Court File and Parties
COURT FILE NO.: FS-10-11433-001 DATE: 20200417 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jodie Marie Gillier, Applicant AND: Todd Eugene Hitchcock, Respondent
BEFORE: Howard J.
COUNSEL: Jonathan M. Quaglia, for Applicant Todd Eugene Hitchcock, acting in person
HEARD: Written submissions
Endorsement
Overview
1This is further to my endorsement released March 24, 2020. [1]
2On 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 ), which 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 has suspended all regular operations, effective Tuesday, March 17, 2020, and until further notice, subject to “urgent and emergency” matters, which would continue to be heard by the court.
3The matter was referred to me as Triage Judge for a determination as to whether it was “urgent” within the meaning of the Notice to the Profession and of how this matter should proceed.
4Following my initial March 24th endorsement, I released a further endorsement in this matter on April 6, 2020. [2] That subsequent endorsement was released in error. As I subsequently explained to the parties that same day, at the time I prepared the subsequent endorsement I had not received, reviewed, or been made aware of certain documents that the respondent father had in fact filed with the court on March 27, 2020. Indeed, at the time of preparing the subsequent endorsement, I was of the (mistaken) view that the respondent father had failed to abide by the filing schedule that I had directed in my initial March 24th endorsement.
5Further, I incorrectly assumed that because the respondent had apparently not complied with my direction to file further materials by March 27th, he would then not be filing any reply materials by the scheduled deadline (April 7th).
6It goes without saying that it would have been unfair to the respondent to determine the issues in this matter without considering the materials that he had in fact filed and any reply materials that he was entitled to file. As such, as I explained to the parties, for all of these reasons, my endorsement of April 6th must be set aside.
7Dealing first with a preliminary procedural issue as to the proper title of proceeding in this matter, the position or advice attributed to Mr. Quaglia as set out in para. 2 of Ms. Gillier’s affidavit is correct. Although Mr. Hitchcock has commenced a motion to change the final order of Donohue J. dated May 27, 2011, given that he was the respondent in the original application (a point that was not known to me at the time of my March 24th endorsement, given that I had no access to the original court file at the time I wrote my endorsement), Mr. Hitchcock does not now become the applicant for the purposes of the instant motion to change. The title of proceeding should continue to reflect that Mr. Hitchcock is the respondent in this proceeding.
8Moreover, I note from paras. 9 and 10 of Ms. Gillier’s affidavit that both parties have now remarried. In particular, I note that Ms. Gillier has apparently taken the name of her current husband, Mr. Bob Gillier, and, in my view, the title of proceeding ought to respect the choices of the parties as to their self-identification.
9In the circumstances, there shall be an order that all further documents delivered in this proceeding shall bear a title of proceeding consistent with that used in this endorsement, as set out above, pursuant to which “Jodie Marie Gillier” is the applicant and “Todd Eugene Hitchcock” is the respondent.
10For present purposes, I refer to Ms. Gillier as the applicant mother and Mr. Hitchcock as the respondent father.
11I confirm that I have now received and reviewed, among other things, the following materials:
a. The respondent father’s motion to change (Form 15) the final order of Donohue J. dated May 27, 2011; b. The respondent father’s change information form (Form 15A); c. The respondent father’s revised affidavit (unsworn) dated March 27, 2020, and the exhibits attached thereto; d. The applicant mother’s affidavit sworn April 1, 2020, and the exhibits attached thereto; and e. The respondent father’s reply affidavit (unsworn) dated April 7, 2020, and the exhibits attached thereto.
Factual background
12The parties were married on April 8, 2000, separated on August 14, 2007, and divorced on June 17, 2011.
13There are three children of the marriage: their daughter, Meagan Jane-Marie Hitchcock, who is now 18 years of age, their son Coledan Todd-John Hitchcock, who is also 18 years of age, and their son Quinn Kristopher-Martin Hitchcock, who is now 15 years of age.
14Pursuant to para. 2 of the final order of Donohue J. dated May 27, 2011, the applicant mother has sole custody of all three children. Paragraph 3 of that same order provides the respondent father with specified access.
