Court File and Parties

COURT FILE NO.: FS-24-43061-00 DATE: 20240711 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: De Rocchis, Sonia-Lynn Rodrigues, Applicant AND: De Rocchis, Sandro, Respondent ADDED RESPONDENT: Claudia De Rocchis

BEFORE: Justice M. Sharma

COUNSEL: Valois P. Ambrosino/Amy Voss, for the Applicant Jaret Moldaver/Lindsay Konkol, for the Respondent Martine Ordon, for the Added Respondent

HEARD: July 11, 2024

Endorsement

[1] Parties have not had a case conference. They appeared before Diamond J. and Kraft J. at TBST appearances on June 10 and 24, 2024, respectively.

[2] Parties married in 2014 and separated on April 28, 2024 when criminal charges were laid against the Respondent father for assault. They have four children aged 7, 6, 5 and 2.

Applicant’s Motion

[3] Applicant mother was granted leave to bring a motion prior to a case conference by Kraft J. for the following relief: (a) supervised parenting time for the Respondent; (b) the preservation of the net proceeds of sale of a cottage property; (c) temporary child and spousal support.

[4] In her Notice of Motion, the Applicant seeks relief in these areas, plus other relief: (a) an order that she have primary care of the children and for her to have decision-making responsibility; (b) an order for a certificate of pending litigation on the cottage property; (c) a declaration that the Applicant is a beneficial owner of the cottage property; (d) Orders for exclusive possession of the matrimonial home and the cottage property; and (e) an Order for police enforcement.

[5] I decline to consider the additional relief the Applicant seeks on this motion. This is only a 1-hour motion. To address these issues would require a long motion date. Furthermore, this case would benefit from a case conference before certain issues are determined (e.g., decision-making responsibility, declaration of beneficial ownership of cottage).

Order re Cottage Property

[6] Procedurally, the Application has not yet been issued, although the Applicant states it was submitted for issuing and copies were shared with the other parties. She states she did assert a property claim in the cottage property located at 370 Grise Road, Honey Harbour, ON (“cottage property”), and sought a certificate of pending litigation (“CPL”).

[7] The Respondent has attached to his affidavit the Agreement of Purchase and Sale for the cottage property. It shows that the Respondent’s sister, Claudia De Rocchis, is the seller. There is evidence from both the Applicant and the Respondent that she is the legal owner.

[8] However, the Applicant asserts that Claudia De Rocchis only holds title as bare trustee. As Claudia De Rocchis’ rights would be impacted by a preservation or CPL order, it is necessary that she be given notice of this motion and be provided with an opportunity to make submissions. I see no reason for such orders, in this case, to be made without notice.

[9] Counsel for Claudia De Rocchis appeared today. Her client is currently in Italy, returning on August 19, 2024.

[10] The Agreement of Purchase and Sale has a closing date of September 3, 2024. Therefore, it is not necessary that the preservation or CPL relief be heard today.

[11] I adjourn the Applicant’s motion with respect to the CPL and the preservation of the net proceeds of sale of the cottage property to August 20, 2024. Parties shall coordinate a schedule for the exchange of material.

[12] I further order that in the event there is a change in the closing date of the cottage property, or any other significant encumbrance, mortgage, transaction or change in ownership involving the cottage property before the return of the motion, Claudia De Rocchis shall advise the Applicant and Respondent, forthwith. An urgent hearing can be sought if there is a legitimate risk of this asset being depleted before August 20, 2024.

Respondent’s Cross-Motion

[13] The Respondent brings a cross-motion for unsupervised parenting time, although leave was not sought. The Respondent’s counsel explains that at the TBST appearance before Kraft J., the Respondent was self-represented and did not know that leave was required. He had attempted to get lawyers earlier. One was a friend and one was conflicted out. It was a mere days before this motion was heard that he retained his current counsel.

[14] I will consider the Respondent’s cross-motion because it is related to the same issue (parenting time) for which the Applicant obtained leave. I will have to undertake a best interests of the child analysis today in any event.

Applicant’s Support Motion

[15] Given that the Respondent only recently retained his current counsel, he states he has not had an opportunity to prepare a Financial Statement or to respond in any detail to the income the Applicant seeks to impute to him.

[16] It is highly unusual to have a support motion heard before an Application has been issued, and before a case conference. In fairness to the Respondent, he should at least be afforded an opportunity to file an Answer and a Financial Statement. Therefore, I will not rule on whether support should be based on imputed income. Instead, I make orders that maintain a reasonable financial status quo, based on the evidence I have, and provide a return date in September to deal with financial issues.

