COURT FILE NO.: 172/20 DATE: 2020-03-31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wojtek John Drzazga, Applicant Anise Amenda Drzazga, Respondent
BEFORE: MacPherson J.
COUNSEL: Hannah Kazman, for the Applicant
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 operations 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 counsel for the Applicant father with the Trial Coordinator. He asks that the Court make an order on an urgent basis granting him temporary sole custody of the three children; an order requiring the mother to return the child, A.R.L.D. to the Region of Niagara and into the care of the father, and police enforcement to locate and apprehend the said child and deliver her to the father’s care.
[3] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
[4] The preliminary determination of urgency is intended to be simple and expeditious, recognizing the summary nature of the determination; and that any determination of potential urgency is wholly without prejudice to either party on the ultimate hearing of the motion.
[5] Once referred, the judge hearing the motion may determine whether the matter will be heard in writing or whether a hearing by teleconference may be required. If a hearing by teleconference is required, the date and time will be set by the Trial Coordinator and the parties will be advised by email. Any self-represented party should obtain legal advice before that teleconference hearing if they intend seek counsel.
[6] For the reasons set out below, I find that this matter is urgent.
[7] For this preliminary determination, the following materials were served and filed by email: a. Application issued March 31, 2020; b. Notice of Motion dated March 30, 2020; c. Affidavit of Wojtek John Drzazga sworn March 30, 2020; and d. Form 35.1 Affidavit of Applicant sworn March 30, 2020.
[8] The materials were served on the mother via email at anisedrzazga@gmail.com.
[9] In summary, the father’s materials set out the following, from his perspective: a. The parties were married on September 15, 2009. There are three children of the marriage, D.L.E.D. who is almost 11 years old; D.E.P.D, who is 8 years old; and A.R.L.D, who is 5 years old. b. The family lives in Grimsby, Ontario. The children attend St. John Catholic School, which is five minutes from the matrimonial home. The family attends Lakemount Worship Centre located in Grimsby. c. The family had arranged for a non-refundable trip to Florida to take place over the Spring Break. The family took this trip together. However, the mother was absent for periods of time and then left Florida entirely on March 14, 2020. The father alleges that the mother’s absence was to be with her boyfriend. The father and the children returned from Florida as planned on March 23, 2020. The mother was waiting for them at the matrimonial home when they returned. d. Due to COVID-19 pandemic and government mandates, the parties and the children were required to self-quarantine for 14 days. They were doing so and continued to do so until March 26, 2020, when the father left the home to purchase some vitamins. While away, the father received a phone call from the eldest child advising him that the mother had left the home with A.R.L.D. and that she advised that they were going to the maternal grandmother’s home in British Columbia. e. The father has had only limited contact with the mother by telephone and text. She has not allowed the father to speak with A.R.L.D. f. The father has been able to ascertain through banking and credit card transactions that the mother was in Thunder Bay, Ontario as of the morning of March 27, 2020 and was in Dryden, Ontario later that afternoon. g. The children have always lived in Ontario and have never been to British Columbia. h. The father did contact the Niagara Regional Police Service (“NRPS) for assistance on March 26, 2020. They advised that they require a court order. The NRPS was in contact with the mother by telephone confirming that a court order was being obtained. i. Father’s counsel contacted the mother via email requesting that A.R.L.D. be returned to the matrimonial home and advising that an urgent motion would be brought. The mother then sent a text message to the father advising that the child is safe and wants to go on a road trip. She advised that once the quarantine is over that the parties can speak and she will return A.R.L.D. to Ontario. She also advised that she will drive safely and will keep the father posted. j. On the basis of the mother’s removal of the child from the Niagara Region and travel outside of Ontario and her refusal to return the child, the father has now brought this motion.
[10] The assertions set out by the father bear directly on the well-being of the child A.R.L.D based on the mother’s unilateral removal of the child from this jurisdiction contrary to the father’s wishes and contrary to the directions issued by the government and health authorities. This motion is urgent. The Niagara Regional Police Services or such other police force where the child might be located require a court order to take any action. A determination of this motion cannot await the return to operations of the court in June 2020.
[11] On the basis of the foregoing, I make the following order:
- This matter shall be referred to the Trial Coordinator for assignment to a judge to hear the motion.
- Service of a copy of this endorsement and any court documents shall be effected on the mother at her email address: anisedrzazga@gmail.com.
- The judge dealing with the motion may determine how the matter should proceed, including but not limited to: a) whether the matter should proceed on an ex parte basis; b) filing deadlines for any responding materials; c) whether written materials will suffice; or d) whether a hearing by teleconference will be needed.
- The Trial Coordinator shall advise the parties by email of any directions provided by the judge assigned to deal with the motion.