COURT FILE NO.: FC-20-FO-62 DATE: 2020-04-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zeljko Jefic (Applicant) Georgina Grujicic (Respondent)
BEFORE: Justice J. Breithaupt Smith
COUNSEL: [none]
HEARD: In Chambers
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19, this determination of urgency is made pursuant to the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”]. Under that Notice, the regular operations of the Ontario Superior Court of Justice have been suspended effective March 15, 2020, until further notice. At this time of pandemic, only the most urgent matters can be heard.
[2] Under that Notice, urgency in non-child protection family law matters is described as 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.
[3] It is clear from that Notice that only the most urgent matters will be heard by this court until the circumstances arising from the COVID-19 pandemic allow it to hear a broader range of proceedings. The Family Law Rules themselves limit the hearing of motions in advance of a Case Conference to only urgent matters by operation of Rule 14. At paragraph 26 of his recent Endorsement in the case of Thomas v. Wohlaber, 2020 ONSC 1965, released March 30, 2020, Justice Kurz succinctly summarized the usual process of bringing a motion before the court:
[26] Ordinarily, a party seeking to bring a family law motion must meet a number of preconditions:
The motion must be preceded by a family conference on the substantive issues in the case (r. 14(4). However under r. 14(4.1), the court can dispense with that condition if it finds that there is hardship or urgency.
The parties must first attend a Mandatory Information Conference in cases dealing with net family property, the matrimonial home, support and a restraining order (r. 8.1 (1), (4), and (7)). However the court can obviate that requirement if it finds “… urgency or hardship or for some other reason in the interest of justice.” (r. 8.1(8)).
The motion materials must be served on all other parties to the motion at least six days prior to the date that the motion is to be heard (r. 14(11)(a)). The parties to the motion must also confer or attempt to confer orally or in writing about the issues in dispute in the motion (r. 14(11)(c)). However under r. 14(12) a motion may be made without notice if:
a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(d) service of a notice of motion would probably have serious consequences.
- If an order is made on a motion heard without notice, the matter must return before the court, and if possible, the same judge, within 14 days.
[4] Further, Justice Madsen’s comments regarding the summary process set out in the Chief’s Notice bear repeating. In Onouha v. Onouha, 2020 ONSC 1815, released on March 24, 2020, Her Honour wrote at paragraph 14:
[14] A few comments about the summary process under the Chief’s Notice as it applies to this case:
(a) The determination of urgency is intended to be simple and expeditious . It is not intended to create a motion unto itself. In this case, I have made the determination regarding urgency based on the emails of counsel, and with knowledge of the file from several appearances before me. Given the volume of urgent family matters coming before the courts at this unprecedented time, this is the only practical way forward.
(b) This determination is without prejudice to either party on the substance of the motion when heard. That I have determined the matter to not presently be urgent is not in any way to prejudge the strength or weakness of either party’s case on the motion itself. The father may very well have a good case for the return of the children to Nigeria, but now, in the middle of a global pandemic with extensive travel restrictions, is not the time for that argument.
(c) The process for hearing urgent motions contemplates limited materials before the court, recognizing that judges do not presently have access to the physical files and that there is as yet no electronic storage of family court files. The Chief’s Notice states that “The Court expects parties will submit only brief materials to allow for a fair, timely, and summary disposition. Emailed filings cannot exceed 10MB. … Every effort must be made… to limit filed materials to 10 MB.” This is not a simple case. Both parties have filed extensive materials. In my view it is preferable that the judge hearing the matter have the benefit of all of the materials filed to date, and full argument, rather than a summary process in the manner contemplated. The stakes are high for both parties, and for the children.
[5] The circumstances that we face at this unprecedented time require the court to take a careful approach in determining urgency so as to ensure that limited resources are available to those who need them. As Justice Kurz wrote at paragraphs 28 - 33 of Thomas v. Wohlaber, supra:
[28] The test of urgency that allows a party to avoid a case conference before bringing a motion is set out in Rosen v Rosen, [2005] O.J. No 62 (S.C.J.) . There, Wildman J. adopted this description of urgency set out by Belch J. in Hood v. Hood, [2001] O.J. No. 2918 (S.C.J.) :
… an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference." [Emphasis added]
[29] In Rosen, Wildman J. sets out the two key steps that must be taken to allow an urgent motion to be heard before a case conference. They are:
• determining the availability of conference dates, and
• counsel/parties conferring in an attempt to arrive at a short term resolution before the matter comes to court.
