Ontario Superior Court of Justice (Windsor)
Endorsement / Page d’inscription
Applicant(s) / Requérant(e)(s): Ashley Ann Thibert Counsel / Avocat(e): Michelle DiCarlo
Respondent(s) / Intimé(e)(s): Gerald Thibert Counsel / Avocat(e): Michael Frank
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 8, 2020
APPEARANCES: In writing by the respondent (moving party)
Endorsement
[1] This is a request for a hearing on the basis of urgency. Father has been exercising supervised access at New Beginnings. However, as a result of the COVID-19 pandemic, the facility is no longer operating in this capacity. Father seeks to vary the order so that family members can supervise, and access can continue.
[2] Various cases have considered the impact of the pandemic on access orders. It is clear that the pandemic, standing alone, is not a reason to suspend parental access, particularly where there is evidence to indicate that appropriate precautions are being taken to avoid exposure to infection.
[3] This case is complicated by a pending criminal trial, and a non-association order preventing the respondent from having contact with the applicant. I had requested that counsel obtain further information about the criminal charges as a pre-condition to ordering unsupervised access. Counsel for the applicant was taking steps to obtain a WAGG order but this process has been impeded by the current circumstances.
[4] At present, it is uncertain how long the pandemic will force closure of the New Beginnings facility. I am of the view that, on its face, this request presumptively meets the test for urgency. There are two central concerns in this case. First, it is important to facilitate an ongoing relationship between the respondent and his child. Second, in light of the outstanding criminal charge and non-association clause, it is important to ensure that any access arrangements reflect the need to protect the safety of all family members. These joint concerns formed the basis for the requirement in my earlier order that there be access, but that it be supervised.
[5] From a practical standpoint, the non-association order likely prohibits certain forms of access, such as videoconferencing, from taking place. Certainly, the applicant and respondent are not able to discuss or agree on suitable alternatives. Having regard to all of these factors, it seems to me that this matter is properly brought before the court to be addressed on an urgent basis.
[6] This finding is without prejudice to either party when the substance of the motion is dealt with. The fact that I have determined this matter to be urgent is not to prejudge the merits of the motion when heard. Similarly, it does not preclude the applicant from arguing that the test for urgency is not met and that this ruling should be revisited.
[7] I direct that the applicant mother electronically serve and file any responding materials no later than Tuesday, April 14, 2020. Any reply materials shall be electronically served and filed no later than Friday, April 17, 2020. Thereafter, an electronic hearing shall be scheduled by trial coordination to take place during the week of April 20, 2020.
Justice R.J. Rogerson