15The evidence indicates that the older twins, Meagan and Cole, have continuously resided with the applicant mother since separation. It is common ground that Meagan has had no contact with the respondent father for, at least, more than three years. Cole continues to have contact with his father. Both Meagan and Cole are currently pursuing post-secondary studies at St. Clair College.
16The younger son, Quinn, who is the subject of the respondent father’s motion to change, is currently in Grade 10 at John McGregor Secondary School in Chatham, within the Lambton Kent District School Board (LKDSB).
17It is common ground that Quinn has some learning and behavioural challenges. Quinn has various learning disabilities and is supported while at school by an Individual Education Plan (IEP) [3] and a Safety Plan. The evidence of the mother is that Quinn’s behavioural challenges include Attention-Deficit Hyperactivity Disorder (ADHD) and “potentially” Oppositional Defiant Disorder (ODD). The evidence of the respondent father is that Quinn “has not been diagnosed with ODD.” In my view, the evidence of the parties in this regard is not necessarily inconsistent, as I note the mother used the word “potentially.”
18Quinn has a social work (crisis) counsellor at Chatham-Kent Children’s Services and a social work/counsellor through the LKDSB. Quinn still sees a paediatrician (Dr. Farqui), who has over the years prescribed various medications, including “Intuniv” and “Concerta” for his ADHD. Quinn has a telephone appointment scheduled with a child psychiatrist (Dr. Gopidasan) on April 14, 2020.
19It is clear from both parties’ materials that relations between the applicant mother and the respondent father are not constructive or respectful. The evidence of the applicant mother is that the parties have had “awful” communication issues since before separation. The evidence indicates that while the parties rarely speak with each other (whether in person or by phone, text, or email), on the few times where they have attempted communication, it “invariably [ends] with various accusations, raised voices, and further entrenched hard feelings.” There is a history of both parties accusing the other of emotional and physical abuse directed at the children.
20It is also common ground that on or about March 13, 2020, Quinn left his mother’s residence in Chatham and has, since that time, been residing with his father in London. Although the respondent father continues to work in Chatham, he resides in London with his current wife and, now, Quinn.
21I note the following background explanation offered by the applicant mother at paras. 18-20 of her affidavit:
On Wednesday, March 11, 2020, Quinn had a bad incident at school. The Vice-Principal communicated with me that Quinn was intimidating to his teachers. I tried to talk to Quinn about the VP’s concerns and our discussion deteriorated. The following day Queen went to school, Mr. Hitchcock picked him up, and he has been with his dad ever since. Quinn did return on or about Friday, March 13, 2020. He packed his bags and took all of his belongings to Mr. Hitchcock’s home.
I advised Quinn and Mr. Hitchcock that I was not going to challenged Quinn’s decision to move to Mr. Hitchcock’s home. I told Quinn that I love him and I support his decisions. I told Quinn and Mr. Hitchcock that I would sign an education transfer form once appropriate arrangements are in place.
I provided Quinn with his birth certificate, his health card, his social insurance number (I cannot find his card), and his bank card.
22The respondent father now seeks a variety of orders, including an order that the respondent father shall have sole custody of Quinn, that the applicant mother shall pay child support for Quinn to the respondent father, that the designated beneficiary on the respondent father’s life insurance policies be changed to designate the respondent father’s current wife, that the registered education savings plan for Quinn be “signed over” to the respondent father, that all joint banking accounts between Quinn and the applicant mother be transferred to a joint banking account between Quinn and the respondent father; that the applicant mother be required to sign a new passport application for Quinn upon request, etc.
Analysis
The emerging caselaw on the question of “urgency” during the COVID-19 pandemic
23Section 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.
- 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.]
24There has now been a sufficient number of judicial decisions released on the meaning of the “urgency” requirement under the Notice to the Profession during the COVID-19 pandemic so as to permit one to extract some general principles.
