Court File and Parties
Kingston Court File No.: 138/20 Date: 2020-04-30 Superior Court of Justice - Ontario
Re: Christina Lawson, Applicant And: Jason Wycott, Respondent
Before: Honourable Madam Justice A. Trousdale
Counsel: Christina Lawson, Self-represented Jason Wycott, Self-represented
Heard: Written materials
Triage Endorsement on Urgency – COVID-19
[1]
Background
This matter came before me as the Triage Judge to determine whether the matter is urgent and if so, whether it requires a hearing. The Applicant seeks an urgent hearing in accordance with the Notices to the Profession from Chief Justice Morawetz dated March 15, 2020 and April 2, 2020, and the Regional Notice to the Profession from Regional Senior Justice Calum MacLeod dated April 2, 2020.
2The Applicant has filed with her motion requesting an urgent hearing, an Application with no return date, which has not been issued by the court due to Covid-19 protocols, a motion by the Applicant requesting a temporary restraining order against the Respondent, and the Affidavit of the Applicant in support of the two motions.
3In order to bring a motion for a temporary restraining order, there must be an underlying originating process. The Applicant has prepared an Application for that purpose in which she seeks a restraining order on an urgent basis. A third party in an affidavit of service filed states that all of the aforesaid documents have been served on the Respondent by email on April 29, 2020. The documents were filed with the generic court email on the afternoon of April 29, 2020.
4The Respondent has not yet filed any responding material with the generic court email.
[5]
Analysis
The Notice to the Profession dated April 2, 2020 from Chief Justice Morawetz states that the emergency created by Covid-19 may in some circumstances render strict compliance with the rules of the court impossible or impractical. However, that Notice goes on to state that relieving compliance with procedural rules should be used sparingly and with caution.
6Rule 6 of the Family Law Rules, O. Reg. 114/99, provides that service of an Application shall be by special service by a person other than the Applicant, unless the court orders otherwise. What constitutes special service is set out in Subrule 6(3). Service by email is not one of the methods set out in that Subrule.
7The Applicant is seeking a restraining order which if granted, will be filed with the local police. This is a quasi-criminal proceeding. There would likely be serious repercussions if the Respondent were to be in breach of a restraining order. The court needs to ensure that the Respondent has been served with the Application so that he knows what is being requested and so that he has an opportunity to serve and file responding material if he wishes to do so. (See Light-Morrow v. Chaves, 2020 ONSC 2434).
8Because of the serious nature of the relief the Applicant is requesting, I am ordering that the Application shall be issued by the Court in the manner set out below.
9Once the Application is issued, the Applicant must have someone other than herself serve the Respondent with the Application by special service by one of the methods set out in Subrule 6(3) and an affidavit of service shall be filed as set out below. The Applicant may wish to obtain legal advice regarding special service, and Covid-19 may complicate the issue of special service.
[10]
Urgency
On a preliminary view of the material, this appears to be a matter which would be considered to be urgent in accordance with the March 15, 2020 Notice to the Profession, being a request for urgent relief in relation to a restraining order, or restrictions on contact between the parties. The Applicant alleges that she has concerns for her safety and well-being due to past and present conduct of the Respondent towards her.
11If the Respondent files responding material with the generic court email, or when the Applicant arranges to have the Respondent served with the Application by special service and files the subsequent affidavit of service, I will again review the matter to determine whether a teleconference hearing should be arranged, and to set dates for any further filing of documents, if necessary.
[12]
Order
The following temporary order shall issue:
(1) The Applicant or someone on her behalf may attend at the court and request this Application to be issued. The person attending shall ensure that they have all necessary filings with them at that time in order to issue the Application. (2) The court staff are to issue the Application and are to note the return date of the Application as “Date to be set by the court upon resumption of court operations”. (3) A copy of this endorsement along with a copy of all the Applicant’s motion materials are to be served on the Respondent at the same time as the Application is served upon the Respondent by special service. The Affidavit of Service of the Application and all the other materials on the Respondent shall be filed electronically by the Applicant at KingstonFamilyCourt@ontario.ca. (4) This endorsement is without prejudice to the Respondent raising the issue of urgency in any Answer he may file, or in any responding material he may file to the Applicant’s motion for leave to have her substantive motion heard on an urgent basis. (5) This order takes effect immediately and is signed electronically. This order is enforceable without the need for a signed and entered order.
Justice A. Trousdale Date: April 30, 2020