Wilson v. Martincek, 2020 ONSC 2820

Court File and Parties

Newmarket Court File No.: FC-19-59237-00 Date: 2020-05-05 Superior Court of Justice - Ontario

Re: Chantelle Wilson, Applicant And: Andrew Martincek, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: James Herbert, Counsel for the Applicant Harrison Notkin, Counsel for the Respondent

Heard: In Writing

Ruling on Urgent Motion Request

[1]

Urgency

As a result of COVID-19, regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notices to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].

2The Chief’s Notice frames what may be considered urgent:

1. 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);
2. 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;
3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

[3]

Background

In this matter, the applicant (“the mother”) has brought a motion asking that the respondent (“the father”) return to her care the parties’ two children, ages three and five years old.

4The parties began cohabiting in 2010, married in 2016 and separated either in May 2018 (the mother’s date) or March 2019 (the father’s date). They shared parenting on a 2-2-3 weekly schedule without a court Order or a domestic contract. A case conference was held by Kaufman J. on February 4, 2020 pursuant to which the parties’ consented to an Order that, among other things, appointed a S. 30 CLRA assessor. The next event scheduled was a settlement conference for June 22, 2020 depending on the status of the assessor’s engagement. Given the Chief’s Notice and the more recent May 5, 2020 Notice to the Profession that the courts will not be holding in-person hearings until July 6, 2020 at the earliest, the settlement conference will not proceed on June 22. It is likely, too, that the assessment will not be concluded by that date anyway.

5On April 29, 2020, a day when the children would be returned to their mother’s care according to the parties’ parenting schedule, the father notified the mother through counsel that he had been showing suspected COVID-19 symptoms. He consulted a doctor and was directed to quarantine with the children pending the results of COVID-testing that were expected on May 1 or early during the week of May 4. A note from the doctor was provided. The father said that if the test was negative then the parenting schedule would revert. The mother started this urgent motion on May 1.

6In Ribeiro v. Wright, 2020 ONSC 1829 Pazaratz J. observed the following;

11. In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
12. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

7At some point on May 1, the father’s test was reported negative and his lawyer advised that the parenting schedule would revert but that the children would not be returned to their mother’s care until May 11, 2020 because they still needed to quarantine - even though the father had tested negative. The mother was asked, but declined, to withdraw this motion. The father added that the mother was two months in arrears of the $310 monthly child support for the children’s s. 9 expenses - even though the children’s daycare was closed for those two months.

8In my view, the dispute between the parties is senseless. The mother acted precipitously in bringing her motion before (as I suspect) she was made aware of the father’s test results: the father’s refusal to honour the representation made in his lawyer’s April 29, 2020 letter to forthwith resume the parenting schedule after the test results were reported is equally without merit.

[9]

Order

Accordingly, the following is ordered:

(a) Subject to (b), the parties shall forthwith return to the parenting schedule that prevailed immediately before April 27, 2020 (the date when the children were last with their mother); (b) The week of May 4, 2020 shall be Week 2 of the schedule referenced in paragraph 8 of the mother’s May 1, 2020 affidavit. The children shall be forthwith returned to her care and shall remain in her care until May 11, 2020 when the Week 1/Week 2 schedule shall be effective on a going-forward basis; (c) There shall be no costs of this motion.

10The children shall be in the care of their mother until May 11 to make-up for their time not residing with her.

11In the circumstances of the COVID-19 emergency, the foregoing is an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.