Court File and Parties

COURT FILE NO.: 606/18 DATE: 2020-05-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gabriela VanDyken, Applicant AND: Kenneth VanDyken, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Ms. A. Williams, Counsel, for the Applicant Self-Represented Respondent

HEARD: In Chambers – Triage Endorsement

Endorsement

[1] 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/.

[2] For 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”.)

[3] This 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.

[4] Electronic 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] I have received and reviewed the following materials: a. Respondent father’s 14B motion dated May 4, 2020 (today). b. Respondent’s affidavit sworn May 4, 2020. c. Respondent’s Memorandum of Law/Book of Authorities d. Respondent’s Affidavit of Service setting out that his materials were served on the Applicant mother and her solicitor Alisa Williams today at 11:00 a.m.. The Affidavit does not specify the method of service.

[6] For purposes of this Triage endorsement I will presume that service has taken place, and that the mother will require an opportunity to respond.

[7] The subject matter is the parties’ almost four year old daughter. I am advised that there is already a motion to change outstanding in this court in relation to the final order of Justice Chappel dated February 19, 2019. The first court date was supposed to be in April 2020, but as a result of COVID-19 determination of the motion to change has been delayed.

[8] The February 19, 2019 order was based upon final minutes of settlement entered into when the parties both had counsel. The order was quite detailed in relation to parenting issues. The following are some of the provisions relevant to the motion the father has presented today: a. Joint custody – but in the event of disagreement, mother to have final decision making authority. b. Primary residence with mother. c. Parties to execute directions to allow each of them to communicate with third parties concerning the child. d. Communication to be child focussed. e. The child “shall reside with the (the father and the mother) as they agree.” f. The father not to have overnight access until his psychiatrist advises the mother that she is satisfied with that the father’s anxiety has been alleviated to the extent that he can have overnight timesharing and the right to drive the child. g. Father to execute directions requested by the mother to allow his psychiatrist to speak to the mother. h. Once the mother is satisfied that the psychiatrist does not have any issues with the father having unsupervised and/or overnight access, the parties will gradually expand access to the point where the father has two overnight visits each week with the child. Motions may be brought in this respect.

[9] The father submits this is an urgent motion because of the following: a. He has been having regular weekly access. b. But the mother has not yet allowed him to have overnights or to drive the child. c. His psychiatrist has issued a report which says he’s ready to have overnights and to drive the child. But the mother has unreasonably challenged the psychiatrist’s views. d. The mother has requested authorization to obtain information from the father’s psychologist whom he continues to see. But the father doesn’t want to sign an authorization for the mother to speak to the psychologist, because the consent order does not provide for disclosure from the psychologist. The father feels the mother is simply looking for excuses to delay liberalization and regularization of access. e. The mother has been doing all of the driving to facilitate weekly access. At one point recently she consented to the father driving the child – but only between their two residences. When the father rejected this limitation on driving, the mother revoked her proposal and said she will continue to do the driving for non-overnight visits. f. But the mother has also expressed uncertainty about her ability to continue to do all the driving, and she is using COVID-19 as an excuse to reject third parties providing driving. g. He wants access increased but fears the mother will use the COVID-19 pandemic to decrease his time.

[10] Even without receiving the mother’s responding materials, as Triage judge I can identify which issues are potentially urgent, and which issues do not meet the urgency requirements as set out in the court’s protocols.

[11] While I acknowledge that the existing order contemplates liberalization of the father’s access, both in relation to overnight visits and also in relation to the ability to drive with the child in his car, these issues are not urgent. They are important. But they are complex and there will be no significant prejudice to the parties or the child if these issues are dealt with in a less urgent manner. (In this respect I would remind the parties that there have been several notices to the profession which identify the court’s ability to deal with non-urgent motions in writing, and also to provide Case Conferences and Settlement Conferences.)

[12] However, if any part of the mother’s narrative involves any reduction of the existing time-sharing arrangement (including her providing all of the transportation, if she insists that the father cannot drive), then any reduction of the father’s involvement with the child would be presumptively urgent.

[13] I am not authorizing the father’s motion to proceed at this time. However, this is without prejudice to the right of either party to bring a further request to proceed with an urgent motion, if necessary. Again, any further request would need to be triaged, and it is not necessary to file a factum or book of authorities at the triage stage.

[14] Perhaps I can offer some suggestions: a. While I understand the father’s position that information from his psychiatrist was contemplated in the existing order and should be sufficient to allow for a next phase of access, I suspect that it is possible that once a judge considers all of the arguments, the court might ultimately conclude that some additional information from another mental health care professional – the father’s psychologist – might be relevant. I am not predetermining this issue. But given the fact that the father is anxious to have these issues resolved quickly, there might be some logic to his providing additional disclosure even if it has not yet been determined to be necessary. That way, there won’t be further delay if the motions judge ultimately decides that this information is required. b. I would anticipate that at a hearing the main priority will be to ensure that meaningful timesharing continues, between now and when the court has the ability to deal with this comprehensively. This means that transportation arrangements to facilitate timesharing will have to be reliable. If the mother is prepared to continue all of the driving, then there’s no urgent issue. If the mother is content that the father do the driving for the limited purpose of facilitating access exchanges, then again that means there is no urgent issue. I realize the father is seeking unrestricted driving privileges with the child. I make no comment as to whether they should occur. But that’s not urgent. c. The bottom line: Any proposal which results in less father-child contact give rise to a presumptively urgent motion.

Pazaratz J. Date: May 4, 2020