Casanova v. Berry, 2011 ONCJ 667

Brampton Registry No. 1109/06 DATE: 2011·IV·08 CITATION: Casanova v. Berry , 2011 ONCJ 667 ONTARIO COURT OF JUSTICE BETWEEN: NEGENE CASANOVA Applicant — AND — MICHELLE BERRY Respondent Before Justice June A. Maresca Heard on 21 January 2011 Oral Reasons for Judgment delivered on 8 April 2011 Isaac Birenbaum .................................................................................................... for the applicant Joanne Lagoudis ................................................................................................. for the respondent [ 1 ] JUSTICE JUNE A.

MARESCA:— On January 21, 2011, the Court heard submissions from both parties on the motion to change filed by the respondent, Ms. Berry, on August 27, 2009. A temporary order was made on that day, and the Court reserved its decision on the motion. 1: History [ 2 ] On November 6, 2006, I made a final order that the parties have joint custody of their child, Trinity Rain Casanova- Berry, born February 2, 2003. If, after consultation, the parents were unable to agree on a decision affecting the child, the applicant father was to make the final decision. Trinity was to have her principal residence with Mr.

Casanova, and access to her mother three consecutive weekends out of four, from Friday after school until return to school on the following Monday. The parents were to share holiday time with Trinity as agreed. [ 3 ] A child support order was made, obligating the mother to pay to the father the sum of $225 per month, based upon her income of $26,250 per year. That order was to commence on November 1, 2006. [ 4 ] It is important to note that the Order was based upon an agreement reached between Ms. Berry and Mr. Casanova. [ 5 ] Ms. Berry alleges that Mr.

Casanova began to limit her access to Trinity, starting in February of 2008. She alleges that her access was virtually stopped in about September of 2008, despite her efforts and those of her parents to contact and see Trinity. Mr. Casanova alleges that Ms. Berry simply stopped seeing Trinity after attending her ballet recital in June of 2008, and thereafter took no interest in her. [ 6 ] In May of 2009, Mr. Casanova brought a motion to change the final order of joint custody. His motion sought sole custody of Trinity, with access to her mother at his discretion.

He also brought an interim ex parte motion for custody so that he could travel with Trinity without the consent of Ms. Berry. The interim motion was granted. Mr. Casanova filed affidavit material which indicated that he did not know how to reach Ms. Berry, and that his efforts to contact her through her parents were ignored. On the basis of that material, an order was made by Justice Dunn dispensing with the need to serve Ms. Berry, and a final order was made granting the relief sought by Mr. Casanova. [ 7 ] In August of 2009, when Ms.

Berry brought her motion to change the order of November 2006, she learned of the motion brought by Mr. Casanova in May, and the orders that were granted. She alleges that Mr. Casanova knew that she moved in with her parents in May 2008, and could have easily served her there. Her parents filed affidavit material confirming this. Her father filed an affidavit which contained his telephone records up to December 2008. These records show that many phone calls were made to Mr. Casanova’s home between May and December of that year. [ 8 ] Her motion to change seeks a final order of sole custody, with access to Mr.

Casanova, and child support. She also seeks an order rescinding arrears of child support owed to Mr. Casanova.

[ 9 ] An Order was made on September 8, 2009, requesting the involvement of the Office of the Children’s Lawyer. A s.112 assessment was conducted, and a report, dated February 8, 2010, was filed with the Court. The recommendations included the following: a. That Mr. Casanova and Ms. Berry co-parent Trinity; b. That Ms. Berry have Trinity in her care three consecutive weekends out of four, from Friday after school until return to school on Mondays; c. That the parents share statutory holidays equally with Trinity, and that Ms. Berry have four weeks of time with her each summer; d.

