Court File and Parties

Court File No.: 12-3109 Date: 2020-04-03

Superior Court of Justice - Ontario

Re: Kristen Young, Applicant Corey Sherwood, Respondent Director, Family Responsibility Office

Before: Madsen J.

Counsel: Ray Wrubel, for the Respondent

Heard: In Chambers

Endorsement – COVID-19 Protocol

[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] In accordance with the Regional Notice to the Profession dated March 24, 2020, electronic materials were filed by the Respondent payor, Mr. Sherwood. He asks that the Court make an order on an urgent basis refraining the Family Responsibility Office (FRO) from directing the suspension of his drivers’ license.

[3] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.

[4] Determinations of urgency are summary in nature, and wholly without prejudice to the parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.

[5] For the reasons set out below, I find that this matter is urgent at this time, and I set out the next steps for the hearing of the motion.

[6] Mr. Sherwood filed the following materials by email to the Superior Court of Justice in Kitchener, Ontario:

a. Notice of Motion dated April 1, 2020; b. Affidavit of Corey Sherwood sworn April 1, 2020, with exhibits; and c. Affidavit of service, confirming service of the materials on the FRO.

[7] In summary, Mr. Sherwood states as follows in his affidavit:

a. He received a Final Notice to Suspend Drivers’ License dated March 13, 2020; b. The Notice states that he is in arrears $28,890.40 as of March 2020, but he believes that amount is inaccurate; c. There is an ongoing motion to change. Within that motion there is a temporary consent order that he pay $452 per month, of which $226 per month was to be towards arrears; d. Mr. Sherwood is currently unemployed and unable to pay the $452 per month; e. Mr. Sherwood has been unable to find work for two years. He and his partner live on her ODPS payments; f. His partner has cancer. He requires his drivers’ license to take her to appointments. He also needs his drivers’ license to exercise his parenting time; g. He cannot afford to pay the required amount of support; h. The next step in his motion to change is a trial. This was to take place in April 2020, but with the COVID-19 pandemic he believes it will now not go to trial until November 2020.

[8] The Notice to the Profession issued by the Chief Justice provides that urgent matters may include matters related to the safety of a parent or a child, or urgent issues related to the wellbeing of a child. They may also include “dire” financial circumstances.

[9] I understand the urgency of this issue from Mr. Sherwood’s perspective.

[10] However, the court has no jurisdiction to make a refraining order where Mr. Sherwood has received a Final Notice, as opposed to a First Notice. Under section 35 of the Family Responsibility and Support Arrears Enforcement Act, S.O., 1996, c. 31, as amended, a payor may make a motion for a refraining order when served with a First Notice. Under section 35(10), a court may make a refraining order only before the 30-day period if the First Notice expires. There is no provision for the court making a refraining order after that 30-day period.

[11] Under the Final Notice received by Mr. Sherwood, Mr. Sherwood’s options are to pay the arrears in full, or to make a payment as set out therein to bring his case into good standing, if he wishes to avoid the suspension of his drivers’ license. The options listed in the Final Notice do not include a motion for a refraining order.

[12] Although I am unable to find that the motion as brought is urgent given that the court cannot in any event make the order sought, it is possible that the court would consider the hearing of the motion to change itself urgent in the circumstances. More fulsome evidence, including a properly sworn up-to-date financial statement would be required for the court to consider that issue. Of course, Ms. Young must be properly served and have an opportunity to respond to such a motion.

[13] Court staff are directed to serve both counsel for Mr. Sherwood and the Family Responsibility Office with a copy of this Endorsement. Counsel for Mr. Sherwood shall ensure that Ms. Young also promptly receives a copy of this endorsement.

L. Madsen, J Date: April 3, 2020