Court File and Parties

COURT FILE NO.: 25/20 DATE: 2020-04-28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alan Haaksma, Applicant AND: Elise Charlotte Anne Taylor, Respondent

BEFORE: Kurz J.

COUNSEL: Stephen Eaton for the Applicant Ursula Cebulak for the Respondent

HEARD: In chambers, in writing

Endorsement - Request for Urgent Motion

Covid-19 Protocols

[1] The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. At this time of pandemic, only the most urgent matters, consent matters, and where the parties agree, case conferences and motions in writing, can be heard. These requirements are set out in:

• this court’s March 15, 2020 Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, issued to explain and direct the suspension, (“the Notice”), and
• The April 2, 2020 addendum to that Notice as it applies to the Central West Region Central West Region (“the Addendum).

Mr. Eaton’s First Letter of April 27, 2020

[2] On the morning of April 27, 2020, the court received an emailed letter from Mr. Eaton, counsel for Alan Haaksma (“the father”). Mr. Eaton seeks leave to bring an urgent motion in a proceeding that his client has yet to commence. The father shall commence that proceeding and pay all requisite fees as soon as the courts reopen for filing of pleadings.

[3] Mr. Eaton advises that his client is the father of three children, aged 12, 10 and 5. The father claims to have been the primary caregiver of those children. Elise Charlotte Anne Taylor (“the mother) is the mother of those children.

[4] The father asserts that he has been denied contact with his children since a domestic incident of April 14, 2020. On that date, the mother called the police, alleging that the father had assaulted her. The mother instead was arrested and charged with assault (CCC s. 266). To minimize their trauma, the children were temporarily placed with the maternal grandparents. The mother was forbidden to return to the matrimonial home. She moved instead in with her parents, thus residing with the children.

[5] Since that time, the father asserts, the grandparents and/or the mother have refused to allow him parenting time with the children. He further claims that the mother has been derogating him to the children. They allegedly told the father that he is responsible for their mother’s arrest. The father adds that the mother has a history of mental illness and that she experienced a manic episode when she assaulted him.

Ms. Cebulak’s Responding Letter

[6] Two hours following the court’s receipt of Mr. Eaton’s letter, it received an 18-page letter from Ms. Cebulak, counsel for the mother. She asserted that Mr. Eaton’s letter is misleading in many ways. Most importantly, she asserts that the mother is willing to agree to a week-about parenting arrangement for the children. She denies that the father is the children’s primary caregiver. She states that the father’s claim that the children are withheld is a “lie”. While not explicit, it appears from Ms. Cebulak’s letter (I did not read the settlement correspondence between counsel since it is presumptively privileged unless that privilege is waived) that the mother insisted that the father agree to her terms before the children can be returned to him for parenting time.

Mr. Eaton’s Reply Letter

[7] A further 23 minutes letter, I received a letter from Mr. Eaton, objecting to the letter of Ms. Cebulak. He objected in particular to the inclusion of the settlement correspondence in Ms. Cebulak’s letter, claiming the settlement privilege. He essentially admitted that the mother was willing to allow equal shared parenting time but that the she did so only in the context of a settlement that the father was unwilling to accept.

The Court’s Definition of “Urgency”

[8] Under the Notice, urgency in non-child protection family law matters is not defined, but it is described as including:

1. 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);
2. 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;
3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.

[9] The Notice makes clear that only the most urgent matters will qualify as urgent at this time. To do otherwise would overwhelm the presently limited administrative capabilities of this court.

[10] In Thomas v. Wohleber, 2020 ONSC 1965, I considered various factors, including the dictionary definition, the Notice, and case law. I found at para. 38 that the following factors must be present in order to meet the Notice’s requirement of urgency:

a. The concern must be immediate; that is one that cannot await resolution at a later date; b. 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; c. 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; d. 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.

The Court’s Preliminary Determination of Urgency is not a Motion

[11] The court’s preliminary determination of urgency for the purpose of the Notice is an administrative rather than substantive one. (Wang v. 2426483 Ontario Limited, 2020 ONSC 2040). That determination is not a motion in itself (Grant v. Grant, 2020 ONSC 2455 at para 3). The Notice and the Addendum do not overturn the requirements of any statute or the Family Law Rules.

[12] Thus, any preliminary determination of facts for the purposes of the determination of urgency under the Notice and the Addendum do not amount to a finding of facts on the merits of the anticipated motion. Any such finding is without prejudice to any position that either party may take or any finding that the presiding judge may make at the return of the requested motion.

