Court File and Parties
COURT FILE NO.: FS-20-20747 DATE: 20200423 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kim William Paolatto, Applicant AND: Denise Delores Paolatto, Respondent
BEFORE: Hebner J.
APPEARANCES: In writing by the applicant
COUNSEL: Maria Fernandes, for the applicant Cheryl A. Hodgkin, for the respondent
HEARD: April 22, 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] Ms. Fernandes requests leave to proceed with an urgent motion on behalf of her client, Mr. Kim Paolatto. Ms. Fernandes provided a letter by email in support of her request, pursuant to the Notice to the Profession of Thomas R.S.J. dated April 2, 2020.
[2] According to Ms. Fernandes’s letter, Mr. Paolatto is a 65-year-old retiree with cardiac issues. Mrs. Paolatto is his 51-year-old wife. Mrs. Paolatto is a personal service worker employed at one or more long-term care facilities. The parties separated within the matrimonial home on January 27, 2020. Mr. Paolatto is concerned for his health and particularly the possibility of a COVID-19 infection. He seeks to bring a motion for exclusive possession of the matrimonial home.
Urgency
[3] 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 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.
[4] This matter was referred to me to determine whether the intended motion meets the definition of urgency. Such a determination 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.
[5] In order to determine whether the intended motion meets the definition of urgency, I have reviewed only the letter of Ms. Fernandes. In that letter, Mr. Paolatto asserts that the situation in the home has become untenable; that there have been allegations of violence; and that Mrs. Paolatto purposely coughs on Mr. Paolatto. Mr. Paolatto asserts that he has no other place to go, that his source of income is a pension, that the matrimonial home is owned by him and that Mrs. Paolatto has other residence options available to her. Of course, the letter sets out only Mr. Paolatto’s side of the story. Mrs. Paolatto’s evidence may be different.
[6] In any case, based only on the information received from Ms. Fernandes, it is my view that this matter fits within the definition of urgency set out in the Chief Justice’s notice as it is a request for urgent relief relating to the safety of a party. 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.
Disposition
[8] I make the following orders:
- Mr. Paolatto may issue his application and proceed with his motion. The notice of motion and affidavit shall be served and filed by email by April 29, 2020, at 4:00 p.m.
- The respondent shall have until May 5, 2020, at 4:00 p.m. to serve and filed her responding affidavit, also by email.
- Mr. Paolatto shall have until May 7, 2020, at 4:00 p.m. to serve and file his reply affidavit.
- The affidavits shall be those of the parties only and shall be limited to 10 pages, not including exhibits. Any exhibits shall be relevant to the one urgent issue, that being Mr. Paolatto’s request for exclusive possession of the matrimonial home. The affidavits need not be signed, so long as the parties are on the conference call and affirm the contents to be true before the motions judge.
- The motion shall be scheduled to be heard by trial coordination any time after May 7, 2020, by conference call.
Pamela L. Hebner Justice