Court File and Parties

Newmarket Court File No.: FC-20-580-00 Date: 20200528 Superior Court of Justice – Ontario – Family Court

Re: John Maximo Clemente, Applicant And: Rachel Sara O’Brien, Respondent

Before: The Honourable Justice H. McGee

Counsel: L. Chegini, Counsel for the Applicant U. Cebulak, Counsel for the Respondent

Heard: In Writing

Endorsement on 14B Motion

[1] Regular Superior Court of Justice court operations remain suspended, but for matters permitted within the March 15, 2020 Notice to the Profession, and in Central East, two subsequent Notices to the Profession dated April 1, 2020 and May 19, 2020.

[2] The May 19, 2020 Notice has further expanded the matters that can be heard from strictly urgent, to urgent or pressing, [1] on leave. Examples include COVID-19 concerns, child protection concerns, summer or other access issues. This is Mr. Clemente’s 14B Motion for leave for an urgent Case Conference on access issues unrelated to COVID-19.

[3] In this decision I have explored the meaning of “pressing” as set out in the May 19, 2020 Notice and conclude that it is a threshold no less than that required for an urgent motion during regular court operations pursuant to Rosen v. Rosen; and that as a precondition to granting leave, the court must be satisfied that the moving party has engaged in genuine, broadly optioned and diligent settlement discussions.

Events Leading to Mr. Clemente’s Request for an Urgent Case Conference

[4] Mr. Clemente has not seen his three-year-old son since November 2, 2019 when an altercation between the parties at Ms. O’Brien’s home resulted in him being charged with assault, assault causing bodily harm, utter threat to cause death, mischief to cause damage under $5,000 and failure to comply with a recognizance. “D” was present throughout.

[5] A subsequent Child and Family Services attendance did not identify any protection concerns to warrant further involvement with the family because “D” remained in his mother’s care and terms of a recognizance prevented his father’s reattendance.

[6] Specifically, Mr. Clemente’s Form 35.1 affidavit sworn May 18, 2020 indicates that he is on terms of a recognizance that prohibit him from having any contact directly or indirectly with Ms. O’Brien or her brother, that he is to remain 500 metres away from her and her brother at all times and that access to “D” be only by Family Court Order.

[7] Ms. O’Brien deposes in her May 25, 2020 affidavit that Mr. Clemente left the country for periods after November 2, 2019 and did not press for contact until March, and then only on his terms. She details her and “D’s” experience with Mr. Clemente over the past three years. She describes being the target of protracted and significant domestic violence, more often than not, in the presence of their son.

[8] “D” was hurt during the November 2, 2019 incident when his father attempted to force his removal from his mother’s home. Ms. O’Brien was beaten. Her brother called the police and Ms. O’Brien’s affidavit describes “D” being brought to the hospital to be with her, by ambulance.

[9] Mr. Clemente writes in his May 18, 2020 affidavit that after November 2, 2019 he did attempt to see “D” through third parties, including his mother and counsel, but that Ms. O’Brien ignored him, or made further allegations of physical and emotional abuse in an attempt to dictate his parenting time. He sets out the dates of letters sent by his counsel - beginning on December 19, 2019.

[10] Mr. Clemente’s Application issued May 19, 2020 is the first litigation event since November 2, 2019. Prosecution of the criminal charges are on hold due to COVID-19. The Application seeks Orders for joint custody, a parenting schedule and incidents of parenting that would govern the care of their son. The parties have never cohabitated and there is no pre-existing Order or domestic contract for “D’s” care.

[11] Mr. Clemente asserts in his written materials that alternate weekend access should resume immediately. He believes that Ms. O’Brien is deliberately withholding access - as he perceives her to have done in the past, that she fabricated the basis for the criminal charges last November, that her conduct is malicious, that she is alienating and coaching “D,” and that prior to November 2, 2019 he had de facto joint custody.