My Concerns with the Conduct of Both Parties and Counsel

[13] Here I have great concerns with the conduct of both parties and counsel. Ms. Cebulak’s letter clearly violates the terms of the Addendum which calls for only the party seeking leave to bring an urgent motion to correspond with the court. That letter is to be a maximum of two pages. There is no right of response (let alone reply) unless so invited by the court. As Myers J. wrote in Wang:

[17] Submissions on the merits and emails arguing back and forth among counsel about urgency should not be sent to the court unless invited. …

[18] It is not the intention of the Notice to the Profession that hearings will become bogged down by arguments over the applicability of its terms. It is not a new front for parties to battle.

[14] Further, Ms. Cebulak should know better than to include in correspondence with the court privileged settlement correspondence.

[15] Ordinarily, that would be enough to ignore Ms. Cebulak’s letter. But having read it, I cannot ignore the fact that it points to what it says are misleading aspects of Mr. Eaton’s original letter to the court. In particular, and at the heart of his letter, Mr. Eaton writes:

Since her arrest and despite numerous requests, Ms. Taylor has refused all of Mr. Haaksma’s requests for parenting time.

[Emphasis in the original]

[16] In light of the concession in Mr. Eaton’s reply letter, the above statement in Mr. Eaton’s original letter is, to put it mildly, inaccurate and capable of misleading the court. There can be a world of difference between an outright refusal to allow parenting time and an attempt to do so upon one’s own terms. That is particularly the case when the other parent is willing to agree to something approaching equal shared parenting.

[17] I am not in a position to determine the appropriateness of the mother’s position regarding parenting arrangements (or that of the father either). Either or both positions may be entirely contrary to the children’s best interests.

[18] But Mr. Eaton should, at the very least, have been more circumspect before asserting that Ms. Taylor has simply refused the father’s requests for parenting time. He could have stated that the parties have been negotiating but to no effect, or even that the mother’s willingness to allow access was strictly premised on agreement on her terms. He need not have set them out. Unfortunately, the impression left by the original letter was that the mother is simply refusing to allow the father to see the children.

Duty of Candour in Ex Parte Proceedings

[19] While, as set out above, a request for leave to bring an urgent motion before the court is not a formal motion, it is a request for a form of relief from the court in what is intended to be a summary process. Even if the proposed moving party’s letter to the court is served on the opposing side, it is one that does not invite a response unless requested.

[20] Thus, the process called for under the Notice and the Addendum presents counsel with an exceptional level of access to a judge. That direct access is available merely by writing to the Court. In non-COVID-19 times, such unilateral correspondence is not appropriate or acceptable (see Rule 1.09 of the Rules of Civil Procedure. That rule applies in family law proceedings, see: Ward v. Ward (2009), 2009 ONSC 92120, 100 OR (3d) 155 (S.C.J.)).

[21] The leading case dealing with counsel’s duty of candour in ex parte matters is the Supreme Court of Canada’s decision in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3. There, Arbour J., writing for the court, defines the term, ex parte, as follows:

25. Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party: Manitoba (Attorney General) v. Canada (National Energy Board), 1974 FC 2519, [1974] 2 F.C. 502 (Fed. T.D.). The circumstances in which a court will accept submissions ex parte are exceptional and limited to those situations in which the delay associated with notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice were given. For instance, temporary injunctions are often issued ex parte in order to preserve the status quo for a short period of time before both parties can be heard (to prevent the demolition of a building, for example).

[22] It is not necessary that the ex parte proceeding actually take place in the absence of the other party. As Arbour J. stated:

26 Ex parte proceedings need not be held in camera. Indeed, ex parte submissions are often made in open court (in interlocutory matters, for example). In fact, an order will still be considered ex parte where the other party happens to be present at the hearing but does not make submissions (for instance, because of insufficient notice): Royal Bank v. W. Got & Associates Electric Ltd., 1994 ABQB 8922, [1994] 5 W.W.R. 337, at para. 10, affirmed 1997 ABCA 136, [1997] 6 W.W.R. 715 (Alta. C.A.), affirmed (without reference to this point) 1999 SCC 714, [1999] 3 S.C.R. 408 (S.C.C.). On the other hand, other ex parte proceedings are, by necessity, not held in public. An application for a wiretap authorization, for instance, must be made both ex parte and in camera.

[23] Following the court’s definition in Ruby, it appears that the request to determine urgency, while administrative, represents an ex parte communication. That can be the case even when, as here, the other side has actual notice of the ex parte communication. The Notice and Addendum do not call for a response unless it is requested by the court.

