Court File and Parties
Date: June 16, 2020
Court File No.: D10563/17
Ontario Court of Justice
Between:
H.T. and N.T.
Cemal Acikgoz, for the Applicants
APPLICANT
- and -
M.D.E.Q. and M.T.
Parineeta Chahal, for the Respondent, M.D.E.Q. The Respondent, M.T., Acting in Person
RESPONDENT
Heard: In Chambers
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The applicants are the paternal grandparents of the two children in this case. The children are ages 5 and 3. The paternal grandparents seek leave to bring an urgent motion for joint custody and primary care of the children.
[2] The respondent, M.D.E.Q. is the children's mother. The respondent M.T. is the children's father. Neither respondent filed a response to this motion.
[3] The issues for the court to determine are:
a) Should leave be given to the paternal grandparents to bring an urgent motion?
b) If not, is there another process that should be ordered?
Part Two – Brief Factual Background
[4] On July 13, 2017, the parties agreed to a final order that they would all have joint custody of the children and that the children would live with the paternal grandparents. They also agreed that no party would remove the children out of Ontario without notifying the other parties at least 30 days before the scheduled move.
[5] On August 7, 2017, the father removed the children to Turkey without the mother's consent.
[6] The paternal grandparents moved to Turkey and the children lived with them and the father.
[7] The mother brought an application under the Hague Convention and obtained an order for the return of the children to Canada. She picked up the children in Turkey on May 22, 2019 and returned with them to Toronto.
[8] On January 22, 2020 the mother issued this application for sole custody of the children and child support.
[9] On February 4, 2020, the court made an order granting temporary custody of the children to the mother and temporary supervised access to the father at Access for Parents and Children in Ontario.
[10] The paternal grandparents returned to Canada on February 15, 2020.
[11] The paternal grandparents have not seen the children since May 22, 2019.
[12] The matter has been adjourned twice due to the COVID-19 pandemic. The next court date is on August 12, 2020.
Part Three – Legal Considerations for Urgent Motions
[13] In Rosen v. Rosen, 2005 O.J. No. 62 (Ont. SCJ), the court described an urgent motion as follows:
"an urgent motion contemplates issues such as abduction, threat of harm, dire financial circumstances. Counsel must first make an inquiry to see if an early case conference date can be obtained. If there is a long delay, that could make the issue critical. Counsel should also first try to obtain a short-term agreement.
[14] In Clemente v. O'Brien, 2020 ONSC 3287, Justice Heather McGee, recently commented on the Rosen decision at paragraphs 25 to 26 as follows:
[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.
[15] Ordinarily, parties do not seek leave to bring an urgent motion. If the matter is urgent, the motion is brought and it is heard. If the court finds that the motion isn't urgent on the return date, it is unlikely that it will be heard and the party bringing the motion will face costs consequences.
[16] However, these are not ordinary times. Due to the pandemic and the limited ability of the court to hear cases the Chief Justice of the Ontario Court of Justice has directed that the court should only be hearing motions that are urgent. The court has directed that a party must first seek leave to bring an urgent motion, on notice, by Form 14B motion.
[17] In Thomas v. Wohleber, 2020 ONSC 1965, Justice Marvin Kurz found that the following factors are necessary in order to meet the requirement of urgency during the pandemic:
The concern must be immediate; that is one that cannot await resolution at a later date;
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;
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;
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.
[18] Justice Kurz went on to write at paragraphs 31 and 32:
[31] At the present time, the Notice's test of urgency must be strictly enforced in order to ensure that the court's limited administrative resources are available to deal with the most serious and urgent of cases. Without rigorous enforcement of the Notice, even extremely urgent cases; those that call for immediate court involvement to protect children, the safety of vulnerable spouses or extreme financial need, will have to queue up behind less urgent matters. This raises the considerable risk of harm by delay.
[32] At the same time, our court's limited resources, tethered to a limited number of overworked administrators, runs the risk of being overwhelmed and becoming unable to offer necessary judicial services to those most in need.
[19] No urgency was found where a father waited six months after separation to seek access to his two children. See: Reitzel v. Reitzel, 2020 ONSC 1977.
Part Four – Urgency
[20] This matter is not urgent for the following reasons:
a) There is no evidence of abduction or threat of harm to the children by the mother.
b) There is no immediate concern that cannot await resolution at a later date.
c) There is no independent evidence of serious concerns that affect the health or safety of the children.
d) The paternal grandparents have not seen the children since May 22, 2019.
e) The paternal grandparents waited until June 2020 to come to court to seek access to the children. They have still not filed an Answer/Claim.
f) There are serious concerns about the paternal grandparents' role in the wrongful removal of the children from Canada and the wrongful retention of them in Turkey.
g) This case would benefit from a case conference being held before the parties engage in an exchange of affidavits attacking each other.
Part Five – Priority Case Conferences
[21] Due to the pandemic there have been mass adjournments of cases at this court site that had been scheduled from mid-March to July 6, 2020.
[22] On May 7, 2020, the court issued a Notice to the Profession and the Public expanding the types of cases that could be heard beyond urgent motions. In particular, domestic matters that do not necessarily meet the stringent test of urgency may be considered for conferencing for up to two issues on a priority basis.
[23] At this point few requests have been made at this court site for priority case conferences. Perhaps this is not surprising given the frequently changing and differing directions coming from court sites at all court levels. We still have several openings available for priority case conferences to be heard in domestic matters. Counsel are encouraged to bring Form 14B motions to use these available slots to move their cases forward.
[24] The court has time to accommodate a case conference for this family prior to the scheduled return date. It is in the best interests of the children to take advantage of this opportunity and move this case forward.
Part Six – Conclusion
[25] The paternal grandparents' request for an urgent motion is dismissed.
[26] A case conference will be held by teleconference on July 7, 2020 at 10:00 a.m. Court staff will send the call-in numbers to the parties. The August 12, 2020 court date is vacated.
[27] The paternal grandparents should serve and file their Answer/Claim by June 26, 2020.
[28] The case conference briefs are limited to six pages.
[29] All materials, including the Answer/Claim are to be filed by email to 47Sheppard.ocj.family.trialcoordinator@ontario.ca.
Released: June 16, 2020
Justice S.B. Sherr