children greeted father upon attending his home;
- The children ate lunch father prepared;
- All three attended Toronto and Niagara Falls for weekends with father;
- Mark and Sabrina have continued the week-about parenting schedule;
- Joseph communicates with father via text messages;
- Mark and Sabrina now remove their shoes upon entering father’s house;
- Mark and Sabrina do not refuse meals prepared by father, at times Mark leads in saying grace, and they say thank you;
- Mark makes an effort to say good-bye when he leaves;
- Sabrina baked with father and his mother;
- At Niagara Falls, Sabrina attached a lock with her name and father’s name;
- Sabrina and Mark help their paternal grandmother with her garden; and
- Father received a Father’s Day card from the children this year.
The Trial Evidence
[69] I do not propose to summarize all the evidence put before me. There is no need to repeat all of the detail. While I have considered all of the evidence presented at trial, my written decision deals only with the material evidence necessary to determine the issues disputed and to provide sufficient content for an appreciation of my determination.
Mother
[70] Mother testified before me for over four days. She was vigorously and thoroughly cross-examined. I listened closely to what she said and how she said it. Clearly mother is bright, thoughtful and polite. Nevertheless, I have concerns about some of her evidence as explained below.
[71] The parties met at university, dated and married.
[72] Mother started teaching before the marriage. She taught first at Century High School and then at Kennedy.
[73] Father was employed at Chrysler Corporation first in Windsor. In 2004, when Joseph was an infant, he was moved to Auburn Hills, Michigan. Mother identified father’s work hours: he would leave home at 6:45 a.m. to 7:00 a.m. and return home at 7:00 p.m. at the earliest.
[74] Father was very active in the Ciociaro Club. He was on the executive for numerous years and was president for two terms. As a result, father was at meetings for most weekdays, had Saturday soccer and Italian school, and there were festivals or meetings on Sundays.
[75] According to mother, she and father have different personalities. Father is social and outgoing. She is quiet and reserved.
[76] As a result of father’s time commitments, mother looked after the children with the help of her mother. There was no daycare. The maternal grandmother looked after the children until mother got home from school at 2:50 p.m. Mother was responsible for meals. The children were in bed by 6:30 p.m. or 7:00 p.m. until they were older.
[77] Mother testified that early in post-separation, the children did not feel comfortable being alone with father because they did not really know him. Father was hardly around when they grew up even though he did spend time with them.
[78] According to mother, she frequently told the children the importance of having father in their lives. She repeatedly urged them to attend parenting time with their father. They defied her. She used incentives and consequences but the children defied her and still refused to go. However, mother admits she gave them the choice; the children had her permission whether to see or not to see their father. She admitted that she did not use her parental authority. She was afraid if she pushed that it would not be beneficial nor healthy and long-lasting.
[79] In late May or early June 2021, the children started to go to father’s home as directed by Bondy J. in his February 18, 2021 order. Mother was met with resistance, but she overcame it with dialogue and discussion.
[80] Mother testified that she agrees that it is in the best interests of the children to have a bonded, healthy relationship with father. Yet she also agreed that for years she listened to the children’s preferences rather than supporting their relationship with father.
[81] In her December 31, 2021 affidavit, mother swore that she found Ms. DeVeto’s words that the children may have a voice but they do not have a choice to be offensive and contrary to the children’s best interests. According to mother’s evidence before me, this is not her view or understanding today. Mother testified that her view has changed.
[82] In her January 19, 2022 reply affidavit, mother swore that a forced living arrangement with the children and father is contrary to the children’s interests. Before me, mother testified that this is not her view now.
[83] Mother acknowledged before me that she is responsible, but not solely, for the state of the relationship between the children and father because of the choices she made. She expressed concern that the children will not have a healthy relationship with father.
[84] Mother testified that she has exercised her parental authority to the best of her ability in compliance with Justice Bondy’s order of May 3, 2021.
[85] The twins are attending as scheduled and making progress.
Concerns
[86] Two areas of mother’s evidence causes me concern.
[87] Mother was asked to produce all of her text messages with the children during their Toronto trip with father in the summer of 2022. She did not produce all and was content to allow her incomplete disclosure to stand as full disclosure. Before me, mother admitted her conduct was misleading. Mother explained that she did not produce all because she was scared that they would show her correspondence with the children that would be misconstrued against her.
