Ippolito v. Palmer, 2024 ONSC 148

Court File and Parties

COURT FILE NO.: FC-19-132 (Cayuga) DATE: 2024/01/08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTINA IPPOLITO, Applicant AND: SHELDON PALMER, Respondent

BEFORE: Gibson J.

COUNSEL: Edward Kiernan, Counsel for the Applicant Robert Fernandes, Counsel for the Respondent

HEARD: October 23, 2023

CORRECTED DECISION: The original Endorsement was released on January 8, 2024 and has been corrected as follows: On page 11, under the heading Order 1. the residential address has been redacted, and in paragraph 29 4. name of the school and address has been redacted.

Endorsement

Overview

1This is a high-conflict case in which the Respondent father Sheldon Palmer (“the Respondent”) alleges extreme parental alienation by the Applicant mother Christina Ippolito (“the Applicant”). Two motions were before me.

2The Respondent is the moving party on the first motion, which arises in the context of his Rule 15 Motion to Change the Order of Chappel J. dated July 21, 2015, concerning the parenting terms regarding the parties’ son Brody Jack Brandle Ippolito (“Brody”), born June 14, 2013. The Respondent father has not spent time with Brody for an extended period. The Respondent seeks: a temporary order directing that Brody shall reside with the Respondent on a primary and full-time basis, in accordance with the proposed parenting plan that is attached to his Notice of Motion dated July 18, 2023; a temporary order that the Applicant shall have supervised parenting time with Brody and engage a therapist for individual counselling; and an order for police enforcement.

3The Applicant is the moving party on the other motion, in which she seeks dismissal of the Respondent’s motion for reversal of primary residence and decision-making responsibility and for suspended parenting time for the mother, as well as seeking an Order requesting an update to the previous s.112 Office of the Children’s Lawyer (“OCL”) clinical investigator’s report dating from June 2020.

4Brody, now 10, currently resides primarily with his mother in Caledonia, and attends school at Our Lady of Lourdes Catholic Elementary School in Hamilton. This school is across the street from the home of the Applicant’s parents in Hamilton.

5Ms. Ippolito, now 45, receives long-term disability benefits as a result of a workplace accident which took place in October 2021. She has one other child from a previous relationship, Brayden Ippolito, who is currently 16. Brayden is estranged from his own biological father, Kyran Coles. Although the situation is fluid, it appears that Brayden is currently residing with his grandparents rather than the Applicant mother due to some friction between them.

6On July 26, 2022, Valente J. ordered the parties, and Brody, to participate in reconciliation therapy, the purpose of which was to establish a healthy family structure. Both parties were directed to surrender their past narratives and focus on a healthy basis for future relations. Unfortunately, the second reconciliation therapist assigned to this family, Mahesh Prajapat, has concluded that any further therapy will be of no utility in the current environment. He reports that the Applicant has stated that she will never support a relationship between Brody and his father regardless of any court Order and that she would be willing to go to jail before allowing Brody to see his father.

7The Respondent father now seeks an Order reversing the child’s current residential arrangements such that, effective immediately, Brody will start residing with him on a primary and full-time basis. Mr. Palmer, now 52, resides in Plattsville, Ontario, and is self-employed as a pest control exterminator.

8In 2019, the family was referred to the OCL, and the OCL agreed to investigate and provide a report. The responsible clinician, Sandra Sherk, privately interviewed Brody at his school when he was 6 years old and produced a report in June 2020. She indicated that the sources she consulted provided no conclusive evidence of either party’s statements about mental illness, drug abuse or criminal behaviour pertaining to the other. In this report, she recommended against placement of Brody with the Respondent father.

9The parties agreed in 2015 that Brody should reside primarily with the Applicant mother, and this arrangement was incorporated into the Order of Justice Chappel.

New Evidence

10After counsel made their submissions to me at the hearing held on October 23, 2023, the parties subsequently agreed on consent that the evidence for the motion should be re-opened to admit the affidavit evidence of Kyran Coles, dated November 5, 2023, and the reply affidavit of Christina Ippolito, dated November 13, 2023. Given the nature of the issue raised by these affidavits, I agreed to admit the additional affidavit evidence, as relevant to the issues to be decided on the motions.

