Court File and Parties

COURT FILE NO.: 265/19 DATE: 2020-05-12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary Ann Burshaw, Applicant AND: Ryan Walter Paul Penney, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. T. Charuk, Counsel, for the Applicant Mr. N. Smith, acting as Agent, 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 from the Respondent father:

a. Notice of Motion dated May 11, 2020 b. Affidavit of father dated May 11, 2020.

[6] These materials were only served on the mother’s counsel by e-mail at 10:59 a.m. this morning. Obviously, she hasn’t had a chance to respond, and it is fundamentally important that both parties have a reasonable opportunity to present their side of the story to court.

[7] However, sometimes in family court we are presented with serious and alarming allegations which require accelerated attention – out of an abundance of caution. There is at least one aspect of the father’s narrative which raises such concerns.

[8] The background provided by the father:

a. The parties have a 12 year old daughter and an eight year old son. b. They have had an ongoing case in family court since early 2019. c. Parenting arrangements are currently governed by the temporary order of Justice Chappel dated July 17, 2019. d. On a temporary, without prejudice basis the daughter resides with the mother. The father’s access to the daughter is to be reviewed after the child commences counselling. The father’s current motion seeks no relief in relation to the daughter. He does not provide any information as to the counselling referred to in the temporary order. e. On a temporary, without prejudice basis the son resides with the mother. The father has access on a two week rotating schedule: in week one, Wednesday after school until Friday morning; in week two Wednesday after school until Thursday morning, and Friday after school until Monday morning.

[9] The father’s immediate concern:

a. Last weekend was apparently the father’s alternate weekend. b. The father says on the evening of Friday May 8, 2020 his son told his stepbrother that he wants to commit suicide when he is at the mother’s house. c. The next day, Saturday, the boy confirmed these suicidal thoughts to the father. The father immediately called the Catholic Children’s Aid Society (CCAS). A worker provided some guidance to the father and said she would arrange for follow-up by a social worker during the coming week. d. Later on Saturday, the boy made further statements about suicide to a family friend. The father called CCAS again, and they referred him to COAST. e. Based on COAST’s recommendations, the father had further discussions with his son and confirmed that the boy had no intention of harming himself at that time. But the father was concerned the boy might become suicidal again after returning to the mother’s residence. The father says his son is very unhappy because he feels he is treated very badly by his older sister and by his mother.

[10] The father’s materials express other concerns:

a. He feels the mother does not communicate effectively or appropriately with him about the children. b. He says the mother is secretive about her text communications with the boy. She erases any record of anything that has been said. He feels this undermines co-parenting. c. He says the mother arranged for a neighbour to care for the boy, even though the existing temporary order includes a “right of first refusal” in relation to both children, if either parent is unavailable for a period of more than 3.5 hours.

[11] These other concerns by the father require further attention, but they are not urgent.

[12] However, as soon as we have an allegation that an eight year old boy has repeatedly made suicidal statements, that’s urgent.

[13] The father says on the weekend he tried to discuss their son’s suicidal ideation with the mother.

a. He proposed that the boy remain with him temporarily until CCAS had an opportunity to meet with the boy. b. However, on the Sunday he received an e-mail from the mother’s lawyer advising that if the child was not returned pursuant to the temporary order the father would be in contempt of court. The mother would return the matter to court and seek “substantial indemnity” costs. c. The father says he didn’t want to get in trouble. So he spoke to his son, and the boy assured him he was willing to return to the mother’s home “for the time being.” d. The father says when he dropped the boy off at the mother’s house, during the exchange the boy repeated his suicidal thoughts to the mother. He says after the boy told the mother he wants to kill himself while he is at the mother’s home, the mother turned, went into her house and slammed the door.

[14] The father says he is very worried about his son. He seeks immediate placement of the boy in his care, with the mother’s communication with the boy to be by telephone.

[15] As is often the case in family court, it is impossible to know what’s really going on here. But where extremely serious – potentially life-threatening – allegations arise, we always have to act promptly and cautiously to ensure the physical and emotional well-being of children.

a. The father says his son has repeatedly stated to multiple individuals that he is so unhappy at the mother’s residence he wants to kill himself. Indeed, that he expects to be dead soon. b. The father says he conveyed this to the mother. c. In response, the e-mail from the mother’s lawyer stated that the mother “does not agree with your assessment of the situation…she advises that (he) is a normal, happy boy who enjoys spending time with his mother and sister and who is quite well adjusted despite the fact his parents have recently separated and are in high conflict.”

[16] In any situation in which one parent says “there is a terrible problem here” and the other parent says “I don’t see any sign of any problem” – the immediate priority should not be to win the debate.

a. The immediate priority should be to double check and further investigate the matter, just in case. b. If it turns out there really is no problem, there will be plenty of time to say “I told you so.” c. But most parents would be quite alarmed if they heard their child was expressing suicidal ideation to others. Most parents would want to follow up a bit – even if they themselves have seen no sign of such alarming behaviour.

[17] I am unable to instantly accept the mother’s characterization that the eight year old “is a normal, happy boy.”

a. The mother acknowledges this is a high conflict situation which has been in family court for more than a year. b. The July 17, 2019 temporary order would suggest that the 12 year old daughter is less likely to be a “normal, happy” child. There are so many problems that she needed counselling before access to her father could commence. c. If the daughter needs counselling, it’s entirely possible that maybe the son needs some help too. Maybe we should give this a closer look. Just in case.

[18] 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.

[19] As I write this on a Tuesday, the father’s materials set out that the boy is supposed to be returned to him on Wednesday to Friday of this week. I presume that this will occur. If it doesn’t, the matter should be brought to my attention immediately.

[20] The mother shall be allowed until Thursday May 14, 2020 at 10:00 a.m. to serve and file any responding materials. Her materials should be no longer than the materials served by the father.

[21] The father shall be allowed until Thursday May 14, 2020 at 4:00 p.m. to serve and file a reply affidavit (no longer than two pages typed).

[22] These tight deadlines are unavoidable as a result of the nature of the concerns about the boy’s mental health.

[23] Each party shall serve and file documents by e-mail.

[24] The motion will be dealt with by teleconference (or video conference) on Friday May 15, 2020 at 10:20 a.m..

[25] 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.

[26] Counsel should anticipate that the court will require the following:

a. A letter from CCAS setting out the status of their involvement thus far. The father should attempt to secure this in time for the return date. b. Particulars as to any proposal either parent has with respect to any professional involvement or intervention. If the parents come to agree on this, they should try to make arrangements immediately.

[27] 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.

Pazaratz J. Date: May 12, 2020