COURT FILE NO.: FS-20-97341-00 DATE: 2020 04 03 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: OMA DAVI ASHLEY RAMDASS, Applicant AND: RYAN RAKESH RAMDASS, Respondent
BEFORE: Justice L. McSweeney
COUNSEL: Jorge A. Cartaya, for the Applicant Malina A. Roshan, for the Respondent
HEARD: In Writing
ENDORSEMENT
OVERVIEW
[1] As a result of the serious health risks posed by COVID-19, the regular operations of the Superior Court of Justice have been suspended until further notice.
[2] Pursuant to the Superior Court of Justice Notice to the Profession, dated March 15, 2020 (“the March 15 Notice”), only matters determined to fall into specific categories of urgency or emergency are being heard. The March 15 Notice can be found at: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
[3] I was assigned by the Local Administrative Judge in Brampton to determine whether this matter is urgent or an emergency within the meaning of the March 15 Notice, such that it should be heard during the suspension of the regular operations of the court.
[4] On April 1, 2020, I directed the Brampton Trial Office to advise counsel for the parties that, “Your materials have been reviewed by the designated judge. The court has declined to hear your motions at this time. An endorsement with reasons will follow.”
[5] This is my endorsement with reasons.
FILING CHRONOLOGY
[6] The parties separated in January 2020. This application was started by the Applicant, Ms. Ramdass, shortly thereafter. The parties’ first case conference was scheduled for March 20, 2020. It could not proceed because of the suspension of the regular operation of the courts that became effective on March 17, 2020. They were told their case conference was moved to June 2020.
[7] On March 25, 2020, the Respondent, Mr. Ramdass, filed a request for hearing of an access motion without a case conference. He seeks an order for unsupervised access to the parties’ baby daughter, born October 2019 (“baby” or “baby daughter”), whom he has not seen since their separation at the end of January 2020.
[8] I note that Mr. Ramdass is currently on bail. In order to comply with his bail conditions, which prevent contact with the Applicant, Mr. Ramdass has filed affidavits from three friends who can facilitate bringing the baby to him for access.
[9] On Monday, March 30, 2020, the Applicant filed her own materials. She agrees to access for the baby and Mr. Ramdass, commencing this coming weekend on Sunday, April 5, 2020. However, she proposes that her parents or sibling, not the Respondent’s friends, facilitate and supervise the access.
[10] Ms. Ramdass also seeks a range of relief by Cross-Motion including temporary custody, exclusive possession of the matrimonial home, contribution by the Respondent for carrying costs of the matrimonial home commencing June 2020, and sale of the matrimonial home by September 2020.
[11] On Tuesday, March 31, 2020, the Respondent filed a response to the Applicant’s Cross-Motion and a reply to the Applicant’s position on his access motion. He maintains that the access motion is urgent but that the Cross-Motion is not urgent.
[12] I have now reviewed:
- The Respondent’s March 25, 2020 materials (including his Notice of Motion, affidavit, factum and case law), a Form 35.1, and three affidavits from family friends;
- The Applicant’s March 30, 2020 Cross-Motion and responding materials (including her Notice of Motion, affidavit sworn March 30, 2020 and factum);
- The Respondent’s March 31, 2020 reply and response to Cross-Motion (including his affidavit dated March 31, 2020 and supplementary submissions).
[13] I should note at the outset that in terms of brevity, these materials do not comply with the March 15 Notice. I appreciate that we are still in the early days with respect to counsel’s familiarity with the requirements for filing by email during the suspension of the courts. Nonetheless, at this time of strained court resources, it is imperative that counsel review the March 15 Notice and successive direction from the Superior Court of Justice ensure that the materials filed comply with its directions.
NATURE OF THE MOTION
[14] I have now read the parties materials referenced above. I note further that as the reviewing judge, I am doing so remotely and without access to the court file or Continuing Record.
[15] Mr. Ramdass admits that he was criminally charged with assaulting Ms. Ramdass at the time of separation. He denies the criminal allegations. His current bail conditions preclude his contact with Ms. Ramdass, but not with their baby daughter.
[16] Mr. Ramdass seeks to have his motion heard as a matter of urgency without a case conference. He seeks an order for access with the baby commencing this weekend on April 5, 2020. Specifically, he seeks access, starting that date, for four days a week, for three or four hours at a time. He proposes that access exchanges shall be facilitated by any of the three friends who have sworn affidavits indicating their willingness to do so.
[17] Mr. Ramdass’ access proposal references COVID-19 protocols. In this regard, the pick-up and drop-off location is proposed to be at the matrimonial home instead of in a public place. He also states that the third-party friends assisting are all “practicing social distancing and appropriate health hygiene amidst the COVID-19 concerns”.
