Court File and Parties
COURT FILE NO.: 1369/19 DATE: 2020-04-20 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stephen Mercer, Applicant AND: Holly-Anne Peach and Kyle Gorda, Respondents
BEFORE: The Honourable Mr. A. Pazaratz
COUNSEL: No one in appearance
HEARD: In Chambers - 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 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[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: a. Notice of Motion of Kyle Gorda dated April 17, 2020. b. Unsigned/unsworn/undated affidavit of Kyle Gorda.
[6] By coincidence, I have had considerable previous involvement in this matter.
[7] Kyle Gorda is the former partner of the five year old child’s mother (i.e., a step-parent).
[8] Pursuant to my order dated November 16, 2018, the father Stephen Mercer was granted custody; Gorda was granted alternate weekend access; and the mother was to have access in the discretion of Mercer and in accordance with CAS recommendations.
[9] Now representing himself, Gorda has brought an urgent motion to enforce his access rights. He says the father is denying access as a result of unwarranted concerns that access would present a health risk for the child, in relation to COVID-19.
[10] A number of preliminary issues arise:
[11] Firstly, there is no indication that Gorda has served either the father or the mother. a. It would not surprise me if service on the mother might be problematic (she has had many personal issues, and had lost interest in the case when the November 16, 2018 order was made in her absence). b. But personal service on the father is essential. c. Gorda’s materials indicate he attempted to address these issues through Mercer’s former lawyer. That’s understandable. But there is no presumption that a former lawyer continues to be retained. So unless the former lawyer confirms that they are representing Mercer, Gorda should arrange for personal service on Mercer.
[12] More fundamentally, based on the material before me I do not believe Gorda is proceeding in the correct jurisdiction. a. When this court case was initially commenced in Hamilton, the mother and the child resided in this city. b. But custody has been transferred to the father who resides in Acton. c. Gorda resides in Burlington. d. They both reside in Halton region, and most importantly the child resides in Halton region. e. So any proceeding in relation to the child should now be brought in Halton.
[13] As an aside, I note that in Gorda’s materials he says he attempted to get the police to enforce his access order, but that a police enforcement clause was “inadvertently deleted from the court order.” a. That’s not correct. b. The existing final order was on consent of both Mercer and Gorda, based upon minutes of settlement which included a police enforcement clause. c. However, in my endorsement I specifically explained that I was not including a police enforcement clause as part of the order. d. Mercer and Gorda both had counsel present, and they consented to the exclusion of any police enforcement clause. e. Police enforcement clauses are not in the best interests of children in this type of case.
[14] Gorda’s motion is dismissed without prejudice to it being pursued in the proper jurisdiction, with service upon all parties (or attempted service if the mother cannot be located). The matter will first have to be presented to a Triage judge to determine urgency.
[15] Before the parties get that far, however, I would urge everyone to read this court’s decision in Ribeiro v. Wright 2020 ONSC 1829. It explains the approach the court is going to take in cases like this – and the expectations the court will have on all parties to make good faith efforts to resolve timesharing disputes.
[16] As I mentioned, I remember this file and I remember these parties. a. I don’t know the father’s side of the story in relation to the current situation. b. But I recall both Mercer and Gorda being very reasonable, child-focussed people. c. So I would urge them to try to address the current issue in a mature, co-operative, child-focussed, and COVID-aware manner.
[17] In addition to e-mailing this endorsement to Gora, court staff are to e-mail copies to Mercer and his former lawyer Faryal Rashid, at the address Gorda listed in the title of proceedings.
[18] Any self-represented party should obtain legal advice as quickly as possible.
[19] 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.
[20] Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.