Cases involving multiple claims for relief
25A number of decisions released during the court’s suspension of regular operations in reaction to the COVID-19 pandemic have involved cases where a variety of different claims for relief were presented to the court. The approach of the court in such cases has been to consider whether each claim for relief is urgent within the meaning of the Notice to the Profession in its own right. The court has distinguished between those claims that are truly urgent and should proceed to swift determination and those claims that present no real urgency and no legitimate claim to the court’s extremely limited resources during this extraordinary period of the suspension of the court’s regular operations.
26In other words, it is not the case that where, for example, a moving party raises six different claims for relief and only one such claim is considered to be urgent that the court will proceed to determine the other five non-urgent requests just because they arise out of the same factual circumstances and/or are advanced within the same motion. A non-urgent claim for relief cannot bypass the urgency requirement just because it is “piggy-backed” onto a genuinely urgent issue. Each claim is to be separately considered on its own merits to determine whether it meets the urgency threshold.
27Thus, for example, in Hadley v. Hadley, 2020 ONSC 1927, the father brought an urgent motion asking the court to grant him sole custody and primary residence of the parties’ three-month-old infant and to restrict the mother to supervised access only on the grounds that, as the father alleged, the mother suffered from serious mental health issues. In distinguishing between the various claims, Madsen J. held that the “determination, on a temporary basis, of the residency of the child” and the “determination of parenting time for the mother and, if so, any conditions which may be appropriate to ensure the safety and well-being of this infant” were potentially urgent issues at the triage stage but that the “determination of the ‘custody’ of the child is not required on an urgent basis.” [4]
28In the same vein, in Tessier v. Rick, 2020 ONSC 1886, the mother refused to let the father have his court-ordered access with the parties’ three-year-old child because the mother was concerned that “the father’s household [was] not abiding by the social isolation directives of public health authorities [and was] minimizing the risks posed by COVID-19.” [5] MacEachern J. held that the father’s motion to require the mother to comply with the access order was urgent but that the father’s companion request for make-up access was not urgent. [6]
What constitutes “urgency” during the COVID-19 pandemic
29As referenced, over the last four weeks during which the regular operations of the court have been suspended, the court has released an abundance of decisions about what is and is not “urgent” for the purposes of being heard by the courts during the COVID-19 crisis.
30One of the more instructive decisions is Thomas v. Wohleber, 2020 ONSC 1965, where Kurz J. explained the high threshold upon which the threshold of “urgency” must be based in the current context created by the COVID-19 pandemic. [7]
31Early in his analysis in Thomas, Kurz J. made note of the test for urgency that the court typically applies for the purposes of rule 14(4.2) of the Family Law Rules, [8] which allows a party to avoid a case conference before bringing a motion, as reflected in the oft-cited dictum of Belch J. in Hood v. Hood [9] and developed by Wildman J. in Rosen v. Rosen. [10]
32Justice Kurz then went on to consider the somewhat different considerations that inform the notion of urgency under the terms of the Notice to the Profession and within the context of the COVID-19 pandemic. He held that:
At the present time, the Notice’s test of urgency must be strictly enforced in order to ensure that the court’s limited administrative resources are available to deal with the most serious and urgent of cases. Without rigorous enforcement of the Notice, even extremely urgent cases; those that call for immediate court involvement to protect children, the safety of vulnerable spouses or extreme financial need, will have to queue up behind less urgent matters. This raises the considerable risk of harm by delay.
At the same time, our court’s limited resources, tethered to a limited number of overworked administrators, runs the risk of being overwhelmed and becoming unable to offer necessary judicial services to those most in need.
Rather than speculate whether the present test of urgency is even higher than the one already set out in Hood and Rosen, it is important to emphasize the scrupulousness with which the urgency standard must presently be enforced. That may even mean that some issues that may have been heard on an urgent basis because the test of urgency was not strictly applied in a non-pandemic world will not meet the high threshold set by the Notice. It may mean that some issues in a motion are urgent while others are not.
