Court File and Parties
Court File No.: FS-14-14680 Date: 2020-04-24 Superior Court of Justice - Ontario
Re: Jennifer Lynne Golevski, Applicant And: Dusko Golevski, Respondent
Before: Hebner J.
Appearances: In writing by the respondent (moving party)
Counsel: Alisa Williams, for the applicant (responding party) Michael D. Frank, for the respondent (moving party)
Heard: April 23, 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 of Triage Justice
Endorsement of Triage Justice
1Mr. and Mrs. Golevski have four children, aged 17, 15, 10 and 8. The writer’s divorce order provides that the parties have joint custody of the children and sets out a time-sharing schedule. The two older children are to reside with the parties equally. The two younger children are to reside primarily with Mrs. Golevski, subject to generous access with Mr. Golevski as set out in the divorce order.
2Mr. Frank, on behalf of Mr. Golevski, seeks leave to proceed with an urgent motion. He asserts that Mrs. Golevski has not allowed Mr. Golevski to enjoy his access with the children since the week of March 23, 2020, citing COVID-19 concerns. Mr. Golevski wishes to proceed with a motion for an order that the two younger children follow the access regime set out in the divorce order. Mr. Golevski concedes that the two older children are of such an age that they will determine their own arrangements.
3This 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 specified matters, including 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;
4My task is to rule on whether this matter meets the definition of urgency as provided in the Chief Justice’s notice. I point out that 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.
5In my view, the proposed motion is presumptively urgent as it involves the alleged wrongful retention of children from access contrary to a final order. Accordingly, the motion may proceed on the issue of Mr. Golevski’s access to the two younger children only. I have reviewed only the email of Mr. Frank in making my determination on the issue of urgency. Of course, Mrs. Golevski may have different evidence.
6My determination on the issue of urgency is completely without prejudice to whatever position the parties may take on the motion. My determination is preliminary only and is without prejudice to any ruling the motions judge may make, including a ruling that the matter is, indeed, not urgent.
Timelines and Guidelines
7I set the following timelines and guidelines:
- Mr. Golevski may serve and file his notice of motion and affidavit by April 28, 2020, at 4:00 p.m.;
- Mrs. Golevski may serve and file her responding affidavit by May 4, 2020, at 4:00 p.m.;
- Mr. Golevski may serve and file his reply affidavit by May 6, 2020, at 4:00 p.m.;
- All service and filing shall be by email;
- The affidavits shall be those of the parties only and limited to 10 pages, not including exhibits. Any exhibits shall be relevant to the urgent issue, namely Mr. Golevski’s resumption of access to the two younger children;
- The motion shall be scheduled by trial coordination to be heard by conference call any time after May 6, 2020.
Pamela L. Hebner
Justice Date: April 24, 2020