[18] In Ms. Ramdass’ responding affidavit, she agrees to the baby daughter starting weekly access with the Respondent on April 5, 2020. Specifically, she proposes a duration of one hour of access per week in April, increasing to two hours per week in May. She also proposes for access to take place in her parents’ apartment building in Toronto. Due to her concerns about Mr. Ramdass’ past violent behaviour, she wants his access time to be supervised by either her parents or her sibling. Starting in May, she proposes that access take place at a supervised access centre in Peel Region.
ANALYTICAL FRAMEWORK FOR ASSESSING URGENCY
[19] Mr. Ramdass argues that the applicable test he must meet to establish urgency is that in Rosen v. Rosen, [2005] O.J. No. 62 (S.C.), which sets out the considerations when a court is asked to permit a motion to be heard in a family matter prior to a case conference.
[20] Without commenting on whether the evidence filed would meet the Rosen criteria, at this stage, that is not the legal issue I must determine.
[21] The March 15 Notice governs my analysis of the urgency of the Respondent’s request that the court hear his access motion. That Notice is clear that during the suspension of regular court operations, this court shall hear only urgent and emergency “family law events”.
[22] Where relief is sought relating to a child, matters which may be deemed urgent or emergency are listed in the March 15 Notice below the heading “2. The Following FAMILY AND CHILD PROTECTION matters” and include:
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;
[23] The test to have a motion heard pursuant to the March 15 Notice is not the same as the test to bring a motion before a case conference. It is a higher test. At this time, the threshold assessment to be made as to whether judicial resources should be allocated to hear this motion is whether the evidence discloses risks raising concerns of, or akin to, “safety” or “well-being” of a child.
[24] First, with respect to safety, the examples in the March 15 Notice relate to restraining orders and orders needed to distance people from a child where there is evidence that those persons may pose a threat to the child’s safety. In this case, Mr. Ramdass raises no concerns about the baby’s safety with Ms. Ramdass. This matter is therefore not urgent as a matter of child safety.
[25] Second, with respect to well-being, the examples in the March 15 Notice refer to “essential medical decisions” or “wrongful removal and retention” of a child.
[26] Neither party’s materials reference imminent medical decisions needed for the child. Nor is there a current court order or agreement with which Ms. Ramdass is failing to comply. Ms. Ramdass is not alleged to have “wrongfully removed” or “retained” the child, who remains in her care at this time.
[27] The essence of Mr. Ramdass’ motion is that he misses his baby daughter and is worried about losing contact since he has not seen her for over two months now. He states that he wishes to resume bonding with her and submits that spending time with her father in person is in her best interests.
[28] Mr. Ramdass is understandably anxious to see his daughter and resume regular contact with her. Ms. Ramdass does not disagree at this point. In fact, she agrees that their daughter should see her father soon, as early as this coming Sunday, April 5, 2020. To facilitate access with the father, she proposes a more gradual increase in access to start with supervision by her family, rather than by father’s family friends.
[29] Based on the parties’ positions and sworn materials, it is clear that both are prepared to discuss an access arrangement to start this weekend. Further, based on the evidence of both parties, the status quo poses no risk to the child’s safety or well-being at this time.
[30] I note that not only does this matter not qualify for priority hearing under the March 15 Notice, but I am not satisfied on the evidence that, as required by the Rosen test, the parties have taken sufficient steps to agree on a parenting schedule prior to bringing an access motion before a case conference.
[31] I further note that the March 15 Notice states expressly that, “[d]uring this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters” (emphasis added). In my view, there is more effort that the parties, assisted by counsel, can do to reach the threshold of making “every effort” to resolve the matter of Mr. Ramdass’ contact with the parties’ daughter during the COVID-19 crisis.
[32] To their mutual credit, both parents are now taking positions on access that respect that Mr. Ramdass is important in the life of their child, and that the baby is entitled to resume regular in-person time with her father in a safe environment, as soon as possible.
[33] Where the parties have not yet reached an agreement, it is best to start the process with such discussions in order to move forward. In the recent case of Ribeiro v. Wright, Court File No. 517/19 (March 24, 2020), Pazaratz J. noted that given the current situation, “with limited judicial resources and a rapidly changing landscape, [judges] need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings”: para. 22. The parties are thereby encouraged to negotiate an arrangement so that the baby can start seeing her father sooner than later.
[34] Recent decisions of this court since the March 15 Notice affirm the importance of children maintaining contact with both parents during the current crisis. In Ribeiro, Pazaratz J., at para. 10, found that “children’s lives – and vitally important family relationships – cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset”. Pazaratz J. further found that in these “troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever”: Ribeiro, at para. 10.