[17] I have scheduled a case conference in this matter for September 16, 2024 before me to address financial issues, and if time permits, any other issue.

[18] Therefore, the two issues I will decide today are: (a) parenting time; and (b) fixing a financial status quo pending the return of this matter on September 16, 2024.

Issues

Issue 1: What temporary parenting orders should be made in this case?

General Parenting Orders

[19] On a final basis, I make the following orders:

a. Neither party shall speak in a negative or derogatory manner about the other party to the children or in their presence, nor shall they invite or encourage others to do so.

b. Neither party shall seek to involve the children in this litigation or speak to them about this litigation, except and only as necessary to advise them of a parenting schedule or to have the children participate with 3rd party professionals involved in this litigation (e.g., Police, CAS, Office of the Children’s Lawyer, or other assessor). Parties shall not seek to influence or coach what the children state or report to professionals who are or become involved in this case.

c. At all times, parties shall encourage a positive and loving relationship between the children and both parents.

d. Parties shall not seek to record conversations they have with the children for a litigation purpose.

e. Neither party shall engage in any corporal punishment of the children.

f. Parties shall permit the children to have telephone or Facetime calls with the other party, within reason, and when requested by the children.

g. When transporting the children by car, parties shall ensure the children are always in a seat belt or age-appropriate car seat.

[20] I make these orders because of allegations that the Respondent has been involving the children in this litigation or has tried to influence what the children have reported to others, and because of allegations made by both parties of physical punishment of the children. There were also allegations of the children being transported by car without a seatbelt or proper car seat.

[21] These Orders apply to both parents. Children have a right to have a close and loving relationship with both parents. Children have a right to be feel safe and protected. It is in the children’s best interest that the parties be restrained by court Order from involving them in this litigation or from attempting to have the children favour one parent over the other. It may be that the children will have a voice in this family proceeding.

[22] Both parties have an obligation to provide a home that makes the children feel safe. Discipline of a child can be achieved without physical discipline. Young children of separated parents usually love both parents, but at times, may need to speak with the non-resident parent. This should be permitted within reason (e.g., up to once per day).

Parenting Time

[23] For the purposes of an interim motion, subject to a different finding being reached at trial or a subsequent motion, I am satisfied on a balance of probabilities of the following facts:

a. At least one or both parties have engaged in corporal punishment of the children on occasion. This fact has been admitted by the Respondent but denied by the Applicant.

b. The Applicant has been more involved in the day-to-day care of the children since birth that the Respondent.

c. The Respondent has been involved in the daily lives of the children and participated in their routines and sporting activities when he was not working.

d. The Respondent had periods when he has been the sole caregiver of one or more of the children, which at times has been for several days.

Family Violence

[24] Under the Divorce Act, this Court is required to consider family violence, which is defined broadly, as one factor in the best interests of the child analysis when making parenting orders.

[25] There are allegations of the Respondent having repeatedly physically abused the Applicant over the years. These are flatly denied by the Respondent. The Applicant relies on photo evidence of what appear to be scratches and bruises from February 2015, September 2015, and April 2016. The Applicant alleges that these were caused by the Respondent, although the Respondent denies ever physically abusing the Applicant.

[26] The Applicant relies on evidence of a text message sent by the Respondent on December 29, 2014, in response to a text sent by the Applicant which reads: “My neck shoulders and worse head is hurting and bruised and I’ve taken 4 Advils.” In response, the Respondent writes “I don’t like what happened yesterday your my wife that should never of happened.” There is only a limited excerpt of this text exchange, and it is difficult to appreciate the context in which it was sent or assess what weight to give to it on an interim motion.

[27] This Court must regularly consider allegations of family violence on an interim motion when, like in this case, there are competing versions of facts. The Legislature has nonetheless directed this Court to consider family violence and its implications even when making parenting orders – temporary or final. The allegations cannot be ignored. This presents challenges when the Court is forced to make interim findings on a contested affidavit record.

[28] Regrettably, there are cases where one parent makes false allegations of abuse, in the hopes of securing an “upper hand” in the family litigation. This is a reprehensible tactic because it can wrongfully deny children time with a parent. Alleged abusers often respond by saying the allegation is false and a mere tactic. When criminal charges are laid against an alleged abuser, that party may be instructed by criminal cases to be careful in responding to abuse allegations in the family proceeding.