In considering the dictionary definition of the term, urgent, the circumstances of urgency set out in the Notice, the examples of urgency offered in Hood and Rosen, and the cases cited above that apply the Notice’s test of urgency, I find that the following factors are necessary in order to meet the Notice’s requirement of urgency:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
The court’s adoption of the test of urgency in this time of pandemic requires all participants in the justice system, judges, lawyers and spouses/parents, to shoulder greater responsibility than they usually are required to assume in family litigation. They must assume this mantle of responsibility in order to ensure that the most urgent cases can continue [to] be adjudicated by the court in these days of crisis. As Pazaratz J. pointed out in Ribeiro v. Wright, 2020 ONSC 1829 (Ont. S.C.J.):
Right now, families need more cooperation. And less litigation. [11]
33I would emphasize one final point. It is clear that not every issue that is important to the parties is also necessarily urgent for the purposes of the Notice of the Profession. Importance is not the same thing as urgency, especially in our current circumstances. As Madsen J. said in Onuoha v. Onuoha, 2020 ONSC 1815, [12] and Kurz J. reiterated in Thomas, [13] one must distinguish between cases that are “very important to the parties” – and even urgent to one or both of them – from those that are “currently urgent” within the meaning of the high threshold required by the Notice to the Profession.
The endorsement of March 24, 2020
34In paras. 7-8 of my March 24th endorsement, I made a presumptive finding that, on the materials then before me, the respondent father had made out a case of urgency – without prejudice to my right to re-visit that question once I had received materials from the applicant mother. In this regard, my endorsement reads as follows:
7In this case, based on the limited material available to me at this preliminary stage, I am persuaded that the onus has been met.
8However, I note that the material of the [respondent] father has not yet been served on the [applicant] mother. No doubt that if and when the [applicant] mother files her responding material, the court may gain a fuller appreciation of the circumstances in this case. With that in mind, 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.
35Now that I have had the benefit of receiving and reviewing the revised affidavit of the respondent father, the responding affidavit of the applicant mother, and the reply affidavit of the respondent father, I am persuaded that this is an appropriate case where my previous without-prejudice presumptive finding of urgency must be reconsidered and set aside. On the whole of the material now before me, I find that the matter before me is not urgent.
36I make this finding for the reasons that follow.
Urgency re-visited
37As I said in para. 5 of my March 24th endorsement, as it pertains to the matter before me, the exception for “urgent and emergency” family matters, as defined para. 2 of the Notice to the Profession, would permit this matter to be heard in the current exceptional period during which the regular operations of the court are suspended only where it is shown that:
a. The matter involves “urgent relief relating to the safety of a child” or b. The matter involves “urgent issues that must be determined relating to the well-being of a child.”
38It is clear on the record of evidence before me that it cannot be said that there is any real risk here to “the safety of a child.” In the current circumstances, the actual safety of Quinn is not in jeopardy.
39The question remains whether the respondent father’s motion involves an urgent issue that must be determined relating to the well-being of a child.
40While the affidavits that have been delivered by the respondent father did raise allegations of emotional and physical abuse of Quinn, as well as some history of Quinn engaging in cutting behaviours, those allegations are essentially historical. Moreover, they are very much contested by the applicant mother.
41The point of the current exercise is not to attempt to decipher and determine the parties’ competing and mutual allegations of the alleged historical abuse of the children. That cannot be determined in the current circumstances.
42Rather, the concern that I had when I first reviewed the respondent father’s initial materials was the current residency arrangements for Quinn – that is, where is the child residing and is he safe and well in that residence. When I first read the father’s initial materials, it was not clear where Quinn was actually residing, and the spectre that arose from my initial review was the suggestion that this was a situation where the child was being withheld by the applicant mother in the mother’s home against the child’s wishes, in a setting where, at least the father alleges, he is subject to the alleged abusive behaviour of the mother and the step-father.
43But that is not the case. Upon review of the father’s revised affidavit and the mother’s responding affidavit, the child is currently living with his father, in accordance with the child’s wishes.
44Moreover, it would appear that the applicant mother did not attempt to block that transition. The evidence of the applicant mother is that she advised Quinn and the respondent father that she was not going to challenge Quinn’s decision to move to the home of the respondent father, and she told Quinn that she loves him and supports his decisions. The reply affidavit of the respondent father did not challenge the mother’s evidence.
45As the residency arrangements have been settled for the time being and Quinn is residing where he says he wants to be, there is no urgency to the issue of the child’s primary residence, and no order is required.