[88] There is an additional concern over the Toronto trip text messages. Before me, mother asserted multiple times that she was unaware of any rule or “firm” promise or commitment with Ms. DeVeto against her communication with the children during father’s trip with them to Toronto. She does admit there was dialogue with Ms. DeVeto before the trip about such communication. I do not accept mother’s evidence on this issue. To me, she was playing with language. This is exposed by mother’s expression of fear by her disclosure of the communications. Exactly how Ms. DeVeto expressed her desire for no communication during that trip is of no real moment. From her own evidence, mother knew this was father’s trip with the children and she should not communicate with them. But she did not admit it. Indeed, before me she claimed ignorance.
[89] Although generally I was impressed by the evidence of mother, especially her admissions of fault, the above identified parts of mother’s evidence concern me. They negatively impact the credibility of mother. As a result, I am compelled to treat mother’s evidence with caution.
Father
[90] Father testified before me over five days but most of the days were not exclusively his evidence. To accommodate other witnesses, and with the consent of the parties, various witnesses were taken in the middle of father’s evidence. He was ably cross-examined. I listened closely to what he said and how he said it. Father too is bright, thoughtful and polite. However, there were aspects of father’s evidence that cause me concern, as detailed below.
[91] Father’s evidence in chief was given by affidavit sworn November 8, 2022, now Ex. 3.
[92] Father describes himself as outgoing and social.
[93] According to father, mother was extremely overprotective of the children and limited his role with them. He was excluded from most day-to-day care of the children by mother and her mother. In spite of these restrictions, father asserts that he was active in the lives of his growing children.
[94] With regard to his time at work in Michigan, father swore at para. 16 of his affidavit, that after mother took a leave of absence following the birth of Joseph, it required him “to work long hours – (usually 10 or more) with a daily commute of over one hour. As a result, [father] was not home until 7:30 p.m. or 8:00 p.m. Knowing this Janet insisted that the children were in bed at 8:00 p.m. which significantly limited my time with the children during the week.”
[95] Father continued at para. 98, “Although my job requirements were very taxing (long commute and long hours during the week) I did my best to spend time with the children….” At para. 102, father swore, “I worked in the USA, and I left the house at approx.. 6:00 am each morning and returned in the evening at 7:00/7:30 pm.” Then again at para. 103, “My work schedule was a function of the demanding nature of my work, my commute, and my desire to build a long-term career.”
[96] During father’s live evidence before me, he resiled, at least in part, from the long hours expressed in his affidavit. With regard to para. 16 averment that he did not get home until 7:30 or 8:00 p.m., father testified that he did work overtime occasionally during mother’s maternity leave. Then later, father attempted to “clarify” by stating that he worked until 6:00 p.m. on a regular basis and then had a two-hour commute home.
[97] Father described his commitment to the Ciociaro Club as follows: from 1995 to 2006 – about 10 to 12 hours each month; and from 2007 to 2013 – about 15 to 20 hours each month.
[98] A great deal of father’s affidavit consists of blaming mother for the relationship with his children.
[99] In his affidavit at para. 136, father averred:
While our family dynamic has not settled thus far, therapy with Ms. DeVeto was helpful. It is my understanding that Joseph has indicated to Ms. DeVeto that he would be interested in having relationship with me. Sabrina and Mark have been joining me for meals during my parenting time and engaging in periodic activities around the house. Over this past Christmas all three children attended my sister’s home and interacted with the parental family, though briefly. All three children also attended my mother’s house and briefly interacted with her while picking up their presents. Sabrina and Mark interacted with my mother at my home as well.
[100] In his affidavit, father reported that he believed the children had a good time during the Toronto trip. They visited the CN Tower, saw a Blue Jays game, and had dinner. Mark and Sabrina interacted with him at times and, for the most part, were polite.
[101] In September 2022, father took Joseph to an Alice Cooper concert. Joseph enjoyed it but he barely spoke with father.
[102] During Thanksgiving of 2022, Sabrina helped father prepare a charcuterie board at father’s house.
[103] Despite all of this contact, father reports no meaningful change in the behaviour of the children. There is a little change but nothing meaningful.
[104] According to father, the 50/50 parenting schedule is an “illusion” – the children are present in body but not in mind, spirit or soul.
[105] Father installed cameras in his home as a protective measure against false accusations after an earlier event involving Joseph and a claim of assault. He removed them at the suggestion of Ms. DeVeto.
[106] Father wrote to the administrator of Joseph’s music program at the university requesting his schedule. Joseph found out and was upset and embarrassed.
[107] On occasion Joseph does connect with father: at father’s house the weekend before father’s January 23, 2023 testimony. During Christmas, Joseph did accept a dinner, a concert, and Christmas Eve dinner with father’s family.
[108] Mark and Sabrina disobeyed father when he told them to come out of their rooms.
