COURT FILE NO.: Court File Not Assigned DATE: 2020 04 29 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MALINOWSKI, Proposed Applicant AND MALINOWSKA, Proposed Respondent
BEFORE: Justice L. McSweeney
COUNSEL: Vivian Li, for the proposed Applicant Mr. Malinowska Annette Nyland, for the proposed Respondent, Ms. Malinowska
HEARD: In Writing
Endorsement
Overview
1As a result of the serious health risks posed by COVID-19, the regular operations of the Superior Court of Justice have been suspended until further notice.
2Pursuant to the Superior Court of Justice Notices to the Profession, dated March 15, 2020 and April 3, 2020, only matters determined to fall into specific categories of urgency or emergency are being heard.
3I was assigned by the Regional Senior Justice in Brampton to determine whether this matter raises such an urgency or emergency.
4Through counsel, Mr. Malinowski (“father”) has asked the court to hear a motion. There is no application before the court. His counsel asks that the motion be heard before an application is commenced, on counsel’s undertaking to serve and file pleadings forthwith. Counsel relies on allegations of urgency and on Rule 37.17 of the Rules of Civil Procedure.
Parties’ Positions:
5Through counsel, Mr. Malinowski (first name not given) has filed a two-page letter dated April 23, 2020 and subsequent letter dated April 27, 2020.
6Counsel on behalf of the mother, proposed respondent Ms. Malinowska (first name not given), has replied. I have also reviewed her letters of April 20 and 27, 2020.
7The issue which father asks to be heard on urgently is whether he must an urgent basis is whether proposed issue for urgent determination is whether he should self-isolate for 14 days before resumption of scheduled in-person parenting time. He maintains such self-isolation is not necessary in his circumstances.
8Mother’s counsel advises that the mother is “tentatively prepared to resume the access schedule” and drop off the children with father on April 29, 2020, after the 14-day period in issue.
Analysis:
9As a practical matter, it would appear that this matter is not urgent if mother is returning the children to the care of their father, by April 29, 2020, which is today.
10A review of the filed correspondence suggests that the parties have different views as to whether a mediation process in 2018 led to an enforceable final order or a more informal or interim agreement.
11They also differ as to whether all their separation issues have been resolved. The father states that all matters were settled in 2018. The mother disagrees that there is a final settlement, and she is still asking for property matters to be resolved.
12Even had I determined that this matter is not urgent as the children are being returned to their father tomorrow, I would not have had sufficient information before me in the absence of pleadings to understand the legal position differences between the parties and thus the potential urgency of their issues.
13I view it as positive that the parties took steps between them in 2018 to mediate their post-separation differences and find a workable parenting schedule, in the best interests of their children.
14At this time, they are assisted by counsel, who are clearly endeavouring to assist with resolution of their client’s outstanding concerns as a matter of priority during these unprecedented times of COVID-19 protocols.
15Such counsel involvement to assist the parent parties is commended. Indeed, the March 15 Notice to the Profession states expressly that, “[d]uring this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters” (emphasis added).
16In this case, the parties are encouraged, with the assistance of their counsel, and in the best interests of their children, to make further efforts to resolve issues between them. The recent jurisprudence of this Court regarding access schedules and necessary disclosure between parents during the COVID-19 pandemic, may be of assistance. As counsel are aware, several decisions are published each day.
17Should matters not resolve following further efforts, however, the parties are advised that prior to commencing a further request for urgent relief, the proposed moving party is directed to serve his or her draft application on the proposed responding party.
18For the foregoing reasons, Mr. Malinowski’s request for an urgent hearing is denied.
“Original signed by” McSweeney J.
RELEASE DATE: April 29, 2020