Court File and Parties
COURT FILE NO.: 435/19 DATE: 2020-03-27 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: S.W-P., Applicant AND: S.P., Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Ms. Kathryn Junger, Counsel, for the Applicant Ms. Catherine A. Haber, Counsel, for the Respondent
HEARD: March 27, 2020 – Triage Determination
Endorsement
[1]
Introduction
AS A RESULT OF COVID-19 which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 24, 2020, this matter was referred to me as Triage Judge, for a determination as to how the file is to proceed. See the Notice to the Profession dated March 24, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
2Electronic 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.
3This is presented as an urgent motion brought by the Respondent father in relation to parenting arrangements for 12 year old A.P.
[4] At this time, I only have the following materials which were served on the Applicant’s counsel yesterday afternoon: a. March 25, 2020 - Form 14 Notice of Motion. b. March 25, 2020 - Affidavit of the Respondent.
5Clearly there has been insufficient time for the Applicant to respond, and responding materials will be required.
[6]
Background
The Respondent’s narrative includes a lot of historical information which provides context, but is not determinative on the threshold issue of whether this matter is “urgent”. The Respondent’s information includes: a. The parties separated July 2018. The Applicant vacated the matrimonial home. She subsequently gave birth to a child of another relationship. b. From July 1, 2018 to March 2019 the Respondent says the child resided primarily with him. c. In March 2019 the Applicant moved back into the matrimonial home, not by mutual agreement. d. The home was sold August 30, 2019 e. On August 30, 2019 Justice Chappel endorsed a request that the OCL become involved. The OCL has declined involvement. f. On September 1, 2019, following a contested motion, Justice McLaren granted a temporary-temporary without prejudice order which included equal timesharing on a 2-2-3 schedule. The order specifies that D.R. is not to be present during the child’s time with the mother. D.R. was described in the Respondent’s materials as the mother’s boyfriend, and there appear to be serious concerns about him, including criminality.
[7]
Urgency
The Respondent now asks, on an urgent basis, that the child’s primary residence be with the father, with the mother to have parenting time as agreed between the mother and the child. In ordinary circumstances the court would not consider an immediate change of a long-standing time-sharing arrangement as “urgent”, notwithstanding the “temporary-temporary without prejudice” characterization of the existing order. However, the Respondent’s materials raise concerns about the immediate physical and emotional well-being of the child: a. The Respondent says the child “has now resorted to ‘running away’ from the Applicant’s home. b. Police have now been involved, directly interacting with the child. c. There has been recent discussion between counsel about privately arranging for some “voice of the child” input, but so far nothing has been arranged. I would urge the parties to follow up on this immediately. d. In the meantime, I am sufficiently concerned about the possibility of the child running away and exercising self-help, that I am satisfied that this matter is potentially urgent.
[8]
Directions
The matter will be referred to a backup judge for further determination. a. The judge dealing with the matter will require materials from the Applicant. Given the nature of the allegations and the court’s concern about the immediate situation of the child, responding materials should be served by next week (I will not be more precise, without input from the Applicant’s counsel, but at this point I would think Tuesday at 4:00 p.m. appears to be a reasonable deadline.) b. The matter will be assigned to a backup judge who will ultimately make the formal determination as to whether this matter is “urgent,” and make any further decisions accordingly. c. A hearing by teleconference will likely be arranged for next week (no sooner than Wednesday). The Trial Coordinator will advise the date and time. However, this is subject to the assigned judge making any other determinations. After reviewing the file, the assigned Judge will have the discretion to make a determination based on written materials, without a hearing. The court will advise counsel how this matter is to proceed.
[9]
Concluding Remarks
Counsel and the parties will hopefully understand that even in the best of circumstances it is very difficult for the court to deal with evolving parenting issues involving soon-to-be teenagers. And with COVID-19 restrictions, these are certainly not the best of circumstances.
10The court will be reliant on counsel and the parties to pursue therapeutic solutions. Getting a professional involved (like Ms. Geraldo, as mentioned in the Respondent’s materials) is an excellent idea.
11I am not prepared to make any formal parenting order on an emergency basis, within this endorsement. I would anticipate that the Judge assigned to deal with the matter will expect that neither party will require strict adherence to a formal schedule. The last thing we want to hear is that a child is running away from any situation, and that police are becoming involved to protect him.
Pazaratz J.
Date: March 30, 2020