[109] On the Niagara Falls trip, father related that Sabrina, at his suggestion, put a lock with her initials and his initials on a bridge. He did not recall whether the lock was in the shape of a heart.
Dr. Ashbourne
[110] Dr. Daniel Ashbourne, PhD, is a clinical psychologist and Executive Director of the London Family Court Clinic. By consent order issued on December 13, 2018, Dr. Ashbourne was appointed to conduct a s. 30 assessment and report to the court on the needs of the children and the ability and willingness of each parent to satisfy the needs of each child. He commenced his assessment on October 3, 2019 and filed his report dated July 3, 2020, Ex. 12.
[111] In addition to testifying about his assessment, Dr. Ashbourne also was offered and accepted as an expert witness with regard to family assessments including the ability and willingness of the parties to parent the children.
[112] Dr. Ashbourne testified over parts of two days. I was very impressed by Dr. Ashbourne. He was very professional, thoughtful, insightful, and helpful. He understood and followed his obligation to the court to provide fair and objective evidence.
[113] There is a gap in time between Dr. Ashbourne’s assessment and this trial. His last contact with the family was in mid-2020. When he saw the children, Joseph was 15 years old and the twins were age 12. In addition, there were limitations caused by the pandemic. Perhaps the most significant was the inability of Dr. Ashbourne to observe father and the children together.
[114] Dr. Ashbourne noted that both parents were healthy psychologically and wanted the best for their children. Both are strong-willed, persistent and focused.
[115] Mother impressed Dr. Ashbourne as being highly structured, somewhat introverted, and placing a high value on routine. Mother has been the primary caregiver to the children. She is very close to the children with a very cautious and over-protective parenting style.
[116] Father impressed Dr. Ashbourne as being motivated, diligent and hardworking. He is social in demeanor. He presented as stressed with a genuine desire to have more access to his children. Although father is aware that his dedication to, and long hours at, work and the Club has had an impact on his current relationship with his children, he feels his role in the lives of his children has been marginalized by mother.
[117] When the children were younger, father was less engaged with them. The time father took with his work and his job was time away from the family. This was the reality, although father challenges the significance of his time away from the family. The children, however, perceive father as less involved with them.
[118] Dr. Ashbourne described the children as bright and talented. Joseph presented as mature, polite, and cooperative, although somewhat shy and reserved. Mark presented as more outgoing and more comfortable meeting new people. Sabrina presented as polite and cooperative but shy and somewhat slow-to-warm-up.
[119] With regard to the poor history of father’s parenting time, including its essential non-existence at the time of Dr. Ashbourne’s involvement, mother would allow the children to decide whether they wished to participate.
[120] Dr. Ashbourne characterized the family history as complex and multifaceted. The children are strong-willed and adamant. The parents and the extended family are polarized.
[121] This complexity led to the presentation of four options without a recommendation: Option 1: eliminate the children’s time with father; Option 2: remain with the then status quo – let the children determine their contact with father; Option 3: move to a 50/50 parenting time; and Option 4: move to protective separation with a temporary time out for mother.
[122] When asked his preference of the four options, Dr. Ashbourne chose Option 3, responding:
Both of these parents had lots to offer these children, now and in the future, and so, essentially, the option three would be the best course of action to see unfurl and to be supported in going there is – given kind of what I’ve hear so far with the hypotheticals [posed by counsel].
[123] Dr. Ashbourne expressed pleasure to hear that there had been a 50/50 arrangement in place for months noting, “that’s certainly a shift” from the status when he last saw the family in 2020.
[124] With regard to Option 4: protective separation, Dr. Ashbourne described it as “extreme” [^1] but acknowledged that it was “a step that is required in some contexts as a way of trying to support a change….” In his report, Dr. Ashbourne described Option 4 as “a dramatic change that would be challenging for all involved and may still not prove successful.”
[125] With regard to the risks of Option 4, Dr. Ashbourne identified the following:
- High resentfulness;
- Anxiety;
- Sense of loss of control over one’s life that can lead to feelings of helplessness and hopelessness;
- Running away (from the literature); and
- Self-harm (from the literature).
[126] Dr. Ashbourne stressed the importance of the therapist stating:
Unfortunately, the wrong therapy at the wrong time can cause things to go off track and … create difficulties. [T]he therapist can actually become more of an advocate than a therapist, and … what you really need is someone who is working with all sides of this family, parents as well as the children, to help them kind of reflect on and ensure that they’re addressing any misperceptions, any distortions, any things that are misunderstood and to bring light to that so that they can perhaps not use that as a further example what’s interfering with relationships.
