Court File and Parties

COURT FILE NO.: 42625/19 DATE: 2020-04-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RACHEL ROSS, Applicant AND: JOHN KENYON, Respondent

BEFORE: Gray J.

COUNSEL: Harold Niman, Counsel for the Applicant John Kenyon, Self-represented

HEARD: April 15, 2020

Endorsement

[1] This is a request for an urgent motion pursuant to the current guidelines in effect.

[2] The respondent requests a police enforceability clause relating to a consent order for custody and access. It is alleged that the applicant is violating the order in several respects, and without a paragraph authorizing police enforcement, the order will continue to be violated.

[3] The only issue at this stage is whether the issue is sufficiently urgent that it must be heard and determined notwithstanding that the court system is currently shut down.

[4] The reality is that the court is in no position to hear the overwhelming majority of matters. None of the justice system participants are attending the courthouse. This includes judges, trial coordinators, judicial assistants, registrars, and reporters. Judges must do the best they can from home, and hearings are conducted in writing, or, where appropriate, through teleconferencing or videoconferencing.

[5] As a practical matter, it is only those matters that are truly urgent that can be entertained under the current circumstances.

[6] On the other hand, a definition of "urgency" must not be so narrow that avenues of relief are effectively foreclosed, and lawlessness is encouraged. While most citizens obey the law without the threat of sanctions, the court system exists to ensure compliance where necessary. There must be at least a rudimentary level of court oversight.

[7] In this case, I am not convinced that there is a sufficient level of urgency to require this motion to be heard.

[8] There is an existing order in place. It is not alleged that children are in danger. Presumably, the current situation is temporary. Once the court system is up and running again, this matter can be dealt with promptly. If indeed there has been non-compliance, the respondent is not without a remedy. Lack of access time can be made up. Costs sanctions can be imposed.

[9] I make no determination, of course, that the applicant is in violation of the order. I remind her, however, that the COVID-19 pandemic furnishes no excuse for violating the order. If it turns out that she has done so, the court will have very little sympathy with her position, and may very well impose remedies and sanctions that she would undoubtedly find unpalatable.

[10] For the foregoing reasons, the respondent's request to schedule an urgent motion is dismissed.

(Original signed by) Gray J. Date: April 15, 2020