Court File and Parties

COURT FILE NO.: 176/20

DATE: 2020-05-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephen Duffitt, Applicant

AND:

Bonnie Graham, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. Z. Peachey, Counsel, for the Applicant

Ms. L. Silver, 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. 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. Applicant father’s Notice of Motion dated May 1, 2020.

b. Applicant’s Affidavit dated May 1, 2020.

c. Applicant’s Affidavit of Service indicating that his motion documents were served on a solicitor Lauren Silver by email at 5:10 p.m. on May 1, 2020.

[6] A preliminary issue arises in relation to service.

a. It is unclear from the materials before me whether Ms. Silver has actually placed herself on record in this proceeding.

b. If she is not formally on record, and if she is not authorized to accept service on behalf of the Respondent mother, then the mother will have to be served personally.

c. In any event, serving an urgent motion after 5:00 p.m. on a Friday and filing an urgent motion on the following Monday does not allow very much time for a response.

[7] Beyond that, I have significant concerns based on the materials filed by the Applicant father.

a. The issue relates to a three year old child.

b. The father’s materials set out that there have been long-standing disputes about time-sharing, and that generally he hasn’t had as much time with the child as he wanted.

c. But from his materials it would appear that primary residence of the child has always been with the mother.

d. The father’s materials are vague and not terribly informative about a key development: It appears that he has unilaterally retained the child after a period of access.

e. I see nothing in the materials which would justify such unilateral action.

[8] I am not prepared to deal with the father’s motion until I receive some better explanation as to his behaviour.

a. From the father’s own materials, it appears that he simply kept the child because the mother wouldn’t agree to his proposed timesharing terms. I suspect his behaviour had more to do with “frustration” than “urgency.”

b. I don’t have enough information to be sure about this. And the mother hasn’t had a chance to respond. But based on the father’s own materials, his actions appear to amount to unwarranted self-help.

c. I would recommend that until we sort all of this out, the father should immediately return the child to the mother, to restore the status quo and previous timesharing arrangement.

d. I am not ordering him to do so at this moment. But court staff will be sending a copy of this endorsement to Ms. Silver, and I anticipate I will be hearing from the mother or her counsel very soon.

e. If the father fails to return the child immediately, the mother will be permitted to bring a motion on short notice to the father’s counsel.

[9] I cannot emphasize strongly enough how much the courts disapprove of self-help in parenting disputes – especially during this period when access to the courts is limited as a result of the COVID-19 crisis.

Pazaratz J.

Date: May 6, 2020