Court File and Parties

Ontario Superior Court of Justice (Windsor) 245 Windsor Ave., Windsor, ON N9A 1J2

Endorsement / Page d’inscription

Applicant(s) / Requérant(e)(s): Taylene Lynn Marie Fowkes Counsel / Avocat(e): Maria Fernandes

Respondent(s) / Intimé(e)(s): Stephen David Anderson Counsel / Avocat(e): Self-Represented

THIS MOTION HAS BEEN BROUGHT PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.

DATE: April 15, 2020 APPEARANCES: In writing by the applicant (moving party)

Endorsement of Triage Justice

HEBNER J.

[1] The applicant mother and respondent father have a child, Riven Ryder Dallas Anderson born January 11, 2009. The final order of Howard J. dated September 8, 2017 provides that Riven reside with both parties equally on a week about schedule. Riven was to spend his scheduled week with the applicant commencing March 27, 2020. The applicant attended at the respondent’s home to collect Riven at the required time, however the respondent refused to allow Riven to leave. The applicant mother seeks to proceed with an urgent motion for an order for police assistance, makeup access, and an order that the parties return to the week about parenting regime. The applicant seeks to proceed with her motion without notice to the respondent.

Urgency

[2] This matter comes before the court during a time when the court has suspended its normal operations due to the global COVID-19 pandemic. At this time, the court is only hearing matters that meet the definition of urgency set out in the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (the “Chief Justice’s notice”). The Chief Justice’s notice includes the following:

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;

[3] This matter was referred to me to determine whether the intended motion meets the definition of urgency. Such a determination is intended to be simple and expeditious. It is not intended to be a motion in and of itself. (see Onuoha v. Onuoha, 2020 ONSC 1815)

[4] In order to consider the question of whether this matter meets the definition of urgency, I have reviewed the letter of Ms. Fernandez, counsel for the applicant, along with the notice of motion and affidavit. I find that this matter meets the definition of urgency as it involves the well-being of a child and the allegedly wrongful retention of the child.

[5] My determination on the issue of urgency is completely without prejudice to whatever position the parties may take on the motion. My determination is preliminary only and is without prejudice to any ruling the motions judge may make, including a ruling that the matter is, indeed, not urgent.

[6] The applicant seeks to proceed with her motion without notice. In my view, notice is required. I understand that process servers are not working at the present time and that personal service is not only impractical but possibly unsafe. The applicant’s affidavit indicates that she is aware of the respondent’s email address. Accordingly, the applicant is required to serve the respondent with her motion materials by email.

[7] For the foregoing reasons, I make the following order:

Order

1. The motion may proceed, on notice to the respondent with the materials to be served on the respondent by email forthwith.
2. The respondent shall have until April 20, 2020 at 4:00 p.m. to serve and file responding materials, also by email.
3. The applicant shall have until April 22, 2020 at 4:00 p.m. to serve and file reply materials, also by email.
4. The motion shall be heard by conference call, to be scheduled as soon after April 22, 2020 as possible.
5. The affidavits need not be sworn, as set out in the Chief Justice’s notice. Instead, the parties shall be available at the hearing of the motion by conference call to affirm the contents of their affidavits.
6. The affidavits shall be those of the parties only, shall not be longer than 10 pages and shall attach only exhibits relevant to the issue of the child’s residence during the COVID pandemic, all subject to the direction of the motions judge.

Pamela L. Hebner Electronic Signature signed and released by Hebner J. Justice

RELEASED: April 16, 2020