[30] The Notice’s recitation of situations of urgency builds on Belch J.’s description of urgent situations but offers greater detail. Only the most serious of cases meet the Notice’s test. That test of urgency is, as set out below, a large step removed from simple importance to the parties.
[31] 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.
[32] 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.
[33] 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.
[6] The Respondent/Moving Party, Ms. Grujicic, has filed a Form 14B Motion Form which sets out twenty numbered paragraphs under the heading “Order that you want the court to make” and includes a further full page of unnumbered paragraphs, single-spaced, setting out a blend of legal argument and factual submissions. Ms. Grujicic has not filed an Affidavit setting out any evidence in this matter, but having regard to her self-representation and the unusual procedural circumstances under which we are operating, I have taken a holistic view of the materials she has provided. She has had two email exchanges with the court, one with the Court Services Supervisor and one with a Trial Coordinator, both of which have been provided to me. Those email exchanges do three things: (1) they largely recite the content of the Form 14B Motion Form; (2) they direct the court to note that her original email to the Court Services Supervisor was copied to an email address for the Applicant, Mr. Jefic; and (3) they provide some response to certain questions posed to her in seeking additional information to enable the court to determine the issue of urgency. No Affidavit of Service has been provided, despite one having been requested from Ms. Grujicic, and there is no information from Ms. Grujicic to support the validity of the email address for Mr. Jefic. No response appears to have been received from Mr. Jefic as of the time of preparation of this Endorsement.
[7] In her Form 14B Motion Form, Ms. Grujicic asks at paragraph 1 for “Oral/phone hearing, and urgent dealing with this matter, as we will have to sell our family home if this court case and retroactive child/spousal support are not paid as urgently as possible if the new amount is not established as soon as possible.” The balance of paragraphs 2 – 10 describe various challenges experienced by Ms. Grujicic in her attempts to prepare fulsome materials. Paragraphs 11 – 20 set out allegations from the date of the parties’ separation on August 21, 2001 through to approximately October of 2019, and conclude with the statement that “the Respondent Georgina Grujicic has at least 200 more points to add to this (about all of which she can obtain the evidence)...” Finally, the following paragraph appears at the end of the Form 14B Motion Form:
Indication of filing: The Respondent is confirming that only the Applicant Zeljko Jefic filed all of the materials, while the Respondent could not do it due to the reasons stated above. For that reason, the Respondent is asking for a reasonable extension to be able to file proper response/financial documents on her own while taking into account the above listed.
[8] For clarity, I would confirm that there is no way to access the physical court file in this matter. The court is advised by one of the Trial Co-ordinators that her review of the electronic filing system shows that Mr. Jefic filed an Affidavit of Service on February 24, 2020 for a Motion to Change and a Financial Statement which appear to have been issued/dated January 28, 2020. Under Rule 15(10)(a), Ms. Grujicic has thirty days in which to file her responding materials to the Motion to Change. Without being able to access the Affidavit of Service, the date of service cannot be determined with certainty. In her email to one of the Trial Co-ordinators, Ms. Grujicic writes: “[the Applicant] filed for change of order. The Form 37 Notice of Hearing that I was served on Feb. 19, 18 or 20 has Feb. 14, 2020 date on it. [sic]” If documentation was served upon Ms. Grujicic on February 18, 2020, then by operation of Rule 15(10)(a), her responding materials would have been due on March 19, 2020.
[9] However, in the Notice to the Profession in Central South Region Regarding Family and Child Protection Matters dated March 24, 2020, RSJ Arrell confirmed the then-recent enactment of a regulation by the Government of Ontario under the Civil Management and Emergency Protection Act which suspended “any period of time within which any step must be taken in any proceeding in Ontario” retroactive to March 16, 2020, subject to the discretion of the court addressing any specific matter. Therefore, by operation of the regulation as described in RSJ Arrell’s Notice dated March 24, 2020, the filing timeline set out in Rule 15 is suspended “for the duration of the [declared state of] emergency.” As of Tuesday, April 14, 2020, the Government of Ontario continued the state of emergency throughout the Province for a further four weeks. At a minimum, then, Ms. Grujicic has until Tuesday, May 12, 2020 to serve and file her materials in response to Mr. Jefic’s Motion to Change.