[29] I have considered whether it is necessary to make an interim finding on this issue in this case. The allegations of violence principally involve the Applicant, and not the children. However, there are allegations of the Respondent losing his temper, on limited occasions, with the children and engaging in corporal punishment. The Respondent has admitted this having occurred occasionally. The Applicant advised there was video evidence of these outbursts towards the children, which the Court has not seen.

[30] I find it is necessary to determine, on an interim basis and subject to a different conclusion being reached later in this case with better evidence, that there was family violence perpetrated by the Respondent against the Applicant. It is a relevant factor because some of the violence is alleged to have occurred in front of one of the children, notably on the date of separation when the police were called and the Respondent was charged. Whether a child was exposed to family violence is a relevant factor under s. 16.(4)(c) of the Divorce Act.

[31] The nature, seriousness and frequency of family violence and when it occurred is also a relevant factor (s. 16(4(a)). The Applicant’s evidence suggests some isolated incidents violence perpetrated by the Respondent against the Applicant occurred in 2015, 2016, 2021 and 2024. This repeated violence, combined with several allegations of him losing his temper with the children, speak to his inability to control his anger and his resulting capacity to parent the children. He has admitted to corporal punishment of the children, and he has admitted to losing his temper.

[32] I find, on a balance of probabilities, that at least some of the family violence alleged by the Applicant likely occurred. It is consistent with the evidence of him losing his temper with the children, which he has admitted. He has also admitted that he and the Applicant were, more recently arguing often.

[33] However, in the context of a parenting motion, I have to assess the potential for this violence to re-occur and the impact on the children should the Respondent be granted parenting time and whether it should be supervised.

[34] There are several factors which suggest that if violence towards the Applicant or the children did occur, they are unlikely to reoccur and the Applicant was not concerned about the Respondent’s capacity to care for the children safely in the recent past.

[35] First, I have made Orders preventing any corporal punishment of the children.

[36] Second, I am mindful, as has been discussed by some of my judicial colleagues, that parents who engage in domestic violence of a spouse can equally have difficulty dealing with their anger when caring for children. However, despite the alleged incidents of violence from 2015, 2016, and 2021, the Applicant continued to leave the children in the Respondent’s sole care, including overnights. On the day of separation, the Respondent was home alone with some of the children.

[37] I am persuaded that the Respondent had a regular role in the children’s routines, including picking them up and dropping them off at daycare, school or sporting activities. While the scope of these parental responsibilities was denied, the Applicant did not dispute him partaking in some of them.

[38] Had there been a real concern with the Respondent’s capacity to care for the children safely, the Applicant would not have left the children in his care. Times when the children were in the Respondent’s care were when the Applicant engaged in leisurely travel or activities, so I am not persuaded that she left the children in his care simply because she had no other choice.

[39] In fairness to the Respondent on his motion for parenting time, the Applicant delivered a late responding affidavit for which the Respondent was not permitted an opportunity to deliver a Reply. I have to consider this when assessing some of the allegations in the Applicant’s most recent affidavit.

[40] And finally, there is one alleged incident, on the date of separation, when one child is alleged to have witnessed the abuse. Even if true, now that the parties have separated, there is little chance of the children being exposed to violence by one spouse against the other. One would also expect that the current criminal charges and these family proceedings will deter any possible future abuse by the Respondent. The Respondent will also be living in his parents’ home. Although they may not be there all the time, this provides a further level of protection against any threat of violence.

[41] For these reasons, I am not persuaded that the family violence concerns are of sufficient seriousness or will likely reoccur such that the father’s parenting time should be supervised, or that it be severely restricted. I am very concerned about the impact of supervised parenting in a sterile, artificial environment, on the children, which would be in sharp contrast to the regular parenting time at home that the children enjoyed with their father. It was the Applicant’s burden to demonstrate it was necessary, and I am not persuaded it is warranted in this case.

Other Best Interest of the Child Factors

[42] I must also consider the status quo and the pattern of care. As stated, I am satisfied that the Respondent had a role in the daily lives of the children, albeit less than the Applicant. I am also satisfied that the Applicant left the children in the sole care of the Respondent and on some occasions overnight.

[43] The children are 2, 5, 6 and 7. I find that the youngest child will need regular contact with both parents. Bonding is critical at this age, although he will also require stability with the Applicant who provided greater regular care. The older children can withstand longer absences from their primary caregiver. There are also advantages of keeping the children together so that they may provide comfort for each other.

[44] There is no voice of the child report, and the children are largely too young to express a view in any event.

