Court File and Parties

COURT FILE NO.: 219/20 DATE: 2020-04-23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sabrina Batchelor, Applicant AND: James Batchelor, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. R. Wasserman, Counsel, for the Applicant Ms. L. Mazza, Counsel, for the Respondent

HEARD: In Chambers – Triage Endorsement

Endorsement

[1] On April 17, 2020 I issued a Triage endorsement.

[2] At the time I only had materials from the father who had filed an urgent motion seeking equal time-sharing in relation to the parties’ three-year-old daughter. a. Those materials set out that he had not seen the child since early February 2020 when the parties separated. The father was charged with assault and threatening death in relation to the mother. b. The father’s materials said that since separation the mother has not allowed him to have any contact with the child. c. His materials said the respective lawyers had been communicating but without success. d. He characterized the issue of access to his daughter as “urgent”.

[3] In my endorsement I stated at paragraph 6: “I have not yet received any responding materials from the Applicant’s counsel. But given the subject matter, I felt it was appropriate to issue an endorsement in a timely manner.”

[4] I concluded that the father’s request for an immediate implementation of equal time-sharing (with police enforcement) was not urgent. But I found that the father’s request to establish some access is potentially urgent.

[5] I directed that the father’s motion to re-establish some access could proceed by hearing (by way of teleconference). But given the sensitive issues herein, I also directed that the parties should participate in an emergency Case Conference prior to the hearing of the motion.

[6] I set out timelines for the exchange of materials in relation to both the Case Conference and the motion. I understand the court has scheduled a Case Conference for next week.

[7] The mother’s counsel has now filed a cross-motion, disputing most of the father’s allegations, and requesting a broad range of relief including custody, sale of a house, reimbursement for $1,905.00 taken from the mother’s bank account, and removal of the mother’s name from the father’s car loan. None of the mother’s claims qualify as “urgent.”

[8] But the mother’s materials include a vital piece of information which the father’s materials failed to mention: a. There has already been an “urgent” motion in this matter – brought by the mother, and dealt with prior to the COVID-19 suspension of court operations. b. There has already been a temporary court order in relation to this child, which wasn’t mentioned in the father’s materials. c. On February 28, 2020 Justice Brown granted a temporary-temporary without prejudice order (pursuant to minutes of settlement) requiring that the father not attend at the child’s daycare and/or educational facilities.

[9] In pre-COVID-19 times, I would have noticed that previous endorsement and order even if it hadn’t been mentioned in the materials, because I would have had the court file (and specifically the endorsement volume) physically in front of me.

[10] But during this suspension of court operations, judges don’t have physical access to court files. a. We are completely reliant on the information set out in materials filed electronically. b. And that means we are reliant upon counsel and parties to disclose all relevant background information – including the existence of any previous court orders dealing with the same subject matter being presented to the Triage judge on an “urgent” basis.

[11] Speaking plainly, if I had known that there had already been an “urgent” motion, and that the parties had already consented to a temporary-temporary without prejudice order restricting the father’s contact with the child, I would not have concluded that the father’s current motion was now “urgent” within the context of the COVID-19 protocols.

[12] In the circumstances, I am setting aside my endorsement of April 17, 2020. a. None of the father’s claims in his motion are urgent. b. As stated, none of the mother’s claims in her cross-motion are urgent either.

[13] Court staff are to cancel the emergency Case Conference and subsequent hearing by teleconference which were to be arranged pursuant to that endorsement.

[14] These matters are still important. I would urge counsel and the parties to keep negotiating. In particular, I would urge them to address parenting issues in a child-focussed, safe and therapeutic manner.

[15] As a court system, we are absolutely trying our best to help families during extremely difficult times, with very limited resources.

[16] But we can’t allow people to jump the queue by presenting incomplete or misleading information to a Triage judge, to obtain an accelerated “urgent” hearing.

[17] The parties may schedule a regular Case Conference when ready.

[18] Costs are reserved and may be addressed after the resumption of normal court operations.

Pazaratz J. Date: April 23, 2020