Court File and Parties

Newmarket Court File No.: FC-17-53534-01 Date: 2020-04-23 Ontario Superior Court of Justice

Between: Victor Thomas Yeates, Applicant And: Danielle Yeates, Respondent

Counsel: Danny Gurizzan, Counsel for the Applicant Frank Mendicino, Counsel for the Respondent

Heard: In Writing

Ruling on Urgent Motion 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 father has brought an urgent motion requesting leave for a motion dealing with a broad range of relief arising from an alleged assault by the mother involving one of the parties’ children. He asks for sole custody, a restraining and no-contact Order. The mother has been charged and is subject to an Undertaking not to have any contact with several individuals, including the children, unless arranged through lawyers or the local child protection agency.

[3] The parties share custody of the children pursuant to an Order of Fryer J. dated February 28, 2017 (“the Order”). Pursuant to the Order the children reside primarily with their mother: she has day-to-day decision-making authority. The father is also obligated to pay child support. As a result of the criminal charge, the children are now residing with their father. The protection agency is becoming, if not already, involved. Through her lawyer, the mother has suggested that due to the conditions of her release from custody much of the urgent relief requested by the father such as a restraining and no-contact Order is unnecessary. In a letter dated April 20, 2020 to the father’s lawyer attached to the mother’s affidavit, Mr. Mendicino pointed out that the urgency of the father’s request is moot in light of his client’s undertaking and that, consistent with the Chief’s Notice, not only is no urgency demonstrated any longer but also that (impliedly referencing Pazaratz J. in Ribeiro v. Wright, 2020 ONSC 1829) it is incumbent on the parties to have a dialogue that involves a realistic response to the outstanding issues. I agree with that approach. There is no urgency to the father’s motion any longer. The children are residing with him: they are safe. There is a no-contact Order in place.

[4] In my view, the parties should discuss what form of contact the children should have with their mother over the near term and be guided by whatever suggestions may be made by the local child protection agency in that regard. Consideration should be given in those discussions to dealing (on a temporary, without prejudice basis) with that part of the Order conferring upon the residential parent (formerly the mother) decision-making responsibility for the children and suspending the support Order. If the parties cannot resolve those issues, and if they meet the urgency criteria as set out in the Chief’s Notice and as framed by Kurz J. in Thomas v. Wohleber, 2020 ONSC 1965 at para. 8 then either may bring a motion for leave to proceed with either an urgent motion or case conference.

[5] The father’s motion is dismissed. Costs are reserved to the final disposition of these proceedings. [3]

[6] In the circumstances of the COVID-19 emergency, the foregoing is 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 23, 2020

Footnotes

[1] 2020 ONSC 1829 , 2020 CarswellOnt 4090 (S.C.J.). [2] 2020 ONSC 1965 at para. 8 . [3] The father started a Motion to Change on March 10, 2020. Those pleadings were not before me.