[45] In terms of the parties’ capacity to care for the children, the Respondent states that he works as a cannabis consultant. There is no evidence of his work schedule although he says it is flexible and that he can care for the children and their activities. His evidence is that he will also have the assistance of family; he will be living at his parents’ home with the children. Given the criminal undertaking which prevent him from being near the Applicant, he proposes that all transitions with the children occur at his parents’ home. The children will stay in spare bedrooms at his parents’ home, and they will purchase bunk beds.

[46] I am persuaded that the Applicant performed the majority of day-to-day care for the children, such as meal preparation, planning activities for the children, and tending to their clothes. And I am equally persuaded that the Respondent had a role, to a lesser extent, in day-to-day activities and that he is capable of bridging the gap for the responsibilities previously undertaken by the Applicant when the children are in his care.

[47] In terms of the parties’ capacity to communicate and cooperate, there is a communication restriction in place as a result of the criminal charges, but it is subject to any family court order directing otherwise.

[48] On consent, I order parties shall communicate through Our Family Wizard, or if parties agree, by text or email. Their communication shall be civil, polite, respectful, and limited only to information about the children. This is sensible.

[49] There are allegations that the Respondent has sought to communicate with the Applicant through third parties or unknown numbers, despite the criminal restrictions. There is insufficient evidence for me to make any findings on this motion. They are best left to the criminal courts.

[50] The parties’ capacity to cooperate will be hampered by the lack of trust between them because of the criminal and family proceedings. While the parties may perceive otherwise, I do not have the impression that this is a high conflict case. It is a case involving some limited incidents of family violence, and a lack of trust. However, on this motion, I am not making decisions about who shall exercise decision-making. Therefore, their capacity to cooperate has little to no bearing on a parenting time order.

Parenting Schedule

[51] After considering these factors and the other facts as alleged by the parties in their affidavits, on a temporary, without prejudice basis, I order the Respondent father to have unsupervised parenting time with the children pursuant to the following regular schedule:

a. Every Wednesday from 9:00 a.m. to Thursday at 5:00 p.m; and

b. Alternating weekends, commencing July 13, 2024 from Saturday at 9:00 a.m. to Monday at 9:00 a.m.

[52] I further order that for the summer of 2024, the Respondent shall also be at liberty to select one 7-day period of his choosing. Similarly, the Applicant may choose one 7-day period of her choosing. The Respondent shall have first pick. The Applicant shall have second pick. The 7-day period shall run from Saturday at 9:00 a.m. to the following Saturday at 9:00 a.m. The Respondent shall make his selection by July 15, 2024. The Applicant shall make her selection by July 22, 2024. This overrides the regular schedule above.

[53] I further order that the Applicant will be responsible for all pick-ups and drop-offs, which shall occur at the Respondent’s parents’ home. However, if the Respondent’s parents are able and willing, they may arrange drop-offs at the Applicant’s home.

[54] I make this Order because there is a criminal restriction preventing the Respondent from being within a certain distance of the matrimonial home. Otherwise, I would have ordered that the parent who has care of the children shall always be responsible for the drop-off of the children.

[55] I further order that the Respondent father shall enrol in the next available Caring Dads program.

[56] I make this parenting schedule order for the following reasons:

a. The Applicant has been the primary caregiver and the children are young.

b. This schedule provides regular parenting time with the Respondent, including overnight parenting time for which he exercised solely on occasion during the marriage. Overnight parenting time can be very important for young children, to allow for unique bonding at night and early in the morning, and for children to see parents tending to all of a child’s routines.

c. A 2/2/5/5 schedule will involve absences for the youngest child that are too great for a child of this age. I am also mindful that the Applicant was more involved in the children’s day-to-day lives. To move too quickly to a 2/2/5/5 schedule may detract from the stability younger children require.

d. I am mindful that on alternating weeks, the children will have transitions on Thursdays at 5:00 pm, and then again on Saturday mornings at 9:00 am. While transitions should be minimized in a week, I place greater weight on the children’s need for contact and stability in the Applicant’s care, particularly for the youngest child who is 2, while also balancing the youngest child’s need to develop bonds with the Respondent.

e. I have selected an afternoon transition time at 5:00 pm because there is evidence of the younger child’s bedtime routine starting around 6:00 or 6:30 pm. As the children get older, this may be extended, or a 2/2/5/5 schedule may be more appropriate.

f. This schedule seeks to mimic the status quo, where the Respondent had a regular role in the children’s lives, but the Applicant played a greater role.

g. I am also mindful that this schedule may represent a significant change for the children, as they will be living in two separate homes. However, the children will likely be familiar with their grandparents’ home.

h. The children are at an age and stage of development where future changes to this schedule may be required to either expand or reduce the Respondent’s parenting schedule. It may be up to two years before this case gets to trial, and it may not be in the children’s best interest to wait till try for such a change. Provision should be made for adjustments, for example, if a s. 30 assessment is undertaken where an assessor recommends a different schedule. This can be canvassed at a future case conference, if necessary.

