Court File and Parties
NEWMARKET COURT FILE NO.: FC-18-56775-00 DATE: 20200424 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
David Joseph Natale Applicant – AND – Christina Crupi Respondent
Counsel: James Singer, Counsel for the Applicant Adina Schild, Counsel for the Respondent
HEARD: In Writing
Ruling on Urgent Case Conference 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 applicant (“the father”) had brought an urgent motion for leave to proceed with a case conference dealing with access. He served his material on the respondent (“the mother”) on April 22, 2020 and she responded on April 23, 2020: she disputes that the father’s request meets the urgency requirements of the Chief’s Notice. The child of the parties is almost 3 years old and resides with his mother.
[3] The father seeks to increase the child’s access time with him to include a Wednesday overnight every second week and to relieve his mother from her involvement in facilitating his access. A final Order dealing with the child’s parenting was made by Mullins J. on October 19, 2018. That Order provided for joint custody but on September 12, 2019 Kaufman J. varied that Order on the consent of the parties on a without prejudice basis. A restraining and no-contact Order was made against the father. On November 15, 2019 Bennett J. made an Order appointing the OCL to undertake an investigation. That appointment was accepted.
[4] On February 6, 2020 the parties appeared before Bennett J. who endorsed the record noting that “the SC [i.e. settlement conference] and any motions addressing expanded parenting time to the AF [i.e. applicant father] are premature until the OCL completes its investigation”. A new date of May 14, 2020 was scheduled for the settlement conference in the expectation that the OCL would have completed its report by then. The evidence before this court is that the OCL investigator held a disclosure teleconference with the parties and their lawyers on April 2, 2020. The father rejects that part of what he heard about a custody recommendation being made in favour of the mother but wants an Order now giving him overnight Wednesday time every other week. No OCL report has been delivered as of the date of this Ruling.
[5] The father also says that it is urgent that his elderly mother be relieved from facilitating the access exchanges even though he consented to the Order made by Bennett J. on November 15, 2019 (paragraph 2(a)(i)) that those exchanges be facilitated by either a Ms. Peer or his mother. The father’s affidavit is silent as to why Ms. Peer cannot facilitate exchanges and since the term is disjunctive, his mother does not need to be involved anyway. There is no urgency to this request.
[6] The Chief’s Notice frames what may be considered urgent:
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;
d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
[7] The CER Notice to the Profession dated April 17, 2020 restricts the granting of case conferences to pressing matters. In Thomas v. Wohleber, 2020 ONSC 1965 at para 38 Kurz J. observed:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[8] None of these factors obtains in this matter.
[9] Even if I were to conclude that the father’s request might be urgent (and I don’t) the case law is clear that the use of assessment or investigation reports on motions before a trial is limited to exceptional circumstances. [2] The outcome of any motion, even if there was no pandemic limitation on the court, is speculative at best.
[10] The father’s request for a case conference is dismissed.
[11] The mother seeks costs of $1,875 plus HST. In my view, the father misconceived the current Covid-limited framework for urgent motions and case conference requests. He shall pay the mother costs of $1,500 inclusive of HST within 30 days.
[12] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. The mother may submit a formal Order for signing and entry once the court re-opens.
Justice David A. Jarvis Date: April 24, 2020