[12] He is certain that there is no basis for the withholding of access or Ms. O’Brien’s exercise of self-help “whenever she wishes.” He assures the court that he is aggressively defending himself in the criminal proceedings.

[13] Mr. Clemente also assures the court that he is willing to compromise on a parenting schedule so long as Ms. O’Brien does not dictate its terms or withholds “D.” He states that he is residing with his mother and brother so his mother is already present during access, and that additionally, that she can assist by providing transportation. He rejects Ms. O’Brien’s concerns around his mother as a supervisor and argues that in any event, no supervised access services are available during the pandemic.

[14] My reading of all of the materials lead me to conclude that Ms. O’Brien is not engaging in self-help: the terms of the recognizance are clear. Quite the opposite - the materials support a view that over the years she has minimized the violence and tried to smooth things over because she is afraid of Mr. Clemente. Ms. O’Brien writes that Mr. Clemente’s mother has also minimized his violence and regrettably, taken the extra step of shaming her for the abuse.

[15] Still, she hopes that “D” will someday have a healthy relationship with his father and to that end, has instructed her counsel to enter into discussions for Facetime and supervised access. She proposes a specific supervisor who is providing service during the pandemic, supported by her mother who can provide transportation and personal support for “D.”

[16] Ms. O’Brien suggests that the supervisor assist with communication, reintroduction of access following the past six months of no contact; and after a trial period, make recommendations for an expansion of access.

[17] Ms. O’Brien’s proposal has been rejected by Mr. Clemente. He has not engaged in any Facetime or other electronic access.

Is Mr. Clemente’s Request for an Urgent Case Conference Urgent or Pressing?

[18] Mr. Clemente’s proposals, in as much as they can be understood from his materials, speak to a normalized parenting schedule for a child who has a healthy attachment to a parent and has experienced little to no trauma.

[19] Were that the case for “D,” I would agree with Mr. Clemente that parenting time is an urgent issue. As I wrote in Matus v. Gruszczynska, 2020 ONSC 2353, young children in the attachment phase of development are particularly vulnerable to the harmful effects of removing a care giving parent. It is always in the best interests of a child to have a maximized, loving relationship with both parents.

[20] But “D” is neither a child with a healthy attachment to his father, nor a child who has been unaffected by the trauma of domestic violence. Mr. Clemente’s own materials describe events that were highly traumatic to “D” yet make no mention of their effect on his son. His materials detail only his anger at their perceived cause – “D’s” mother. The materials shape a view that Mr. Clemente seeks to obtain through the court process that which has been unavailable to him through his personal efforts: enforced contact and control of events on his terms, not terms sensitive to his son’s best interests.

[21] In Thomas v. Wohleber, 2020 ONSC 1965 Justice Kurz established the requisite test for a finding of urgency pursuant to the March 18, 2020 Notice to the Profession,

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[22] In Ramdass v. Ramdass, 2020 ONSC 1983 Justice McSweeney reviewed whether this standard of urgency was comparable to that found in Rosen v. Rosen and concluded that the standard under the Notice was higher. She set a threshold assessment to be made by the court: does the motion bring forward issues of “essential medical decisions” or “wrongful removal and retention” of a child? She did not find that the motion before her met that threshold and leave was refused.

[23] I must come to the same conclusion in this matter. There are no essential decisions to be made, and there has been no unlawful holding. “D” is not unsafe, nor has his regular routine been interrupted. The proposed subject matter for an urgent Case Conference does not rise to the level of urgency as set out in the original March 15, 2020 Notice.

[24] But even if not urgent, is the concern nonetheless pressing as defined in the May 19, 2020 notice? In Murphy v. Connolly, 2020 ONSC 3047 Justice Jarvis expressed an early view that the test for urgency in Thomas v. Wohleber should be only modestly relaxed when determining whether a concern in pressing. I agree, and now take a step further to bring the test for “pressing” back into line with the test for urgency found in Rosen v. Rosen.

