Court File and Parties
COURT FILE NO.: 219/20 DATE: 2020-04-17 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sabrina Batchelor, Applicant AND: James Batchelor, Respondent
BEFORE: The Honourable Justice A. Pazaratz
COUNSEL: Mr. R. Wasserman, Counsel, for the Applicant Ms. L. Mazza, Counsel, for the Respondent
HEARD: April 16, 2020 – No appearances – Triage Endorsement
Endorsement
[1]
Introduction
AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
2For the moment, the court is prioritizing “urgent” matters. A supplemental Notice to the Profession dated April 2, 2020 sets out a narrow list of less urgent matters the court will attempt to deal with, as time and resources permit. (Further information is available in the April 7, 2020 “Protocol Regarding Family and Child Protection Matters in Central South Region”.)
3This motion was referred to me as Triage Judge for a preliminary determination of urgency and of how this matter should proceed. Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself.
4Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.
[5] I have received and reviewed the following materials on behalf of the Respondent father: a. Respondent’s Notice of Motion dated April 26, 2020 b. Respondent’s unsworn Affidavit c. Respondent’s Answer dated April 10, 2020 d. Respondent’s Financial Statement dated March 23, 2020 e. Respondent’s 35.1 Affidavit dated March 23, 2020 f. Unsworn Affidavit of Service
6I have not yet received any responding materials from the Applicant’s counsel. But given the subject matter, I felt it was appropriate to issue an endorsement in a timely manner.
[7]
The Father's Position
The father’s basic position: a. His urgent motion seeks to establish essentially equal time-sharing in relation to the parties’ three-year-old daughter. He wants the child each Tuesday from 4:00 p.m. until Thursday at 8:00 a.m. and alternating weekends from Friday 4:00 p.m. until Monday 8:00 a.m. b. He has not seen the child since early February 2020 when the parties separated. The father was charged with assault and threatening death in relation to the mother. Since then the father has gone to live with his mother. His criminal court undertaking precludes him from having contact with the mother (although there is no such restriction in relation to the child). c. The father says since separation the mother has not allowed him to have any contact with the child. He denies the mother’s allegation that he has serious mental health issues which justify restrictions on his contact with the child. d. The father takes issue with the mother’s use of an August 2019 medical note from his doctor. He has produced a more recent April 7, 2020 note from Dr. Monica Benedetti. Leaving aside admissibility issues, I have considered the note for the limited purpose of this Triage determination. The doctor says the father has been diagnosed with anxiety; he is on medications; he has sought therapy; and his mood symptoms seem to stem mostly from his relationship with his spouse. She concludes with a somewhat cautious observation that she has not observed anything which should “make him unfit to parent.” e. The father says CAS investigated the incident which led to the charges and they have closed their file. I note, however, that the March 25, 2020 letter from CAS which he attaches is not exactly a clean bill of health. The letter says “It has been verified that your daughter…was exposed to partner violence as a result of physical and emotional abuse towards (the mother) from you. There is information to suggest that (the child) was emotionally impacted by the domestic violence she was exposed to and she was observed to be crying during conflict.” The letter encourages the father to follow through with counselling he says he is pursuing. f. The father says there is no basis for the ongoing denial of contact with his daughter. He says prior to separation he actually assumed primary or significant responsibility for the child. He says the mother never previously had concerns about leaving the child in his care, even though she knew he was taking medication for anxiety. He says beneficial access can take place at his mother’s residence. He provides reassurance that he will be “COVID-19 safe.”
[8]
The Mother's Position
As stated, the mother has not yet provided any reply materials. But the father’s materials include an exchange of correspondence between lawyers, so I have some understanding of the mother’s position. (I note that the father’s materials attach a “without prejudice” letter from the mother’s counsel, so that’s a separate issue.)
9The mother expresses concern about violence; the criminal charges; the father’s mental health (with specific examples of concerning behaviours); anger management issues; and COVID-19 safety.
[10]
Analysis and Urgency
Cases like this involving young children and families in crisis require a level of sensitivity and cautious creativity which is difficult to achieve within the constraints imposed on the court by COVID-19. We are limited in how much we can accomplish. But doing nothing is not an option, when it comes to protecting all of a child’s physical and emotional needs.
