Court File and Parties

COURT FILE NO.: 1742/19 DATE: 2020-04-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Sneyd, Applicant AND: Munguntsetseg Tumurtogoo, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Self-Represented Applicant Ms. K. Junger, Counsel, for the Respondent

HEARD: April 6, 2020 – No Appearances – Triage Endorsement

Addendum to Triage Endorsement Dated April 6, 2020

[1] In my endorsement released earlier today I commented that the Applicant father had not filed a Notice of Motion.

[2] The Applicant contacted the court today to advise that he did indeed include a Notice of Motion with his materials.

[3] It would appear that the Notice of Motion was inadvertently not included with the Applicant’s other materials which I reviewed and commented upon.

[4] I have now had an opportunity to review the Applicant’s Notice of Motion. It does not change my endorsement.

[5] While the Applicant has filed a “Notice of Motion” – he did not actually give “notice” to the Respondent. He proceeded ex parte, and the fundamental concern set out in my endorsement was that there is no basis to proceed on an ex parte basis.

[6] Beyond that, I would again urge the Applicant to obtain proper legal advice with respect to the presentation of his materials. The Notice of Motion includes both proper and improper information. As well, it is handwritten and hard to read.

[7] As indicated in my earlier endorsement, the Applicant should start again and prepare and serve proper materials.

[8] Court staff are to forward a copy of this endorsement to Ms. Junger and Mr. Bland.

Endorsement

[1] 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/.

[2] The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include requests for urgent relief relating to the safety of any child and urgent issues related to the wellbeing of a child. This preliminary determination of urgency is an exercise of judicial discretion.

[3] Electronic 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.

[4] On April 3, 2020 the Applicant father brought an ex parte motion to restore access to his children ages four and two. CAS was supervising his visits, but the Society is no longer prepared to do so as a result of COVID-19 limitations.

[5] By coincidence I have had considerable recent involvement in this high conflict matter, which provides me with valuable background information and perspective.

[6] The background:

[7] In December 2019 the father brought an ex parte motion alleging that the mother intended to kidnap their children to her native country of Mongolia. An ex parte order was granted restricting the mother from removing the children from Canada. The mother was served and immediately retained counsel and participated in the process. The mother denied any intention to remove the child from Canada and consented to an order which is currently in place, restricting any relocation of the children. So mobility or abduction are not immediate issues.

[8] On the return of the motion the mother took the position – supported by Hamilton CAS which had become involved (but was not a party) – that there were serious concerns about the father’s interaction with the children, including allegations of significant violence or aggressive behaviour toward the children. Police were investigating the father’s actions.

[9] As a result, on consent of the parties and CAS, on January 6, 2020 I made a temporary-temporary without prejudice order which included the following: i. The children shall reside with the Respondent mother. The children shall not be removed on an overnight basis from the City of Hamilton, and they shall not be removed from Canada at all. ii. The Applicant may only have access to the children on a supervised basis. Such supervision shall be as may be agreed upon between the parties (through counsel), but failing any such agreement, such supervision shall be as may be provided (on consent) by Hamilton CAS.

[10] This order remains in effect. Since January 2020 the father has been having weekly visits supervised at the CAS office.

[11] However, as a result of COVID-19 CAS cancelled the father’s March 29, 2020 visit, and they have advised him that they will not be providing supervision for any further visits.

[12] On April 3, 2020 the father filed voluminous materials on an ex parte basis seeking to address access and reinstate his contact with the children. He says police have not charged him with anything and that on March 12, 2020 CAS issued a letter recommending that the father’s access be transitioned to “semi-supervised” (check-in/check-out).

[13] CAS has never initiated a protection proceeding. They have simply been assisting the family, but even before the COVID-19 crisis they apparently wanted to be relieved of their supervisory responsibilities. CAS had stated an intention not to attend a March 23, 2020 Settlement Conference in this family law dispute (that Settlement Conference never took place, as a result of the COVID-19 suspension of court operations).

[14] Accordingly, it is understandable that the father wishes to address the issue of resuming his contact with the children.

[15] However, there is absolutely no basis for the father proceeding on an ex parte basis, without notice to the mother’s counsel. In any circumstances, it should have been obvious that the court would require the participation of both parties in addressing sensitive and important parenting issues.

[16] I would further note that the father has already demonstrated a history of inappropriately bringing ex parte proceedings: a. He brought an ex parte motion on December 20, 2019 which turned out to include incomplete and misleading information. b. Even though the father’s December 20, 2019 ex parte motion was adjourned to December 30, 2019 (to allow service), on December 23, 2019 he brought an almost identical ex parte motion which was also adjourned to December 30, 2019. c. Once the mother was served and had an opportunity to participate, it became clear that the father had not been candid with the court in his ex parte materials. There was obviously much more to the story, as quickly confirmed by Hamilton CAS (which only had concerns about the father, not the mother). d. There is an extremely high onus on parties bringing ex parte proceedings to be absolutely candid and forthright with respect to the one-sided information they ask the court to rely on.

[17] Even if the father didn’t have a history of abusing ex parte proceedings, I would still require that the father serve the mother’s solicitor with all of April 3, 2020 materials, to allow the mother an opportunity to provide her equally important perspective and information on sensitive parenting issues. But given the father’s history with ex parte motions, I want to make it very clear: The father will not be allowed to proceed with his April 3, 2020 ex parte claims, and the father will not be permitted to present any further claims on an ex parte basis.

