Court File and Parties

COURT FILE NO.: FS-18-13182 DATE: 20200409 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jeannot Joseph Berube, Applicant AND: Heather Berube, Respondent

BEFORE: Howard J.

COUNSEL: George F. McFadyen, for the Respondent No one else appearing

HEARD: Considered in chambers

Endorsement

Overview

[1] The respondent mother, Heather Berube, has brought a motion on an urgent basis, seeking to establish parenting arrangements for one of the parties’ children, S.J.M.B., who is currently ten years of age.

[2] The matter has been referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.

Urgency

[3] On March 15, 2020, the Office of the Chief Justice issued a “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings” ( Notice to the Profession ). The Notice to the Profession advised that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice.

[4] Section A of the Notice to the Profession describes those exceptional matters that may be heard during the suspension of regular court operations and provides that:

Until further notice, only the following urgent and emergency civil and family matters listed below shall be heard by the Superior Court of Justice.

2. The following FAMILY AND CHILD PROTECTION matters:

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

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;

d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. [Emphasis in original.]

[5] Thus, as it pertains to the matter before me, para. 2 of the Notice to the Profession makes plain that the exception for “urgent and emergency” family matters that may be heard in the current exceptional period during which the regular operations of the court are suspended is available only where it is shown that the matter involves “urgent issues that must be determined relating to the well-being of a child,” which include “issues relating to the wrongful … retention of a child.”

[6] The onus is on the moving party to establish these elements to the satisfaction of the court.

[7] The determination of urgency is intended to be simple and expeditious, recognizing the summary nature of the determination. See Onuoha v. Onuoha, 2020 ONSC 1815, at para. 14(a); and Reitzel v. Reitzel, 2020 ONSC 1977, at para. 9.

[8] Any determination of potential urgency or lack of urgency is wholly without prejudice to either party on the substantive merits of the motion when ultimately heard.

[9] In this case, I have received and reviewed the following material:

a. The letter dated April 8, 2020, from Mr. George F. McFadyen, counsel for the respondent mother, to the Trial Coordinator;

b. Counsel’s two-page urgency synopsis;

c. The respondent mother’s notice of motion dated April 8, 2020;

d. The affidavit of the respondent mother sworn April 8, 2020, together with the exhibits attached thereto;

e. The respondent mother’s draft temporary order; and

f. The affidavits of service of Frances Oulahen sworn April 8, 2020, which indicate that all of the above materials were served on the applicant father on April 8, 2020, by way of fax and email sent to Mr. Kenneth W.J. Rhodes, counsel for the applicant father.

[10] Based on the limited material available to me at this preliminary stage, I am persuaded that the moving party’s onus of demonstrating urgency has been met.

[11] That said, I appreciate that the material of the applicant father has not yet been delivered. No doubt that if and when the applicant father files his responding material, the court may gain a fuller appreciation of the circumstances in this case. With that in mind, my finding of urgency is made on a without prejudice basis, and I reserve to myself the right to reconsider the question of whether this case is truly one of urgency once all parties have filed their material.

[12] I base my presumptive finding of urgency on the following grounds:

a. Temporary parenting arrangements for the parties’ four children were established by the order of Hebner J. dated October 24, 2016, pursuant to which the primary residence of S.J.M.B. was with the applicant father and the respondent mother was to have access three weekends out of every four, together with a mid-week visit every Wednesday from 4:00 p.m. to 7:00 p.m.

b. That said, the evidence indicates that, as a result of a job-change of the respondent mother, the parties agreed to change the respondent’s access to S.J.M.B. to alternate weekends from Friday at 5:30 p.m. to Sunday at 8:30 p.m. The parties agreed to keep the mid-week access every Wednesday but changed the time period to make it from 5:30 p.m. to 8:30 p.m.

c. On June 14, 2017, the Office of the Children’s Lawyer delivered a report under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, in which it was recommended that the respondent mother have sole custody of S.J.M.B., that he reside with his mother, and that the applicant father have access with S.J.M.B. three weekends out of four and mid-week access.

d. The respondent mother served a motion seeking interim custody of S.J.M.B. on March 19, 2020.

e. After service of her custody motion, the respondent mother’s regular contact with S.J.M.B. by way of social media “evaporated.”

f. During the week of March 23, 2020 – after, I would note, the suspension of the court’s regular operations – the applicant father advised the respondent mother that he was no longer going to allow S.J.M.B. to have access with the mother in accordance with either the parenting arrangements that the parties themselves had agreed upon or the terms of the temporary order of Hebner J.

g. The applicant father’s refusal to permit access was prompted by the COVID-19 pandemic, the father’s views of what social isolation requires, and his concerns for the safety of S.J.M.B. The father stated, “I’m being cautious for my son’s health.”

h. As a result of the unilateral decision of the applicant father to withhold the child, the respondent mother has now missed access with S.J.M.B. on the following days:

i. Mid-week access on Wednesday, March 25th;

ii. Weekend access on March 27th, 28th, and 29th;

iii. Mid-week access on Wednesday, April 1st;

iv. Mid-week access on Wednesday, April 8th; and

v. It seems clear that the applicant father is also not going to permit the respondent mother to have her scheduled access on the pending Easter weekend of April 10th, 11th, and 12th.

i. On its face, this apparent wrongful retention of the child falls squarely within the express terms of the description of urgent family law events, as set out in para. 2(b) of the Notice to the Profession.