[10] On the basis of the foregoing, I find that this matter is not urgent at this time, as Ms. Grujicic has at least a further four weeks during which to prepare her responding materials. It is the court’s very strong recommendation to Ms. Grujicic that she immediately consult with counsel whether through Legal Aid at (519) 519-578-4651; through the Law Society’s Referral Service at 1-800-268-3310; or through the Law Society’s Emergency Family Law Referral Line at 1-800-268-7568 to obtain advice regarding the documents that she actually needs to prepare for her response. If she finds herself unable to prepare her responding materials by May 12, 2020, she may bring a fresh motion in writing in accordance with the Protocol Regarding Family and Child Protection Matters in Central South Judicial Region issued by RSJ Arrell on April 7, 2020, a copy of which is attached hereto.
[11] Motion dismissed.
J. Breithaupt Smith J
DATE: April 16, 2020
SUPERIOR COURT OF JUSTICE COUR SUP É RIEURE DE JUSTICE
45 Main Street East Suite 721 Tel: (905) 645-5323 Hamilton, Ontario Fax: (905) 645-5374 L8N 2B7
From: Harrison S. Arrell Regional Senior Justice – Superior Court of Justice Central South Region
Issued: April 7, 2020
PROTOCOL REGARDING FAMILY AND CHILD PROTECTION MATTERS
IN CENTRAL SOUTH JUDICIAL REGION
Introduction
[1] This Protocol sets out how the Memo to the Bar of RSJ Arrell dated April 2, 2020 will be operationalized in Central South Judicial Region, for family and child protection matters.
[2] This Protocol is supplementary to, and does not replace, the April 2, 2020 memo. The documents are to be read together. RSJ Arrell’s Memo is appended hereto . [1]
[3] This memo applies to all court sites in Central South Judicial Region.
[4] Information regarding filing of documents is set out below at paragraphs 14 and 31. Please pay careful attention to filing your materials to the correct e-mail address.
a. Urgent Motions and Case Conference material will be served to a general mailbox that reaches the Trial Coordinators .
b. Basket motions and Motions in writing will be served to a general mailbox that reaches Court Services Division .
[5] Application of the Family Law Rules is modified only to the limited extent set out in this Protocol and the April 2, 2020 Memo. All other Family Law Rules continue to apply .
Urgent Matters
[6] Urgent matters will continue to be heard as set out in the memo of April 2, 2020.
[7] Urgent matters will continue to be referred to a triage judge, assigned to determine urgency. Counsel and parties are encouraged to review the case law on urgency before bringing an urgent motion.
[8] If a matter is determined to be urgent, the triage judge will determine additional materials to be served and filed, timelines, and any other directions for the hearing of the matter. Parties should be aware that the judge hearing the motion may require further materials.
Case Conferences
[9] Case conferences continue to be a required step for matters not found to be “urgent” as set out above .
[10] A case conference by tele-conference may be requested where there are one or two discrete issues with which the court can assist. Case conferences will be scheduled for 30 minutes.
[11] Case conference dates and times will be set by the Court and are not negotiable.
[12] Priority will be given to cases where parties have not yet had a case conference.
[13] The following materials must be filed for a case conference:
a. Case conference brief of each party, maximum 4 pages, 12-point font, no attachments (except as listed below) and must be double spaced.
b. If parenting issues , a copy of each party’s Form 35.1 Affidavit;
c. If financial issues , a copy of each party’s up-to-date financial statement;
d. If property issues , a copy of each party’s net family property statement;
e. If support issues , a pre-filled Support Deduction Order;
f. If seeking an Order at the case conference, a draft Order , in Word , to facilitate potential changes to that Order by the judge;
g. A copy of any relevant prior Order or Endorsement (if Order not yet taken out) shall be provided with the materials.
h. Contact information , including email contact information, of all parties.
i. The subject line of your email MUST include the following information:
a. Level of court
b. Type of matter (family or child protection)
c. Name of parties
d. File number
e. Appearance sought: case conference.
