Court File and Parties

COURT FILE NO.: 52410-17 DATE: 2020-05-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Daniel L. Thornhill, Applicant Rena Schmidt, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: Tara Lattanzio, Counsel for the Applicant Jonathan Krashinsky, Counsel for the Respondent Jim Pietrangelo, Counsel for the Ontario Children’s Lawyer

HEARD: In Chambers

ENDORSEMENT – COVID-19 PROTOCOL

[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] The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include requests for urgent relief relating to the safety of any child and urgent issues related to the wellbeing of a child. This preliminary determination of urgency is an exercise of judicial discretion.

[3] Determinations of urgency are summary and administrative in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.

[4] Daniel Thornhill brings an urgent motion seeking a range of relief, including that the children, Alexandra and Rebecca, reside with him and have daytime access to their mother, Ms. Schmidt. In the alternative he seeks access in accordance with the recent recommendations of the Office of the Children’s Lawyer (alternate weekends and two evenings per week).

[5] Mr. Thornhill has filed the following documents by email to the Superior Court. Upon the resumption of normal court operations, counsel shall file the materials in the Continuing Record:

1. Notice of Motion dated May 8, 2020;
2. Affidavit of Daniel Thornhill sworn May 8, 2020;

[6] The documents do not appear to have been served on Ms. Schmidt or her counsel, Mr. Krashinsky.

[7] In brief, Mr. Thornhill states the following in his affidavit:

1. The parties are the parents of Alexandra, who is almost 15 and Rebecca, who is 13. Alexandra has had cancer of the pelvis and has a heart condition. She continues with follow up appointments at McMaster Sick Kids Hospital/ Jurvinsky Hospital.
2. Pursuant to written agreements between the parties, there is a shared parenting arrangement.
3. In May 2017, Mr. Thornhill started proceedings in which he sought to change the parenting arrangements to have the girls reside primarily with him. At that time, Ms. Schmidt was in a relationship with another person, and Mr. Thornhill says the children were afraid of that person.
4. Mr. Thornhill says that in 2019, the Office of the Children’s Lawyer investigated and that Mr. Rein Kao confirmed at that time that the children wished to reside primarily with Mr. Thornhill. Mr. Thornhill states that the OCL very recently updated their investigation. The new OCL agent, Mr. Jim Pietrangelo held a disclosure meeting on April 20, 2020 during which he stated that the children’s views remain the same. Mr. Thornhill’s understanding is that the children wish to reside with him and to have one sleepover each two weeks, with their mother.
5. Mr. Thornhill indicates that he would have proceeded by asking for a Settlement Conference except that from his perspective an urgent issue has arisen. He indicates that Ms. Schmidt has recently allowed a third party, “Tommy”, and Tommy’s 12 year-old son, to move into her home. Mr. Thornhill says that Ms. Schmidt has not provided any information about “Tommy.”
6. Mr. Thornhill’s understanding, through reports of the children, is Ms. Schmidt met “Tommy” online three months ago, and that he moved into Ms. Schmidt’s home on Sunday May 3, 2020. He says Tommy lives in the basement but comes and goes through the front door and shares the kitchen and laundry room with Ms. Schmidt. He also uses one of Ms. Schmidt’s vehicles. Mr. Thornhill says that Ms. Schmidt requires that the two teenage girls sleep with their bedroom doors open and that the girls are not comfortable with that. He says the girls are very upset by their mother allowing “Tommy” to reside with her.
7. Mr. Thornhill states that he is worried that Ms. Schmidt is not following public health recommendations by allowing a person to move into her home in the middle of a pandemic. He is worried in particular about Alexandra, because of her vulnerabilities as a cancer survivor and having a heart condition.
8. Mr. Thornhill says that Ms. Schmidt is not communicating with him about what she is doing to comply with COVID-19 precautions.

[8] Because of the circumstances set out above, Mr. Thornhill is requesting an order that the children reside with him primarily until such time as a trial may be heard.

[9] Ms. Schmidt’s perspective on these allegations is important and is not yet before the court. It is understood that she will have further information to provide the court about “Tommy” and the arrangements in her home.

