Ontario Superior Court of Justice (Windsor)

Endorsement / Page d’inscription

Applicant(s) / Requérant(e)(s): Andrew Joseph Courchesne Counsel / Avocat(e):

Respondent(s) / Intimé(e)(s): Sade Goodwin Counsel / Avocat(e): Aileen Manalang

THIS MOTION HAS BEEN BROUGHT PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.

DATE: April 9, 2020

APPEARANCES: In writing by the respondent (moving party)

ENDORSEMENT OF TRIAGE JUSTICE

[1] The respondent brings an urgent motion requesting, among other relief, that the parties’ child reside with the respondent in alternate weeks.

[2] The applicant father and respondent mother are the parents of the child, Ira Delynn Margeaux Courchesne, born March 20, 2012. Ira resides with the applicant father. It appears as though this matter is before the court by way of a motion to change the final order of Bondy J. dated June 23, 2017. That order provides that the applicant father have custody of Ira but does not provide for access by the respondent mother.

[3] According to the respondent mother’s affidavit, she enjoyed access with the child on a graduated basis until November 2019 when the applicant terminated her access.

[4] The matter was last in court on February 21, 2020 before Raikes J. by way of a motion. Raikes J. ordered that the respondent mother have access alternating weekends from Friday at 3:00 p.m. to Sunday at 7:00 p.m. and every Tuesday from 3:00 p.m. to 7:00 p.m.

[5] The respondent began to exercise her access in accordance with the order of Raikes J. On March 21, 2020 the applicant told the respondent that her access would be cancelled due to the COVID 19 pandemic.

Urgency

[6] 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;

[7] 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.

[8] The allegations made by the respondent mother are that the child is being wrongfully withheld from her during her access times. In my view, the matter meets the definition of urgency set out above. The definition clearly includes “the wrongful removal or retention of the child.” Accordingly, I direct that the motion proceed.

[9] This finding is without prejudice to either party when the substance of the motion is dealt with. The fact that I have determined this matter to be urgent is not to prejudge the merits of the motion when heard. Similarly, it does not preclude the applicant from arguing that the test for urgency is not met and that this ruling should be revisited.

Next Steps

[10] It appears as though the applicant was served with the motion on April 7, 2020. Given the upcoming holiday weekend, the applicant shall have until 4:00 p.m. on Tuesday, April 14, 2020, to serve and file his responding affidavit. He may both serve and file his responding affidavit by email and his affidavit need not be sworn. The respondent shall then have until Thursday, April 16, 2020 at 4:00 p.m. to serve and file a reply affidavit, again by email. The motion shall be heard by conference call thereafter on a date and time to be set by the trial coordinator.

Justice