[18] In other circumstances I would simply adjourn the matter to another date to allow the father to serve the mother’s lawyer with his materials. However, that approach won’t be appropriate because there are significant problems with the father’s materials as currently constituted: a. The father has filed an affidavit but no formal Notice of Motion identifying the specific relief he is seeking. b. The father’s materials are too voluminous. As set out in Notices issued by the court, urgent materials filed electronically during the COVID-19 crisis are limited to a maximum of 10 MB’s. c. Even before imposition of a size restriction, the court would still have determined that the materials filed by the father are excessively long, disorganized, and include inadmissible evidence (such as unsworn testimonials from people). d. I realize the father is representing himself, so understandably he may have some difficulty strictly adhering to the procedural requirements of the court. e. But the father is starting to display a pattern of simply filing lengthy and disorganized materials in support of extremely sensitive determinations in relation to young children. Until recently he had a lawyer. His decision to represent himself does not relieve him of the obligation to comply with the Rules. f. The Court has been advised that legal information may be available to individuals who qualify, through the Law Society of Ontario at the following phone numbers: Toll-free: 1-800-268-7568; General: 416-947-3310. If the father qualifies, he may also wish to contact the Client Service Centre of Legal Aid Ontario at 1-800-668-8258. g. All litigants have an obligation to present their information to the court in a proper, efficient and comprehensible manner.

[19] As stated, I am dismissing all of the claims filed April 3, 2020, on a without prejudice basis. However, the father will be required to serve the mother’s counsel with all of his April 3, 2020 materials – forthwith -- so that the mother is aware of the information which the father presented to the court. If he brings a motion in the future, he will have to start again and advance his narrative properly, without referring to any of his April 3, 2020 materials.

[20] If further urgent motions are presented by either party (after proper service) they will be referred to the Triage judge for preliminary determination as to potential urgency.

[21] Before anyone brings any more motions, I would urge both parties to review this court’s recent endorsement in Ribeiro v Wright 2020 ONSC 1829, dealing with the court’s expectations of separated parents in the context of COVID-19. a. Both parents have an obligation to make good faith efforts to address timesharing issues in a realistic, sensitive, child-focussed – and safe -- manner. b. If a previous access supervisor is no longer available, prior to returning to the court the parties should explore all options to promote continuity of the parent-child relationship -- so long as this can be done in a manner which ensures the physical and emotional safety of everyone involved. c. In most cases, if there has previously been a determination that some level of supervision is required, a Judge dealing with matters by affidavit on an urgent basis will exercise considerable caution before significantly decreasing or discontinuing supervision or monitoring. d. By the same token, as a general rule access supervision is intended to be a short or medium-term precaution. This is particularly the case where – as here – the supervision was initially instituted on a temporary-temporary without prejudice basis. e. Access supervision is intended to promote and reward parenting success. Positive (or at least uneventful) visits generally lead to a gradual reduction of restriction and intrusiveness. Sometimes this can be a slow, phased evolution, because we must always proceed cautiously. But in some cases, the reduced options suddenly imposed by COVID-19 may prompt or accelerate discussion about transitioning access to a next level. f. COVID-19 has changed everything, and we have no way of knowing how long this is going to last. We have to protect everyone from a virus. We have to protect children from inappropriate parenting. We have to exercise all of this caution while at the same time reassuring children that their world – and their relationship with both parents – is going to be okay. g. This may mean that access arrangements will sometimes end up being different. The need or nature of supervision may require reconsideration. Related to this, the length or details of visits may also be up for discussion. In some cases, shorter visits with less onerous (or familial) supervision may end up being a reasonable short-term compromise, where institutional supervision is no longer available. h. Each case will be different. But we have to find a solution for each case.

[22] For the father, I would add one additional comment with a view to ensuring that future discussions are productive.

[23] In his ex parte materials the father sets out that his inability to see his children has caused him so much emotional upset that he came to experience a “Transient Ischemic Attack” (TIA). a. Presumably he mentions this in the hope that this will cause a judge to be more inclined to order unsupervised access, to alleviate his stress level. b. However – and perhaps inadvertently – the father has raised some concerns about his own physical health, and the possibility that an unresolved health issue may actually increase the justification for some level of accompaniment during access. c. TIA’s are temporarily debilitating. They are sometimes described as “mini-strokes.” d. I make no determination on this topic. e. But the father would be well advised to provide the mother with some medical corroboration as to his health, to allay any concerns on this topic.

[24] The order: a. The father is not permitted to proceed with his April 3, 2020 ex parte motion. b. The father will not be permitted to rely on his April 3, 2020 materials in the future. c. The father should forthwith serve the mother’s counsel of record Ms. Junger with a copy of all of the materials he filed with the court on April 3, 2020. This does not constitute service with respect to future proceedings. It is simply disclosure as to past materials improperly filed. d. The court will forward a copy of this endorsement to Ms. Junger and to John Bland, counsel at Hamilton CAS. e. Any future urgent motions will be referred to the Triage Judge. f. Prior to returning to court, the parties should engage in comprehensive discussions with a view to achieving a child-focussed resolution. They should fully explore all available options. g. If the matter returns to court, there will be an expectation that each party will be able to demonstrate that have made good faith efforts to advance compromise positions, in addition to their “first choice” as to resolution.

Pazaratz J. Date: April 6, 2020