46As the question of the child’s primary residence has been essentially determined on a de facto basis, I do not find it necessary to determine the larger question of legal custody at this time. I adopt the approach of the court in Hadley v. Hadley, where, as I have said, Madsen J. held that the “determination of the ‘custody’ of the child is not required on an urgent basis.” [14] I find that the question of legal custody of Quinn does not constitute an “urgent and emergency” issue within the meaning of the Notice of the Profession in the present circumstances.
47The next issue affecting Quinn’s well-being that could potentially be considered urgent is the question of his schooling.
48As I have said, Quinn is currently in Grade 10 at John McGregor Secondary School in Chatham, within the LKDSB. He is supported there by an IEP and a Safety Plan. LKDSB staff are familiar with his strengths and weaknesses and special needs.
49The Ontario Government has previously announced that all public schools in Ontario will remain closed until (at least) May 4, 2020, as a result of the COVID-19 pandemic. On April 14, 2020, the Premier of Ontario announced that the provincial state of emergency is extended and that the public schools will not re-open on May 4th next. As of the date of writing, no further date has been announced by the Government. In the interim, it remains the case that no physical in-class attendance is permitted under the Government’s current directives. The province is currently supporting students through an expanded “Learn at Home” remote education program.
50The evidence of the applicant mother is that the educational staff at John McGregor Secondary School are well aware of Quinn’s challenges and have resources in place to deal with his special needs. The respondent father has provided no evidence that appropriate accommodations have been made for Quinn’s continued education in any school within the London school board.
51In any event, the applicant mother has advised Quinn and the respondent father that she would sign an education transfer form once appropriate arrangements are in place for Quinn’s continued schooling in London. The respondent father is skeptical of that, but the applicant mother has set out that undertaking in a sworn affidavit, and the court has no reason to believe that the mother will not abide by her undertaking, if it comes to that.
52However, for the time being at least, the question of Quinn physically attending a school in London is moot.
53Further, when the appropriate time comes, given Quinn’s individual learning profile, no doubt the school authorities in London will want to put in place the appropriate transitional measures and accommodations to support him in an educational placement in London. Typically, part of that transition plan would be an in-person meeting with Quinn and his parent. Clearly, that is not going to happen in the current climate when social distancing is mandated.
54Moreover, in view of Quinn’s individual strengths and needs and challenges, it is important that factors of stability and consistency be given significant consideration for a student of Quinn’s special needs. As such, I find that it is not in Quinn’s best interests to remove him from his current school and educational placement. The concerns regarding stability and consistency are especially acute in the absence of a transition plan to a new school setting.
55In my view, given that all public schools in Ontario remain closed for the foreseeable future and given further that educational support is currently being provided to Quinn by remote education program, Quinn should continue to be enrolled at John McGregor Secondary School in Chatham and receive his education program from that school until further order of the court.
56As for the balance of the relief sought by the respondent father – and the father’s material asks for 18 different orders – there is nothing in the material to indicate that any portion of the remaining relief is urgent. That is plain from even a cursory review of the respondent father’s various requests – for example, that the designated beneficiary on the respondent father’s life insurance policies be changed to designate the respondent father’s current wife, that the registered education savings plan for Quinn be “signed over” to the respondent father, that all joint banking accounts between Quinn and the applicant mother be transferred to a joint banking account between Quinn and the respondent father; that the applicant mother be required to sign a new passport application for Quinn upon request (one must question why would Quinn even need a passport given the current severe travel restrictions and border-closings) – none of those requests is time-sensitive.
57In the same vein, I also conclude that even the respondent father’s claim that the applicant mother should pay child support for Quinn to the respondent father is not urgent within the meaning of the Notice to the Profession. Certainly, there is no evidence before me that indicates or even suggests that there is any urgent or emergency question concerning ongoing child support.