[35] Where, as here, parents have not yet established their daughter’s parenting time (ie access) schedule with her father, the parties must do so as a matter of priority. Although doing so does not continue a post-separation “status quo” in this family, it will continue the important pre-separation paternal contact. During that time, in the first few months of her life, the baby regularly heard her father’s voice, saw his face and was accustomed to being held and cared for by him. Resumption of these experiences for the child, in a gradual and calm manner, supported by the parents and their family and friends as necessary, is undoubtedly in the baby’s best interests. I encourage the parties and their counsel to keep this in mind when negotiating any arrangements for access.
[36] The parties must also consider COVID-19 protocols for safety in any arrangements they may agree upon. Recent decisions since the March 15 Notice also emphasize the obligation on all parents to comply with safety protocols for the sake of the health of their children and of all other members of their households. As Pazaratz J. noted in Ribeiro, as made clear from our government and public health officials, “our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible”: para. 8. In some cases, traditional arrangements at exchange times may create issues as the social distancing imperative will have to be safeguarded: Ribeiro, at para. 15.
[37] I encourage the parties to keep these health and safety precautions in mind when negotiating an acceptable arrangement in order to minimize any COVID-19 risks. In this respect I comment the Respondent for his express consideration of COVID protocols in his motion materials.
[38] When considering whether to hear a matter before a case conference in the March 15 Notice context, as in this case, the court may look more closely for evidence of efforts of the parties and their counsel to resolve the issues between them before seeking a court hearing. As noted in one recent decision, the role of lawyers during times of restricted access to court adjudication does not relieve them of their obligation to attempt to negotiate resolution of family matters in their clients’ and their clients’ children’s best interests.
[39] I would go further, and observe that in times of restricted court access, the role of parties’ counsel is more important than ever.
APPLICANT’S CROSS-MOTION
[40] Ms. Ramdass seeks leave to have a Cross-Motion heard prior to a case conference. She seeks an order for temporary sole custody, exclusive possession of the matrimonial home, listing and sale of the matrimonial home in September 2020, and for the Respondent to contribute to the carrying costs commencing June 2020.
[41] As referenced above, only urgent or emergency matters are being heard right now pursuant to the March 15 Notice. I read the Applicant’s materials carefully in view of the criminal charges laid against the Respondent for assault on the Applicant. She does not allege current unsafety in the home, nor is imminent financial harm alleged in support of the property relief sought. To the contrary, the Applicant acknowledges at paragraph 40 of her affidavit dated March 30, 2020:
Since January 28, 2018 I have experienced de facto exclusive possession of the Matrimonial Home. Paragraph 3 of the Respondent’s Release Conditions stipulate that the Respondent is not to attend any of the places the Respondent knows that I live, work, go to school or frequent. As such, I verily believe that the Respondent is prohibited from attending the Matrimonial Home. See attached at Exhibit ‘A’ Respondent’s Release Order. The order I am seeking for exclusive possession would in essence mirror the Respondent’s current restrictions. At present, I am dedicating all of my time and energy in raising and caring for [the child] until my maternity leave ends. I expect to also require an adjustment period following the end of my maternity leave before fully returning to the workforce. For these reasons, I am requesting exclusive possession of the Matrimonial Home until same is sold.
[42] I note that the January 28, 2018 reference appears to be a typographical error. It should read “2020”, not “2018”, to be consistent with the date of separation referenced elsewhere in both parties’ materials.
[43] Mr. Ramdass takes the position that the Applicant’s property-related relief is not urgent. I agree. As acknowledged by Ms. Ramdass, the order for exclusive possession she seeks on her Cross-Motion “would in essence mirror the Respondent’s current restrictions.” I further note that the specific relief related to carrying costs and sale of the matrimonial home reference dates in June and September 2020. These matters are not urgent for the court to deal with during the current period of suspension of regular court operations and therefore I decline to hear the Applicant’s Cross-Motion.
CONCLUSION
[44] For the foregoing reasons, the parties’ requests to have their Motion and Cross-Motion heard before a case conference are dismissed.
[45] It is in the best interests of their child for parties and their counsel to negotiate directly, in good faith, starting from their positions in the materials referenced above.
[46] Should future assistance be sought from the Court in this matter, the parties are directed to review the April 2 Notice to the Profession and Central West protocols in addition to the March 15 Notice.
[47] Costs are reserved, if necessary, to the next adjudicative step in this application (not including the case conferences).
“Original signed by” McSweeney J.