[127] As an example, Dr. Ashbourne stated that if Option 4 is chosen and the children are distressed, they need the ability to talk with their therapist.
Paula DeVeto
[128] Paula DeVeto is a clinical social worker with a focus on the treatment of individuals and families. Ms. DeVeto made it clear that she is not a psychologist, but rather holds a Master’s degree in clinical social work who provides therapy. Ms. DeVeto has been involved with reunification counselling for about 15 years.
[129] In addition to testifying about her work with the family before me, Ms. DeVeto also was offered and accepted as an expert witness with regard to family therapy, assessing families including their roles and inter-dynamics, reintegration or reunification therapy, individual therapy, and interviewing children. Ms. DeVeto is a participating expert.
[130] Ms. DeVeto testified for most of the last day of the evidence. I listened to what she said and how she said it. I was less than impressed by Ms. DeVeto. In my view, as explained below, she became more of an advocate than a therapist. I did not find her to be independent and impartial. Indeed, she clearly favoured father. As a consequence, I am cautious with her evidence and recommendations.
[131] On consent, on February 18, 2021, Bondy J. ordered the commencement of reconciliation therapy with Ms. DeVeto.
[132] Ms. DeVeto commenced working with the family on March 5, 2021. She testified that her last session with the children was in February 2022. Due to a personal tragedy, she was unable to complete her report for the trial scheduled in April 2022. Her report was completed on November 20, 2022, now Ex. 24.
[133] According to Ms. DeVeto, her role was to restore healthy family functioning including meaningful contact between the children and their parents. “Meaningful” relationships, to Ms. DeVeto, are assessed from the eyes of the social science literature. Her goal was long-term, to create lifetime relationships.
[134] Ms. DeVeto testified that she understands the family “exceptionally” well. Ms. DeVeto testified that this family is the most “enmeshed” family she has ever seen. By “enmeshed” Ms. DeVeto described it as a psychological fusion between parent and child in which the parent views the child as an extension of themselves rather than as autonomous. For the child, there is a lack of autonomy, a lack of self. In this case, the enmeshment is between mother and the children. According to Ms. DeVeto, this “enmeshment,” this lack of clear role boundaries, is a peril for the children; it leads to psychopathology.
[135] According to Ms. DeVeto, she failed to meet her goal of a lifetime relationship for Joseph and his father when he stopped attending at father’s house following his 18th birthday in August 2021. In examination-in-chief before me, she testified, “What happened with Joseph, as effective following his 18 th birthday, … he stopped attending for parenting time.” In her report and in cross-examination, Ms. DeVeto declined to say there was no relationship between Joseph and father after his birthday. Joseph does stay overnights at father’s house, but when he does stay, he arrives late and leaves early. Ms. DeVeto recognized that Joseph is a university student, but hoped he would be more flexible with his time at father’s home. In addition, Ms. DeVeto recognized that Joseph did attend the Toronto trip in the summer of 2022.
[136] By April 2022, Ms. DeVeto concluded that she was not going to reach her goals with the twins. She feared the twins will follow the path of Joseph when they reach their 18th birthdays. This, she predicted according to the social science literature, will lead to no relationship with father and serious mental health issues for the children.
[137] Ms. DeVeto placed the cause of her failure on mother because she would not cooperate and use her parental authority to compel cooperation from the twins. She described mother as presenting as loving but “she has proven to be dishonest, deceitful, and not receptive to implementing recommended changes ….”
[138] For Ms. DeVeto, the only option remaining to achieve her goal is protective separation – the placement of the twins in the exclusive care of father for 90 to 120 days without any contact with mother.
[139] Ms. DeVeto is very confident of success with protective separation. She does not see much “downside.” To Ms. DeVeto, these are extremely compliant children. They are not violent. There are no indications of serious self-harm. They are not going to run away. She acknowledged that the twins will be upset by the implementation of protective separation, but this can be mitigated by the court’s explanation to them directly of the reasons for it. Ms. DeVeto testified that she believes there is no risk to the twins.
[140] As I expressed earlier, in my view, Ms. DeVeto became more of an advocate than a therapist. I did not find her to be independent and impartial. She clearly favoured father. I explain further.
