Court File and Parties
Court File No.: 1100/18 Date: 2020-05-04 Superior Court of Justice - Ontario
Re: Debra Wilson, Applicant And: Michael Wilson, Respondent
Before: The Honourable Mr. Justice A. Pazaratz
Counsel: Self-Represented Applicant Self-Represented Respondent
Heard: In Chambers – Triage Endorsement
Endorsement
[1]
Introduction
AS 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/.
2For the moment, the court is prioritizing “urgent” matters. A supplemental Notice to the Profession dated April 2, 2020 sets out a narrow list of less urgent matters the court will attempt to deal with, as time and resources permit. (Further information is available in the April 7, 2020 “Protocol Regarding Family and Child Protection Matters in Central South Region”.)
3This 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.
4Electronic 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.
[5]
Materials Reviewed
I have received and reviewed the following materials: a. Respondent father’s undated Notice of Motion. b. Respondent father’s undated/unsigned Affidavit with attachments.
6Although I have not seen an affidavit of service, the e-mail which the father sent to the court today with the enclosed materials was also addressed to the Applicant mother. Clearly the mother must be given an opportunity to file responding materials.
[7]
Background
I am going to take a somewhat flexible approach with respect to procedures, to try to help these parties. I will explain my rationale: a. I remember these parties from when they appeared before me on December 5, 2018. They were both self-represented at that time. I have had an opportunity to review my notes from that date. b. The subject matter (then and now) is the parties’ daughter who will turn four on July 1st. c. On October 9, 2018 Justice Chappel granted a final order pursuant to a mediation report. That final order included joint custody, and a number of other terms with respect to sharing information and behaving in a child-focussed manner. Primary residence of the child was to be with the mother. The order also included temporary provisions in relation to the father’s access. d. When the parties appeared before me on December 5, 2018, they signed minutes of settlement which resolved all remaining issues (including the father’s access and child support) on a final basis. e. At all material times the mother and child have resided in Hamilton. f. When the December 5, 2018 final order was consented to, the father was residing in Niagara Falls, Ontario. g. Both the October 9, 2018 temporary order and the December 5, 2018 final order included provisions for regular in-person access between the father and the child. h. The father’s materials set out that in December 2019 he relocated to British Columbia. He says this was necessary as a result of other family commitments, unrelated to the Applicant or their daughter. i. The father says that since December 2019 he has been attempting to have telephone or electronic access to the child, but without success. j. He says his mother was allowed two video-conferences with the child. But he has been told he will not be allowed any contact with his daughter. k. Accordingly, he has brought a motion to establish weekly video-conferences with the child.
8The Respondent’s materials aren’t the best. If I didn’t have the background information in relation to the December 5, 2018 order, I wouldn’t have been able to piece things together. And since I do not have physical access to the court file, I have no way of knowing if there have been subsequent proceedings or issues, since the December 5, 2018 final order.
[9] But I’m trying to approach things from a practical point of view. a. Both parties represented themselves in 2018. b. The father still represents himself, and I wouldn’t be surprised if the mother ends up representing herself again. c. I could focus on the deficiencies in materials, and require that the parties keep trying to file better materials. d. But I remember both of these parties as being quite reasonable people. e. And at first glance, the facts don’t appear to be insurmountably complicated. There’s a final order. Joint custody. Primary residence to the mother. The father was having in-person access. Now he wants access by video. f. I have no idea what the result of all of this is going to be. g. But there are presumptions that court orders have to be followed, subject to the court making any modifications required as a result of changed circumstances. And there are presumptions about children benefiting from meaningful contact with both parents.
[10]
Urgency and Directions
In the circumstances, 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.
11The mother shall be permitted until Friday May 8, 2020 to serve and file any responding materials. Her affidavit should be no longer than two pages typed. In total her materials should not exceed eight pages including attachments.
12The father shall be permitted until Tuesday May 12, 2020 to serve and file any reply affidavit (not more than two pages typed).
13Each party shall serve and file documents by e-mail.
[14] The matter will be scheduled to be dealt with by a Judge on or after May 13, 2020. a. The Judge may decide to conduct a hearing by teleconference. In that event, the parties 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.
[15]
Concluding Remarks and Legal Advice
As I have mentioned, these parties have a history of being able to work out parenting arrangements in a mature and conciliatory manner. The existing joint custody designation is a testament to their ability to problem solve in a child-focussed manner. I would encourage them to continue to explore options and arrangements which will promote their daughter’s best interests.
16Any self-represented party should obtain legal advice as quickly as possible, and in any event before any hearing by teleconference.
17The Court has been advised that legal information may be available to individuals who qualify, through the Law Society of Ontario at the following phone numbers: Toll-free: 1-800-268-7568; General: 416-947-3310. If the parties qualify, they may also wish to contact the Client Service Centre of Legal Aid Ontario at 1-800-668-8258.
18Notwithstanding 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 4, 2020