Court File and Parties

Court File No.: 1701/16 Date: 2020-04-17 Superior Court of Justice - Ontario

Re: Stacy Lynn Poyton, Applicant And: Gershom Benjamin Blake, Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Self-Represented Applicant Mr. Carmelo Runco, Counsel, for the Respondent

Heard: April 17, 2020 – No one in attendance – Triage Endorsement

Endorsement

[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020.

[2] For the moment, the court is prioritizing “urgent” matters. A supplemental Notice to the Profession dated April 2, 2020 sets out a narrow list of less urgent matters the court will attempt to deal with, as time and resources permit. (Further information is available in the April 7, 2020 “Protocol Regarding Family and Child Protection Matters in Central South Region”.)

[3] This motion was referred to me as Triage Judge for a preliminary determination of urgency and of how this matter should proceed. Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself.

[4] 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.

[5] I have received and reviewed the following materials on behalf of the Respondent:

a. Notice of Motion dated March 26, 2020 b. Affidavit of Respondent dated March 31, 2020

[6] I am advised that the materials were served on the Applicant, but I have not received any responding materials.

[7] The issues:

a. The Respondent has brought an urgent motion to set aside two final orders of Justice Lafrenière dated June 6, 2019 and July 8, 2019. He also seeks leave to file an Answer. b. The Respondent’s materials set out that he was served with an Application on April 3, 2018. He says he spoke to a lawyer in May 2018 but didn’t retain her until October 2018. c. Thereafter he thought his lawyer had filed an Answer. But in the summer of 2019, he learned that he had been noted in default and that two final orders had been made. d. The Respondent says in September 2019 his former lawyer filed materials seeking to set aside the orders, but that motion was dismissed on procedural grounds. e. He says thereafter it took him some time to find new counsel. f. Among the issues the Respondent wishes to deal with: this was an unmarried relationship and the Respondent wishes to pursue an interest in a residential property.

[8] I make no comment as to the merits of the Respondent’s claims. But as Triage judge I am not allowing this to proceed on an “urgent” basis.

[9] Under the Notice to the Profession posted in this court's website on March 15, 2020 ("the Notice"), urgency in non-child protection family law matters is not defined, but it is described as including:

1. 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);
2. 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;
3. dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order.

[10] While I understand that the Respondent is blaming his former lawyer for not having filed an Answer, even relying on the Respondent’s own materials, much of the delay herein must be attributable to him.

a. If he was served April 3, 2018 and spoke to a lawyer in May 2018, presumably he should have been aware that there was a time limit within which he should have filed an Answer. b. By the time he says he formally retained his lawyer in October 2018, the time for filing an Answer had long-since expired. That wasn’t the lawyer’s fault. c. While the Respondent says as of October 2018 he relied on the lawyer’s representation that she had filed an Answer, it appears that he did nothing to follow up on this until April or May 2019 when FRO came after him, seeking to enforce a support order. At that point he must have realized that court orders were being made without his participation. That should have tipped him off that he needed to pay more attention to this family court file. d. Instead, he appears to have done nothing more until July 19, 2019 when he received a letter from Family Court about the final orders he now seeks to set aside. e. His affidavit says he dropped that letter off at his lawyer’s office, and she advised him she would contact the Applicant’s lawyer. But even during the summer of 2019 the Respondent appears to have done little to get this file back on track. f. Notably, there are two children of this relationship, now ages 15 and 12. They have remained in the Applicant’s custody since the parties separated in April 2011. While the Respondent says he now wishes to file an Answer to deal with parenting issues as well, it is curious that he paid so little attention to this court case if there were children’s issues to be addressed. g. None of the issues the Respondent wishes to deal with are “urgent.”

[11] The bottom line: If you are served with an Application in April 2018; if you don’t even try to file an Answer until October 2018; and if you then pay very little attention to your file for the next year and a half – then you can’t come to court in the middle of the COVID-19 crisis, and claim that your matter is urgent. Your requests can be dealt with when things get back to normal.

[12] As an aside, I would note that the Respondent’s materials were far too long.

a. The Chief’s Notice states that “The Court expects parties will submit only brief materials to allow for a fair, timely, and summary disposition. Emailed filings cannot exceed 10MB. … Every effort must be made… to limit filed materials to 10 MB.” b. It would appear that this “10MB rule” requires some commonsense interpretation. c. Depending on how a document is created, the font size, the density, etc., 10MB can actually include hundreds of pages. d. That’s not what we had in mind. e. Counsel and parties should interpret the 10MB rule as a requirement that materials should be brief and efficient. Documents should be typed, double spaced, with a 12 point font. f. “Urgent” motions being submitted to a Triage judge should usually be no more than five or six pages in total (including attachments).

[13] The Respondent’s request to proceed on an urgent basis is dismissed. This is without prejudice to the Respondent being permitted to submit a fresh motion for consideration by a Triage judge, if some urgent or pressing matter arises. Hopefully reasonable communication between the parties can avoid any “urgent” situations.

[14] The Respondent’s counsel shall forthwith serve a copy of this endorsement (by e-mail if possible, and by ordinary mail) on the Applicant (and also on any other party, as I understand the Applicant’s mother was also listed as a party in the original proceeding).

[15] All parties should be clear about what this endorsement means:

a. As a result of the COVID-19 crisis, the court only has resources to deal with a narrow list of urgent matters. This matter is not urgent. b. More recently, the court has slightly expanded the types of cases that we can deal with. But this case may not fall into any of those categories either. c. However, I am not saying these issues don’t need to be dealt with. d. Eventually – hopefully soon – this crisis will abate and we will resume more normal court operations. Even when that happens, I anticipate it will take quite a while for us to get caught up on the backlog of cases which is accumulating during the COVID-19 suspension of court activities. e. This is precisely the kind of case where parties should understand that it’s going to be a while before we can get to some issues that the parties themselves have allowed to sit dormant for a long time. f. In the meantime, the parties should start talking and negotiating realistically.

[16] Any self-represented party should obtain legal advice as quickly as possible.

[17] 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 parties qualify, they may also wish to contact the Client Service Centre of Legal Aid Ontario at 1-800-668-8258.

Pazaratz J. Date: April 17, 2020