Court File and Parties
COURT FILE NO.: 3095/14 DATE: 2020-05-06 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regean Pierre Brazeau, Applicant AND: Regina Marie Lejambe, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Ms. A. Williams, Counsel, for the Applicant
HEARD: In Chambers – Triage Endorsement
Endorsement
Introduction
1AS 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 father’s Notice of Motion dated May 5, 2020. b. Applicant’s Affidavit dated May 5, 2020. c. Applicant’s Affidavit of Service dated May 5, 2020.
Preliminary Issue
6The Affidavit of Service indicates that the father’s materials were served on Ben Fortino’s office by e-mail on May 5, 2020 at 3:59 p.m. That raises a preliminary issue:
a. There is no current proceeding outstanding. This is a fresh motion. b. As such, even though Mr. Fortino has previously been counsel of record for the Respondent mother; and even though Mr. Fortino has been exchanging correspondence with Ms. Williams in the recent past; technically he is not yet solicitor of record for the current proceeding. c. This means that unless Mr. Fortino acknowledges that service may occur through his office, the father will have to make independent arrangements to serve the mother. The mother would then have the opportunity to determine whether she will respond with or without counsel. d. For the moment, I am going to presume that Mr. Fortino is going to become solicitor of record for the mother. But if this is not the case, he should advise Ms. Williams forthwith, so that alternate service arrangements can be made.
Background
7The father’s motion seeks to reinstate his involvement with the two children of the relationship who are 11 and 9 years old. His narrative briefly:
a. The parties separated in 2012. b. The children have resided primarily with the mother since separation. c. Pursuant to a consent June 15, 2015 final order the parties have joint custody. The father’s access includes alternate weekends from Friday after school until Monday morning. d. Pursuant to a consent September 19, 2016 order, the father’s access was expanded to also include alternate Tuesdays overnight, and a week in each of July and August. e. Pursuant to an order of July 5, 2019 the access was slightly expanded to include long weekends and to specify Christmas timesharing. f. The father says he has always been exercising regular access pursuant to these orders. g. However he says he hasn’t been allowed to see the children since March 9, 2020 (other than five minutes on March 30, 2020 when he stood on the mother’s driveway and the children were in the house). h. The father alleges that initially his access was interrupted because the mother took the children to Mexico for a March break vacation – despite travel advisories. Upon their return from Mexico the father acquiesced to a suspension of access for a 14 day quarantine period, as recommended for anyone travelling out of the country. i. But he says even after the 14 day travel quarantine expired, the mother still refused to allow access. j. He says this is not the first time the mother has interfered with his access or called CAS making unverified complaints about him. k. His materials attach an April 14, 2020 letter from The Children’s Aid Society of Haldimand & Norfolk. The letter sets out that various allegations of inappropriate behaviour by the father were not verified, and that as a result the Society would be closing its file. The letter acknowledged reluctance on the part of the children to attend visits. The letter also stated “it is the Society’s expectation that your family will follow the current order so that (the children) can maintain a relationship with both parents.” l. From the letters exchanged between counsel, the mother is saying that she is not withholding the children from attending for access, but that they themselves are refusing to go – partly as a result of the children’s concerns about COVID-19.
8Obviously, I have only had the benefit of the father’s side of the story. It is vitally important that the mother be permitted to file responding materials. I make no determination as to the facts of this case or the appropriate result.
9However, the essence of this case is that a long-standing pattern of father-child contact has suddenly been terminated, despite an existing joint custody order. This is confirmed in a letter from the mother’s lawyer.
Urgency and Directions
10Any sudden, unilateral interruption of a generous, long-standing timesharing arrangement is potentially urgent, and as a result I will allow the father’s motion to proceed. This is a preliminary determination, without prejudice to either party on the ultimate hearing of the motion.
11The mother shall be allowed until Monday May 11, 2020 at 11:00 a.m. to serve and file any responding materials. Her affidavit material (whether a one or more than one affidavit) should not total more than the number of paragraphs in the father’s affidavit. Her total number of pages should not exceed the total number of pages filed by the father.
12The father may serve and file a brief reply affidavit (not more than two pages long) by May 13, 2020 at 10:00 a.m.
13Each party shall serve and file documents by e-mail.
14The matter will be scheduled to be dealt with by a Judge on or after May 14, 2020.
a. The Judge may decide to conduct a hearing by teleconference involving counsel and the parties. 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.
Concluding Remarks
15Having identified timelines for a hearing, I would like to take one more opportunity to encourage the parties to regain control of their lives and avoid a hearing:
a. As stated, so far I have only seen the father’s side of the story (although I have some sense of the mother’s side of the story, since it is set out in her lawyer’s letter.) b. While COVID-19 is a relatively new and unheard of issue in our lives, during the past weeks our court system has devoted a lot of attention to parenting arrangements during these difficult times. The caselaw is overwhelmingly clear in saying that there is a presumption that parenting and timesharing arrangements will continue – to be modified only as may be required to address health or safety issues in relation to the children and their households. A complete suspension of timesharing is not the starting point – it is the last resort, to be considered only after every possible option has been thoroughly considered. c. Every case that I’ve seen says that the objecting parent has to do a lot more than just say “I’m afraid of COVID-19” or “my child is afraid of COVID-19”. We’re all afraid. Fear is no excuse to abdicate parental responsibility. d. Parents have an obligation to not only obey court orders but to facilitate and encourage children to accept and comply with arrangements which adults have determined to be appropriate. e. This is especially true in cases like this where the parties have joint custody. That’s not an empty label. It means both parents have been entrusted with an equal responsibility to work together in a mature, creative and child-focussed manner. f. Particularly in the context of the CAS letter which concluded that serious allegations against the father are not verified, this would be a very good time for the parties to stop looking for trouble and start looking for solutions.
Pazaratz J.
Date: May 6, 2020