COURT FILE NO.: 369/17 DATE: 2020-03-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Athena Hall, Applicant Dave Thomas, Respondent
BEFORE: MacPherson J.
COUNSEL: Carly White, for the Respondent
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 have been 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/. In accordance with that Notice, only urgent matters are being heard at this time.
[2] The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include requests for urgent relief relating to the safety of any child and urgent issues related to the wellbeing of a child. The Notice also references wrongful removal of a child. This preliminary determination of urgency is an exercise of judicial discretion.
[3] For the reasons set out below I am making the preliminary determination that this matter is urgent and should be referred to a judge for determination.
[4] In accordance with the Regional Notice to the Profession dated March 24, 2020, materials were filed electronically by counsel for the Respondent father. He asks that the court make an order, on an urgent basis, for validation of service of the material on the applicant mother, by email; and an order that the mother not be able to move the two children outside of St. Catharines, without the prior written consent of the father, or until further court order.
[5] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.
[6] I confirm that 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.
[7] 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.
[8] The Court has been advised that the mother was served with the material by email. In addition, Ms. Natalie Fortier, has confirmed that she has been retained by the mother for purposes of responding to the motion. She has also confirmed that the mother does not agree that the matter is urgent.
[9] For this preliminary determination, the following materials were served and filed by email:
a. 14B Motion Form dated March 26, 2020. b. Affidavit of Dave Thomas, sworn March 26, 2020.
[10] In summary, the father’s materials set out the following facts from his perspective. The court does not yet have the benefit of the mother’s perspective.
a. The parties are the parents of two children, Sawyer Anne Thomas, born March 16, 2013, and Lily Grace Thomas, born July 30, 2015. b. The parents have been in a relationship since December 11, 2011, separating in February 2017, when the mother and two children moved to St. Catharines, Ontario. c. The mother commenced a court application and at an uncontested hearing before Lococo J. on December 8, 2017 she was granted sole custody of the two children, with reasonable access to the father on reasonable notice, in the mother’s discretion. d. The mother brought another court application in December 2019 seeking an order to permit her to move with the children to Watertown, New York. There has not yet been a Case Conference held in that proceeding. e. Subsequently and on February 26, 2020, the mother advised the father’s counsel (in writing) that she now intends to move with the children to Kingston, Ontario with the move to take place “sometime between April and May 2020”. f. The father and his counsel have confirmed to the mother that he is opposed to such a move. g. On February 27, 2020, father’s counsel requested that the mother sign a consent to a temporary order that neither party would move the children from St. Catharines without prior written consent of the other; neither party would travel outside of Ontario with the children; and confirming the use of AppClose for purposes of communication between the parents. h. The mother agreed to the use of AppClose but did not agree to her mobility being limited. i. Subsequently, and following the COVID-19 pandemic and suspension of court operations, on March 19, 2020, father’s counsel sought assurances that the mother would not be moving with the children to Kingston and requested that the prior Consent be signed, failing which an urgent motion would be brought. j. On March 20, 2020 the mother advised that she intended to move to Kingston as planned.
[11] The assertions set out by the father bear directly on the well-being of the children based on the mother’s proposed unilateral removal of the children from this jurisdiction to Kingston. Counsel for the father has attempted to deal with this matter on a consent basis. This issue is urgent as the mother has set a timeline for the move to take place “sometime in April or May 2020”. As such, a determination of the motion is not able to await the return to operations of the court in June 2020.
[12] The court notes that the father also alleges multiple difficulties with communication and an inability to make reasonable access arrangements with the mother. Within this motion, he is not seeking any relief regarding same and in my view, a determination of the father’s access is not required on an urgent basis. However, I would encourage the parties to avail themselves of the mediation services available through AXIS mediation that do continue in operation during the suspension of court operations.
[13] 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 the father’s materials by email to the mother is hereby validated.
- The mother shall have until April 2, 2020 to serve and file responding materials.
- The judge hearing the motion may determine whether written materials will suffice or whether a hearing by teleconference will be needed, and the parties will be advised by email through the Trial Coordinator.
MacPherson J.