Manner of Giving Evidence
[141] The manner in which Ms. DeVeto gave evidence before me differed dramatically by the identity of the questioner. To father’s counsel, Ms. DeVeto was responsive appropriately. To mother’s counsel, Ms. DeVeto was combative. Ms. DeVeto repeatedly challenged words used in the questions of mother’s counsel as “vague.” This included words attributed to Dr. Ashbourne. The words challenged included “equally,” “complex,” and “real contact.” Perhaps the most telling exchange was the following:
Q: … I think it’s a fair summary that Doctor Ashbourne concluded that there were complex dynamics in this family. Do you recall reading that? A: … I apologize. Doctor Ashbourne’s report was very, very lengthy. I accept that he made that one generalized statement that you are referring to. Q: … In your work, did you find this family to have complex dynamics? A: Can you define complex for me, please? Q: Multiple, one in opposition to the other, I mean, complicated. A: I think all reunification cases tend to be complex, tend to be … complicated. There’s reasons why children resist/refuse contact and we need to sort – we need to unpack that and figure out the reasons why. In normal – normative healthy families this doesn’t occur, because as human beings we’re wired to connect biologically. Q: Okay. You said that in these situations. I’m asking about this particular family. Would you describe the dynamics in this family as complex? A: Again, I … really don’t know what you’re asking me for in that question. Q: Well … A: I’ve already said … these situations are not simple. They require specialized training and expertise and a particular way of working, a lot of clinical skill to unpack what’s going on, why children are resisting and refusing contact. I guess if that’s complex, as you present, it’s complex. Q: Okay. The only – the only … A: What I might’ve … said as a beginning clinician when I was 23 or 25 years old versus what I see as complex 30 plus years in, … it’s a different lens. Q: I guess I’m just hung up on the fact that you say these situations. You say these situations can be complex. Is this situation complex? Forget about these situations, this one. A: Yes.
[142] I do not question the need for clarity. But there were no such challenges to the questions of father’s counsel, even though his questions included such words as “meaningful,” “appropriate,” “implications,” and “healthy relationships.” I acknowledge that the very nature of the social science study of families is replete with very broad terminology. My concern here is the very different presentation by the witness to each side. One side received openness and cooperation. The other side received guarded resistance that was quite noticeable. Indeed, I even directed the witness to answer the question directly. To me, this was a display that the witness, Ms. DeVeto, was not neutral, she sided with father.
Application of Different Standards
[143] Ms. DeVeto assessed the conduct of mother and father differently. She was much harsher with mother. Essentially, the fault of the failure of the children to have a relationship with father is the fault of mother.
[144] In contrast, Ms. DeVeto minimized the father’s improper conduct. When advised of father’s secret installation of a second camera after promising the twins that he would not do so, Ms. DeVeto acknowledged that such conduct could contribute to the ability of the children to trust father, but said it was one isolated incident and characterized it as “poor judgment.” Indeed, Ms. DeVeto went on to say it was a teaching moment for the children to be resilient.
[145] Such disparity of treatment, in my view, again calls into question the neutrality and balance of Ms. DeVeto as therapist, as a witness, and especially as an expert witness.
Desire to Continue as Therapist
[146] Stated in slightly different terms, the professed goal of Ms. DeVeto is to bring the family together in a healthy and lasting relationship. Ms. DeVeto wants to be the therapist in her desired next phase, protective separation. She testified that she is ready to begin immediately. But to do this, she has to work with all members of the family. This obvious necessity is included in her standard agreement. How is this possible with the history of her involvement in this case?
[147] As quoted above, Ms. DeVeto has disparaged mother as a liar and more. Ms. DeVeto admitted mother had not called her in two years.
[148] With regard to the twins, Ms. DeVeto conceded that they believe Ms. DeVeto is present to impose father’s wishes upon them. According to Ms. DeVeto, “That’s a problem.” But she does not believe she has burned any bridges with them and believes the court’s intervention can correct the children’s view of her.
[149] In this context, it is a strain to understand the wisdom of continuing with Ms. DeVeto as the therapist is this case. In my view, this should be obvious to Ms. DeVeto. According to Dr. Ashbourne, the therapist needs to be able to work with all sides of the family.
[150] This desire also, for me, raises a question of why Ms. DeVeto wants to continue in the face of her relationship problems with most of the parties she seeks to unite. Is it economic – another file? Is it a perceived challenging case in a fledgling field? Or is it simply dogged determination? I do not know. But, in my view, her push for personal continuation as the therapist calls into question her neutrality and judgment.
Finding
[151] For the reasons expressed above, I am unable to accept the opinions and beliefs of Ms. DeVeto. I am cautious about the balance of her evidence because of her obvious preference for father. She did not come before me as a neutral witness.
Positions of the Parties
Mother
[152] Mother advocates for the continuation of the current interim order: 50/50 shared parenting time and shared decision-making. It is working. Mother and the children are in compliance. Its continuation is in the best interests of the twins.
