Court File and Parties

COURT FILE NO.: 757/17 DATE: 2020-04-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sarah Castor, Applicant AND: Dennis Hazell, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. Jorge Saenz, Counsel, for the Applicant Mr. Sukanta Saha, Counsel, for the Respondent

HEARD: In Chambers – Triage Endorsement

Endorsement

[1] 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/.

[2] For 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”.)

[3] This 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.

[4] Electronic 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: a. Applicant Mother’s 14B Motion dated April 24, 2020. b. Applicant’s unsigned/unsworn affidavit dated April 24, 2020.

[6] I have not yet received responding materials from the father’s counsel. This is understandable given the fact that these motion documents were served on Mr. Saha today.

[7] However, by coincidence, I have had extensive involvement with this family. a. On January 10, 2020 I heard a contested motion. b. As a result I was apprised of the background, including the fact that there was originally a final order of joint custody/weekabout time sharing in relation to a female child who is now almost seven years old. c. In May 2019 that changed when Hamilton CAS intervened as a result of serious concerns about physical abuse by the mother’s partner, as disclosed by the child. d. Since then the child has been residing with the father. e. Pursuant to a temporary order of Justice Chappel dated September 26, 2019 (based on minutes of settlement) the mother has been having non-overnight access three times per week, on condition that her partner not be present or have any contact with the child. f. That time-sharing arrangement was not addressed or changed at the January 10, 2020 motion.

[8] From today’s materials it appears that the father suspended the mother’s access on or about April 13, 2020. a. He says the child disclosed that during three access days in April the mother allowed her partner to be present. b. The father initially advised the mother that he was suspending access while CAS investigated the matter. c. However, a letter from CAS dated April 23, 2020 sets out that the Society investigated the allegations – and spoke to the child – and that the allegations are “not verified.” d. However, the father’s counsel wrote to the mother’s counsel this morning advising that notwithstanding the CAS letter, the father still believes the mother has been allowing her partner to have contact with the child. e. As a result, even without receiving reply materials from the father, based on his lawyer’s letter, it appears that the father is indeed denying the mother access.

[9] In the circumstances, I find that the issues raised in the materials before me are potentially urgent. This is a preliminary determination, without prejudice to either party on the ultimate hearing of the motion.

[10] Given the subject matter – an ongoing denial of court-ordered access – this matter needs to be addressed by the court quickly.

[11] The father shall be permitted until Wednesday April 29, 2020 at 10:00 a.m. to serve and file any responding materials. The mother may serve and file any reply by Thursday April 30, 2020 at 10:00 a.m.

[12] The matter will be scheduled to be dealt with by a Judge on or after Friday May 1, 2020. a. The Judge may decide to conduct a hearing by teleconference involving counsel (who may arrange for their clients to be on the line as observers). In that event, counsel will be advised by the court as to the date and time of the teleconference. b. However, after reviewing the file, the Judge may determine that it is more appropriate to deal with the matter based solely on the written materials, without a teleconference. In that event, counsel will be forwarded a copy of the Judge’s written decision. c. The judge dealing with the matter will make a formal determination as to whether the materials filed – and any responding materials – raise any issues which meet the threshold of being “urgent”, as required in the Notice to the Profession. If urgency has been established, the Judge will make any necessary orders.

[13] Each party may serve documents by e-mail. Documents (with proof of service) are to be filed with the court electronically.

[14] Important Note: 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 10 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.

[15] Before we go any further, I would ask the parties and their lawyers to carefully reflect on a number of issues which will likely arise if a hearing by teleconference is scheduled. a. Paragraph 6 of the September 26, 2019 consent temporary order stated that the parties are to follow the Society’s recommendations in relation to the mother’s partner’s contact with the child, overnights and any other recommendations, along with the recommendation of the child’s counsellor. I note that in a January 16, 2020 letter CAS advised that the child wishes to have more access to the mother, and the Society was approving an expansion of access to include one overnight each week. Clearly, CAS doesn’t have the authority to unilaterally change orders. But CAS appears to have had extensive involvement with this family, so any observations or recommendations by the Society may end up being factored into the court’s analysis. Counsel should be prepared to address this. b. I recall that at the January 10, 2020 motion there was discussion about the need for reconciliation counselling, and this was supposed to have been arranged as set out in Justice Lococo’s endorsement of December 10, 2019. The Society urged the parties to pursue counselling by letter dated February 5, 2020, and in their April 23, 2020 letter the CAS reminded the parties that it is important that counselling occur. Counsel should be prepared to explain what progress has been made in arranging this vitally important counselling. c. I have significant concerns about the high conflict nature of this file, and the strident letters exchanged between counsel. The parties should clearly understand that the court expects orders to be complied with, and this cuts both ways: If a parent feels the other parent is not complying with a court order, they should take appropriate steps to have the issue dealt with by a judge, rather than resorting to self-help or unilateral action. d. The letter from the father’s lawyer this morning identifies that the main reason for a denial of in-person access is concern about the mother’s partner. As an aside, the letter makes reference to COVID-19 concerns. In relation to the latter issue, I would urge counsel and the parties to review this court’s endorsement in Ribeiro v. Wright 2020 ONSC 1829.

[16] Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.

Pazaratz J. Date: April 24, 2020