RULING ON URGENT CASE CONFERENCE REQUEST

JARVIS J.

[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].

[2] The applicant (“the mother”) and the respondent (“the father”) are the parents of a 10-year old daughter. The mother has brought an urgent motion to deal with parenting time issues and to enforce what she alleges is an agreed parenting schedule. The mother says that the father is unreasonably withholding access and that the case has been highly litigious. Bennett J. has been the conference judge.

[3] The mother’s motion material was served on the father on April 15, 2020. He has not responded.

[4] I am satisfied that the evidence meets the urgency requirements set out in the Chief’s Notice.

[5] The motion is granted. The following directions shall apply:

(a) Court administration shall schedule the first available date for a Case Conference before Bennett J.;

(b) The conference shall be restricted to dealing with the father’s access;

(c) The parties shall comply with the CER Notice to the Profession dated April 1, 2020 (paragraph 3) dealing with form and length of the parties’ briefs;

(d) If a party is unable to sign their brief, their lawyer may do so on their behalf;

(e) The total time allotted will be one-half hour or such further time as Bennett J. may allow;

(f) Briefs may be signed and filed electronically;

(g) The mother shall file her Brief by Thursday, April 23, 2020 (4:00 p.m.) and the father his Brief by Monday, April 27, 2020 (4:00 p.m.);

(h) Confirmation that the conference is proceeding (i.e. delivery of a Form 17F) is dispensed with. If the parties settle the conference issues before the teleconference, they must so advise the Court and provide a draft Order to issue on consent;

(i) Unless otherwise ordered, the Conference shall proceed no earlier than Tuesday April 28, 2020. Court administration shall promptly provide to Bennett J. each party’s conference materials upon receipt.

[6] A word of advice and caution to the parties.

[7] The courts have been inundated with cases dealing with access by children with their parents during the current COVID-19 pandemic. The parties should be guided by the following observations made by W.L. Macpherson in Douglas v. Douglas:[^1]

[8] The COVID-19 pandemic is unprecedented. The situation changes daily, if not hourly. To address the risks posed by the virus, as those risks are known at any particular time, government authorities and public health officials issue directives to address the perceived risks.

[9] There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child’s physical well-being, but also their emotional wellbeing. Total removal of one parent from any child’s life must be exercised cautiously.

[10] This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court. However, the court must take guidance from the Chief’s notice that confirms that all court operations are suspended with the exception of those that are urgent and emergency matters. The Chief’s notice defines such matters in the context of family files to be relative to “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”

[8] In Balbontin v. Luwawa,[^2] an urgent matter involving access, the following observations were made:

[8] In Ribeiro v. Wright[^3] Pazaratz J. contextualized the COVID-19 pandemic for parenting cases where there are court orders or parenting agreements:

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

[9] Pazaratz J. also highlighted what the court will expect of parents:

1. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. (bolding added).

[9] As I said in Balbontin, it is impossible to disagree with any of these observations. While that case dealt with a motion to suspend access, the views it expressed have been echoed by many Rulings made since then by Ontario courts in one iteration or another and are equally applicable to conference events. The court will expect the parties in this matter to come to the conference with realistic solutions to their parenting issues. Unreasonable failure to support a child’s relationship with the other parent is a failure of parenting.

[10] In the circumstances of the COVID-19 emergency, these directions are deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis

Date: April 21, 2020

[^1]: 2020 ONSC 2160.

[^2]: 2020 ONSC 1996.

[^3]: 2020 ONSC 1829, 2020 CarswellOnt 4090 (S.C.J.).

Gostautaite v. Menendez, 2020 ONSC 2454

Case Summary

RULING ON URGENT CASE CONFERENCE REQUEST

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues