Court File and Parties
Newmarket Court File No.: FC-19-59661-00 Date: 2020-04-16 Superior Court of Justice - Ontario
Re: Derrick Di Vetta, Applicant And: Voula Di Vetta, Respondent
Before: The Honourable Mr. Justice D.A. Jarvis
Counsel: Rachel Radley, Counsel for the Applicant Christopher Burrison, Counsel for the Respondent
Read: April 16, 2020 - Electronically
Ruling on Urgent Case Conference Request
[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].
[2] The applicant (“the father”) seeks leave for an urgent Case Conference to deal with access to the parties’ two children (ages 14 and 5 years old) and for the appointment of an expert to undertake a parenting assessment pursuant to s. 30 of the Children’s Law Reform Act. The affidavit filed in support of the motion is sworn by a law clerk from the offices of the father’s lawyer. The evidence suggests that the respondent (“the mother”) is purposely obstructing the father’s access and failing to support both children’s, particularly the older child’s, relationship with him.
[3] I am satisfied that the evidence meets the urgency requirements set out in the Chief’s Notice.
[4] The motion is granted. The following directions shall apply:
(a) Court administration shall schedule the first available date for a Case Conference;
(b) The conference shall be restricted to dealing with the father’s access and the appointment of a s. 30 assessor;
(c) The parties shall comply with the CER Notice to the Profession dated April 1, 2020 (paragraph 3) dealing with form and length of the parties’ briefs;
(d) There shall be attached to the father’s brief an additional page (if needed) identifying the proposed assessor, the expected cost and timeline for delivery of a report and how the assessor would propose to proceed under the current pandemic circumstances. The mother shall have the same right. Both parties’ briefs shall provide a summary of their ability to fund any assessment that may be ordered. This summary shall be included in the prescribed format in (c) above;
(e) If a party is unable to sign their brief, their lawyer may do so on their behalf;
(f) The total time allotted will be one-half hour;
(g) Briefs may be signed and filed electronically;
(h) The father shall file his Brief by Monday April 20, 2020 (4:00 p.m.) and the mother her Brief by Thursday, April 23, 2020 (4:00 p.m.);
(i) Confirmation that the conference is proceeding (i.e. delivery of a Form 17F) is dispensed with. If the parties settle the conference issues before the teleconference, they must so advise the Court and provide a draft Order to issue on consent;
(j) Unless otherwise ordered, the Conference shall proceed no earlier than Monday April 27, 2020, with all material being provided to me by court administration no later than by 4:00 p.m. on Friday, April 24, 2020.
[5] No decision had been made dealing with the appointment of an assessor: the court needs to have the information ordered for a meaningful conference.
[6] A word of advice and caution to the parties.
[7] The courts have been inundated with cases dealing with access by children with their parents during the current COVID-19 pandemic. The parties should be guided by the following observations made by W.L. Macpherson in Douglas v. Douglas, 2020 ONSC 2160:
[8] The COVID-19 pandemic is unprecedented. The situation changes daily, if not hourly. To address the risks posed by the virus, as those risks are known at any particular time, government authorities and public health officials issue directives to address the perceived risks.
[9] There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child’s physical well-being, but also their emotional wellbeing. Total removal of one parent from any child’s life must be exercised cautiously.
[10] This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court. However, the court must take guidance from the Chief’s notice that confirms that all court operations are suspended with the exception of those that are urgent and emergency matters. The Chief’s notice defines such matters in the context of family files to be relative to “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”
[8] In Balbontin v. Luwawa, 2020 ONSC 1996, an urgent matter involving access, the following observations were made:
[8] In Ribeiro v. Wright, 2020 ONSC 1829 Pazaratz J. contextualized the COVID-19 pandemic for parenting cases where there are court orders or parenting agreements:
In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
[9] Pazaratz J. also highlighted what the court will expect of parents:
- Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. (bolding added).
[9] As I said in Balbontin, it is impossible to disagree with any of these observations. While that case dealt with a motion to suspend access, the views it expressed have been echoed by many Rulings made since then by Ontario courts in one iteration or another and are equally applicable to conference events. I shall expect the parties in this matter to come to the conference with realistic solutions to their parenting issues. Unreasonable failure to support a child’s relationship with the other parent is a failure of parenting.
[10] In the circumstances of the COVID-19 emergency, these directions are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.
[11] Approval of this Order dealing with the subject matter of this endorsement is dispensed with: the parties may submit a formal Order for signing and entry once the court re-opens; however, these directions are an effective and binding Order from the time of their release.