



COURT OF APPEAL FOR ONTARIO

CITATION: Rigillo v. Rigillo, 2019 ONCA 647

DATE: 20190807

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: 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]

This court allowed the appeal in
Rigillo v. Rigillo
, 2019 ONCA
    548. At the conclusion of the appeal, the court indicated that the order from
    trial will be varied. The parties were asked for written submissions on two
    issues:

1.

The allocation of parenting time; and

2.

The allocation of decision-making responsibilities in a parallel
    parenting arrangement.

[2]

The parties submissions have been received and reviewed by the court.

[3]

The mother argues that this court should not decide the issues without
    the benefit of additional fresh/new evidence because the original order was
    made over a year ago. We disagree.

[4]

A fresh/new evidence application was brought on the appeal proper.
    Detailed affidavits were provided by both parents. The information was
    up-to-date and extensive. We admitted the proposed fresh evidence on appeal,
    but only to the extent that it confirmed the continued existence of conflict
    between the parties. There was little in either affidavit that truly pertained to
    the issues to be resolved.  We have reviewed that fresh evidence again for the purposes
    of these reasons and are satisfied that we have sufficient insight into the
    parties and childs current situation, such that we are able to make the
    variations required.

[5]

The parties are largely in agreement about the allocation of
    decision-making responsibilities. We agree with their mutual approach on that
    issue. Even so, there are a few matters that require explanation.

[6]

First, the parties agree that before exercising their independent
    authority in a parallel parenting arrangement, they should first strive to
    achieve consensus on all important decisions relating to the childs education
    and medical/dental needs. They differ on the amount of time that they should be
    given to achieve that consensus. We agree with the mother that the 60 day
    period proposed by the father is too long. It is in the best interests of the
    child to have decisions made efficiently and in a timely manner. Accordingly,
    we would impose a consultation period of no more than 14 days, after which the
    decision will fall to the parent who has the assigned authority to make the
    final decision in the absence of consensus.

[7]

As it relates to the childs education, we agree with the fathers
    suggestion that, despite the mothers authority to make final decisions on that
    aspect of the childs life, both parties should be permitted to attend all
    school functions and attend parent-teacher meetings either together or, if the
    school agrees, individually.

[8]

Equally, we agree with the mother that despite the father having the
    ultimate decision-making authority on non-emergency health/dental care, the mother
    should remain meaningfully involved in that aspect of the childs life.
    Accordingly, we order that each parent shall be responsible for taking the
    child to her medical/dental appointments during his or her time with the child.

[9]

It is also in the best interests of the child to provide clear guidance
    to the parties in relation to any emergency medical decisions that may be
    required. In the event of such emergencies, we order that either party may make
    the decision and must notify the other as soon as possible.

[10]

As
    for where the child resides, the father proposes various schedules that
    translate into roughly 50 percent of the childs time with him. The mother maintains
    that each of the fathers proposals would substantially increase the childs
    commuting time during the school week and that this is not in her best
    interests. Although the record reveals some dispute on the matter, it appears
    that the childs school is about an hours drive from where the father resides.

[11]

The
    mothers position is a compelling one. The child is only six years of age.
    While the mother moved out of the fathers jurisdiction, the parties have responsibly
    agreed that the mother shall remain the primary decision maker when it comes to
    matters of education. They also agree that the child will remain in her current
    school, close to the mothers home.

[12]

Accordingly,
    there is a tension between ensuring that the child benefits from spending as
    much time with her father as possible and ensuring that, at such a tender age,
    the child is not commuting more than necessary to school.

[13]

As
    the mother correctly points out, all decisions must be based on the childs best
    interests.  The maximum contact principle does not necessarily require equal
    parenting time. One of the mothers proposed schedules keeps the childs
    schedule during the week largely unaltered from the existing order, but at the
    same time significantly increases the childs time with the father by adding a
    Friday night overnight with him on the weekends that she is otherwise with her
    mother, and adding a Sunday night overnight on the weekends that the child is
    with the father. That maximizes her time with her father, while at the same
    time minimizing additional commuting time during her school week. This proposal
    appears to us to be the most child-focussed way in which to honour the maximum
    parenting principle in the circumstances of this case.