[153] Mother strongly opposes the order sought by father, describing it as extreme and unwarranted given the circumstances of this case. Father seeks at least a 90-day cessation of all contact with mother, brother Joseph and the maternal family, coupled with therapy requirements, a police enforcement clause, and continued court monitoring.
[154] According to mother, father has the twins 50 percent of the time now, but he wants more. He wants an “attitude adjustment” for the teenaged twins. Father’s requested “protective separation” from those extremely close to the twins presents unknown risks to them. These are high achieving children who engage in activities both in and out of their school. The circumstances do not warrant such an extreme remedy.
[155] Moreover, and again according to mother, the sought order is broad and open-ended. Functionally, it is indefinite with the end of the 90-day “protective separation” period determined by an agreement of the parties or a court order with requirements that include therapy and mother taking primary responsibility for the “family dysfunction” in a mea culpa letter read to the twins. As requested, father’s requested order will lead to the indefinite continuation of the litigation that already has consumed seven years of the lives of the twins. Mother responds that it is in the best interests of the twins to end this litigation.
[156] To mother, a continuation of the shared parenting and decision-making is in the best interests of the twins.
Father
[157] Describing the twin’s compliance with the current interim order as mere presence in body but not in mind, spirit or soul, father seeks an order for “protective separation” with conditions all designed to create a healthy relationship between the twins and himself. This is necessary and in the long-term best interests of the twins. The failure to impose such a remedy will lead to a lack of any relationship with father and future negative consequences for the twins. Any short-term upset, confusion or harm by or to the twins as a result of the requested order is far outweighed by the much greater harm if no such remedy is granted. Moreover, any initial problems of the twins can be mitigated by a court meeting explaining the order to the twins.
[158] According to father, the requested order is not extreme but rather is necessary to protect the twins from a lifetime of negative consequences. Describing “protective separation” as a “fairly conventional remedy,” father responds to mother’s unending litigation claim saying that it will work if mother and the twins follow the order and do not appeal.
[159] In addressing the requested police enforcement provision, father asserts that it is not meant to be used. It is present to deter mother.
[160] Again according to father, this intervention is necessary to remedy the dysfunctional behaviour of the twins caused by mother.
[161] The order sought by father was filed at the commencement of the trial. It is nine pages in length and contains 79 paragraphs. It is attached hereto as Schedule “A”.
[162] To father, the “protective separation” order sought is in the best interests of the twins.
Legal Principles
[163] For divorcing parents, parenting orders, including those for parenting time and decision-making, are governed by ss. 16 and 16.1 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
[164] The sole consideration for the determination of parenting orders under the Divorce Act is the best interests of the child: s. 16(1).
[165] Pursuant to s. 16(2), in determining the child's best interests, the court shall “give primary consideration to the child's physical, emotional and psychological safety, security and well-being,” when considering “all factors related to the circumstances of the child” as set forth in s. 16(3).
[166] Section 16(3) provides the factors to be considered:
(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.
[167] Karakatsanis J., writing for the majority of the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, at paras. 8 and 9, underscored the great responsibility and consequences of the best interests determination:
Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. …
The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge's discretion. …
Principles Applied
[168] Sabrina and Mark are impressively bright and high-achieving 16-year-olds. They love both of their parents who, in turn, love them. Mother and father are well-educated with significant careers. Absent are substance abuse and physical abuse. The parenting arrangement now is equal time, 50/50, with shared decision-making. Mother advocates for a continuation of the existing parenting time. Father wants more. Father seeks a temporary “protective separation” from mother asserting that such an order is in the best interests of the twins. For father such an order is a necessary remedy to correct the twin’s dysfunctional relationship with father caused by mother.
[169] Before separation, the family operated on what is often described as a traditional basis. Mother had primary responsibility for the home and the children while father concentrated on making a living and advancing his career for the ultimate benefit of the whole family. Because mother worked as a school teacher, she needed help with the growing children so, quite understandably, she turned to her mother, the maternal grandmother of the children. Then came the separation when Joseph was 13 years old and the twins were 9 years old. Again, quite understandably, in my view, the children of the marriage gravitated to mother and the maternal grandmother, whom they knew better than father.
[170] Post-separation, father appropriately sought to continue a relationship with his children. To date, the history of father parenting time reveals its essential non-existence until most recently. Up to 2019, the parents’ extra-judicial three-year efforts did not go well. It was very spotty and unsatisfactory, at best. In 2019, the children simply eliminated all parenting time with father. Until June 2021, the children really did not see father. This included a disregard of judicial orders commencing in December 2020. In late May or June 2021, the twins attended father’s home for parenting time, in compliance with a February 18, 2021 parenting order, but any engagement was minimal. By January 2022, the children were again not seeing father. Then in June 2022 the children were back seeing father pursuant to an agreed equal 50/50 parenting arrangement. That equal parenting arrangement continues today.
