COURT FILE NO.: FS-12-11977-01 DATE: 20200430 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Georgina Evanthia Vasilodimitrakis Applicant – and – Michael Wayne Homme Respondent

Sarah A. Weisman, for the Applicant Richard M. Gordner, for the Respondent

HEARD: April 30, 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

BONDY J.

1) Introduction

[1] The applicant Georgina Evanthia Vasilodimitrakis ("the applicant" or "the mother") is 56 years of age and, the respondent Michael Wayne Homme ("the respondent" or "the father") is 57 years of age. The parties resided together from 2005 until 2010. They have one biological child, Mileena Evanthia Homme-Vasilodimitrakis ("Mileena") born April 13, 2006.

[2] As is a very high conflict case. The issue has thus far been related to Mileena’s access to her father.

[3] By way of background, Carey J. made an order dated August 6, 2015, which provided for the respondent to have access to Mileena on alternate weekends. The applicant unilaterally stopped Mileena’s access as of March 24, 2020 on the basis that she did not feel access was safe due to the COVID-19 virus. The respondent father brought a motion to reinstate access. By order of Hebner J., the motion was found to be urgent. I heard the motion and on April 7, 2020 ordered a resumption of access. The applicant appealed that decision and brought a motion to stay my order. The motion to stay was heard by Mitrow J. who in a lengthy decision dated April 22, 2020 dismiss the motion for a stay. The motion for leave to appeal my decision and the appeal itself have both been abandoned by the applicant. As a result, Mileena is entitled to access to her father.

[4] According to the respondent, Mileena’s access with her father has not occurred for over a month now notwithstanding the very clear court orders in place, and notwithstanding the applicant’s clear obligation to ensure that that access occurs pursuant to those court orders.

2) 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 those motions 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] 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.

3) Conclusion

[7] I conclude this matter meets the definition of urgency set out in the Chief Justice’s notice. It involves both the well-being of a child and an alleged wrongful retention of a child. Accordingly, the motion may proceed. The applicant mother’s initial resort to self-help and current unwillingness to comply with the very clear court orders now raises a serious new issue as to whether or not she is appropriate as the primary residence parent.

[8] The motion shall be limited to the issues of where Mileena will primarily reside, if primary residence is with the respondent father whether the applicant mother will have access and if so on what schedule, if primary residence remains with the applicant mother whether there will be any changes to the existing order, and whether any changes to the safety precautions in my existing order are warranted at this time.

[9] My determination on urgency is without prejudice to any position the parties may take before the motions judge. In addition, my determination on urgency is a preliminary determination only, and is subject to any ruling on the issue of urgency that may be made by the motions judge, who will have had the benefit of a review of the motion materials of both parties along with submissions of counsel.

4) Procedural Orders

[10] I make the following orders, all subject to further direction of the motions judge:

1. The applicant may issue his application. It shall be served along with the notice of motion and affidavit by email no later than May 1, 2020, at 4:00 p.m.
2. The respondent shall have until May 4, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
3. The applicant shall have until May 5, 2020, at 4:00 p.m. to serve and file his reply affidavit.
4. The affidavits a) shall be limited to affidavits by the parties only, without leave of the court; b) shall not be longer than 10 pages, excluding exhibits; c) shall include only those exhibits relevant to the issues of i. Where Mileena will primarily reside, ii. If primary residence is with the respondent father, whether the applicant mother will have access and if so on what schedule, iii. If primary residence remains with the applicant mother, whether there will be any changes to the existing order, and iv. Whether any changes to the safety precautions in my existing order are warranted at this time. d) shall include as exhibits anything in the Continuing Record relied upon by the affiant it being recognized that the judge does not have access to the Continuing Record; e) need not be sworn, so long as the parties are on the line during the motion and affirm their affidavits to the motions judge. f) shall when possible be sent as a single document including the affidavit and any exhibits to that affidavit in order to facilitate reading and/or downloading and/or printing of the affidavit and exhibits.
5. The motion shall be scheduled by Trial Coordination preferably on the morning of the May 6, 2020 or as soon thereafter as is practical.

“Electronic signature signed and released by Bondy J. ” Christopher M. Bondy Justice

Released: April 30, 2020