



COURT OF APPEAL FOR ONTARIO

CITATION: Rigillo v. Rigillo, 2019 ONCA 548

DATE: 20190628

DOCKET: C65483

Hourigan, Paciocco and Fairburn JJ.A.

BETWEEN

Bruno Rigillo

Applicant (Appellant)

and

Maria Rigillo

Respondent

Michael Stangarone and Stephen Kirby, for the appellant

Harold Niman and Kristen Normandin, for the respondent

Heard and released orally: June 26, 2019

On appeal from the order of Justice J. Scott McLeod of
    the Superior Court of Justice, dated May 3, 2018.

REASONS FOR DECISION

[1]

The order under appeal arose from a trial in which the appellant
    (father) sought joint custody and shared parenting of the couples six-year-old
    child on a two-two-five schedule.

[2]

The trial judge ordered that the childs primary residence continue to be
    with the respondent (mother), with the father receiving only one overnight with
    the child per week and alternating weekends. In addition, while a joint custody
    order was made, the trial judge ordered that if the parties are unable to agree
    upon matters relating to the childs physical, emotional and educational
    well-being, then ultimately those decisions are to be made by the mother.

[3]

We find that the trial
    judge erred in failing to address the maximum contact principle set out in s.
    16(10) of the
Divorce Act
, R.S.C.,
    1985, c. 3 (2nd Supp.)
.

That provision states:

In
    making an order under this section,
the court shall 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
and, for that
    purpose, shall take into consideration the willingness of the person for whom
    custody is sought to facilitate such contact. [Emphasis added.]

[4]

As noted by L'Heureux‑Dubé J. in
Young v. Young
, [1993] 4
    S.C.R. 3, at p. 53, dissenting in the result, the goal of maximum contact will
    only be overtaken to the extent that contact with a parent conflicts with the
    childs best interests. See also:
B.V. v. P.V.
,

2012 ONCA 262,
    at para. 15.

[5]

There is no reference to the maximum contact principle in the reasons
    for judgment. In light of the trial judges findings of fact, it is difficult
    to see that principle at work in the result. For instance, the trial judge
    found as a fact that, while the father had overstated his role on the
    day-to-day care of the child up to the date of separation, the child has a
    loving and strong emotional tie to both parents; prior to the events
    resulting in the couples separation, the parties were a team and
    effectively parented their child; and the fathers conduct post-separation was
    not, in and of itself, a reason to ignore the contribution he made in raising
    the child.

[6]

Based upon the trial judges findings of fact, we see no reason why the
    maximum contact principle would not apply in this case.

[7]

The trial judges decision, resulting in unequal contact with the child,
    appears to have been premised on the assumption that the respondent was
    entitled to remain the childs primary caregiver, an arrangement that had
    arisen from a without prejudice consent order granted a few years prior. The
    order specifically noted that it was made without prejudice to either parties
    claim with respect to custody and access.

[8]

Despite the finding that the child had enjoyed the benefits of
    effective parenting in which both parties participated from the time of the
    childs birth, the trial judge concluded that there had been an undisturbed
    pattern of care in place since the time of separation. While the trial judge
    found as a fact that both parties had engaged in inappropriate behaviour
    since separation, he said that he did not intend to interfere with the
    existing parenting schedule except to ensure that adequate provision is made
    during holidays and special times in the childs life.

[9]

This demonstrates an erroneous approach. Not only did the trial judge
    fail to advert to the maximum contact principle, statutorily embedded in s.
    16(10) of the
Divorce Act
,
but he proceeded on the basis of the
status quo
that had developed as a result of an interim without
    prejudice order. Indeed, despite saying that the existing parenting schedule
    should prevail, the trial judge decreased the fathers time with the child by
    one hour every other weekend and by one hour every Wednesday.

[10]

The trial judge erred by failing to advert to and apply the maximum
    contact principle without providing any reason for departing from it, and by
    proceeding on the basis of a
status quo
that had developed as a result
    of a without prejudice order. Given the trial judges findings of fact,
    particularly the finding that, while both parties had misbehaved, the child had
    enjoyed the benefits of effective parenting by both, it was an error to make
    an order that departed significantly from equal parenting time.

[11]

The appellant father also says that the trial judge erred by failing to
    grant the parents equal decision-making authority with respect to the child.
    Although the appellant acknowledges that the trial judge ordered joint
    custody, he says that this order was in name only given that, when the
    parties are unable to come to an agreement about the childs physical,
    emotional and educational well-being, the ultimate decision-making power
    resides with the mother. The trial judge made this order despite his
    observation that an order for sole custody in the mothers favour would
    marginalize the degree to which [the father] participates in the important
    decisions affecting the childs life.

[12]

Decision-making authority assists in ensuring that a parents
    relationship with his or her child is not marginalized. In light of our
    conclusion that the trial judge erred in failing to consider and apply the
    maximum contact principle, the order about decision-making must also be set
    aside and reconsidered alongside the issue of parenting time. There is nothing
    in the record or the trial judges findings of fact that would suggest that
    anything other than an order granting both parties meaningful decision-making authority
    is appropriate. Given the parties history of conflict, which appears to
    continue to today, some form of divided parallel decision-making should be
    ordered.

[13]

In the result, we admit the proposed fresh evidence, but only to the
    extent that it confirms the continued existence of conflict between the
    parties.

[14]

The appeal is allowed. The orders respecting parenting time and decision-making
    will be varied. We will require written submissions from the parties on the following
    two issues: 1) the allocation of parenting time; and, 2) the allocation of
    decision-making responsibilities in the parallel parenting model. The appellant
    will provide written submissions of no more than 10 pages within the next seven
    days. Within seven days of receiving the appellants submissions, the
    respondent will provide responding written submissions of no more than 10
    pages.

[15]

The trial judges costs order is set aside. The costs issue will be
    resolved in conjunction with the two outstanding issues.

C.W. Hourigan J.A.

David M. Paciocco J.A.

Fairburn J.A.