[57] This parenting schedule may be altered by agreement of the parties.

Issue 2: What status quo financial orders should be put in place pending the routine of this issue on September 16, 2024?

[58] The above schedule has the children with the Respondent approximately 32% of the time. He has a requirement to pay table child support pursuant to the Child Support Guidelines.

[59] On a balance of probabilities, I find that the Applicant has entitlement to compensatory and needs-based spousal support. She was the primary caregiver of the children. She has no source of income. She is entirely dependent on the Respondent. She has given evidence that because the Respondent has not paid any support since separation, bills are overdue and in arrears, and overdue mortgage amounts are owing on one or some of the investment property.

[60] However, given the urgency of this motion, the Applicant has not yet filed a financial statement. In fairness to him, his income cannot be determined today.

[61] He states he has been funding the parties’ lifestyle by depleting capital he acquired in 2016 of $10 million from the sale of a business. He says he has debts of $3 million. Through investment/rental properties, this family received rental income that was sufficient to cover some expenses of the rental properties, matrimonial home, vehicle and other expenses. Some of these properties were in the Applicant’s name. It is unclear who is collecting this rental income.

[62] The Applicant’s evidence is that based on the carrying costs of the various properties owned by the parties and the parties’ other expenses, the parties’ monthly expenses were not less than $62,000 per month, including carrying costs of the properties, private school for the children, extra-curricular activities, car lease payments and a Granite Club membership. This translates into $744,000 annually. After deducting rental income received of $200,340 annually, she argues there remains $545,000 in annual expenses that the Respondent has been paying and she seeks to impute this amount of income to him for child and spousal support purposes.

[63] The Respondent says he cannot afford to continue with the monthly expenses that have been incurred. It will be necessary for this family to sell some of their properties to continue living the way they did.

[64] On a temporary, temporary basis, pending the return of this issue on September 16, 2024, I make the following orders to preserve the financial status quo until the Respondent files a sworn Financial Statement, which I order him to do within 30 days:

a. The Respondent shall continue to pay all utility, internet, mortgage, tax, and other bills associated with the matrimonial home and any other properties listed in para 23 of the Applicant’s affidavit sworn June 28, 2024 (except the cottage property) for which the Respondent has historically paid the expenses. He shall make prompt payment of any overdue amounts that are owing.

b. The Respondent shall pay the lease, insurance and all repair costs for one vehicle that is currently used by the Applicant, including any overdue amounts that are owing.

c. The Respondent shall continue to pay for any camps, daycare or other activities in which the children have been registered in in the past, except the children’s private school.

d. The Respondent shall pay the Applicant an uncharacterized amount, to be characterized later, of $6,000 per month, effective July 1, 2024. If he has already made a cash advance to the Applicant in July 2024, any amounts already paid are to be credited towards the $6,000 monthly payment.

e. Rental income received from any rental/investment properties that were previously used to cover the expenses for such properties shall first be applied towards the above expenses before the Respondent’s obligation to contribute will exist.

[65] As a stop-gap measure, I find this temporary, temporary financial status quo order should provide sufficient means for the Applicant and the children until September 16, 2024.

[66] I find that $6,000 per month is a reasonable sum, after having considered the Applicant’s budget and deducting housing and other costs for which the Respondent will continue to pay. I find that some of the items in the Applicant’s budget are excessive – such as $1,000 per month on clothing, $800 per month on hair and beauty, private school for the children, and $3,178.71 per month at the Granite Club. While these may have been expenses incurred in the past, there will be additional legal costs that both parties must incur in relation to both the family and criminal proceedings. It appears necessary for parties to begin cutting back on extraordinary expenses until further orders are made with respect to their finances.

[67] I recognize that an order regarding private school vs. public school was not sufficiently argued before me today. I remain open to revisiting this issue once there is a clearer picture of the Respondent’s finances. For now, I do not believe the children will be negatively impacted if they are registered in the public school in the catchment area of the matrimonial home – even temporarily – effective, September 2024.

Costs

[68] The issue of costs of today’s motion is reserved to the continuation of this motion on August 20, 2024, or if there is insufficient time, it can be addressed when parties appear on September 16, 2024.

Justice M. Sharma Date: July 11, 2024