Caeiro v. Caeiro, 2025 ONSC 2107

COURT FILE NO.: FS-13-00385210-0000
DATE: 2025-04-03
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
Ludovini Emanuel Martins Caeiro, Applicant
– and –
Sara Raquel Oliveira Caeiro, Respondent

Appearances:
N. Javed, for the Applicant
Sara Raquel Oliveira Caeiro, Self-represented

Heard: February 18, 2025

REASONS FOR JUDGMENT
Newton-Smith

I. Background

[1] This was a short trial. The Applicant relied only on his affidavit evidence and a report from the Office of the Children’s Lawyer. He did not testify or otherwise call evidence. The Respondent mother, Sara Caeiro’s, pleadings had previously been struck. She was barred from calling evidence at trial, pursuant to the July 11, 2024, Order of Justice Nakonechny striking her pleadings, and was only permitted to make submissions with respect to parenting and the children.

[2] The Applicant sought orders with respect to the primary and habitual residence of the children, parenting time, child support and other issues related to the children.

The Parties and Their Children

[3] The parties were married on February 23, 2001, and separated on July 14, 2012. They are now divorced. They have two sons, D.M. who is now 17 years old, and P.D. who is now 13 years old.

[4] The initial post-separation arrangements are summarised in Justice Sugunasiri’s Decision on Interim Motions for Relocation and Interim Parenting Time dated October 10, 2023.

[5] Parenting time and decision-making were initially governed by a separation agreement dated November 29, 2012. The agreement was not put into evidence at trial but is outlined in Justice Sugunasiri’s October 10, 2023, decision. The separation agreement gave “sole custody” to the Respondent mother, with “access” to the father (the terms then used). The Applicant father was to have the children every other weekend from Friday at 7:00 pm to Sunday at 7:00 pm and one holiday per turn [sic].

[6] By 2020, around the time that the younger child P.D. was diagnosed with autism, the agreement broke down. The Respondent mother began denying the Applicant father access and the issue of interim parenting time came before Justice Czutrin on several occasions. The Office of the Children’s Lawyer [OCL] became involved. On January 25, 2023, the OCL released its report, with an update on May 11, 2023.

The OCL Report

[7] At the time of the OCL report, D.M. was in grade 9. The report observed that he was doing well in school and had friends and interests. He was visiting his father on alternate weekends. The report described D.M.’s bond with his father as strong and no concerns were raised with respect to the Applicant’s parenting. The author of the report noted that D.M. was concerned that his mother would be angry about his views and preferences.

[8] P.D. was described as a talkative, friendly but anxious child who struggled in school and did not have friends. He was diagnosed with autism in 2020 as well as possible ADHD and anxiety. The report notes that the Respondent mother did not follow through with the treatment recommendations for P.D.’s issues. It was also noted that he often expressed his mother’s views as his own. At the time of the report, P.D. had “declined” to visit with his father since May 2021 except for brief visits when his father picked up D.M. on alternate weekends.

[9] The OCL recommended that D.M. should continue to have alternate weekends with his father, access on Wednesday evenings and extended visits on weekends with statutory holidays.

[10] The OCL found that P.D. would benefit from a relationship with his father and recommended that P.D.’s visits with his father start during the day, without overnight, on alternate weekends with his brother. It was recommended that the visits gradually increase when P.D. feels ready, as indicated by a therapist.

[11] It was observed that P.D. expressed anxiety that he may be observed enjoying visits with his father. P.D. told the clinician that his mother “got weird” if his brother, D.M., said he had fun with his father. The report states, “Ms. Caeiro also appears to tacitly approve of P.D.’s negative behaviour towards his father and he receives a sympathetic ear when he tells his mother of his father’s failings.”

[12] It was recommended that the children not have phone calls with their mother during the father’s parenting time. This was due to pressure that the mother was placing on the children to not enjoy time with their father.

