COURT FILE NO.: FC-09-000393-0003
DATE: 2020-04-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Murray Officer, Applicant
Shannon Gail Sawyer, Respondent
BEFORE: Madam Justice L. Madsen
COUNSEL: Sheena Naidoo, Counsel for the Applicant
Respondent self-represented
HEARD: In Chambers
E N D O R S E M E N T – 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 mother, Ms. Sawyer. She asks that the court make an order on an urgent basis for the return of the parties’ son to her care, an order preventing the Applicant father from taking the child to his cottage, a police enforcement order, and an order that the current schedule be suspended until a police enforcement schedule is added to the parties’ current final order.
[3] The Applicant father, Mr. Officer, filed responding materials on April 7, 2020, and the court has now also received Reply materials today, April 8, 2020.
[4] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
[5] Determinations of urgency are summary in nature, and wholly without prejudice to both 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.
[6] For the reasons set out below, I find that this matter is not urgent at this time, without prejudice to either party to renew the motion if the matter becomes urgent in the future.
[7] The following materials were filed by email with the Superior Court of Justice in Kitchener, Ontario:
a. Ms. Sawyer’s Notice of Motion dated April 6, 2020;
b. Ms. Sawyer’s affidavit dated April 6, 2020, with exhibits;
c. Affidavit of service dated April 6, 2020 reflecting service by email on Mr. Officer and his counsel at 10:10 p.m.;
d. Mr. Officer’s affidavit dated April 7, 2020, with exhibits;
e. Affidavit of service dated April 7, 2020 reflecting service by email on Ms. Sawyer at 5:25 p.m.;
f. Reply affidavit of Ms. Sawyer dated April 8, 2020;
g. Affidavit of service dated April 8, 2020 reflecting service by email on Mr. Officer and his counsel this morning at 1:00 a.m.
[8] I note that none of the documents filed by either party were signed or commissioned. For the purpose of the urgency determination only, I have accepted the documents as is. However, had the matter gone forward to the hearing of the motion, both parties would have had to be sworn in by the judge hearing the motion and their respective statements in the written materials adopted under oath or affirmation.
[9] The parties are the parents of B.D.S., who is 11 ½ years of age [“the child”]. In accordance with the Order of Justice Rogers dated May 14, 2013, the parties have a specified parenting schedule which provides that the child resides primarily with Ms. Sawyer, and spends three overnights in each 14-day period with Mr. Officer.
[10] Ms. Sawyer states that on March 15, 2020, Mr. Officer requested additional time with the child given the school closure. Ms. Sawyer says she agreed to the child residing with his father from March 23, 2020 to April 6, 2020.
[11] Ms. Sawyer brought her motion because Mr. Officer did not return the child on April 6, 2020 as she says they had agreed to. She also says that Mr. Officer would not disclose the address of the cottage where he and the child were staying. She expressed concerns about Mr. Officer choosing to stay at his cottage given the public health advice in that regard, and wanted the child returned given the commencement of on-line learning through the school board.
[12] Mr. Officer states that he and Ms. Sawyer had in fact agreed that the child would share time with them equally until school resumes and that this is consistent with their summer schedule. He says he did disclose the cottage address, although I note that even his own materials indicate that he did not do so until Ms. Sawyer had already served her motion. Mr. Officer also states that the child is safe at the cottage because there are less cases of COVID-19 in that area than in Waterloo, and that he and his wife contacted the township to confirm that the township is agreeable to them residing at the cottage for the time being.
[13] Fortunately, this matter is effectively moot. While I would have found the matter to be urgent in accordance with the developing caselaw, this is no longer necessary. The father states in his affidavit:
“By the time a triage assessment as to the urgency of this matter is being done, [“the child”] will have returned … To avoid ongoing conflict, instead of [the child’s] chosen calendar for April until school starts, we can revert to the Court Ordered schedule as demanded by the Respondent until further agreement or court order.” [emphasis added]
[14] That is the right answer. Until a new schedule is agreed upon or ordered, the existing court order continues to be in effect.
[15] I would add that an 11 year-old child does not “choose” a new schedule in the face of a court order. Either the parents agree to a new schedule, in writing, having regard to the views and preferences of a child (where appropriate); or, there is a new court order.
[16] I note that while the disagreement between the parties has generated a motion, the parties have in fact been communicating about what reasonable adjustments to the schedule might be during this unusual time. They just have not yet agreed on what those adjustments might be. It may be that it makes sense to make changes to the schedule to account for the current situation, each parent’s availability, on-line education through the school board, and other considerations. I encourage the parties to continue to have those discussions. However, until changes are agreed to in writing, the court order remains in effect.
[17] As I have noted elsewhere, the Kitchener-Waterloo court is aware that off-site mediation services continue to be available to parents to facilitate discussions on important parenting issues such as this. In Kitchener-Waterloo, the mediation service provider is AXIS Mediation. The court has been advised that confidential distance mediation options are available at this time. The parties are encouraged to contact AXIS Mediation for assistance in developing a plan that maintains the child’s relationship with both parents and succeeds in putting the child’s safety at the forefront. AXIS can be reached at 1-888-988-2947 or at info@axisfamilymediation.com. There may be other mediation services also available and the parents are encouraged to explore options in that regard.
[18] In my view, if the matter is not resolved in mediation, the next step in the court process is a case conference. The father states in his materials that there is a case conference scheduled to take place on May 22, 2020 at 3:45 p.m. That case conference was adjourned by operation of the Regional Notice to the Profession dated March 24, 2020 and is now to be spoken to on June 4, 2020 at 10:00 a.m., for the purpose of setting a new date. However, if the parties would like to schedule an earlier case conference, in accordance with the Regional Protocol issued by RSJ Arrell on April 7, 2020, a case conference may be requested by email to Kitchener.Superior.Court@ontario.ca. The email should be copied to both parties and should indicate that BOTH parties seek an appointment with a judge for a case conference. A non-negotiable time will be set by the trial coordinator and communicated to the parties by email.
[19] The father seeks costs in the event that this matter is not found to be urgent. I am not prepared to order costs. It appears that he only disclosed his cottage address after Ms. Sawyer brought her motion. Further, the bringing of this motion appears to have been necessary to obtain confirmation from Mr. Officer that he would follow the court ordered schedule until changed by the parties on consent, or by further court order.
[20] Court staff are requested to serve Ms. Sawyer, and Mr. Officer’s counsel with a copy of this endorsement by email, as well as with a copy of the April 7, 2020 Regional Protocol.
[21] 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.
L. Madsen, J
DATE: April 8, 2020