11So I will try to take a practical approach, in the hope of starting some repair for this family:
[12] The father’s request for an immediate implementation of equal time-sharing (with police enforcement) is absolutely not urgent (and likely ill-conceived in the circumstances). a. I make no presumption as to the outcome of the outstanding (serious) criminal charges. b. But the information which the father himself has provided from CAS and his own doctor clearly confirm that there are some dynamics here which need to be cautiously and specifically addressed, to ensure the well-being of this child. c. For clarity: I am making no specific factual determination. I am not presuming anything. d. But even the father’s materials identify that there are some issues here which mandate that we proceed slowly while we assemble more information. e. That’s why jumping from “no access for more than two months” to “equal time-sharing” is not urgent.
[13] But more generally (or perhaps less ambitiously), I find that the father’s request to establish some access is potentially urgent. a. I make no determination or prediction as to whether any time-sharing will ultimately be ordered, or what it might look like. b. But just as I was able to infer from the materials that immediate implementation of 50-50 timesharing is unlikely to occur – I can equally infer that it is very unlikely that this child should never see her father again. If a resumption of contact – even in a limited or phased-in form – is inevitable, then there’s no excuse for delay. c. These parents are in crisis, but at least they have some control over their lives. Compare that to a three year old in crisis, who has no control over her life. These parents and this court all have an obligation to try to address the emotional turmoil this child has undoubtedly experienced – and to do so in a safe and reassuring manner.
[14] According to the COVID-19 protocols: a. If the Triage judge determines a matter is potentially urgent, it should be scheduled for a contested hearing, likely by teleconference. b. If the Triage judge determines a matter is not urgent, then there is no emergency hearing. The matter will proceed through the ordinary course, and the next step would eventually be a Case Conference. Fortunately, as of April 6, 2020 we are now able to schedule Case Conferences on discrete issues.
15But here we have a hybrid: Some of what the father is seeking isn’t urgent. But some of it is.
16So let’s try some sensitive and practical problem-solving.
[17] The order: a. The father’s request for equal time-sharing and police enforcement is not urgent and shall not be permitted to proceed on an urgent basis. b. The father’s request for access more generally is deemed to be potentially urgent. This is a preliminary determination, without prejudice to either party on the ultimate hearing of the motion. The presiding judge will also make any required determination of urgency with respect to any responding materials. c. Prior to a hearing by teleconference being conducted, the parties are to participate in an expedited Case Conference by teleconference. Counsel should comply with the requirements and restrictions with respect to Case Conference materials, as set out in the aforementioned April 7, 2020 “Protocol Regarding Family and Child Protection Matters in Central South Region”. d. The Trial Co-ordinator should schedule a Case Conference to take place during the week of April 27, 2020. The Respondent father’s Case Conference brief should be served and filed by April 22, 2020 at 11:00 a.m. The Applicant mother’s Case Conference brief should be served and filed by April 24, 2020 4:00 p.m. All materials are to be served and filed electronically. e. In the event that temporary or temporary-temporary access is not resolved by the completion of the Case Conference, the parties shall address with the Case Conference judge the scheduling of an emergency hearing by teleconference. f. To avoid further delay, the parties should prepare their files so that they will be able to exchange affidavit materials within a timeframe which would allow any hearing by teleconference to be conducted within seven days of the Case Conference. g. For clarity: if it is necessary to file materials in relation to an emergency hearing, those electronic materials from each party are limited to 10MB. To ensure consistent application of the 10MB rule, each party’s materials (including any Notice of Motion, affidavit, exhibits or attachments) should be no more than 8 pages long, typed, double spaced, using a 12 point font. Materials which exceed this restriction will not be accepted by the court and will not be presented to the Judge.
18Both parties have experienced counsel, and none of the issues here are unusual from a family court perspective. They are important issues. But there are obvious and necessary solutions and compromises available. So I would urge everyone to be sensible and child-focussed.
[19]
Costs
Costs reserved.
20The court is to forward a copy of this endorsement to both counsel, forthwith.
Pazaratz J.
Date: April 17, 2020