[13] With respect to decision making, the report recommended:

Given the conflict between the parties, joint decision-making is not indicated as in the best interest of the children. The children are residing primarily with their mother and there is a significant geographical distance between them. Mother has been the parent who has had most contact with respect to the children’s schooling and medical care and therapy and father has been less involved. They agree with respect to religious practice. It is strongly recommended that Ms. Caeiro consult with Mr. Caeiro prior to making major decisions and that Mr. Caeiro have full access to information about his children, including school, medical and counselling/assessments. Ms. Caeiro should sign any consents needed to do so. Mr. Caeiro should be put on the emergency contact list for the children’s schools and for all other activities. It is also recommended that Mr. Caeiro be able to provide input into any counselling/assessment for the children. Ms. Caeiro should give Mr. Caeiro the contact information for all the people involved in P.D.’s care so that he can do so.

[14] The OCL also recommended, among other things, that the parties communicate through Our Family Wizard [OFW].

The Interim Parenting Time Order – Justice Sugunasiri’s October 10, 2023 Decision

[15] In her October 10, 2023, decision Justice Sugunasiri made an interim parenting time order in which she ordered that the Applicant father have parenting time in accordance with the OCL recommendations, commencing October 13, 2023.

[16] Justice Sugunasiri ordered that all communication between the parties be limited to discussing the needs of the children for the purposes of parenting time and solely through Our Family Wizard. She ordered that sole decision-making remain with the Respondent for the interim, except that the Respondent was required to obtain travel consent from the Applicant for any travel with the children outside of Canada.

[17] In accordance with the OCL recommendations, the Respondent was ordered to provide the Applicant with all contact information for people involved in the children’s care and education. She was also ordered to consult with the Applicant on major decisions such as schooling, religion and non-routine medical interventions.

The Striking of the Respondent’s Pleadings

[18] A settlement conference was scheduled for September 2023 but was adjourned because the Respondent failed to serve and file a settlement brief, nor had she provided financial disclosure. In her endorsement of September 29, 2023, Justice Rhinelander noted the Respondent’s, “consistent pattern of … noncompliance with the rule and a blatant disregard for Court Orders”.

[19] On December 22, 2023, Justice Faieta held a settlement conference. The Respondent attended but did not file materials or comply with the previous disclosure orders.

[20] On July 11, 2024, the Applicant brought a motion for an order finding the Respondent in contempt of eight orders of this Court and striking the Respondent’s pleadings. Justice Nakonechny heard the motion and found that:

The mother has shown a pattern of failure to comply with court orders in this proceeding. She has not paid five costs orders. She has not produced financial disclosure, filed pleadings in timelines ordered or facilitated the father’s parenting time with D.

[21] In striking the Respondent’s pleadings Justice Nakonechny found:

I am satisfied that there is a triggering event in that the mother has failed to comply with six substantive orders and five costs orders.

The mother has demonstrated no regard for this court. This has caused the father to incur significant legal fees and has delayed a final and just resolution of the issues in this case. Her behaviour is financially and emotionally detrimental to both the parties and the children.

[22] As a result of Justice Nakonechny’s Order, the trial proceeded on an uncontested basis before me.

The Applicant’s Evidence at Trial

[23] In his affidavit, the Applicant father states that the Respondent continues to make decisions that are contrary to the leading professionals and against court orders. He states that the Respondent has not been facilitating and encouraging a healthy relationship between him and the children.

[24] According to the Applicant:

The Respondent has been successful in deterring the younger child, P.D., to express to me that he does not wish to go for parenting time. It is my position that the Respondent has used the child’s mental health difficulties and disability (Autism) to indoctrinate this child. The elder child has witnessed this and has expressed same to me and others….She has made efforts to break the bond that the children and I share.