j. Various courts dealing with urgent family motions brought in the wake of the COVID-19 pandemic and the suspension of regular court operations have considered one parent’s unilateral action denying access as part of the reason for hearing the urgent motion. For example, in C.Y. v. F.R., it was held that because the motion involved “the alleged unlawful withholding of two children,” the urgency requirement under the Notice to the Profession was satisfied. (C.Y. v. F.R., 2020 ONSC 1875, at para. 1.) In that case, Diamond J. found “that the children’s status quo was unilaterally altered by the respondent’s [father’s] actions.” (Ibid., at para. 13.)

k. In Scharafanowicz v. DeMerchant, the parties had two young children together and had agreed upon an equal time-sharing arrangement. When the father refused to return the children to their mother, the mother brought a motion claiming urgency. In finding that there was sufficient urgency, and in allowing the mother’s motion, Pazaratz J. held that, “I am satisfied that the matter meets the threshold for ‘urgency’ because the court cannot permit or condone unilateral behaviour by parents, except perhaps briefly and in the most serious of circumstances.” (Scharafanowicz v. DeMerchant, 2020 ONSC 1916, at para. 16.)

[13] Thus, again, based on the limited material available to me at this preliminary stage, I find that the matter is an “urgent and emergency” matter within the meaning of the Notice to the Profession, justifying that it be heard during the suspension of the court’s regular operations.

[14] Rather than assign this case to another judge to be heard, I will deal with the request for urgent relief myself as presiding judge.

The parties’ materials

[15] I direct that the parties shall deliver their material for use on the hearing of the motion in accordance with the following schedule:

a. While a copy of this endorsement shall be delivered to counsel for the parties by email, counsel for the respondent shall deliver an additional copy of this endorsement to counsel for the applicant by fax forthwith after its receipt by email.

b. The applicant father shall serve the respondent mother with his responding material, including his responding affidavit, and a draft copy of the order that he wishes the court to make, and then file same with the court, on or before Thursday, April 16, 2020, at 4:00 p.m.

c. The applicant father shall file proof of service of his material on the respondent mother on or before Thursday, April 16, 2020, at 4:00 p.m.

d. The respondent mother shall serve the applicant father with her reply affidavit, if any, and then file same with the court, together with proof of service, on or before Monday, April 20, 2020, at 4:00 p.m.

[16] Once all written materials have been received, I will determine the manner of hearing. The claim for urgent relief may be heard and determined in writing, by telephone conference call, or by such other manner as I may determine. If I determine the motion must be heard by telephone conference, information concerning the telephone conference line to be used will be provided to the parties by the Trial Coordinator.

[17] In other words, it is recommended that the parties should prepare their affidavits and written material bearing in mind that the court may well determine the issues based on their written material only.

Procedure

[18] The parties shall comply with all provisions of Section B of the Notice to the Profession respecting “Procedure to Bring an Urgent Matter” except to the extent that this endorsement permits or directs otherwise. A copy of the Notice to the Profession may be found at: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

[19] Pursuant to rule 6(2)(e) of the Family Law Rules, O. Reg. 114/99, the court orders that service of any materials for use on the hearing of the motion may be made by e-mail. Such service by e-mail is deemed to be effective on the day the e-mail is sent but, where service is made between 4 p.m. and midnight, it is deemed to have been made the following day.

[20] All materials for use on the hearing of the motion may be filed with the court either by filing a hard copy with the court office or by delivering them as attachments (in MS Word or searchable PDF format) to an e-mail sent to the Trial Coordinator (at Chatham.SCJ@ontario.ca) and copied to the other parties.

[21] References to caselaw, legislation, regulations, or other source material should be made by hyperlinks embedded in the party’s factum or a separate list of authorities. Where hyperlinks are provided, the party shall not deliver a separate book of authorities.

[22] Upon such time as the court resumes regular operations, each party to this motion shall forthwith file with the court a printed copy of all materials that the party delivered electronically for use on the hearing of the motion, together with proof of service, and shall ensure that the appropriate filing fee has been paid.

Notice to the parties

[23] The applicant father is hereby given notice that:

a. You are required to confirm, immediately, by e-mail that you have received a copy of this endorsement, by sending a confirmation e-mail to the Trial Coordinator (at Chatham.SCJ@ontario.ca), copied to the applicant father. If you fail to do so, this matter may proceed, and the court may deal with the case in your absence.

[24] All parties are hereby given notice that:

a. If any party fails to comply with the schedule for delivery of materials, as set out above, or fails to participate in any scheduled telephone conference call, the court may deal with the case in your absence, and an order may be made against you.

b. The presiding judge may convene one or more case conferences for the purposes contemplated by rule 17(4) of the Family Law Rules and may make such orders pursuant to rule 17(8) as the presiding judge may deem appropriate to secure the just, most expeditious, and least expensive determination of the motion.

c. The determination of the motion, whether delivered orally or released in typewritten or handwritten format, is an order of the court enforceable by law and, in accordance with rule 25(18), effective from the date on which it is made, regardless of whether a signed formal order is prepared, signed, and entered with the court in accordance with the provisions of Rule 25.

d. All provisions of this endorsement may be varied by the presiding judge on such terms as the presiding judge deems just.

e. The hearing of the motion may be recorded for the court’s purposes if held by teleconference call. However, a transcript of the teleconference will not be available to the parties without permission of the presiding judge.

Other

The preparation, signing, and entry of a formal order in respect of this endorsement is hereby dispensed with.

J. Paul R. Howard Local Administrative Justice – Chatham Released: April 9, 2020