That significant decisions regarding Trinity be made with the assistance of a Parenting Coordinator; e. That both parents take counselling; f. That the parents ensure that Trinity receives counselling. [ 10 ] No dispute has been filed regarding the report. [ 11 ] On June 1, 2010, Mr. Casanova took Trinity to see a psychologist at Trillium Health Centre upon referral from the family doctor. He provided information to Dr. Beard, the consulting psychologist, about Trinity’s disturbing behaviour in school and at home. He alleged to the doctor that Ms. Berry had exposed Trinity to pornography, and that Ms.

Berry had not come to see Trinity from December 2006 to September 2009. After assessing Trinity, Dr. Beard recommended that: a. A custody and access assessment be done (he had obviously not been told about the Children’s Lawyer’s report, which was completed in February of 2010); b. Trinity receive counselling with a psychologist; c. Trinity may benefit from group therapy. The report further stated: “These [custody and access] disputes have impacted on [Trinity’s] behaviour; and addressing the marital discord and custody issues are key in the treating of this patient”.

He also quotes Trinity in outlining the chief complaint: “I am afraid of my parents fighting”. 2: Issues 1. Should the Order of Justice Dunn of May 22, 2009, made on an ex parte basis in chambers, be set aside? 2. Has there been a material change in circumstances since the Order of November 6, 2006, or in the alternative, since the Order of May 22, 2009? 3. If there has been a material change in circumstances, what Order should be made? 3: Analysis [ 12 ] The issue of whether the May 22, 2009 Order should be set aside appears at first blush to be critical in deciding this motion.

If the Order is set aside, the onus is on Mr. Casanova to establish a material change in circumstances since the November 6, 2006 order (which granted joint custody to the parties) was made. If the Order stands, the onus is upon Ms. Berry to establish a material change in circumstances since it was made. [ 13 ] In my view, the question is irrelevant: In either case, I find that there has been a material change in circumstances. The joint parenting ordered in 2006 was clearly not working; Mr.

Casanova moved his residence from the Peel Region to Aurora in December of 2010, changing Trinity’s school, neighbourhood and peer group; Ms. Berry has a new baby. [ 14 ] The question then becomes what Order will be in Trinity’s best interests at this point? [ 15 ] It is clear from the materials filed that Trinity has resided primarily with her father since before the Order of November 6, 2006 was made. In that time period, her father has had two partners, and has changed residences several times. Despite these major

changes in Trinity’s life, her father has been her primary parent for the last four and one half years. [ 16 ] What is troubling about the affidavits filed by Mr. Casanova is the great anger he feels at Ms. Berry, and his view that she is consistently “the bad guy”, both of which come across very clearly in his materials. The Children’s Lawyer’s report says “ A power imbalance between Mr. Casanova and Ms. Berry is evident, as is Mr. Casanova’s anger toward Ms. Berry. Mr. Casanova’s comments about Ms. Berry indicate he is critical and angry toward her. It would be important for Mr.

Casanova to resolve his anger, otherwise, the impact it will have on Trinity is very concerning”. This was confirmed in the observational visit made by the assessor in Mr. Casanova’s home. [ 17 ] It is concerning that Ms. Berry waited a year to bring her motion to change after she says she was denied access by Mr. Casanova. One would have expected her to move much more quickly to regain contact with her daughter. On the other hand, her attitude toward Mr. Casanova is much more tolerant than his toward her. That is apparent both in her materials and in the Children’s Lawyer’s report.

The investigating social worker’s description of Ms. Berry’s care of Trinity, during two observational visits, painted a picture of a competent, caring, appropriate mother, and a child who was warm and affectionate with her. [ 18 ] In my view, the evidence supports ongoing and generous contact between Trinity and her mother. What is concerning is whether Mr. Casanova is able to encourage and support Ms. Berry’s relationship with their daughter. If he does not come to terms with his anger at her, and his criticism of her, Trinity will suffer the consequences.