[171] Father asserts that the twins are present in body but not in mind, spirit or soul. I do not accept this evidence as accurate. In an apparent effort to pursue his “protective separation” goal, father ignores or downplays real progress in the restoration of the relationship with the twins. I agree with Dr. Ashbourne. The acceptance and continuation of an equal parenting schedule constitutes a pleasant shift from the previous long-standing and virtual non-engagement. I also agree with Bondy J. that the willingness to expand parenting time marked an abrupt and significant change. When asked about specifics, father acknowledges positive changes in the twins’ interactions with him and his side of the family. Even Ms. DeVeto acknowledge positive changes. These demonstrative changes include not only the twins’ inclusion of father into their lives but also expressions of love and caring by them to father. Yet, to father and Ms. DeVeto, these changes are insufficient to eliminate the need for “protective separation.”
[172] I wholly reject both the position that the changes exhibited are insignificant and that the appropriate remedy is “protective separation.” The changes show that “protective separation” is not needed and is not in the best interests of the twins. I explain further.
[173] Mr. Ludmer describes “protective separation” as a “fairly conventional remedy.” I completely disagree. The word “conventional” connotes ordinary, regular or traditional. In my view, “protective separation” is not conventional. I prefer the view of Dr. Ashbourne: “protective separation” implements a dramatic change “that would be challenging for all involved and may still not prove successful.” I do acknowledge that such a remedy may be appropriate in some cases but even then it must be used cautiously and with care because of the significant disruption involved, especially to the children. I further acknowledge that the parenting situation 18 months ago was markedly different than it is today. But I assess this matter as it exists today and not as it existed then. Today, “protective separation” is inappropriate with real risks [^2] to the twins that far exceed the hoped-for benefits. [^3] I decline to order “protective separation” in this case now. It is not in the best interests of the twins.
[174] Dr. Ashbourne, in his s. 30 report, and to me, suggested consideration of four courses of action. Equal parenting was Option 3 and “protective separation” was Option 4. Dr. Ashbourne specifically preferred Option 3, equal parenting. I agree.
[175] I now turn my mind to the specific egal principles involved. The sole consideration in the determination of parenting orders is, and has been, the best interests of the twins. I give primary consideration to the twin’s physical, emotional and psychological safety, security and well-being when considering the factors set forth in s. 16(3) of the Divorce Act.
[176] I make the following findings:
a. needs of the child
[177] Both Mark and Sabrina are 16 years old and doing well in school. They need a stable environment to continue to excel. They do not need disruption to their lives. A stable, healthy relationship with father and his family would be a significant positive to the twins.
b. relationship
[178] Sabrina and Mark have a very close relationship with mother and with her family. They love father but have a more distant relationship with him at the present.
c and h. ability and willingness to provide
[179] Both parents are able and willing to provide Sabrina and Mark with guidance and education as well as the necessaries of life. Facially today, each parent seems willing to support their relationship with the other parent. Given the high conflict nature of this case, in my view this is not easy for either parent.
d. history of care
[180] Until very recently, mother has provided the vast bulk of the care for the twins. With the equal parenting implemented recently, that care is moving to a shared care but it remains unequal.
e. views and preferences
[181] There is no direct evidence on this factor. It is clear from the conduct of the twins that they prefer mother.
f. cultural upbringing and heritage
[182] The parents of the twins have strong but separate heritages: Croatian for mother and Italian for father. From the evidence, their respective heritage is important to both parents but does not seem to be important for the twins.
g. plan for care and upbringing
[183] Mother wants to continue the 50/50 parenting arrangement. Father seeks at least a 90-day “protective separation,” meaning sole parenting time and decision making with no contact with mother for at least 90 days. According to father, success with the reconciliation therapy will lead to the same equal parenting arrangement.
i. ability to cooperate and communicate
[184] Again, because of the nature and length of this high-conflict case, the ability of mother and father to cooperate and communicate with each other on matters affecting the twins may be of concern going both ways. That said, both parents are law-abiding people and will follow the court order.
j. family violence
[185] There is no evidence before me of any physical violence. Father argues the infliction of psychological or emotional harm by mother on the twins by her parental alienation. I reject this position because I find mother did not engage in parental alienation. Her error, which she admitted, was an error of omission – she listened to the preferences of her children and did not exercise her parental authority. I accept this evidence of mother and specifically reject any evidence of father to the contrary. I find no psychological or emotional harm by mother to the twins.
k. civil or criminal proceeding
[186] There are no other civil proceedings and no criminal proceedings.
