Court File and Parties

COURT FILE NO.: FC-19-1222 DATE: 2020/03/31 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: J.D., Applicant AND N.D., Respondent

BEFORE: J. Mackinnon J.

COUNSEL: Manraj Grewall, for the Applicant Alexei Durgali, for the Respondent

HEARD: March 31, 2020

Endorsement

[1] This is a request by the mother to proceed with a motion seeking to reduce the father’s access to their children so that he would not have any overnight access. Pursuant to the Chief Justice’s Notice to the Profession addressing the Court’s response to the COVID-19 crisis in Ontario the motion may not proceed without a determination of urgency.

[2] The mother asserts the matter is urgent because it relates to disclosures made by the parents’ two young daughters, ages 4 and 6 years, of things their father is saying to them of a sexual nature. The mother deposes that these disclosures began to be made to her shortly after overnight commenced at the father’s home. She does not allege any actual inappropriate touching.

[3] The father denies the allegations that he has made any sexualized comments to the children or exposed them to any adult sexual activities. He notes that the CAS did an investigation on February 14 and did not find the allegations verified. His view is that the mother has subsequently embellished her narrative because she wants to reduce his contact with the children.

[4] In my view this issue clearly falls within the ambit of an urgent matter affecting the children’s safety. Leave is granted for the motion to proceed before me.

[5] In my endorsement dated February 27, 2020 in contemplation of a motion scheduled to be heard before we encountered the COVID-19 crisis in Ontario, I had ruled that each party would be entitled to cross examine the other for 30 minutes on the return of that motion. In relation to this urgent motion that right of cross examination should still be available. I invite counsel to consider how this may be accomplished in a safe way, perhaps by Zoom or some similar format, in a virtual court room.

[6] I also note that the mother says that she made a recording of what one of the children said in the bathtub on February 9, 2019. I order her to forthwith deliver a true copy of this recording to the father. I will hear submissions when the motion is argued as to whether the recording should be admitted, not to prove the truth of the contents, but to address the issue of subsequent embellishment raised by the father. My impression is that the motion record is now complete. If I am wrong counsel should advise me forthwith.

[7] As it stands and if the cross-examinations proceed during the hearing, I estimate the motion to require 2.5 hours for hearing. I will forward a copy of this endorsement to the Trial Office to make the necessary arrangements.

[8] Please note that given the nature of the allegations and the ongoing involvement of the CAS I have used an initialized style of cause for the protection of the children’s identity.

Dated at Ottawa this 31 March 2020 Justice J Mackinnon (this is my electronic signature).

COURT FILE NO.: FC-19-1222 DATE: 2020/03/31 ONTARIO SUPERIOR COURT OF JUSTICE RE: J.D., Applicant AND N.D., Respondent BEFORE: J. Mackinnon J. COUNSEL: Manraj Grewall, for the Applicant Alexei Durgali, for the Respondent ENDORSEMENT J. Mackinnon J. Released: March 31, 2020