Court File and Parties
Court File No.: FS-20-20844 Date: 2020-04-23 Superior Court of Justice - Ontario
Re: Ian McKee, Applicant And: Rita Hebert, Respondent
Before: Hebner J.
Appearances: In writing by the applicant Counsel: J. Joel Wright, for the applicant
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 a child, Forest Jeffrey Roy McKee, born January 11, 2014. Forest is currently six years of age. According to the applicant, he and the respondent terminated their relationship approximately five years ago. The applicant asserts that Forest has been residing with the parties equally since that time. Forest was with the applicant until March 16, 2020, when a residence exchange took place and Forest went to the home of the respondent. Forest was to return to the applicant’s home March 22, 2020. The respondent has refused to return Forest citing her concerns with the COVID-19 pandemic. The applicant seeks to bring a motion for an order that the residence schedule return to an equal time schedule.
Urgency
[2] 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.
[3] 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.
[4] In my view, this matter meets the definition of urgency set out in the Chief Justice’s notice. It involves both the well-being of a child and an alleged wrongful retention of a child. Accordingly, the motion may proceed. The motion shall be limited to the issue of the child’s residence.
[5] 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.
[6] I make the following orders, all subject to further direction of the motions judge:
- The applicant may issue his application. It shall be served along with the notice of motion and affidavit by email no later than April 29, 2020, at 4:00 p.m.
- The respondent shall have until May 5, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
- The applicant shall have until May 7, 2020, at 4:00 p.m. to serve and file his reply affidavit.
- The affidavits shall be limited to the parties only and shall not be longer than 10 pages, excluding exhibits. The parties may attach only those exhibits relevant to the issue of the child’s residence. The affidavits need not be sworn, so long as the parties are on the line during the motion and affirm their affidavits to the motions judge.
- The motion shall be scheduled by trial coordination any time after May 7, 2020.
Pamela L. Hebner Justice Date: April 23, 2020