[25] The Applicant’s affidavit is dated September 10, 2024. It does not address what the current situation with respect to parenting time is. When asked in submissions, counsel for the Applicant told the Court that the parties had been following a schedule as of December 2024 with both children spending alternate weekends with the Applicant. Counsel stated that things had been going well as of late and the parties were communicating relatively well through OFW.

II. The Orders Sought

Parenting Time and Decision-Making

[26] The Applicant father seeks final orders with respect to primary residence, parenting time, child support and section 7 expenses. He also seeks various orders with respect to the habitual residence of the children, travel, passports exchanges for parenting time, communications with the children during parenting time and police enforcement.

[27] The Applicant asks for a parenting time schedule where both children spend every other weekend with him, and a holiday schedule which gives equal division of the summer holidays on a 2 week on, 2 weeks off schedule.

[28] The Applicant acknowledges the long-standing status quo of the children living in Etobicoke with the Respondent as the primary caregiver. He does not seek to change this arrangement, unless the Respondent continues to frustrate his parenting. He has asked that the order contain a clause which changes the children’s primary residence to the Applicant “should the Respondent fail to encourage/facilitate and allow for an exchange to take place on two concurrent occasions”. He also asks for a police enforcement clause.

[29] He asks that decision making be joint.

Child Support

[30] The Applicant asks that support be ordered as follows. The Applicant has an income of $51,117. He asks that the guideline amount of $774.00 be reduced by $100 per month for payment of outstanding Costs Orders. Currently, the Respondent owes the Applicant $22,669.50 in costs orders.

[31] The Applicant asks that section 7 expenses be shared on a proportional basis based on the previous year’s Notice of Assessment. He states that the Respondent works “under the table” as a cleaner and asks that neither party shall use an income of less than $33,100.00 (minimum wage full time job). Currently the Applicant’s share is 61% and the Respondent’s 29%.

III. Parenting Time

[32] Section 24(1) of the Children’s Law Reform Act [CLRA] states that, in making a parenting order, the court shall only take into account the best interests of the child. In determining best interests, “the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being".

[33] Section 24(3) outlines the factors that are relevant to “the circumstances of the child” including:

• The nature and strength of the child’s relationship with each parent;
• Each parent’s willingness to support the child’s relationship with the other parent;
• The history of care of the child;
• The child’s views and preferences, giving due weight to the child’s age and maturity;
• The ability and willingness of each parent to care for and meet the needs of the child, and
• The ability and willingness of each parent to communicate and co-operate, in particular with one another, on matters affecting the child.

[34] Section 16(10) of the Divorce Act requires courts to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.

[35] Previously, in the interim motion on parenting time, Justice Sugunasiri ordered parenting time in accordance with the recommendations of the OCL. At that time, she ordered that P.D.’s time with his father begin with daytime visits as recommended by the OCL.

[36] The OCL recommendations contemplated increasing parenting time for the father. The recommendations were made at a time when P.D. had not been spending time with his father and was expressing anxiety, albeit likely as Justice Sugunasiri acknowledged, a result of the Respondent’s inappropriate influence. The schedule ordered by Justice Sugunasiri was made with a view to reintroducing P.D. to spending time with his father and contemplated that the visits increase as appropriate.

[37] The children are older now, in grade 11 and grade 8.

[38] I have almost no evidence before me as to what the current situation is with the children. The Applicant’s affidavit on this trial is silent except to say that the Respondent has been successful in deterring P.D. from wanting to spend time with him. In an affidavit of June 18, 2024, the Applicant stated that P.D. wished to spend more time with him on the same schedule as his brother.

[39] In submissions, counsel for the Applicant stated that currently the parties have agreed to a schedule where both children spend every other weekend with their father and that this is generally working. When asked by me in submissions if she agreed, the Respondent initially said yes and then changed her position to say that P.D. does not wish to go to his father’s residence. Submissions are not evidence.

[40] It is difficult on this limited record to ascertain what P.D.’s needs and wants are at this time. He is now in grade 8 and becoming a teenager. The brothers get along. P.D., who suffers from anxiety, takes comfort from being with his older brother. D.M. in turn, wishes to provide security and stability for his younger brother.