11The central issue treated in these affidavits is that the Applicant mother Christina Ippolito is now in a relationship with Geoffrey Burnet, who has recently been convicted of possession of child pornography. He was sentenced to a custodial sentence of 15 months at the Ontario Correctional Institute, and is currently on probation for 3 years following his release from custody in July 2023. The terms of his probation are contained in his Adult Probation Order dated April 12, 2022. He is also subject to a Prohibition Order dated April 12, 2022, pursuant to s.161 of the Criminal Code. The terms of these Orders require that Mr. Burnet not be alone with children. The Prohibition Order specifies that he is not to have any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

12The Applicant acknowledges that she is aware of Mr. Burnet’s criminal history. She indicates in her affidavit that Mr. Burnet sleeps over at her place once or twice a month. She says that they are dating but have no plans to move in together.

Issues

13The issues to be decided on these motions are:

1. Should primary care and control over Brody revert to the Respondent father on a temporary basis? and,
2. If so, what sort of parenting time should the Applicant mother have with Brody during the interim?

Law and Analysis

14A finding of parental alienation and the subsequent order necessary to remedy the situation must be determined on a case-by-case basis. It is a legal concept as opposed to a mental health diagnosis, which the court can make a finding on based upon an analysis of the facts alone without expert evidence.

15Once a finding of alienation has been made, the appropriate order must be determined. As indicated at paragraph 129 in W.C. v. C.E., 2010 ONSC 3575, and by the Court of Appeal for Ontario at paragraph 36 in M.P.M. v. A.L.M., 2021 ONCA 465, the options include:

a. Do nothing and leave the child with the alienating parent; b. Reverse the custodial arrangements and place the child with the rejected parent; c. Leave the child with the favoured parent and provide therapy; or, d. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.

16In the present case, the parties have each made countervailing allegations regarding the other in competing affidavits. There is certainly a substantial concern regarding the possibility of parental alienation of Brody by the Applicant mother. However, it is not possible for me to make definitive findings of fact regarding parental alienation on the basis of the affidavit evidence which has been put before me on these motions. Such findings will require credibility assessment following viva voce evidence at trial.

17It is obvious that the engagement of the OCL to ascertain Brody’s views now that he is older, and to update the previous report, would be of great assistance both to the parties and to the Court, particularly with regard to the issue of parental alienation.

18In McLeod v. Marsh, 2023 ONSC 1026, Henderson J. addressed the factors to be considered in a similar case at paragraphs 10 - 13:

10The issues may be summarized as follows:

1. Can a final order be varied on an interim motion?
2. If so, under what circumstances?
3. Do the facts of this case meet the threshold required and, if so, what order is in the children’s best interests?

11Both parties concede that the starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726. Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:

48. To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz, [1996] 2 S.C.R. 27.

49. The first step: There must be a material change in circumstances since the last order was made. a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs. b. The change must materially affect the child. c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., [2011] SCC 64. d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485. f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

50. The second step: a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child. b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 ONSC 22571; Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642. c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young, 2003 ONCA 3320. d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v. Rigillio, 2019 ONCA 548. e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

51. The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis: a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to. b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery, 1992 ONCA 8642; Gordon v. Gordon, 2015 ONSC 4468; Oickle v. Beland, 2012 ONCJ 778. c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue. d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes, 2014 ONSC 1311; Huliyappa v. Menon, 2012 ONSC 5668; Clements v. Merriam, 2012 ONCJ 700. e. But the evidentiary basis to grant such a temporary variation must be compelling. f. The court must start with the aforementioned two-part material change in circumstances analysis. g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests. h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. i. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours. j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm. k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established. m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

12I conclude then that the I have the ability to vary a final order but that the threshold is very high. According to Pararatz, J. the evidentiary basis must be compelling and that “the changed circumstances have created a situation of actual or potential harm, danger or prejudice for the child of such nature or magnitude” that immediate change is necessary. The applicant bears the onus of proof.

13The applicant cited the decision of Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz J. At paragraph 40, Dambrot, J. concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

19The parties have nullified the intentions in the original arrangements agreed upon in 2015 because of conflict.

20I have indicated that I am unable to make definitive findings of fact regarding parental alienation on the basis of the affidavit evidence before me on these motions. But there is a new pressing issue which must be addressed.