58In any event, there is no evidence as to the parties’ respective incomes before the court – neither party has yet filed a financial statement – as would enable this court to even begin to determine child support. As Doyle J. recently said in Guerin v. Guerin, 2020 ONSC 2016, in somewhat similar circumstances, “I am not prepared to deal with the financial aspects of this motion as no financial statements or financial information is before the Court.” [15]
59In due course, once the matter proceeds to a case conference (if not before), the parties can address the accounting regarding child support. The respondent father is still responsible for child support for the twins, and it is not clear from the limited material before me whether there are any child support arrears outstanding. The father should be given credit for any over-payment of child support paid in respect of Quinn, but again, the accounting can be addressed in due course.
60In sum, in my view, none of the relief sought by the respondent father is “currently urgent” within the meaning of the high threshold required by the Notice to the Profession.
61The same considerations apply to the applicant mother’s request for her costs of this triage motion, as reflected in para. 34 of her responding affidavit. The question of costs of the motion is not an urgent matter. As indicated above, the practice established by such cases as Hadley v. Hadley and Tessier v. Rick indicates that simply because one aspect of a motion may be determined to be urgent, that does not mean that all other necessarily entailed aspects of that same motion are also urgent. The applicant mother’s claim for costs should be dealt with in due course.
62For all of these reasons, I find that the relief sought by the respondent father does not raise an urgent or emergency issue within the meaning of the Notice to the Profession issued March 15, 2020. This matter should proceed to a case conference.
Exposure of the children to adult conflict
63I cannot leave this matter without commenting upon one further issue.
64Even on the limited material available to the court on this triage motion, it would seem abundantly clear that the issue of these parents exposing their children to their adult conflict has been an ongoing problem for these parties. Indeed, it would seem this concern has had a considerable history with these particular parents. It is not always so, but it appears to be so with these particular parents.
65In this regard, I note the evidence of the applicant mother, as set out in para. 22 of her responding affidavit, that while (in her view) the respondent father has, over the years, made repeated unfounded complaints of child abuse against the applicant mother (and her current husband) to the relevant children aid societies and police authorities, the “consistent finding” of the agencies is “the poor relationship between Mr. Hitchcock and I have a negative impact on the children [ sic ].”
66I agree with the applicant mother’s observation. To my mind, that observation is borne out by the third-party documentation available to the court on this triage motion.
67In this regard, I note the statements made by the Windsor-Essex Children’s Aid Society (WECAS) in its letter dated May 8, 2012, to the respondent father, where the society stated:
I have concluded that there are no supervision concerns with respect to the children and therefore 21B was not verified. However, I have verified 33I – risk of emotional harm due to significant conflict over custody and access. …
It is unfortunate that conflicts exists [ sic ] between you and Jodie; however, it is important to create an environment where children are protected from conflict, ensuring the children are not involved in the adult problems, allow your children to express their feelings, and avoid speaking of the other parent in negative terms.
68Similarly, I note the statements made by the Chatham-Kent Children’s Services in its letter dated August 13, 2012, to the applicant mother, where the society stated:
The Society has also verified that there is considerable adult conflict between you and the father (primarily related to custody and access issues) that has the potential to cause emotional harm to the children. … I strongly encourage you to find a way to communicate with the father that doesn’t cause such conflict between the two of you, as the animosity triggers such disgust and hatred and this does have an impact on the children.
69In the same vein are the statements made by the WECAS in its letter dated August 13, 2014, to the respondent father, where the society stated:
Additionally, concerns with respect to ongoing conflict between yourself and Ms. Hitchcock have been addressed. It is the expectation that she and yourself will continue to take all of the necessary steps to ensure that your children are not placed in the middle of this conflict from here on in.
70I have no doubt that these are not the only admonitions received by the parents from the relevant authorities over the course of these proceedings.
71And so it is against this background that, I must say, I was taken aback by receiving and reviewing the (unsworn) “affidavit” purportedly made by Quinn that was attached as “Exhibit A” to the reply affidavit of the respondent father (unsworn) dated April 7, 2020.
72In this regard, to be clear, my concern is not so much that the purported “affidavit” of the child Quinn is unsworn. Indeed, the court is conscious of, and striving to be flexible in the face of, the practical restraints imposed on party litigants in delivering unsworn affidavits during these times when the court must operate under extraordinary COVID-19 protocols.
