CITATION: T. H. Holmquist vs. R. L. Holmquist, 2016 ONSC 1796
COURT FILE NO.: FS-16-0045-00
DATE: 2016-03-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thomas Hunton Holmquist
M.A. Currie, Counsel for the Applicant
Applicant
- and -
Roxanne Louise Holmquist
B. Smith, Counsel for the Respondent
Respondent
Heard March 10, 2016, at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Endorsement
[1] This motion concerns the parties’ 16 month old child, Ella Gisile Helen Holmquist, born October 25, 2014.
[2] Ms. Holmquist left the matrimonial home with Ella on February 26, 2016 while Mr. Holmquist was on a trip.
[3] During the following two weeks, the parties, with the assistance of their lawyers, have attempted, without success, to resolve the issue of the care and custody of the child.
[4] On March 7, 2016, Mr. Holmquist filed an application with this court, seeking an order for joint custody and equal sharing of time with the child. Mr. Holmquist also brought the within motion, returnable March 10, 2016, seeking similar relief.
[5] As a result of the short service, Ms. Holmquist has been unable to file responding material in time for the March 10, 2016 return date and no case conference has been held.
[6] Ms. Holmquist asks to have the motion dismissed because of the short notice and because Rule 14(4) provides that no motion may be served or heard before a case conference dealing with the substantive issues in the case has been completed. Although Rule 14(4.2) provides that Rule 14(4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. Ms. Holmquist submits that there is no urgency or hardship.
[7] Ms. Holmquist refers to the leading case on point, Rosen v. Rosen, 2005 480 (ON SC), [2005] O.J. No. 62 (S.C.J.), where Wildman J. dismissed a motion brought before a case conference, finding that there was no urgency. Ms. Holmquist also refers to Bellerive v. Hammond 2000 CarswellOnt 5941 (C.J.) where the court said that denial of access by itself does not equate to urgency in most cases. Finally, Ms. Holmquist refers to Endicott v. Endicott 2015 ONSC 3180, where Charney, J. at para 8 stated:
[8] The cases have defined “urgency” in this context to refer to circumstances such as abduction, threats of harm, and dire financial circumstances and have held that dispensing with a case conference is an exception to the procedural requirements that should be made infrequently (Gonzales v. Trobarovic [2014] O.J. No. 4389, at para. 24). While access is an important issue, it does not in the circumstances of this case, fall into the category of “urgency” or “hardship” as those terms have been defined in prior cases. There is no evidence that the children will be “harmed” if this motion is not heard for another month, or if the Applicant accedes to the Respondent’s demand that access be supervised, however unreasonable or unfounded the Applicant may consider that demand to be.
[8] Ms. Holmquist submits that because Mr. Holmquist acknowledges in his affidavit that she is a good parent and has looked after Ella on her own more than he has, that there could be no harm to the child if the motion is dismissed.
[9] If the motion is not dismissed, Ms. Holmquist requests that the motion be adjourned until after a case conference.
[10] Counsel for the parties advise that because of their respective schedules, the first case conference date would be May 25, 2016.
[11] Pending the case conference, Ms. Holmquist proposes that Mr. Holmquist have Ella every second day, between 9:00 a.m. and 4:30 p.m. or that he have the child Monday and Wednesday from 12:00 noon until 6:00 p.m. and Friday at 3:30 p.m. until Saturday at 4:30 p.m. Ms. Holmquist would have the child the rest of the time.
[12] Ms. Holmquist is employed as a Registered Practical Nurse and is also studying for her Registered Nurse qualification. Mr. Holmquist is a corrections officer. Both parties have taken time off from work for six weeks to deal with this matter.
[13] Mr. Holmquist submits that the motion should be heard because, although there has been no harm or hardship occasioned to the child, Ms. Holmquist created the situation in which the child has been taken from the only home she has known and it would be unreasonable for Mr. Holmquist to wait 2 ½ months for a case conference to obtain relief.
[14] Mr. Holmquist submits that it is wrong for Ms. Holmquist to be able to set the terms of his time with Ella. Mr. Holmquist deposes that Ms. Holmquist initially permitted him to see Ella for only brief visits. Since March 6, 2016, he has had the child every second day, from 9:00 a.m. to 4:30 p.m., but has not had Ella overnight.
[15] He submits that both of Ms. Holmquist’s proposals indicate that she has no concerns with his competency as a parent, including the ability to care for Ella overnight.
