Court File and Parties

COURT FILE NO.: FS-16-171 DATE: 2020 04 28 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JENNIFER ALLMAN Applicant

– and –

JUSTIN ALLMAN Respondent

BEFORE: McSWEENEY J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented

HEARD: In writing, April 27, 2020

Endorsement

McSweeney J.

[1] Applicant mother, Jennifer Allman (“Mother”) seeks to bring a motion on an urgent basis to suspend Respondent father, Justin Allman’s (“Father”) regular parenting time with their 3 and 4-year-old daughters (“the children”). She wishes to “self-isolate” with the girls temporarily and change the current parenting schedule in which they travel back and forth between their parents.

[2] These parties went to trial in 2019. The final decision of Justice Bielby is reported at [2019] O.J. No. 4346.

[3] Pursuant to the Bielby final order, Mother has sole custody. However, the Father has equal parenting time. The children reside with their parents on a 2-2-3 parenting schedule.

[4] Both parties were self-represented at trial and are representing themselves on this urgent motion request. Both have filed letters with the Court regarding Mother’s proposed urgent motion. I have read Jennifer Allman’s letter of April 24, 2020 and Justin Allman’s letter of April 27, 2020.

[5] Mother requests an urgent hearing as she is concerned that Father is not following COVID protocols. She seeks a temporary order effectively suspending his court-ordered parenting time for two weeks.

[6] Father asserts that he is following all protocols, and that there is no basis for Mother to withhold the children from their regular parenting time with him. He asks that the parties continue the regular parenting schedule ordered by the Court following trial. Should Mother do so, and follows the court order, this matter is not in his view urgent.

Is this matter urgent

[7] This court has ruled consistently during this period of COVID-19 that continuation of the regular parenting schedule, also called the “status quo” schedule, is particularly important during this time of unprecedented changes and challenges for families. Keeping routines for care of children is very important for their well-being as it helps to maintain stability and predictability.

[8] Against the backdrop of the issues for this separated family as detailed by the trial judge in his reasons, a change to the court-ordered 2-2-3 parenting schedule would be a significant change to the regular schedule or “status quo”.

[9] In some cases, it would perhaps be sufficient to advise the parties, particularly if they are represented, that it is the Court’s expectation, as reflected in the recent COVID-19 jurisprudence since the suspension of regular court operations last month, that parents continue to follow regular access schedules.

[10] Further jurisprudence emphasizes the important role of lawyers at this time in assisting separated parents to deal with the unprecedented parenting challenges which require them to balance child safety concerns against their obligation to obey existing court orders regarding parenting.

[11] In the circumstances of these parties, as reflected in the trial decision of Bielby J., Mother and Father have a history of dysfunction in their communication. Bielby J observed at paragraph 50 of his decision that “One does not need a degree in psychology to understand the significant and adverse impact the [access] exchanges must have had and continue to have on the children. On the evidence heard by me, I see no substantial concerns when the children are alone with each parent. Both seem to be able to parent in a manner that is in the best interests of the children. They just cannot behave in such a manner when in the presence of the other or the other's surrogates and third-party exchange supervisors.”

[12] And further at paragraph 72, Bielby J. notes “Notwithstanding this, the children seem to be, for the most part, thriving when in the care of either party. The exchanges continue to be the issue.”

[13] The parties’ parenting schedule requires 2 or 3 exchanges every week. During the COVID 19 period this may be more stressful on both parents than usual. If it is hard on the parents, it will likely make the experience correspondingly harder on their young children.

[14] On the material before me, it would appear that scheduling of parenting time, and exchanges, are even more in issue during the COVID-19 period. I therefore conclude that this matter requires judicial involvement as a matter of urgency in the best interests of the children.

[15] This is a category of urgency recognized in the Notice to the Profession released by the Chief Justice of the Superior Court of Justice dated March 15, 2020 (and as further amended effective April 6, 2020).

[16] However, unlike many of the recent COVID-19 parenting schedule cases, Mother does not seek enforcement of an existing order. She wants to change the parenting schedule at least to permit the girls to stay with her for a period of time, and not have parenting time with their father, and not with their father, due to COVID-compliance concerns.

[17] As such, Mother is effectively seeking an interim variation of a final order. She has not filed a motion to change. I do not grant leave to bring a motion as this issue has not yet been conferenced.

[18] Accordingly, having found this matter to be urgent, the next step is a case conference on the issue of parenting time schedule and exchanges.

[19] Per my authority to so pursuant to the more recent Notices to the Profession, I direct the parties to attend a case conference before me restricted to the issue of parenting time schedule.

