Court File and Parties
COURT FILE NO.: FS-14-14792 DATE: 2020-04-23 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Daniel W. Snively, Applicant AND: Shauna L. Gaudette, Respondent
BEFORE: Hebner J.
APPEARANCES: In writing by the respondent (moving party)
COUNSEL: J. Joel Wright, for the respondent
HEARD: April 21, 2020
THIS MOTION HAS BEEN BROUGHT PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
Endorsement
[1] The applicant father and respondent mother have two children, Daniel Snively, born November 15, 2007, and Carter Snively, born April 27, 2009. The children are aged 10 and 12. Pursuant to my order dated June 6, 2019, the parties have joint custody of the children with their primary residence to be with the respondent mother.
[2] This past March break, the children spent the week with their father. The applicant father has refused to return the children to the respondent mother citing as his reasons the employment of both the respondent mother and her spouse. The respondent mother is employed in administration at the Southwest Detention Centre. Her spouse is a corrections officer at the same facility. The respondent mother has contacted Windsor Regional Police who declined to assist her without direction from the court.
[3] The respondent mother seeks leave to bring a contempt motion with the specific relief sought being a police enforcement clause.
Urgency
[4] 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 those motions 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.
[5] A determination as to whether a matter meets the definition of urgency 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.
[6] In my view, this matter meets the definition of urgency as it involves the alleged wrongful retention of children. Accordingly, the motion may proceed.
[7] My determination on urgency is without prejudice to any position the parties may take before the motions judge. In addition, my determination on urgency is a preliminary determination only, and is subject to any ruling on the issue of urgency that may be made by the motions judge, who will have had the benefit of a review of the motion materials of both parties along with submissions of counsel.
[8] I make the following orders, all of which are subject to variation by the motions judge:
- The moving party respondent shall serve and file her motion material by April 28, 2020, at 4:00 p.m.
- The applicant shall serve and file his responding material by May 4, 2020, at 4:00 p.m.
- The respondent shall serve and file her reply material by May 6, 2020, at 4:00 p.m.
- The motion shall be scheduled for hearing any time after May 6, 2020, by conference call.
- All service and filing shall be by email.
- Subject to direction from the motions judge, the affidavits are to be limited to the parties and the respondent’s spouse, and are to be no more than 10 pages in length not including exhibits. Only relevant exhibits are to be attached. The affidavits need not be sworn so long as the parties are on the call and affirm their affidavits to the motions judge.
Pamela L. Hebner Justice
Date: April 23, 2020