Filing of Documents for Urgent Motions and Case Conferences
[14] As set out elsewhere, where documents are to be filed, they are to be filed at the following email addresses which direct materials to the applicable Trial Coordinator:
• Brantford: BrantfS@ontario.ca
• Cayuga: Cayuga.Superior.Court@ontario.ca
• Hamilton Family Court: Hamilton.Family.Superior.Court@ontario.ca
• Kitchener/Waterloo: Kitchener.Superior.Court@ontario.ca
• Simcoe: Simcoe.Superior.Court@ontario.ca
• St. Catharines: St.Catharines.Superior.Court@ontario.ca
• Welland: Welland.Superior.Court@ontario.ca
[15] Given the volume of materials being sent to the Trial Coordinators through the email addresses listed, documents for urgent motions and case conferences must be filed as one package by each party, not in several emails.
[16] The e-mail box will be checked regularly by the Trial Coordinator who is also working remotely.
[17] Please do not e-mail the Trial Coordinator directly. Use only the email addresses set out above.
Motions in Writing
[18] A case conference continues to be required for non-urgent matters , before a motion will be heard in writing. If your matter has not been conferenced, see the above regarding case conferences.
[19] Any motion brought under this section must be the equivalent of a “ short motion ” (ie: would previously have been heard in under 60 minutes).
[20] The following motions will NOT be heard in writing at this time:
a. Summary Judgment Motions (child protection or otherwise)
b. Long Motions
c. Uncontested Trials
d. Contempt Motions
e. Disclosure Motions (due to the need to have access to the complete court file).
[21] When bringing a motion in writing under this section, the moving party shall be responsible for filing, in one email to the Court, all of the documents below, of both parties , copied to the other party’s email address. This is essential to avoid overloading of the general email box and to ensure that no materials go astray. For clarity, do not file your motion without all of the applicable documents below :
a. A cover email copying the responding party, directed to the applicable email address set out in paragraph 31, below.
b. Form 14 C Confirmation , signed by both parties or both parties’ counsel. That Form 14(C) must:
i. list all documents being filed for the hearing of the motion, with number of pages;
ii. containing a statement that the parties consent that the matter may be heard in writing, as follows:
Either :
Counsel for the Applicant and Counsel for the Respondent hereby confirm that that this motion may be dealt with in writing and that all materials to be submitted on the hearing of this motion are attached;
Or (where parties are self-represented):
The parties hereby agree that this motion may be dealt with in writing and that all materials to be submitted on the hearing of this motion are attached
c. Notice of Motion setting out relief sought;
d. One affidavit per party, maximum 10 pages inclusive of any exhibits, 12 pt font, double spaced;
e. One Reply affidavit , from moving party, maximum 3 pages, 12 pt font, double spaced;
f. If parenting issues , a copy of each party’s Form 35.1 Affidavit;
g. If financial issues , a copy of each party’s up-to-date financial statement, with required income information attachments;
h. If property issues , a copy of each party’s net family property statement;
i. If support issues , a pre-filled Support Deduction Order;
j. Brief summary of argument for non-routine motions;
k. A copy of any relevant prior Order or Endorsement (if Order not yet taken out);
l. A draft Order , in Word , to facilitate potential changes to that Order by the judge.
m. Contact information , including email contact information, of all parties.
n. The subject line of the email submitting materials to the court MUST include the following information:
i. Level of court
ii. Type of matter (family or child protection)
iii. Name of parties
iv. File number
v. Appearance sought: Motion in writing
[22] Materials on a written motion shall be in writing only . For clarity, there shall be no audio or video files submitted to the court in conjunction with a motion in writing.
Basket Motions/ Consent Motions/ Procedural Motions
[23] The following matters will be heard by Form 14(B):
a. Motions for Consent Orders , such as for: parenting time, disbursement of funds held in trust, appointment of the Office of the Children’s Lawyer (OCL);
b. Procedural motions such as for substituted service/ dispensing with service;
c. Consent motions to change with all applicable forms as required under the Family Law Rules.