[14]

Accordingly,
    in accordance with the mothers proposed schedule three, the order will be
    varied to add an extra Friday night overnight with the father to the weekends
    that the child otherwise spends with the mother as well as adding a Sunday
    night overnight to the weekends that she spends with the father.

[15]

The
    father also requests other relief, none of which was argued on appeal.
    Accordingly, we decline to grant that additional relief.

[16]

The
    court orders that:

The May 3, 2019 order of McLeod J.
shall
be varied as follows:


Paragraph one shall be

deleted

and

replaced

with

the

following:

(1) The

parties

will

have

joint

custody

of

Chiara.
    Major decisions

affecting

Chiara's health,

education

and

religious

upbringing

shall

be

made

as

set

out

below:

(a)     As the parties agree that Chiara will
    continue to be raised in the Roman Catholic faith, both parties shall be
    entitled to attend and participate in all important events in her religious
    upbringing, including but not limited to her First Communion and Confirmation.

(b)     Decisions about Chiara's education will be
    made in consultation with Chiara's teachers, principal(s) and counsellors. 
    Chiara shall continue to attend St. Luke Catholic Elementary School in
    Mississauga, Ontario.   Maria shall have the authority to make final decisions
    about any major issues relating to Chiara's education, extra-curricular
    activities and summer camps, over which the parties are unable to agree after a
    consultation period of 14 days. Both parties shall be permitted to attend all school
    functions regardless of the parenting-time schedule and shall attend
    parent-teacher meetings individually, if permitted by the school, or together
    if both parties consent. Each party shall obtain his or her own school calendar
    and both parties shall assist Chiara with the completion of homework when she
    is in their care.

(c)     Decisions about Chiara's major,
    non-emergency health/dental care will be made in consultation with her Family
    Doctor, dentist, or other responsible health provider(s).  Chiara shall
    continue to attend for therapy with Dr. Kelly Katsuras as needed and shall
    continue to attend appointments with her optometrist on a once annual basis, or
    otherwise as recommended by her optometrist. Both parties shall ensure that
    Chiara wears her prescription eyeglasses as needed.  Bruno shall have the
    authority to make final decisions about any major issues relating to Chiara's
    non-emergency health/dental care over which the parties are unable to agree
    after a consultation period of 14 days. Bruno shall keep Maria informed of all
    medical/dental appointments. Each parent shall be responsible for taking Chiara
    to her medical/dental appointments during his or her time with her.

(d)     In the event
    that an emergency medical decision is required, either party may make that
    decision and shall notify the other as soon as possible.

Paragraph
3
    shall be deleted.

Paragraph 4(a)-(c)
shall
    be deleted and replaced with the following:

Regular Schedule:

Chiara shall reside with Maria and with Bruno in
    accordance with the following schedule:

With Bruno as follows (and otherwise with Maria):

a. Every Tuesday from pickup after school (or at
    3:00p.m. on the days when Chiara is not in school) to Wednesday at 7:00 p.m.
    when Bruno shall return Chiara to Marias home;

b. Alternate weekends from pickup after school on
    Fridays (or at 9:00a.m. on the days when Chiara is not in school), to drop off
    at school on Monday morning (or until 3:00p.m. on the days when Chiara is not
    in school); and

c. On the weekends that Chiara is staying with
    Maria, Bruno will pick her up after school on Friday (or at 3:00 p.m. on the
    days when Chiara is not in school) and drop her off at Marias home on Saturday
    mornings at 9:00 a.m.

A new paragraph shall
    be added as follows
:

The party who does not have Chiara in his or her care
    pursuant to the foregoing schedule shall be entitled to have telephone contact
    with her at 7:00p.m.on a daily basis.

[17]

The
    costs order from trial was previously set aside by this court. In light of
    their divided success at trial we would order that the parties bear their own
    costs. The parties agree that between the fresh evidence application in this
    court and appeal, costs in the amount of $21,000 inclusive of HST be granted to
    the appellant.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.

Fairburn
    J.A.