[20] To be clear, the issue of equal parenting time in the final order is not determined to be urgent. The conference will focus exclusively on how to achieve compliance with equal parenting time in the current environment of COVID-19 restrictions.

[21] I will conduct this case conference by teleconference hearing commencing at 10:30 am E.D.T. on Friday May 1, 2020. The hearing will take place by teleconference and last no more than one hour. The parties will be provided beforehand, by email, with call-in numbers for the teleconference.

[22] The parties are advised that a Case Conference is non-adjudicative, and its purpose is to reach a workable agreement on the issue in dispute. As the case conference judge, I will not “make a decision” on the issue in dispute. The only types of orders which I make as case conference judge will be orders both parties agree with (that is, orders “on consent”) and procedural orders.

[23] Parties are directed to ensure that they call in to the teleconference hearing from a location where they can hear and be heard clearly, are alone, and where they cannot be overheard by others including children. They are not to be driving while speaking, even if “handsfree” technology is used.

[24] Because it is a form of settlement process, a case conference is not open to the public.

[25] Father may explain to the court at the beginning of the Case Conference why this matter is not urgent, should he wish to do so.

[26] I am abridging the time for service and filing of material for the Case Conference as set out below. The timeline below shall apply:

[27] The Applicant mother is to serve and file a Case Conference brief not exceeding 4 pages. It must be served and filed by email to SCJtrialofficebrampton@ontario.ca by 4 pm EST tomorrow, April 29, 2020. At that time, the Applicant is also directed to serve and file a copy of the final order of Bielby J, which is not counted in her 4-page limit.

[28] In accordance with the practice direction for Central West Region, Case Conference briefs must not exceed 4 pages.

[29] The Respondent father’s case conference brief, also not to exceed 4 pages, must be served on the Applicant mother by email and filed, also by email to SCJtrialofficebrampton@ontario.ca by 3p.m.. E.S.T. on April 30, 2020. The Respondent is directed to file with his brief any additional court orders or endorsements made after the decision of Justice Bielby was released, including those referenced in his letter to the Court, which relate to the children. Those orders will not form part of his page limit.

[30] All page limits in this endorsement refer to typed pages in 12-point font or larger, with double spacing and margins no narrower than 1” or 2.5cm.

[31] No other materials are to be filed by either party. The parties have leave to serve each other by email. Email service of Case Conference materials on the other party shall be deemed effective on the date the email is sent or, if sent after 4:15 p.m., on the next weekday. No acknowledgement of receipt for email service is required to be filed for this Case Conference.

[32] The parties are directed to restrict their written and oral submissions for the Case Conference to the issue of the practical aspects of arranging their girls’ equal parenting time with both parents during the COVID 19 pandemic. The Court will seek input from each parent on that question. The Court will not entertain submissions about the equal parenting time term of the Final Order.

[33] Upon the courthouse reopening to the public, each party shall file with the SCJ Brampton Trial Office a copy of all the material he or she delivered electronically for this matter, with proof of service, and pay the appropriate fees.

[34] This endorsement is effective when made. No formal order is required.

Information to Self-Represented Parties:

[35] If you are presently self-represented and:

• wish to retain a lawyer, a directory of local Halton lawyers is available at https://haltoncountylaw.ca/membership-directory/ and local Peel lawyers at https://www.plalawyers.ca/member-directory.html;
• wish to retain a lawyer for only a limited scope of service, including just for this Case Conference, you may seek the name of lawyers who accept such limited scope retainers at the Law Foundation of Ontario’s Family Law Limited Scope retainer Project

[36] If you choose not to retain a lawyer, information regarding court procedures is available as follows:

For Family Law matters:

• You may consult the Law Society of Ontario’s emergency family law referral telephone line. This service will connect self-represented persons with family lawyers, working on a pro bono (free) basis. Those lawyers will provide up to 30 minutes of legal advice specific to determining whether or not a person’s family court matter is urgent and make referrals to other available legal services.

[37] Self-represented persons may contact the Law Society emergency family law referral telephone line by phone at the following numbers: Toll-free: 1-800-268-7568 General: 416-947-3310

• A link to the Superior Court of Justice’s website offering information about the family court process can be found at: ontariocourts.ca/scj/news/publications/guide-family
• A link to the Family Law Rules, and in particular Form 14A – Affidavit, can be found at ontariocourts.ca/scj/family/legislation-forms.

[38] Legal Aid Ontario: you may call 1-866-874-9786 or 416-204-7104 for assistance, although it is likely that only limited services are available for litigants who do not qualify financially for Legal Aid Services.

“original signed on file”

McSweeney J.

Released: April 28, 2020