[41] The Applicant’s description of the Respondent’s continued behaviour in denying him parenting time and discouraging the children’s relationship with their father, particularly P.D., is consistent with the OCL findings as outlined in the report of January 2023. It is also consistent with the Respondent’s continued disregard for Court orders which led to her pleadings having been struck.

[42] I accept his evidence that the Respondent continues to have no regard for court orders, continues to act against the recommendations of the OCL and continues to thwart his parenting time.

[43] The parenting schedule requested by the Applicant is in accordance with the recommendations of the OCL that parenting time with the father increase as appropriate. The schedule requested by the Applicant also appears to be similar to the original separation agreement.

[44] The Applicant resides in Innisfil and the Respondent resides in Etobicoke. This is a significant distance to travel. The children are now teenagers. They have schoolwork and other responsibilities to attend to. It is also normal and desirable for teenagers to have social lives that do not involve their parents. Given the amount of travel involved, frequent short visits with their father during the day or evenings would be disruptive to their lives.

[45] Overnight weekend visits on every other weekend allow the teenagers to spend time with their father, in a way that is consistent, provides stability and fosters their relationship with him without interfering with weekday school and other extracurricular activities.

[46] Given the respective ages of the children and their relationship, the recommendations of the OCL, and what I understand to be the current situation, I find that it is in the best interests of D.M. and P.D. that they spend regular time with their father together on weekends.

[47] Other weekend, as proposed by the Applicant, best meets those needs.

[48] The Applicant has asked that decision making be joint. There is a long history between the parties of difficulty in coming to agreement. The OCL’s recommendation that decision-making not be joint was well founded. The concerns outlined by the OCL continue to be a factor. The children are now teenagers and there are no pressing issues with respect to decision-making responsibility. Currently the Applicant, with whom the children reside, has decision-making but is required to consult with the Respondent on all major decisions. She is also required to provide him with contact information for those involved in the children’s care, activities and schooling.

[49] Given that the children’s primary residence is with the mother, it is in their best interests that decision-making remain with the Respondent mother. However, she must consult with the Applicant on all major decisions.

[50] I do not think that it is appropriate to add a clause that the children’s primary residence will switch to the Applicant if the Respondent fails to facilitate an exchange of the children on two consecutive occasions. Primary residence should not be used as an enforcement mechanism and should be designated only for reasons relating to the best interests of the children. Currently it is not in their best interests to have primary residence with the Applicant.

[51] I also do not think that a police enforcement clause is appropriate. The children are now teenagers. Teenagers are capable of acting on their own desires and do not always do as their parents ask. Involving the police in disputes between the parties, or between the parents and the children, with respect to parenting time is heavy-handed and potentially detrimental to the children’s best interests. As Justice Sugunasiri observed in her decision on the interim motion, it will not be helpful to the children.

[52] The holiday schedule proposed by the Applicant of 2 weeks on, and 2 weeks off is appropriate given the age of the children.

IV. Child Support

[53] The Applicant is currently paying $774.00 a month in child support.

[54] The Respondent owes the Applicant $22,669.50 in outstanding costs orders. The Applicant seeks a reduction of $100 per month to offset the unpaid costs orders as against the Respondent.

[55] I am not prepared to reduce his child support by $100.00 a month to account for the Respondent’s unpaid costs orders. While the Respondent’s blatant disregard for orders of the court calls out for sanction, I do not consider it appropriate to reduce the child support as a means to enforce payment of costs orders. Child support is for the children. They should not suffer as a result of their mother’s refusal to comply with costs orders.

[56] The Respondent’s income is $51,117. Applicant asks that the Respondent’s income be imputed to $33,100, the income for a full-time minimum wage job. He asks that section 7 expenses be apportioned at 61% and 29% respectively.