[24] When bringing a motion under this section, the moving party shall be responsible for filing , in one email to the court, all of the documents below of both parties , copied to the other party’s email address. This is essential to avoid overloading of the general email box and to ensure that no materials go astray. For clarity, do not file your motion documents separately.
[25] In addition to the documents otherwise required under the Family Law Rules, the following documents must be filed:
i. For parenting matters:
Both parties’ Form 35.1 affidavits must be filed;
Brief updating affidavit setting out how the proposed arrangements are in the best interests of the child(ren);
If seeking the appointment of OCL, include a brief affidavit setting out the basis of the request, and the type of involvement requested (s. 89 or s 112 of the Courts of Justice Act ). Note that Voice of the Child Reports are not available at this time.
ii. For support matters:
- SDO and SDIS must be filed if parties are represented;
[26] The subject line of the email submitting materials to the court MUST include the following information:
i. Level of court
ii. Type of matter (family or child protection)
iii. Name of parties
iv. File number
v. Appearance sought: 14 B Basket Motion/Consent Motion/Procedural Motion
[27] The email must indicate that the parties confirm that all of the materials served by both parties for the motion are being filed. A responding party who does not agree that all materials have been filed by the moving party must advise the court immediately , by email to the applicable email address set out below in paragraph 31.
[28] Be sure to provide contact information , including email contact information, of all parties.
[29] At this time divorce applications and adoption applications are not being processed, unless the divorce is urgent, in which case the matter may be addressed as an urgent motion.
[30] Documents for Basket Motions/ Consent Motions/ Procedural Motions are to be filed at the following court addresses at paragraph 31 (NOT at the addresses set out in paragraph 14, above).
Filing for Motions in Writing, and Basket Motion/ Consents/ Procedural Motions
[31] Documents for Motions in Writing, and Basket Motions/Consents/ Procedural Motions are to be filed through the applicable Court Services Division for each courthouse as follows:
• Brantford: BrantfordSCJCourt@ontario.ca
• Cayuga: HaldimandCountyCourt@ontario.ca
• Hamilton: HamiltonSCJCourt@ontario.ca
• Kitchener/Waterloo: Kitchener.Courthouse@ontario.ca
• Simcoe: Simcoe.SCJ.Courts@ontario.ca
• St. Catharines: SCJStCatharinesCourthouse@ontario.ca
• Welland: SCJWellandCourthouse@ontario.ca
[32] Given the volume of materials being sent to the Court Services Division through the email addresses listed, documents must be filed in one package by each party, not in several emails.
[33] The e-mail box will be checked regularly by the Court Services Division.
[34] Please do not e-mail the Trial Coordinator about matters sent to CSD at the email addresses in paragraph 31. Any follow up should be directed to the applicable email address in paragraph 31.
Information from the Office of the Children’s Lawyer
[35] The court has been advised that the Office of the Children’s Lawyer will continue to respond to urgent family matters where there has been an appointment to provide legal or clinical services for a child or children, including matters designated as urgent by the court.
[36] The Office of the Children’s Lawyer has advised that it is not accepting requests for Voice of the Child Reports at this time.
[37] The Court is advised that the Office of the children’s Lawyer is prioritizing high conflict and complicated custody and access matters at this time for both section 89 representation and section 112 reports. The usual timelines for the delivery of section 112 reports do not apply at this time. Efforts are being made to provide the reports in a timely manner recognizing the challenges in the current COVID-19 context.
[38] If the parties are requesting the appointment of the OCL, the applicable draft Order shall be completed before the appearance.
[39] If the Court makes an Order for OCL appointment, the parties remain responsible for completing the applicable intake forms:
Information from the Family Responsibility Office
[40] The Family Responsibility Office has advised the Court that the agency is not sending new notices of drivers’ license suspension at this time and that they are in the process of cancelling notices previously sent. It is hoped that this will reduce the need to bring refraining motions at this time.
Harrison S. Arrell Regional Senior Justice – Superior Court of Justice Central South Region
Issued: April 7, 2020
[1] See Central South Expansion Notice