21The Applicant mother is currently in a sexual relationship with a man who has recently been convicted of possession of child pornography, and who is subject to a s.161 order prohibiting him from having contact with persons under the age of 16, unless in the presence of somebody the court considers appropriate. Pursuant to s.490.012 of the Criminal Code, upon conviction of the s.163.1 offence of possession of child pornography, the judge shall make an order requiring the offender to comply with the Sex Offender Information Registration Act. This person occasionally stays overnight within her home.

22I have grave concerns about the judgment of the Applicant mother in this regard. At present, I do not find her to be “a person whom the court considers appropriate” as specified in the s.161 Prohibition Order for the purpose of supervision of Geoffrey Burnet in the home where Brody resides.

23The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing parenting order. I am satisfied that there has been a material change in circumstances likely to affect the best interests of the child, because of the presence of Geoffrey Burnet in the Applicant’s home, and her sanguineness regarding this. This change has arisen since the making of the current order. It was not a change that was either foreseen or could have been reasonably contemplated by the judge who made the previous order. The change is substantial and continuing.

24I conclude that I have the ability to vary a final order but that the threshold is very high.

25In this circumstance, I must move on to the second stage and consider on a fresh inquiry the best interests of the child and whether to vary the original order. In this, there is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. At this stage, the best interests’ test is the only test to be applied. The court must ascertain the child’s best interests from the perspective of the child rather than the parents. The child should have maximum contact with both parents if it is consistent with the child’s best interests.

26As what is requested is a temporary variation of a final parenting order, a stringent analysis must be conducted. I am satisfied that in this instance the court has jurisdiction to grant a temporary variation of a final order. I am satisfied that the changed circumstances, that is, the presence of Mr. Burnet in the home, has created a situation of actual or potential harm, danger or prejudice to the child, of such nature and magnitude that immediate rectification is required to safeguard the child’s best interests. The proposed temporary variation is urgently needed to shield the child from likely future harm. I am satisfied - on a balance of probabilities - that a clear and compelling need to make an immediate change has been established.

27I am satisfied that this situation comprises some of the “other, equally compelling circumstances” mentioned by Justice Dambrot in S.H. v. D.K.

28Accordingly, some portion of each of the parties’ motions will be granted, and some will be dismissed.

Order

29The Court Orders, on a temporary basis, that:

1. The subject child of this proceeding, Brody Jack Brandle Ippolito (“Brody”), born June 13, 2014, shall reside with immediate effect with the Respondent, Sheldon Palmer, at his residence at [address redacted].
2. Paragraphs 1 to 9 of the final order of Chappel J. dated July 21, 2015, shall be temporarily stayed;
3. The Respondent father shall have sole decision-making responsibility with regard to the child with respect to all facets of the child’s educational development, religious upbringing, general health and welfare, and extracurricular activities;
4. The child shall commence attending the [name of school and address redacted] in January 2024;
5. The Respondent father shall continue using Dr. Stephen Taylor as the child’s primary physician;
6. The Respondent father shall communicate any medical information pertaining to the child Brody to the Applicant mother, by AppClose, or a similar parenting application;
7. The Applicant mother shall provide the original copies of the child’s Statement of Live Birth, OHIP Health Card, SIN card and Canadian passport, to the Respondent father, who may apply for renewal of these documents as required;
8. The Applicant mother may have unsupervised parenting time with the child one day per week, on a day to be agreed in advance between the parties, for up to eight hours. Geoffrey Burnet is not to be present during this parenting time;
9. Both parties shall refrain from making derogatory remarks about the other in the presence of the child;
10. The child Brody shall not be removed from the Province of Ontario by either party or by any other person;
11. The Hamilton Police Service, the Ontario Provincial Police, the Royal Canadian Mounted Police, and any other Police authority having jurisdiction in any area where it appears that the child Brody may be and to whose attention this Order is brought shall provide assistance in enforcing the provisions of this Order, and shall take all such actions as are required to locate, apprehend and deliver the child Brody to the Respondent father for the purpose of enforcing the parenting provisions of this Order, including the power of search and entry at any time;
12. The Office of the Children’s Lawyer is requested to engage such services as it considers advisable, including under s.112 of the Courts of Justice Act;
13. The approval of the Applicant mother as to the form and content of the Order is dispensed with; and,
14. As success is divided, there will be no order as to costs for these motions.

Gibson J.