Court File and Parties

COURT FILE NO.: 12/12 DATE: 20200420 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Suzanne Light-Morrow, Applicant AND Paul Jorge Chaves, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: None

HEARD: In Writing

Endorsement on Urgency – COVID - 19

[1] This is a request for an urgent hearing by the applicant mother Ms. Light-Morrow following the COVID-19 procedures as set out in:

a) the Notice to the Profession published on the SCJ website from the Chief Justice Morawetz dated March 15, 2020 (“Prov. NTP”); b) the Notice to the Profession on the SCJ website from the Chief Justice Morawetz dated April 2, 2020 (“Updated Prov. NTP”) c) the Notice to the Profession for this county from our Local Administrative Justices dated March 25, 2020 (“Local NTP”); and d) the Notice to the Profession from Regional Senior Justice Calum MacLeod dated April 2, 2020 (“Region NTP”).

Process

[2] The Updated Prov. NTP makes it clear that strict adherence to the rules of practice cannot be an impediment to a timely, fair and just adjudication, although the court needs to be cautious about relieving compliance with procedural rules and should do so sparingly.

[3] I am prepared to overlook that the mother has not provided an email stating the relief requested and why she feels it is urgent (Region NTP), as she has served and filed a 14B motion (Local NTP para. 24, Prov. NTP para. 1) which speaks to that. She has also provided a Motion to Change.

[4] My role at this point as the triage judge is to determine, based on the unchallenged affidavit evidence, whether the matter meets the test of urgency set out below, and should therefore be heard (Prov. NTP para. 7, Local NTP para. 27). I can also require more information (Local NTP para. 25).

[5] The Prov. NTP sets out that only urgent family events will be heard during the COVID-19 pandemic until further notice. For the purposes of this motion this includes urgent relief relating to the safety of a child (para. 2(a)), urgent issues that must be determined relating to the well-being of a child (para. 2(b)), and any other matter that the court deems necessary and appropriate to hear on an urgent basis (para. 4).

[6] Per the Prov. NTP at paras 7 to 9, upon finding urgency I am to determine a schedule for the service and filing of any responding materials and, once all submissions have been received, I am to determine the manner of the hearing (writing, telephone or video conference).

Unsworn Affidavit

[7] The mother has filed an unsworn affidavit. The Prov. NTP indicates “[w]here it is not possible to email a sworn affidavit, affidavits may be delivered unsworn but the affiant must be able to participate in any telephone or videoconference hearing to affirm the affidavit.” It follows that I am to treat the affidavit as if it will be affirmed, and that if I find urgency I will no longer have the option of conducting a hearing in writing.

Service

[8] The Prov. NTP indicates that “[p]arties must still comply with orders/rules requiring the service or delivery of documents as between the parties.” It further indicates “[s]elf-represented litigants are expected to comply with the process set out in this Notice.”

[9] An interim order requires an underly originating process. To this end the mother has correctly prepared a Motion to Change (although not the required Form 35.1 and Change Information Form). It is not issued, which I understand is out of necessity in view of the COVID-19 policies. I can address that deficiency by ordering that it be issued within a specified time, failing which any order made in relation to it or under it would be rendered null and void.

[10] The mother purported to serve the Motion to Change by email. The Updated Prov. NTP says that “it is not necessary to obtain consent or a court order to serve documents by e-mail where email service is permitted ” (emphasis added). The Family Court Rules require a Motion to Change to be served personally, with limited exceptions that do not include by email. Further, the mother purported to serve the respondent father Mr. Chaves herself, which is not permitted (Rule 6(4.1)).

[11] This is still a court process in which serious relief, namely the suspension of the father’s long-standing equal parenting time with Christina, is being sought. Proper service is important. The father needs to be aware of the allegations against him and of the steps he may take.

Urgency

[12] In my view the test for urgency has been met. The mother alleges that the father is not complying with COVID-19 by-laws and best practices and that the children’s safety and well-being could be impacted.

Next Steps

[13] If the mother has an email reply from the father referencing the court materials, she may file it. Upon receipt, I am prepared to validate service (Rule 6(18)). If she does not, she needs to make arrangements, mindful of the COVID-19 environment, to effect special service of the Motion to Change. She may wish to seek legal advice. A new Affidavit of Service will need to be filed.

[14] Upon either of the above two events being fulfilled, I will set a timeline for the filing of responding and reply materials, choose a date for the hearing, and provide directions on how it will be held.

[15] I would encourage the parties to come to an understanding that would eliminate the need for a hearing. While I have found urgency, I am not of the view that an interim without prejudice order now would be just or proportional. I expect the hearing can still happen this week.

Mr. Justice Timothy Minnema Date: April 20, 2020