Court File and Parties
COURT FILE NO.: 407/19 DATE: 2020-05-01 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cory Lea Williams, Applicant AND: Oskar Mayen, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Alisa Williams, Counsel, for the Applicant Faizal Roy, Counsel, for the Respondent
HEARD: In Chambers – Triage Endorsement
Endorsement
Introduction
1AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
2This motion was referred to me as Triage Judge for a preliminary determination of urgency and of how this matter should proceed. Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself.
3Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.
[4] I have received and reviewed the following materials: a. Applicant mother’s Notice of Motion dated May 1, 2020. b. Applicant’s Affidavit sworn April 27, 2020.
5I have not received any responding materials on behalf of the father. This is understandable given the fact that the father’s counsel was served on April 27, 2020. It is vitally important that the court receive evidence from both parents in a case like this.
Urgency Analysis
6On a threshold basis, I find that the issues raised in the materials before me are potentially urgent. This is a preliminary determination, without prejudice to either party on the ultimate hearing of the motion.
7However, I wish to be clear about the extent to which I am authorizing that this matter proceed on an urgent basis.
[8] The following components of the mother’s narrative suggest urgency: a. The parties have two children ages eight and four. b. The parties separated in 2014. c. The children remained primarily in the mother’s care thereafter. d. The father was having regular access, most recently in the form of alternate weekends. e. However after a weekend visit on March 20, 2020, the father refused to return the children to the mother. f. She has not seen the children since that date.
9Accordingly, since there is an allegation that a long-standing parenting status quo has been disrupted, and that the children are not seeing one of the parents, this suggests that the matter requires immediate attention.
[10] However, this file appears to entail a great deal of complexity – I suspect, more complexity than the mother has alluded to in her materials. a. The mother’s affidavit is relatively brief, but it includes as an attachment a very lengthy “Discontinued” s.112 report issued by the OCL on February 27, 2020. b. The mother’s notice of motion seeks leave to serve and file these materials (which exceed length limitations). In the alternative, if she is not permitted to file the OCL report, she seeks leave to file an amended affidavit. c. The mother says the OCL investigation was discontinued because “there were too many child protection concerns that needed to be addressed” and it was more appropriate for CAS to address these concerns. d. Not mentioned in the mother’s affidavit, the OCL social worker also explained that the investigation was complicated by the fact that the mother “was difficult to engage and missed or cancelled several scheduled appointments.” e. A March 30, 2020 letter from Hamilton CAS sets out the Society’s investigation remains outstanding, and “the Society is not taking a position with respect to custody or access of the children.” f. The mother’s materials include an e-mail from the father to the mother’s lawyer. The March 2, 2020 e-mail sets out the father’s allegation that there were problems at access exchanges as a result of his interactions with the mother’s boyfriend. However, implicitly, the father’s e-mail confirms that as of the beginning of March he was having “access” to the children. They were primarily in the mother’s care.
Procedural Directions
11For purposes of an urgent motion, the mother shall be permitted to rely on her 35 paragraph affidavit, and all of the attachments except the OCL report. (This is without prejudice to a future judge making a determination as to the discontinued OCL report.)
12The father shall be permitted until May 6, 2020 at 10:00 a.m. to serve and file any responding materials. His affidavit should be no longer than the mother’s affidavit. In total, his materials should be no longer than 12 pages.
13The mother may file a reply affidavit (not more than 2 pages) by May 7, 2020 at 4:00 p.m..
14Each party shall serve and file documents electronically.
[15] The matter will be scheduled to be dealt with by a Judge on or after May 11, 2020. a. The Judge may decide to conduct a hearing by teleconference involving counsel and the parties. In that event, counsel will be advised by the court as to the date and time of the teleconference. b. However, after reviewing the file, the Judge may determine that it is more appropriate to deal with the matter based solely on the written materials, without a teleconference. In that event, the parties will be forwarded a copy of the Judge’s written decision. c. The judge dealing with the matter will make a formal determination as to whether the materials filed – and any responding materials – raise any issues which meet the threshold of being “urgent”, as required in the Notice to the Profession. If urgency has been established, the Judge will make any necessary orders.
Parenting Principles and Guidance
16For clarity, the reason that I am making a preliminary determination of urgency is that the materials suggest these children have suddenly not only had their primary residence changed (indeed, to another city), but they are no longer even having access to the parent they used to live with.
[17] In the absence of responding materials from the father, I make no prediction as to either the short-term or long-term result in this file. But I would urge both parties to focus on some parenting principles which will inevitably be raised by the judge dealing with this matter: a. As a general rule, courts are reluctant to disrupt a long-standing status quo except in urgent or compelling circumstances. b. As a general rule, courts attempt to implement a “maximum contact” approach, whereby children should have generous contact with both parents, to the extent that such contact is in their best interests. c. And almost without exception, courts really don’t approve of self-help or unilateral action. Very often, such behaviour provides powerful evidence in relation to parental insight (or the lack thereof).
18Both counsel should attempt to obtain (preferably jointly) an updating letter from Hamilton CAS setting out the status of their investigation, and any further position they may have.
19I would strongly suggest counsel and the parties start engaging in serious discussions about coming up with a reasonable temporary-temporary without prejudice resolution.
20Notwithstanding rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so, and submit materials by Form 14B to the court.
Pazaratz J.
Date: May 1, 2020