Court File and Parties
Court File No.: 1417/19 Date: 2020-05-05 Superior Court of Justice - Ontario
Re: Glen Jordan, Applicant And: Bobbi-Leigh Steele, Respondent
Before: The Honourable Mr. Justice A. Pazaratz
Counsel: Ms. K. Junger, Counsel, for the Applicant Mr. F. Roy, Counsel, for the 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. 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
[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 mother’s Notice of Motion dated May 3, 2020. b. Respondent’s Affidavit sworn May 4, 2020. c. Letter from Respondent’s lawyer dated May 4, 2020 requesting urgent hearing.
[6] I am advised that Ms. Junger, counsel for the Applicant father, sent an e-mail to this court’s Trial Coordinator expressing opposition to the Respondent being allowed to proceed with an urgent motion. However, I am advised that there is no indication that Ms. Junger’s e-mail was sent to the Respondent’s counsel Mr. Roy. Accordingly, I have not received or reviewed Ms. Junger’s e-mail.
[7] I have the benefit of having had some previous involvement on this file. The background information:
a. Both of these parents have had their share of personal problems. b. They have had an intermittent, turbulent relationship. c. Their first child became a Crown Ward. d. The child who is the subject of this current dispute – a four year old boy – was apprehended at birth. e. The child was then placed in the mother’s care. f. For reasons which remain disputed, the child has been in the father’s care since October 2019. g. The parties continue to make serious allegations against one another. The mother says the father has a history of being violent with her and that he has been convicted of assaulting her. The father alleges the mother has had long-standing unresolved problems with substance abuse, an unsafe lifestyle, and criminal behaviour. h. On January 9, 2020 I requested that Hamilton CAS provide an update for the court as to the status of their involvement with both of these parents. i. On February 21, 2020 the court received a letter from CAS which noted that the Society had requested and received the father’s pleadings, but that the mother had not cooperated by providing her pleadings. The Society’s investigation was ongoing, and the Society took no position regarding custody or access. j. As of a February 25, 2020 “to be spoken to” attendance, the mother was having one weekly visit supervised by the father’s sister. The father advised that he was not opposed to the mother’s request for a second weekly visit, so long as a supervisor was present. k. In my February 25, 2020 endorsement I noted that this was a high conflict file which needed to proceed to trial as quickly as possible. But we could not schedule a trial date until we had better information concerning the ongoing CAS investigation. l. The mother’s counsel undertook to provide CAS with the materials the Society requested. m. The matter was adjourned to April 2, 2020 to be spoken to. However, that date ended up being rescheduled as a result of the COVID-19 suspension of court operations. n. I have no updating information from CAS, and as of this date we have no way of knowing when the court will be able to schedule a trial.
[8] With that background, the mother has brought an urgent motion requesting:
a. Immediate unsupervised alternate weekend access to the child. b. She asks that the court consider transferring primary placement of the child to her, with the father to have access. c. She requests police enforcement of whatever court order is issued.
[9] The mother’s affidavit generally describes ongoing high conflict between the parties. But it also includes serious allegations which relate to the threshold issue of “urgency”.
a. The mother says even though the parties agreed in February to her having a second weekly visit, she has never been allowed a second visit. b. She says even her one supervised visit per week has been problematic. The scheduling is constantly being changed. c. She alleges that on March 2, 2020 the father contacted her to offer to meet with the mother to allow her to see the child, because his sister was not available to provide supervision. The mother’s materials set out serious allegations of the father being aggressive toward a stranger during the first part of the visit at a Tim Hortons. She says the parties then went to the sister’s residence to continue the visit. However, she alleges that while the parties were at the residence of the sister (who wasn’t present), the father sexually assaulted the mother, and there was a subsequent incident in front of the residence which resulted in some property damage the mother has offered to pay for. d. All of this is said to have occurred while the child – who is autistic – was present or nearby. e. The mother says that she has been denied any access since March 2, 2020. She says the father has used COVID-19 as an excuse for denying access, even though there is no basis for such concerns. She provides assurance that she is “COVID-safe”.
[10] As stated, the father has not yet had an opportunity to respond to these allegations. For reasons stated, I have not even seen Ms. Junger’s e-mail to the court because she did not submit it to opposing counsel.
[11] It is absolutely vital that the father have an opportunity to respond and provide his side of the story. This file has a long history of dramatically differing versions of events being advanced by the parties, and I fully anticipate that the father will provide a significantly different narrative.
[12] However, I am satisfied that this matter is potentially urgent, for the following reasons:
a. Speaking very plainly, both of these parties have more than their share of lifestyle and behavioural problems which would justify significant concern and scrutiny by the court. b. At different times each of them has had primary care of the child. Each alleges that when they were the “access” parent, their involvement with the child was impeded. c. It is still not entirely clear how the child came to be primarily in the father’s care as of October 2019. But by the time the matter was brought to the court’s attention, there was already a status quo which appeared to favour continuation of that placement, pending further information. Some of the information we were waiting for was to come from CAS. But CAS was delayed in part because of the mother’s lack of cooperation in providing materials. d. In February 2020 I was assured that an expansion of access would take place. That hasn’t happened. e. The court’s intention that this matter be quickly placed on the trial list has also been frustrated by COVID-19. f. Now, the court is being presented with the allegation that the mother’s access is not expanding (as had been intended) and that in fact it has been reduced and effectively suspended. That’s absolutely not what the court would have anticipated, when primary placement of the child was entrusted to the father. g. As well, there appear to be new concerns. The mother says the father was aggressive with a stranger in the presence of the child, and then sexually assaulted her. The father is apparently saying access should be suspended as a result of COVID-19. h. I suspect that neither of these parties fully understand how the continuing nonsense in their lives is causing the court to question whether the child should be with either one of them. i. But this is one of those situations where a significant concern is arising about whether the father is simply trying to take advantage of a favourable status quo, to banish the mother from the child’s life in the hope of extinguishing any possibility of a transfer of custody. Believe it or not, judges recognize when parents attempt this strategy. And we’re not impressed. j. Hopefully the father will be able to provide compelling reassurance that the mother’s allegations about him are wrong. k. But arrangements for this young, vulnerable child need to be re-addressed immediately.
[13] 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.
[14] The father shall be permitted until May 8, 2020 4:00 p.m. to serve and file any responding materials. His affidavit should be no longer than the mother’s affidavit. His materials in total should not exceed 10 pages.
[15] The mother may file a brief affidavit (not more than two pages) in reply by May 12, 2020 at 11:00 a.m.
[16] The Respondent’s counsel should immediately forward a copy of this endorsement to Hamilton CAS, with the court’s request for an updated letter, if possible, by May 12, 2020.
[17] Each party shall serve and file documents by e-mail.
[18] 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.
[19] I have a very strong suggestion for both of these parties:
a. The court system is really worried about both of you. b. The longer the two of you continue with this high conflict behaviour, the greater the possibility that some very dramatic intervention may arise. You may regret that. c. We especially don’t like either parent trying to take advantage of a status quo, or using COVID-19 as a strategic opportunity. d. So even though I have set up a mechanism for an urgent hearing by teleconference – both of you should keep negotiating (through your lawyers) to try to reach a sensible temporary compromise.