COURT FILE NO.: FS-10-11433-001 DATE: 20200324 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Todd Eugene Hitchcock, Applicant AND: Jodie Marie Hitchcock Gillier, Respondent

BEFORE: Howard J.

COUNSEL: Todd Eugene Hitchcock, acting in person No one else appearing

HEARD: Considered in chambers

ENDORSEMENT

Overview

[1] The applicant, Todd Hitchcock, has filed a motion to change the final order of Donohue J. dated May 27, 2011.

[2] In particular, the applicant father seeks an order for sole custody of the child of the marriage, Quinn Kristopher-Martin Hitchcock, born July 4, 2004 (“Quinn”). At present, Quinn is 15 years of age.

Urgency

[3] On March 15, 2020, the Office of the Chief Justice issued a “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings” ( Notice to the Profession ). The Notice to the Profession advised that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice.

[4] Section A of the Notice to the Profession describes those exceptional matters that may be heard during the suspension of regular court operations and provides that:

Until further notice, only the following urgent and emergency civil and family matters listed below shall be heard by the Superior Court of Justice.

2. The following FAMILY AND CHILD PROTECTION matters:

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);

b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;

c. dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order;

d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. [Emphasis in original.]

[5] Thus, as it pertains to the matter before me, para. 2 of the Notice to the Profession makes plain that the exception for “urgent and emergency” family matters that may be heard in the current exceptional period during which the regular operations of the court are suspended is available only where it is shown that:

a. The matter involves “urgent relief relating to the safety of a child” or

b. The matter involves “urgent issues that must be determined relating to the well-being of a child.”

[6] The onus is on the applicant to establish these elements to the satisfaction of the court.

[7] In this case, based on the limited material available to me at this preliminary stage, I am persuaded that the onus has been met.

[8] However, I note that the material of the applicant father has not yet been served on the respondent mother. No doubt that if and when the respondent mother files her responding material, the court may gain a fuller appreciation of the circumstances in this case. With that in mind, I reserve to myself the right to reconsider the question of whether this case is truly one of urgency once all parties have filed their material.

[9] That said, the applicant’s material seeks to change the final order of Donohue J. dated May 27, 2011, and to claim sole custody of Quinn because of, among other things, what is alleged to be “the emotional and physical abuse” of Quinn. The emotional and physical abuse of a child is an urgent issue relating to the safety and well-being of a child.

[10] Thus, again, based on the limited material available to me at this preliminary stage, I find that the matter is an “urgent and emergency” matter within the meaning of the Notice to the Profession, justifying that it be heard during the suspension of the court’s regular operations.

[11] Rather than assign this case to another judge to be heard, I will deal with the request for urgent relief myself as presiding judge.

[12] I note that a variety of relief is claimed in the applicant’s motion to change form. Given the current suspension of all regular court operations except for those emergency matters that are urgent, I propose to deal with only those issues that I determine to be urgent. I will deal with such urgent issues on an interim or temporary basis only.

The parties’ materials

[13] On my preliminary review of the material filed by the applicant father, I am left with certain unanswered questions, and so I direct that the applicant father attempt to address these questions by way of a revised affidavit to be delivered. In particular:

a. It is not clear from the material where Quinn is actually residing at present. The change information form indicates that Quinn is currently residing with the applicant father. However, statements made in a change information form or in a motion to change form do not constitute evidence. I note that the (unsworn) affidavit filed by the father does not expressly state that Quinn is currently residing with the applicant father. Accordingly, the revised affidavit to be delivered by the applicant father should be sworn and should directly indicate where Quinn is currently residing, and, if with the father, when Quinn moved there, and how that came to be.

b. Paragraph 1 of the affidavit states that Quinn no longer wishes to live with his mother. The revised affidavit should provide details of this alleged expression of Quinn’s wishes and preferences (i.e., what was said, when was it said, to whom was it said, was it confirmed in any document or writing, etc.).

c. Paragraph 3 of the affidavit references certain documentation from the Windsor-Essex Children’s Aid Society (“WECAS”) and the last sentence in the affidavit states that: “Documentation from Windsor Children’s Aid attached to this Document.” However, no such documentation is attached as an exhibit to the affidavit. The revised affidavit should attach as an exhibit the referenced WECAS documentation, if the applicant father seeks to rely on it.

d. Paragraph 4 of the affidavit references two examples of the alleged emotional and physical abuse of Quinn. However, few details are provided. The revised affidavit should set out further details of these alleged incidents, including when they occurred, the surrounding circumstances, whether they were reported, whether they were confirmed, etc.

e. Paragraph 9 of the affidavit states that: “There was another falling out with mother and he has made the choice to move now.” The revised affidavit should provide details of this “falling out” (who, what, when, where, etc.) and details of the basis upon which the applicant concludes that Quinn “has made the choice to move now.”

f. Paragraph 10 of the affidavit states that: “I have had to [involve] the Chatham-Kent police on several different occasions because Jodie would not follow the order.” If the applicant father wishes the court to rely on this information at all, the revised affidavit should provide details of the police contacts and the occasions on which, he says, the respondent mother did not follow the order (specify what order, how, when, etc.)

g. The revised affidavit should attach as an exhibit a copy of the final order of Donohue J. dated May 27, 2011, and any other order that has been made by the court since May 2011, if any, that deals with any issue relevant to the applicant father’s current request.

h. Paragraph 11 of the affidavit purports to quote comments made by Donohue J. at trial. If there was a written decision or endorsement of Donohue J. released in support of his decision at trial, the revised affidavit should attach as an exhibit a copy of any such written decision or endorsement.

i. The motion to change form references (on page 1) an agreement for support between the parties, made May 27, 2011, and filed with the court on June 14, 2011. The revised affidavit should attach as an exhibit a copy of this agreement.

j. The revised affidavit should attach as an exhibit a draft copy of the order that the applicant wishes the court to make.

k. Each document delivered by the applicant father should clearly set out his e-mail address for service.