[10] I have considered Mr. Thornhill’s materials carefully. In effect, he is seeking the interim implementation of the recommendations of the Office of the Children’s Lawyer. Even in ordinary times, the test for interim implementation of an assessment report or OCL recommendations is challenging to meet. Mr. Thornhill is also suggesting that he should have some say in who Ms. Schmidt shares her home with, which, absent safety considerations, would be her own choice to make. Were these to be the only reasons for the motion I would not have found it to be urgent.

[11] However, I am concerned about the allegation that a third party has very recently been moved into the mother’s home, with little information being provided to Mr. Thornhill about how public health recommendations are being followed. Further, while Mr. Thornhill has not particularized how Alexandra may be vulnerable in light of her pre-existing health conditions, I do understand, in light of her health history, that this makes him more apprehensive.

[12] It may be that Ms. Schmidt is taking suitable precautions, or that Alexandra is not, in fact, particularly vulnerable, but that information is not yet before the court.

[13] Applying the Notice to the Profession and the caselaw on this issue, I find that this motion is urgent and should be heard with the benefit of the evidence of both parties. The issues raised in Mr. Thornhills’ materials are relevant to the well-being of children, as contemplated in the Chief’s Notice to the Profession. However, as set out below, I will require that the matter proceed to a Settlement Conference before the motion may be heard.

[14] In reaching that conclusion I have considered the applicable caselaw, including but not limited to: Ribeiro v. Wright, 2020 ONSC 1829; Thomas v. Wohleber, 2020 ONSC 1965; and Chrisjohn v. Hillier; London Court File No. F1098/18, which establish principles, including the following:

1. To be an urgent matter within the meaning of the Notice to the Profession, the concern must be immediate, serious, definite rather than speculative, and clearly particularized;
2. In most situations there is a presumption that existing parenting arrangements should continue, although COVID-19 may necessitate restrictions on parenting time in some cases; and, in general,
3. Ensuring children’s safety during this pandemic should not result in a widespread suspension of in person parenting time.

[15] I direct the following next steps in this matter:

1. Mr. Thornhill shall serve his materials filed with the court, as well as a copy of this Endorsement, on both respondents by forthwith.
2. Ms. Schmidt shall have until Friday May 15, 2020 to serve and file responding materials.
3. Mr. Thornhill shall have until Tuesday, May 19, 2020 to serve and file any Reply materials.
4. Both parties shall serve and file a sworn Form 35.1’s (Affidavits in support of claim for custody or access) by May 19, 2020.
5. Materials for this motion may be served by email.
6. All materials shall be filed with the court at Kitchener.Superior.Court@ontario.ca with the style of cause and file number in the subject line of the email.
7. A Settlement Conference shall be held between May 20 and 22, 2020. The Settlement Conference shall proceed on the basis of the motion materials set out above and no further materials are required to be filed for the settlement conference. The Trial Coordinator (TC) will advise counsel of the date and time of the Settlement Conference, which will be heard by Zoom or teleconference as the TC may direct.
8. After the Settlement Conference has been held, if the parties are still not in agreement about interim parenting arrangements, Mr. Thornhill’s Motion may proceed, to be heard between Monday May 25 and Friday May 29, 2020, with the date to be set by the Trial Coordinator who will advise counsel by email of the date and time of the motion.

[16] The parties may also wish to consider mediating this issue in advance of the settlement conference date. The court is aware that off-site mediation services continue to be available to parents to facilitate discussions on important parenting issues such as this. In this judicial region, the mediation service provider is AXIS Mediation. The court has been advised that confidential distance mediation options are available at this time. The parties are encouraged to contact AXIS Mediation for assistance in developing a plan that maintains the children’s relationship with both parents and succeeds in putting their safety at the forefront. AXIS can be reached at 1-888-988-2947 or at info@axisfamilymediation.com. There may be other mediation services also available and the parents are encouraged to explore options in that regard.

[17] Court staff are requested to serve counsel by email with a copy of this endorsement.

[18] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit materials by Form 14B to the court.

L. MADSEN J. Date: May 11, 2020