She is, by all accounts, a very bright child who is struggling behaviourally and academically, largely due to her psychological distress at the conflict between her parents. According to the Children’s Lawyer’s report, “Trinity said it makes her feel scary when [her parents] fight and she told them to stop”. This is very like her statement to Dr. Beard. [ 19 ] It is clear that the fighting between the parents must stop. If Mr. Casanova is unable to support a strong and positive relationship between Trinity and her mother, primary residence will have to be revisited. [ 20 ] With respect to support issues, Ms.

Berry seeks a rescission of arrears and a credit towards her child support. The credit, she argues is because she overpaid Mr. Casanova every year since the 2006 order was made, given her income in each of those years. She also submits that Trinity has not been going to daycare, and as a result, s. 7 expense arrears should also be rescinded. [ 21 ] The difficulty in making a determination on child support is the lack of materials filed. The original order in 2006 was $225 per month, and $80 per month towards childcare, based on Ms. Berry’s income at the time of $26,250 per year. [ 22 ] While Ms.

Berry deposes that she made $21,354 in 2007 and $11,656 in 2008, there are no notices of assessment, income tax returns, or any other proof of income for those years. For 2009, her notice of assessment puts her income at $19,431. Her affidavit material indicates that she was on maternity leave from November 2009 to November 2010, and received EI benefits at the rate of $228 per week during that time period. She filed a copy of an EI benefit statement to corroborate that evidence.

For 2011, she says that she makes $452 every two weeks in a part time job, although there are no pay stubs filed in support of this contention, and the only financial statement filed by Ms. Berry in these proceedings is from March 2009. [ 23 ] No financial statement has ever been filed in these proceedings by Mr. Casanova. He has never addressed Ms. Berry’s contention that Trinity is no longer in daycare, nor has he filed a financial statement of any kind. [ 24 ] Given this limited amount of information, I make the following findings: a.

I cannot vary the child support order for the years 2007 or 2008, as I have no proof of income for those years, absent which the Order of November 2006 is presumed to be correct. b. Child support for the year 2009, from January 1 to December 31, is based upon an income of $19,431 per year. c. Child support for the year 2010 should be calculated based upon Ms. Berry’s EI income. There is no proof that income is any different currently, as I have no pay stub or other proof of income. d. There is no financial information from Mr. Casanova.

There is also no proof that Trinity is still in daycare. [ 25 ] Based upon the above, the following final order is made: 1. Trinity Rain Casanova-Berry (“Trinity”), born February 2, 2003 shall be co-parented by the applicant father, Negene Casanova and the respondent mother, Michelle Berry. 2. Trinity shall reside with the respondent mother:

(

a) for three consecutive weekends from Friday after school until Monday when school begins, with the pick-ups and drop-offs to occur at the school, to be extended to Tuesday if the Monday is a holiday. If it is not possible for access exchanges to occur at school, pick-up shall be at the McDonald’s restaurant closest to the applicant’s home, and drop off shall be at the McDonald’s restaurant closest to the respondent’s home; (

b) in even years for March Break, Thanksgiving and the second week of Christmas; (

c) in odd years for Easter and the first week of Christmas; (

d) for two weeks in July and two weeks in August for summer holiday; (

e) on Mother’s Day, from 10:00 a.m. to 6:00 p.m. 3. Trinity shall reside with the applicant father at all other times, to include: (

a) in odd years for March Break, Thanksgiving and the second week of Christmas; (

b) in even years for Easter and the first week of Christmas; (

c) for two weeks in July and two weeks in August for summer holiday; (

d) on Father’s Day, from 10:00 a.m. to 6:00 p.m. 4. Halloween access is to be alternated yearly between the applicant father and the respondent mother. Trinity shall be with the respondent in even years and the applicant in odd years. If Halloween falls on a school night, the respondent shall take Trinity out in the applicant’s neighbourhood from after school to 7:00 p.m. Drop-off shall occur at a neutral location mutually agreed upon by the applicant and the respondent. 5. The applicant father shall ensure that no arrangements for Trinity are made during her scheduled time with the respondent mother.