[57] As a result of the Respondent’s failure to obey court orders, including providing financial disclosure, I have only the Applicant’s evidence with respect to their respective financial positions.

[58] I accept the Applicant’s evidence with respect to his income and I am prepared to impute to the Respondent a full-time minimum wage income.

V. Orders

[59] The Respondent shall have primary residence.

[60] The children shall be habitual residents of Ontario, Canada.

[61] Neither party shall remove the children from the province of Ontario without the other party’s prior written consent, which shall not be unreasonably withheld.

[62] The Applicant shall have parenting time with both children every other weekend from Friday at 5:00 pm through Sunday at 7:00 pm. If the Applicant’s parenting time falls on a long weekend, PA Day and/or holiday, the Applicant’s parenting time will be extended to Monday at 7:00 pm, and or shall begin on Thursday at 5:00 pm. The Applicant shall be responsible for transporting the children to his residence for their visits, and the Respondent shall be responsible for transporting them back at the conclusion of the visit.

[63] Communication between the Applicant and the children on the Respondent’s parenting time is to be at the discretion of the children. Communication between the Respondent and the children on the Applicant’s parenting time is to be at the discretion of the children.

[64] The holiday parenting time is in addition to the regular parenting schedule above, and overrides that schedule in the event of conflict:

[65] During school summer holidays, the Applicant shall have 2 weeks on and 2 weeks off with the children. The Applicant shall have the first 2 weeks of the summer holidays in odd years and the Respondent shall have the first 2 weeks in even years. The regular schedule shall recommence as of Labour Day. The parent who did not have the last weekend prior to the summer holidays shall have the first weekend of September.

[66] The parties shall have alternate Monday to Friday of March break each year. The Applicant is to have odd numbered years and the Respondent even numbered years. This does not include weekends which shall remain on the regular schedule.

[67] The winter holiday break shall be divided equally between the parties. The parties shall divide the weeks accordingly: in odd years the Applicant shall have the first week and the Respondent the second week, and vice versa in even years.

[68] On Mother’s Day, the Respondent shall have the children from Saturday at 7:00 pm until Sunday at 7 pm, regardless of the regular parenting time schedule.

[69] On Father’s Day, the Applicant shall have the children from Saturday at 7:00 pm until Sunday at 7:00 pm, regardless of the regular parenting time schedule.

[70] Further parenting time to be agreed to between the parties, in advance, in writing.

[71] Should either party plan a vacation with the children outside of Canada, the traveling party shall provide to the other party at least 30 days’ notice in writing along with a travel itinerary. The travelling party shall also provide and pay for a Travel Consent with the non-traveling party shall have notarized at the traveling party’s expense. Consent shall not be unreasonably withheld.

[72] The Applicant shall keep the passports in his possession and shall provide them to the Respondent upon request for travel.

[73] The parties shall use OFW for all communication regarding the children.

[74] Child support shall be payable by the Applicant to the Respondent of $774.00 per month in accordance with the Guidelines.

[75] The parties shall share section 7 expenses on a proportional basis based on the previous year’s Notice of Assessment. Neither party shall use an income of less than $33,100.00, or the equivalent of minimum wage full time employment. Currently the Applicant shall pay 61% and the Respondent shall pay 29% of any section 7 expenses. All section 7 expenses shall be agreed upon in writing prior to the expense being incurred, and consent shall not be unreasonably withheld. The paying party shall provide the invoice and proof of tender to the other party who shall pay his/her share within 14 days of receipt.

[76] The Applicant asks for costs. There is a presumption that the successful party is entitled to costs. The Respondent has continuously disregarded court orders and failed to provide financial disclosure. This was an uncontested trial at which the Applicant was successful. The Respondent is ordered to pay costs in the amount of $5,000.00.

[77] The Respondent shall be barred from bringing any motions without leave of the court until her costs have been paid in full.

Newton-Smith

Released: April 3, 2025