[16] Mr. Holmquist proposes that each parent have Ella every second day, with the exchange to take place at 9:00 a.m. For example, Ms. Holmquist would have the child from 9:00 a.m. on a Monday until 9:00 a.m. Tuesday, Mr. Holmquist would have the child from 9:00 a.m. Tuesday until 9:00 a.m. Wednesday, and then the cycle would repeat.
Discussion
[17] I am satisfied that the motion may be heard prior to a case conference, in compliance with Rule 14(4.2), on the grounds it is in the interest of justice to do so.
[18] In Rosen, Wildman J. stated that the first step in considering whether a motion should be heard prior to a case conference is an inquiry as to when a case conference is available. Here, although the court can provide a conference date within two weeks, the schedules of counsel are such that they have set May 25, 2016 as the first case conference date. As counsel for Mr. Holmquist points out, that is 2 ½ months away. That, in my view, is an inordinately long time to deal with the care and custody arrangements for a 16 month old child whose residency has been unilaterally altered by one parent, albeit the change has occurred for reasons that are not yet before the court by way of responding materials.
[19] Justice Wildman states that the next step prior to bringing a motion should be to engage in settlement discussions to try to obtain resolution of the pressing matters until the case conference date. In this case, counsel for the parties have exchanged written proposals. On the morning of the hearing of the motion, the matter was stood down while counsel and the parties attempted to negotiate an interim, interim resolution. Both counsel are experienced family law lawyers. Counsel advised that they were unable to reach an agreement.
[20] In Endicott, where the father was requesting an order for access, although Justice Charney did not find urgency or hardship, he did conclude that in the circumstances of that case it was in the interest of justice that the motion be heard prior to a case conference and that the best interests of the children required a temporary access order.
[21] In Bellerive, the court found that the father, who brought a motion in the Ontario Court of Justice before a case conference, after failing to obtain relief in another court, was the author of what he now claimed to be urgency or hardship.
[22] The primary objective of the Rules is to enable the court to deal with cases justly, which includes ensuring that the procedure is fair to all parties and dealing with the case in ways that are appropriate to its importance and complexity.
[23] In my view, it would not be in the interest of justice nor fair to Mr. Holmquist to ignore the potential consequences arising from the passage of 2 ½ months before judicial input can be obtained on the temporary care arrangements for an infant in circumstances where senior counsel have been unable to negotiate a resolution.
[24] The narrow issue before me is what overnight time, if any, Mr. Holmquist should have with Ella. Based on Ms. Holmquist’s alternative proposals, she does not appear to be opposed, on an interim, interim basis, to Mr. Holmquist having significant time with the child. Nor, based on her second proposal, does she appear to be opposed to overnight access, although she limits it to once per week.
[25] The order that I will be making will be for a very short period of time. Ms. Holmquist’s counsel has submitted that if I do not accept his proposals, the motion should come back in two weeks, on March 24, 2016. Counsel for Mr. Holmquist will be out of the country on March 24^th^. She proposes a return date of March 31^st^. My order will therefore be in effect for three weeks, unless extended on March 31^st^.
[26] Work schedules are not a consideration for this decision because both parties will be off work until March 31, 2016.
[27] I have determined that on an interim, interim basis, ending March 31, 2016, each party shall have the child in his or her care, as the case may be, every second day, from 9:00 a.m. of the first day until 9:00 a.m. of the second day, except during March 25 to March 28, 2016, inclusive, when the child shall be with Ms. Holmquist. This is the Easter weekend. Ms. Holmquist has made plans for the holiday. Mr. Holmquist agrees that Ms. Holmquist should have the child with her during this pre-arranged holiday.
[28] This order will remain in effect until 4:00 p.m. March 31, 2016, unless otherwise ordered by the court.
[29] The order is on a without prejudice basis. I expressly acknowledge that it has been made without the benefit of responding material from Ms. Holmquist. Ms. Holmquist shall serve responding material by March 17, 2016, at 12:00 o’clock noon.
[30] Costs of this motion, if any, are reserved to the judge hearing the motion on March 31, 2016.
“ Original signed by RSJ D. C. Shaw_
The Hon. Mr. Justice D. C. Shaw
Released: March 11, 2016
CITATION: T. H. Holmquist vs. R. L. Holmquist, 2016 ONSC 1796
COURT FILE NO.: FS-16-0045-00
DATE: 2016-03-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Thomas Hunton Holmquist,
Applicant
- and -
Roxanne Louise Holmquist
Respondent
ENDORSEMENT
Shaw R.S.J.
Released: March 11, 2016
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