Court File and Parties
COURT FILE NO.: 388/20 DATE: 2020-05-05 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jennifer Burkitt, Applicant AND: Jae Todd Patterson, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Self-Represented Applicant
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. However, with the passage of time the court has been able to gradually increase the services available during the COVID-19 suspension, as set out in the following documents which are available online:
a. April 2, 2020 Supplemental Notice to the Profession b. April 7, 2020 Protocol Regarding Family and Child Protection Matters in Central South Region c. April 28, 2020 Notice to the Profession 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.
5I have received and reviewed the following materials:
a. Applicant mother’s Notice of Motion dated April 24, 2020 b. Applicant mother’s Affidavit dated April 24, 2020. c. Affidavit of Service dated May 4, 2020.
[6]
Procedural Issues
Firstly, I must address some procedural issues.
a. The Applicant represents herself. b. In her court documents she does not list any counsel of record for the Respondent. c. The Affidavit of Service indicates that the Motion documents were served on James Higginson who she refers to as the Respondent’s “solicitor of record.” d. But the Application was only issues at the end of April and no Answer has been filed. e. Even though Mr. Higginson may have represented the Respondent during out-of-court negotiations, that doesn’t necessarily mean that Mr. Higginson will become “solicitor of record” in this court proceeding. f. Mr. Higginson can only be considered to be “solicitor of record” if he files an Answer on behalf of the Respondent, or if he otherwise specifies in writing that he will be going on record, and that he has authority to be served with documents on behalf of the Respondent. g. So until Mr. Higginson’s status has been clarified, there is a fundamental issue about whether the Respondent has been properly served. h. Beyond that, with documents only having been served on Mr. Higginson yesterday – even if this comes to be acknowledged as proper service – there is a further issue about whether the Respondent has been given sufficient time to respond (not just to this particular motion, but to all documents which may have been served on him).
[7]
Urgency Analysis
More to the point, in terms of subject matter, from the Applicant’s own materials, I am not currently satisfied that this matter is “urgent” as defined by the Rules and the COVID-19 protocols. For clarity, I am not saying that the issues the mother wishes to deal with are not “important.” But there is a fundamental difference between “important” and “urgent.”
a. The mother seeks child support for the parties’ two children ages 16 and 13. She describes her financial circumstances as being dire. b. However, the parties separated on February 14, 2018. The Applicant’s narrative sets out in detail that during the more than two years since separation the Respondent has never paid the appropriate amount of child support based on his income which she describes as $147,540.00. c. The Applicant says she has been negotiating with the Respondent’s lawyer Mr. Higginson, and that she has made every attempt to resolve this case on an out of court basis, but without success. The Applicant is to be commended for these efforts. d. There is absolutely no doubt that child support is an extremely important issue. The court will attempt to deal with this issue quickly. e. But speaking plainly, if the support issue has required determination for more than two years now, it is difficult to characterize it as suddenly being so urgent that the court’s ordinary case management process should not apply. f. (As an aside, I would note that the Applicant has not filed a Financial Statement. She incorporated some of the financial statement information in her affidavit. But a proper financial statement with attachments is required.)
8I am declining the Applicant’s request that this matter proceed on an “urgent” basis. This is without prejudice to the request being returned to the court, in appropriate circumstances.
[9]
Next Steps
There are a number of obvious next steps:
a. As mentioned, the issue of service needs to be confirmed. Court staff will forward a copy of this endorsement to Mr. Higginson, with a request that he advise the Applicant in writing immediately whether he is authorized to accept documents on behalf of the Respondent, and whether he is to be regarded as counsel of record. b. The Respondent should be given an opportunity to serve and file an Answer, if he has not already done so. c. The parties should jointly arrange a Case Conference, prior to any motion being heard. d. And it should go without saying that the Respondent should be paying ongoing child support based on his income. If there is some relatively small disagreement as to numbers, this can be addressed in due course. But if the Respondent acknowledges that the Applicant is entitled to receive child support, then he should be paying at least the amount which relates to the income level which he acknowledges. e. Similarly, the Applicant requests health care coverage for the children as available through the Respondent’s employment. It is inconceivable that this should be an issue. Whatever coverage is available should be provided.
10I am mindful that despite my explanations herein, the Applicant may still misinterpret this decision. For clarity:
a. I agree with her that child support is very important and needs to be addressed quickly and properly. b. The Applicant should not regret that she spent two years trying to negotiate out of court. She did the right thing. c. But the fact remains that if the parties were able to manage for more than two years without court assistance, then it is difficult for either party characterize these long-standing issues as suddenly “urgent.”
[11]
Legal Advice
The Applicant would be well-advised to get some legal advice. The 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.
Pazaratz J.
Date: May 5, 2020