Court File and Parties

NAPANEE COURT FILE NO.: 46/20 DATE: 20200408 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Meghan Colleen Land, Applicant AND Joseph Michael Tudor, Respondent

BEFORE: Madam Justice Deborah Swartz

COUNSEL: None for the Applicant None for the Respondent

HEARD: Written materials

TRIAGE ENDORSEMENT

[1] As a result of COVID-19, regular Superior Court operations have been suspended, other than for urgent matters as set out in the Notice to The Profession Relating to Civil and Family Matters issued on March 15, 2020. On April 2, 2020 a further Notice to the Profession from the Chief Justice was issued which set out that starting April 6, 2020 some additional matters will begin to be heard in the Ontario Superior Court of Justice. Region specific notices were then sent out on April 2, 2020. For this region, the East Region, that is the April 2, 2020 Notice Regarding Court Operations in the East Region During the COVID-19 Health Emergency, sent out by Regional Senior Justice MacLeod. (https://www.ontariocourts.ca/scj/)

[2] The March 15, 2020 notice describes urgent matters in Family Court to be:

(a) requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);

(b) urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;

(c) dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.

[3] The respondent father in this case has brought a 14B motion without serving the applicant mother. In it he asks for sole custody, primary residence of the parties’ child Liam, who is almost 15 years old. He asks for primary decision making, child support and section 7 payments from the applicant mother, retroactive to October 2019, when he says the child came into his care. He also asks that his child support obligation of $220.50 per month (combined baseline and section 7 contribution) be stopped, also effective October 2019.

[4] He does not ask for leave to proceed seeking interim relief, prior to commencing a Motion to Change the final order that has been in place between the parties since September 14, 2017 or prior to a Case Conference. He does not specifically ask for leave to proceed based on urgency in his 14B motion either under the Rules or in the face of the limited options available from the court in the face of COVID-19.

[5] In his email to the Trial Coordinator dated April 2, 2020 he describes the proceeding as a “Motion to Change Without Notice”. He sets out in the email that because of COVID-19 he needs “urgent relief”. He says that he has “lost his wage”. He says the monthly amount of child support he pays ($220.50) continues to be paid to the applicant mother who no longer has their son in her care. His very brief unsigned affidavit notes that urgent relief is needed to stop the child support obligation to the applicant mother as he alone is and has been supporting the child since October 2019. He asserts that COVID-19 has resulted in a “wage loss”. No details are provided. No financial statement is provided. No tax returns, paystubs, place of employment details or other financial information is available to the court.

[6] This Motion is at triage stage only. I am to determine whether it is urgent and whether it can proceed in the current circumstances of COVID-19. The question of whether this 14B Motion is urgent cannot be determined on these materials and will not be determined on an ex parte basis. The applicant mother is to be served with the respondent father’s materials. She may be served by email.

[7] The respondent father’s material does not in any way address why the mother was not served, despite the fact that the father’s material has her email address listed therein. Her last known address is also known to him. There is no information from the father as to what efforts he has made to contact the mother or advise her of this motion. There is no reason why this motion was not served.

[8] I note again that the respondent father has not commenced a Motion to Change the final order, which would be the underlying, initiating proceeding necessary in order to seek an interim change. He has filed only a 14B motion seeking final substantive relief. It is strongly suggested that the father obtain legal advice on what procedures are available and necessary at this time, and generally, in a situation where there is a final order in place and one seeks to change that order.

[9] I am, in addition unable to determine the question of urgency on the limited information provided by the Respondent and without a Motion to Change and a Financial Statement and supporting documents. I do not even have an undertaking or promise from the father to commence a Motion to Change which would at least assure the court that he understands that there must be an underlying, active process to ground this motion for interim relief. Neither is there sufficient demonstrated urgency so as to convince the court to proceed at this time, knowing that the full Motion to Change is forthcoming.

[10] This motion is dismissed as presented to the court. Given the significant problems with the documents and the lack of evidence and information, I am not prepared to adjourn this motion as drafted in order have it served and then returned “as is” to the court. The documents will not do, now or then. That will not help anyone, least of all Liam.

[11] This does not mean that the father is unable to begin this process again should he choose to do so. If the father believes that this is an urgent matter, then he will need to present proper and better materials to this court on notice to the Applicant. Despite my dismissal of this motion as drafted, the Applicant is to be served with the existing motion material, in the interest of ensuring that she is made aware of the Respondent’s requests and in order to facilitate a possible resolution.

[12] The financial situation may be urgent. More information is needed. If the respondent decides to start again he must ensure that at the very least there is a draft Motion to Change served and filed along with full financial details in addition to a 14B motion and affidavit seeking leave to proceed urgently. I understand that he may not be able to get to the courthouse in person and may not be able to obtain a date for his Motion to Change document prior to serving it. His 14B motion can address this and will be considered by the court.

[13] Hopefully once service is effected - with better materials, the parties may be able to reach an agreement between them as to what changes may be needed in the final order if their son is in fact now living with his father. It is the expectation of this court at all times, but most particularly now, that parents work together to put the best plans in place for their children. This includes financial plans and arrangements necessary to meet their children’s financial needs. It may be that once Liam’s mother is made aware of this motion and the father’s requests, that she may agree with some or all of what he is asking to change.

[14] I would urge the mother to give thoughtful consideration to these requests, in particular with regard to ongoing child support and how Liam’s current financial needs are to be met in the face of the difficulties that may be present during the current health crisis. I expect that these parents share a wish to ensure that their son’s financial needs can be stabilized to some degree during this difficult time. If he has changed residences then changes may be needed.

[15] The parents of course have the power, together, to reach a new set of terms that suit their son’s current needs. If they are able to work something out, the Court will receive and consider a 14B motion with signed consent terms and a request to change their final terms by written agreement.

[16] If one or both of their financial situations qualify them, they may seek some legal advice from the Client Service Centre of Legal Aid Ontario at 1-800-668-8258 or from The Law Society of Ontario at 1-800-268-7568 or 416-947-3310.

[17] In addition to the orders made above regarding service and dismissal of the motion, the following orders shall issue:

[18] Upon resumption of court operations the Respondent shall file originals of all signed and/or sworn/affirmed documents for this motion in the physical court record at the court house.

[19] Each party may serve the other by email. Documents with proof of service are to be filed with the court electronically in accordance with the Notices to the Profession at the address listed in the Notices and on the SCJ website for the Napanee Court. Both parties shall adhere to the Superior Court of Justice Notices at the hyperlink, https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/.

[20] The parties shall ensure that any prior order or endorsements that are relevant to the issues before the court and the relief being sought shall be served and filed so that they are available to the court. Any reference to caselaw shall be hyperlinked.

[21] Once the served documents and any response are received by the court electronically, this court shall determine if a teleconference is needed or if the matter can be addressed based on the written materials alone. The Trial Coordinator will advise the parties of the details of any teleconference deemed necessary by this court. A decision of the court based on written materials will be given to the parties by way of email from the Trial Coordinator.

[22] This order takes effect immediately and is signed electronically because of the COVID-19 emergency. This order is enforceable without the present need for a signed or entered formal order. Once the court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and email, a copy of which is being sent to the trial coordinator.

[23] The Respondent shall serve this endorsement along with his motion materials on the Applicant by email at landrage@gmail.com.

Madam Justice Deborah Swartz Date: April 8, 2020