73Moreover, nor am I primarily speaking of the inappropriateness of receiving a purported affidavit of a child where that “affidavit” has in fact been prepared by one party to the litigation (who is obviously partisan) based on the child’s “notes.” It goes without saying that in such circumstances the court can have no assurance that the “evidence” of the language employed in the affidavit reflects the actual intent of the child, as opposed to the “spin” placed on the child’s statements, experiences, and circumstances by the authoring parent-litigant.
74Rather, my root concern here is the apparent (and inexplicable) decision of the respondent father to involve – indeed, to directly engage – the parties’ son in the ongoing litigation between the child’s parents by delivering a purported affidavit in the context of the instant triage motion – despite the repeated warnings and admonitions by all of the relevant societies that the parents should not involve the children in their adult conflict.
75Indeed, I must confess that I am having some difficulty understanding how the respondent father would have honestly believed that he was complying with the various repeated admonitions of the children’s aid societies that, for example, “it is important to create an environment where children are protected from conflict,” when he apparently asked or required his son Quinn to assist in the preparation of an “affidavit” to be filed in court in the context of the father’s ongoing litigation against Quinn’s mother.
76In these circumstances, I am of the view that it was wholly inappropriate for the respondent father to include the (unsworn) “affidavit” purportedly made by Quinn as an exhibit to the reply affidavit of the respondent father (unsworn) dated April 7, 2020.
77For present purposes, I should say only that the apparent decision of the respondent father to directly engage the child Quinn in, and further expose him to, his parents’ ongoing litigation will be an issue to be considered when it comes time for the court to consider the question of legal custody of Quinn.
78Given the instant circumstances, I am of the view that there should be a court order, prohibiting the parties from exposing the children to adult conflict. That order should be made on a mutual basis.
Conclusion
79The endorsement issued in this matter on April 6, 2020 (2020 ONSC 2121), is set aside.
80There shall be an order that all further documents delivered in this proceeding shall bear a title of proceeding consistent with that used in this endorsement, as set out above, pursuant to which “Jodie Marie Gillier” is the applicant and “Todd Eugene Hitchcock” is the respondent.
81The child of the marriage, Quinn Kristopher-Martin Hitchcock, born July 4, 2004, shall continue to be enrolled at John McGregor Secondary School in Chatham and receive his education program from that school until further order of the court.
82The applicant mother and respondent father, and their privies, shall abide by the following non-disparagement orders, and, in particular:
a. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage any third person to do so in the presence of the children or any one of them. Neither parent shall post any disparaging or negative comment about the other parent in social media platforms. b. Neither parent shall discuss with the children or any one of them, or with any third person in the presence of any one of the children, any present or past legal proceedings or any issue between the parties related to any present or past legal proceedings, including any issue relating to the parenting of the children, the breakdown of the parties’ relationship, the conflict between the parties, or financial matters consequent to the breakdown of the parties’ relationship. c. Neither parent shall leave out or make accessible to the children, or any one of them, any information, document, or electronic file pertaining to any issue arising from the parties’ separation and divorce, and neither party shall permit the children, or any one of them, access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the children shall not have access to information regarding the parties’ separation and divorce by password-protecting any area of their personal computers or related devices that hold such information. d. Neither parent shall do anything that would estrange the children, or any one of them, from the other parent, injure the opinion of any child as to their mother or father, or impair the natural development of the children’s love and respect for each of their parents.
83I find that all other claims for relief of the respondent father do not constitute an urgent or emergency matter within the meaning of the Notice to the Profession issued March 15, 2020.
84This matter should proceed to a case conference.
85If the parties are both of the view that this matter falls within the parameters for holding a case conference as set out in the Notice to the Profession – Expansion of Matters to be heard in the Southwest Region, issued April 2, 2020, they may request through the Trial Coordinator that a case conference be scheduled, failing which the matter is adjourned to Monday, June 8, 2020, at 10:00 a.m. to be spoken to in order to set a date for a case conference.
86The issue of costs of this triage motion is adjourned to the case conference judge.
87The 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 17, 2020