Court File and Parties

Court File No.: FS-18-19209 Date: 20200424 Superior Court of Justice - Ontario

Re: Carolyn Rose Brown, Applicant And: Jon-Michael Kirwan, Respondent

Before: Hebner J.

Appearances: In writing by the respondent Counsel: Both parties acting in person Heard: April 24, 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

[1] The applicant and respondent have two children, Mitchell born September 28, 2008 and Connor born October 16, 2011. The respondent father seeks leave to bring a motion for an order that the children reside with the parties on a shared, week about basis. In his material, the respondent alleges that the applicant suffers from mental health issues; that the applicant is incapable of parenting both children at the same time; that the respondent cared for the children during several periods of time when they were scheduled to be with the applicant. The respondent has attached communications from the applicant that seem to support his allegations.

[2] The respondent asserts that he had both boys in his care from March 16, 2020 to April 6, 2020. Both boys were delivered to the applicant on April 6, 2020. Later the same day, Mitchell was returned to the respondent. The applicant’s communication with the respondent at 12:05 a.m. on April 7, 2020, indicates that she is unable to parent both boys together, that Mitchell is disrespectful and that she chooses to care for Connor alone.

[3] Saturday, April 11, 2020 to Monday, April 13, 2020, Mitchell and Connor stayed with the applicant in her home. On April 13, 2020, the respondent attended at the applicant’s home to retrieve the children, but the applicant would only allow Mitchell to leave. On April 15, 2020, the respondent attended at the applicant’s home to collect Connor and was refused. The police were called. The applicant told the police that she would continue to care for Connor indefinitely.

[4] I understand from reading the material that a court order setting out residency arrangements for the children is in place. I understand from reading the messages between the parties that the respondent requested that the court order be followed and the applicant refused. On April 19, 2020, the applicant messaged the respondent “No – I’m not following the court order – husband”. I do not have access to the court file and the respondent did not provide a copy, so I am not aware of its terms. However, it is clear that the respondent wishes to follow the court order and the applicant refuses.

Urgency

[5] 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 specified matters, including those 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.

[6] My 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.

[7] In my view, based on the respondent’s notice of motion and affidavit alone, the proposed motion meets the definition of urgency as it relates to the well-being of children, including the alleged retention of a child in defiance of a court order. According to the respondent’s materials, there has been involvement in this family by the Children’s Aid Society; there have been attendances by police; there are allegations of mental health issues on the part of the applicant mother and allegations of her inability to cope; there are allegations of contempt of a court order. These are all indications that court intervention is necessary.

[8] My 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.

[9] Given my conclusion that the matter meets the definition of urgency, the motion may proceed. In his email, the respondent advises that he has served the applicant by email with his materials on April 23, 2020. I provide the following directions:

1. The applicant shall have until April 29, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
2. The respondent shall have until May 1, 2020, at 4:00 p.m. to serve and file a reply affidavit, by email.
3. The affidavit material need not be sworn, so long as the parties are able to affirm the contents of their affidavits to the motions Judge on the conference call. The affidavits are to be by the parties only and limited to 10 pages, not including exhibits.
4. The motion shall be heard by conference call to be scheduled by trial coordination any time after May 1, 2020.

Pamela L. Hebner Justice Date: April 24, 2020