[24] In Ruby, the court set out a very high bar for the duty of candour required in ex parte proceedings. Arbour J. wrote:

27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See, for example, the Alberta Code of Professional Conduct, c. 10, r. 8

[Emphasis added]

[25] In Ontario, the relevant code of conduct is the Law Society of Ontario’s Rules of Professional Conduct (“RPC”). The RPC’s duty of candour is not limited to appearances before a court. The duty is spelled out in chapter 5.1-1, which reads as follows:

Advocacy

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

[26] Commentaries 2 and 6 to this rule state:

[2] This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators and others who resolve disputes, regardless of their function or the informality of their procedures.

[6] When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.

[Emphasis added]

[27] I also recognize that an advocate has other duties and functions, a set out in Commentary 3 to the same rule:

[3] The lawyer's function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client's case.

[28] Thus, even though the process of determining urgency for the purpose of leave to bring an urgent motion is not a motion, there is still a duty of candour that attaches to it. That much is made clear in Commentary 2. While the process of determining urgency for the purpose of leave to bring a motion does not lead to a substantive order, it does entitle a party to litigate in the face of the court’s suspension. While open access to the court is and should generally be a basic right of all citizens, it is necessary circumscribed in the limited circumstances of this pandemic and the court’s suspension. Courts, litigants and the public are entitled to assume that the communications made with the court in these difficult times, seeking what is, for this limited time, a form of exceptional relief, will meet the duty of candour described by the RPC.

[29] At this time, without having heard any submissions, I wish to be careful about setting an absolute standard of candour in “urgent” letters to the court or in determining whether the RPC standard is different than that in Ruby. But even if the standard were simply that set out in the RPC and not the arguably higher standard set out in Ruby (“… complete and thorough and no relevant information adverse to the interest of that party may be withheld …”) there is such a duty. It is, in the words of Commentary 6: “… to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.”

[30] Holding counsel to this standard, even in “urgent” letters to the court is particularly important in these days of suspended courts. Court resources are limited and must be allocated to those most in need. That means that the court must be able to efficiently triage cases to ensure that its resources are allocated to the cases most in need of its assistance and in which its help can be most efficiently provided.

[31] Lawyers have an important role to play in that triage system. As Myers J. pointed out in Wang, there is no utility in making the request for an urgent motion into yet another front in the parties’ battle. By being candid with the court in their correspondence seeking an “urgent” motion, counsel help to avoid opening that second battlefield of argument, of whether the leave to argue the motion would have been granted had counsel been candid with the court.

[32] In sum, just as they have a duty under the Family Law Rules to assist the court to promote the primary objective of those rules, to enable the court to deal with cases justly, (r.2(2) - (4)), lawyers have a duty to assist the court in its triage role. Candour with the court in “urgent” letters is an essential element of that duty.

[33] Without hearing more from Mr. Eaton, I cannot and do not make a finding that he deliberately misled the court in his original letter. But he should have been more careful in describing the circumstances that led to his letter. I have already written about my concerns with Ms. Cebulak’s response.

Requirement of Cooperation of Counsel

[34] Another area of professional practice that applies in this case is the direction set out in the Notice, where the court calls for “…the cooperation of counsel and the parties to engage in every effort to resolve matters.” As McSweeney J. stated in Ramdass v. Ramdass, 2020 ONSC 1983, commencing at para. 38:

As noted in one recent decision, the role of lawyers during times of restricted access to court adjudication does not relieve them of their obligation to attempt to negotiate resolution of family matters in their clients' and their clients' children's best interests.

39 I would go further, and observe that in times of restricted court access, the role of parties' counsel is more important than ever.

[35] Without knowing more, I cannot say whether that has happened (as I have not looked at correspondence between counsel). But I point out that any court dealing with this matter will expect compliance with that directive.

Next Step will be a Case Conference

[36] In light of all of the above, I am not ready to find that there is present urgency in regard to the father’s proposed motion. Rather I will hold a case conference on Monday May 4, 2020 at 10:00 a.m. At that time, I will see whether I can assist the parties in resolving their issues. If I am unsuccessful, and as an element of case management, I will determine the urgency of this matter and whether it should proceed to a motion.

[37] In light of the contents of this endorsement, I expect that the parents, through their counsel, will be able to arrange for the father to have meaningful parenting time with the children, whether or not there is a court order, before the case conference.

[38] The father will serve and file his case conference brief of no more than five pages by Wednesday at 3:00 p.m. The mother will do the same by Friday at 3:00 p.m. The court will advise counsel of the arrangements for the case conference.

[39] In the circumstances of the COVID-19 emergency, these Reasons for Decision are deemed to be an Order of the Court that is operative and enforceable from the time of their release without any need for a signed or entered, formal, typed Order.

“ Marvin Kurz J. ” Electronic signature of Justice Marvin Kurz, Original will be placed in court file Dated: April 28, 2020