Determination on the Merits
[187] Based on all of the evidence I accept, and having regard to the factors in the Divorce Act described above, I find that it is in the best interests of Sabrina and Mark to continue with the existing shared parenting and decision-making.
Costs
[188] At the direction of the court, both parties filed costs submissions before final submissions. Included in both submissions were costs of the prior counsel for both parties.
Positions of the Parties
Mother
[189] Mother seeks costs of partial indemnity fees (inclusive of HST) $100,306.37 plus disbursements (inclusive of HST) of $18,904.22 for a total of $119,210.59.
Father
[190] Father seeks costs on a full or substantial indemnity basis both of which, I find, are inappropriate in this case. On a partial indemnity basis, the fees sought are $323,811.67 [^4] (inclusive of HST) plus disbursements (inclusive of HST) of $102,819.78 for a total of $426,631.45. When combined with the partial indemnity fees of prior counsel of $27,397.98 (inclusive of HST) and her disbursements (inclusive of HST) of $1,808.00, the total sought is $455,837.43.
Law on Costs
[191] In Serra v. Serra, 2009 ONCA 395 (“Serra”) at para. 8, the Court of Appeal for Ontario commented on costs: “Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.”
[192] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 gives me the authority to award costs. It provides as follows:
Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[193] In family law matters, there is a presumption that the successful party is entitled to costs of the case: r. 24(1), Family Law Rules, O. Reg. 114/99. This is a presumption, however, not a direction. A successful party may be deprived of all or part of the party’s own costs by “unreasonable behaviour during a case”: r. 24(4). Moreover, a judge continues to have discretion arguably even beyond such unreasonable behaviour: see M.(C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (C.A.), at paras. 40-41.
[194] Rule 24(5) sets forth the factors to be considered when deciding the reasonableness of behaviour: “(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle; (b) the reasonableness of any offer the party made; and (c) any offer the party withdrew or failed to accept.”
[195] Rule 24(12) provides factors for the court’s consideration in the exercise of its discretion in awarding costs. The appropriate factors for consideration in this matter are as follows:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party’s behaviour; (ii) the time spent by each party; (iii) any written offers to settle…; (iv) any legal fees…; (v) any expert witness fees; (vi) any other expenses properly paid or payable; and (b) any other relevant matter.
[196] The overriding principle in the awarding of costs is reasonableness: Serra, at para. 12; r. 24(12)(a).
Application to this Case
Entitlement
[197] As the successful party, mother is entitled to her case costs: r. 24(1).
Quantum of Costs – Reasonableness
1. Time Spent/Legal Fees
[198] This was a lengthy, hard fought trial on issues important to both parties.
[199] I find the costs amount submitted by applicant’s counsel reasonable and appropriate.
2. Behaviour
[200] Mother’s conduct, by affording the children the option of complying with parenting time, did add time and therefore costs to the case.
3. Written Offers to Settle
[201] I have not been made aware of any offers to settle.
Conclusion
[202] A fair, reasonable, and proportionate costs award on this case is $100,000.00, all inclusive.
Order
[203] For the reasons set out above, I make the following order:
- The parties shall share decision-making responsibility with respect to the children, Mark Maceroni, born April 11, 2007, and Sabrina Maceroni, born April 11, 2007.
- The children, Mark Maceroni, born April 11, 2007, and Sabrina Maceroni, born April 11, 2007, shall reside equally with the parties on a week-on, week-off basis, with exchanges taking place on Sundays at 2:00 p.m. The party finishing their parenting time shall be responsible for transporting the children to the residence of the other party.
- Respondent Frank Leo Maceroni shall pay case costs in the amount of $100,000.00 to Applicant Janet Mary Maceroni forthwith.
Original signed by Justice Kirk W. Munroe Kirk W. Munroe Justice
Released: September 13, 2023
[^1]: Dr. Ashbourne apologized to the court for using this term and explained that protective separation was extreme by eliminating all contact with a parent for a period of time. [^2]: I accept the risks identified in the evidence and report of Dr. Ashbourne. [^3]: I specifically reject the opinions of Ms. DeVeto that “protective separation” in this case will likely succeed and essentially has no risks. I accept the evidence of Dr. Ashbourne that there is no guarantee of success and that given the relative newness of “protective separation”, evaluations, especially long-term evaluations, are still early. [^4]: I decline to include fees sought for a law clerk and three “legal assistants.” In my view, they should not be included in a costs award.