[14] Further, I direct that the parties shall deliver their material for use on the hearing of the motion in accordance with the following schedule:

a. The applicant father shall serve the respondent mother with all of his material, including his revised affidavit, and then file same with the court, on or before Friday, March 27, 2020, at 4:00 p.m.

b. The applicant father shall serve the respondent mother with a copy of this endorsement together with his other material, on or before Friday, March 27, 2020, at 4:00 p.m.

c. The applicant father shall file proof of service of his material, and this endorsement, on the respondent mother on or before Friday, March 27, 2020, at 4:00 p.m.

d. The respondent mother shall serve the applicant father with her responding material, including her responding affidavit, and a draft copy of the order that she wishes the court to make, and then file same with the court, with proof of service, on or before Friday, April 3, 2020, at 4:00 p.m.

e. The applicant father shall serve the respondent mother with his reply affidavit, if any, and then file same with the court, together with proof of service, on or before Tuesday, April 7, 2020.

[15] Once all written materials have been received, I will determine the manner of hearing. The claim for urgent relief may be heard and determined in writing, by telephone conference call, or by such other manner as I may determine. If I determine the motion must be heard by telephone conference, information concerning the telephone conference line to be used will be provided to the parties by the Trial Coordinator.

[16] In other words, it is recommended that the parties should prepare their affidavits and written material bearing in mind that the court may well determine the issues based on their written material only.

Procedure

[17] The parties shall comply with all provisions of Section B of the Notice to the Profession respecting “Procedure to Bring an Urgent Matter” except to the extent that this endorsement permits or directs otherwise. A copy of the Notice to the Profession may be found at: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

[18] Pursuant to rule 6(2)(e) of the Family Law Rules, [1] the court orders that service of any materials for use on the hearing of the motion may be made by e-mail. Such service by e-mail is deemed to be effective on the day the e-mail is sent but, where service is made between 4 p.m. and midnight, it is deemed to have been made the following day.

[19] All materials for use on the hearing of the motion may be filed with the court either by filing a hard copy with the court office or by delivering them as attachments (in MS Word or searchable PDF format) to an e-mail sent to the Trial Coordinator (at Chatham.SCJ@ontario.ca ) and copied to the other parties.

[20] References to caselaw, legislation, regulations, or other source material should be made by hyperlinks embedded in the party’s factum or a separate list of authorities. Where hyperlinks are provided, the party shall not deliver a separate book of authorities.

[21] Upon such time as the court resumes regular operations, each party to this motion shall forthwith file with the court a printed copy of all materials that the party delivered electronically for use on the hearing of the motion, together with proof of service, and shall ensure that the appropriate filing fee has been paid.

Notice to the parties

[22] The respondent mother is hereby given notice that:

a. You are required to confirm, immediately, by e-mail that you have received a copy of this endorsement, by sending a confirmation e-mail to the Trial Coordinator (at Chatham.SCJ@ontario.ca ), copied to the applicant father. If you fail to do so, this matter may proceed, and the court may deal with the case in your absence.

[23] All parties are hereby given notice that:

a. If you are presently self-represented and:

i. You wish to retain a lawyer, you should do so promptly and then have your lawyer contact both the Trial Coordinator and the other party to advise that she or he has been retained.

ii. You wish to retain a family law lawyer for only a limited scope of service, including just for this motion, you may seek the name of lawyers who accept such limited scope retainers at the Law Foundation of Ontario’s Family Law Limited Scope Retainer Project

iii. You wish to contact Legal Aid Ontario, you may call 1-866-874-9786 or 416-204-7104 for assistance, although it is likely that only limited services are available for litigants who do not qualify financially for Legal Aid Services. There may be an exception for cases that involve domestic violence.

b. If you choose not to retain a lawyer or are unable to do so, note that Section C, paragraph 1 of the Notice to the Profession provides that: “Self-represented litigants are expected to comply with the process set out in this Notice.”

c. If you choose not to retain a lawyer or are unable to do so, information regarding court procedures is available as follows:

i. A Guide to Process for Cases at the Superior Court of Justice may be found at:

ii. The Family Law Rules may be found at:

iii. Help preparing common family court forms is available through the service provided by CLEO (Community Legal Education Ontario) and its “Family Law Guided Pathways” to help you fill out the court forms that you may need for your family law case, which may be found at:

d. If any party fails to comply with the schedule for delivery of materials, as set out above, or fails to participate in any scheduled telephone conference call, the court may deal with the case in your absence, and an order may be made against you.

e. The presiding judge may convene one or more case conferences for the purposes contemplated by rule 17(4) of the Family Law Rules and may make such orders pursuant to rule 17(8) as the presiding judge may deem appropriate to secure the just, most expeditious, and least expensive determination of the motion.

f. The determination of the motion, whether delivered orally or released in typewritten or handwritten format, is an order of the court enforceable by law and, in accordance with rule 25(18), effective from the date on which it is made, regardless of whether a signed formal order is prepared, signed, and entered with the court in accordance with the provisions of Rule 25.

g. All provisions of this endorsement may be varied by the presiding judge on such terms as the presiding judge deems just.

h. The hearing of the motion may be recorded for the court’s purposes if held by teleconference call. However, a transcript of the teleconference will not be available to the parties without permission of the presiding judge.

Other

[24] The preparation, signing, and entry of a formal order in respect of this endorsement is hereby dispensed with.

J. Paul R. Howard Local Administrative Justice – Chatham Released: March 24, 2020

[1] Family Law Rules, O. Reg. 114/99, as am.