The respondent shall have the responsibility for making arrangements and plans with Trinity when she is with her. 6. Telephone calls to Trinity shall be initiated by the respondent mother on Tuesdays and Thursdays at 7:00 p.m. or at a time agreed upon by the applicant father and the respondent mother. The applicant shall hand the telephone over to Trinity upon receiving the call. The applicant and the respondent shall refrain from talking on the telephone with each other during these calls. The applicant shall refrain from telling Trinity that she must call him when she is with the respondent.

As she wishes, Trinity shall speak with the respondent when she is with the applicant and with the applicant when she is with the respondent. 7. There shall be further access as agreed by the applicant father and the respondent mother. The applicant and the respondent shall be reasonable and flexible about changes to access that would be of benefit to Trinity. 8. The applicant father and the respondent mother shall not expose Trinity to any negative comments or arguments at any time.

No negative information about the other parent or about the custody and access dispute shall be communicated in front of Trinity, or in her hearing. No raised voices or disputes are ever to take place in front of Trinity.

9. The applicant father shall organize a communications book that will go with Trinity to and from access visits. The respondent and the applicant shall communicate in writing about the practical issues pertaining only to the care and well-being of Trinity. If there is a time sensitive issue, such as a medical emergency, each parent shall inform the other parent promptly. The applicant and the respondent are to ensure they provide each other with current emergency contact information. 10.

Each parent shall provide for the physical needs of Trinity in their own home to minimize the potential for conflict to arise. 11. Each parent shall ensure Trinity’s academic needs are met. Specifically, they must each be responsible for ensuring that Trinity is at school and on time, and that her homework is completed. Each parent is to communicate separately with the school and receive reports and information concerning events directly from the school. 12. Each parent shall be responsible for the medical care of Trinity while in their care.

The applicant father shall ensure that the respondent mother has an updated photocopy of Trinity’s health card. Important medical information pertaining to the well-being of Trinity shall be communicated to the other parent in a timely fashion. 13. Each parent is responsible for enrolling Trinity in recreational programs, within their financial means, that are of interest and suitable to Trinity. The applicant father shall take Trinity to activities on weekends when she is with him. The applicant father shall invite the respondent mother to Trinity’s activities if there is a show or performance. 14.

Each parent shall be able to travel freely with Trinity on their vacations, and shall provide the other parent with a complete itinerary and contact information at least one month ahead of the proposed holiday. If either parent plans to take Trinity out of the country, written permission from the other parent shall be obtained, such permission not to be unreasonably withheld. The applicant father shall keep Trinity’s passport in his possession and shall provide it to the respondent mother for travel purposes. 15.

Trinity shall attend counselling to be provided with support and education in dealing with her confusion over the parental separation and exposure to conflict. 16. Each parent shall attend a parenting course to learn similar behavioural management techniques and learn how to effectively co- parent a child of two homes. 17. The applicant father shall attend counselling to address his issues of anger and learn how to disengage and avoid conflict with the respondent mother. 18.

The respondent mother shall continue her involvement in individual counselling for assistance with her relationships and to strengthen her self-esteem and assertiveness skills. 19. Any future conflicts, including minor and major decision-making regarding Trinity, such as religion, education or medical care, shall be negotiated between the applicant father and the respondent mother in the presence of a parenting Coordinator. 20. Child support for the years 2007 and 2008 is not varied. 21.

Child support from January 1, 2009 to December 31, 2009 shall be $168 per month, based upon the applicant’s income of $19,431 for the year. 22. Commencing January 1, 2010, child support shall be $60 per month, based upon the Applicant’ income of $11,764 per year. 23. Commencing January 1, 2009, there shall be no contribution toward s. 7 expenses.

24. The parties shall exchange income tax returns for the previous year and a copy of three of his/her most recent pay stubs by June 1 each year, commencing in 2011. Released orally: 8 April 2011 __________________________ Justice June A. Maresca