[25] Rosen v. Rosen is familiar territory for the family court practitioner. In 2005 Justice Wildman wrote her seminal decision that succinctly transformed “walked-in,” often without notice motions into outliers in a reimagined, redesigned family court system that not only encouraged, but incentivized negotiation before litigation. There were to be no more races to the courthouse. Parties were to first reason with one another, make proposals for a resolution with or without assistance, and only then come to court.

[26] And for the matters that did come to Family Court, the first event was not to be marked by impassioned arguments on “nasty affidavits” but conducted as a judge led Case Conference that identified the issues, resolved as much as possible, and then organized the evidence and processes necessary to determine the balance of the conflict.

[27] 15 years later, the high ideals of that vision remain within our reach.

[28] No one disagrees with the need for genuine problem solving before litigation, or that ultimately, some matters must be decided by a court. But when should the court be the first resort and when must it be the last resort? That is the question that permeates all systemic arguments for access to justice.

[29] In answering that question, it behooves us all to rediscover the wisdom in Rosen v. Rosen and the case law that it has since nourished. It is a decision that must not be left behind because it incorporates a vision of Family Court that serves the public well.

[30] Real crises – harm to a child, threats to personal security and the risk of financial ruin must have immediate access to the court. They are urgent as plainly understood by the definition of the word referenced at paragraph 4 of Rosen:

[Counsel] says there is very little reported caselaw on the issue of what constitutes "urgency". He refers me to the Webster Dictionary definition of "urgent", which is "Pressing; necessitating or calling for immediate action; earnestly insistent; importunate".

[31] All other motions must first comply with a series of steps: to ascertain whether a Case Conference date is first available, to engage in settlement discussions and to develop positive options. I emphasize the step of settlement discussions because it is critical to best outcomes for families and essential to an effective court system.

[32] Urgency as set out in the original Notice to the Profession was a higher standard than in Rosen. With the May 19, 2020 expansion has come a relaxing of that initial standard; but to now set it below that of Rosen would in my view undercut a vision for the Family Court that we must not leave behind as we transition to a new normal. This is a full circle worth travelling whether the test for urgency be for a motion, as it was in Rosen v. Rosen or for a Case Conference during a period of suspension.

[33] I therefore characterize a pressing issue as set out in the May 19, 2020 Central East Notice to the Profession as a standard no less than that required for an urgent motion during regular court operations pursuant to Rosen v. Rosen, and that as a precondition to granting leave, the court must be satisfied that the moving party has engaged in genuine, broadly optioned and diligent settlement discussions.

[34] In this matter, I cannot find that Mr. Clemente meets the test for either an urgent or a pressing issue. He affirms in his affidavit that he is willing to compromise yet sets out no compromise. He has made no genuine effort to settle, nor has he been diligent in investigating options – he has simply rejected them out of hand, such as a professional willing to assist with communication, provide supervised access and manage a safe and appropriate father and son reconciliation.

[35] Last November “D” was frightened and he was harmed. He has had no contact with his father for the past six months. There will be no quick fix. It will be a long road back, and there are options that counsel must first explore outside the courtroom.

[36] I encourage counsels to immediately engage in those discussions. If they do so diligently, by the time that Ms. O’Brien has answered the Application, and regular court operations have resumed, Mr. Clemente may have progress notes for the Case Management Justice on a series of successful parenting visits that will inform “D’s” readiness to move towards a normalized pattern of care.

Costs

[37] Ms. O’Brien has been the successful party. If counsels are not able to agree on costs, submissions may be forwarded to my attention: June 8, 2020 by Ms. O’Brien and June 18, 2020 by Mr. Clemente. No reply. Submissions are limited to two pages exclusive of Offers to Settle and a Bill of Costs.

McGee J. Date: May 28, 2020

[1] The expansion also includes consent 14B Motions, Consent Motions to Change and Urgent Openness Hearings in child protection matters.