Court File and Parties
Newmarket Court File No.: FC-16-52547-00 Date: 20200527 Superior Court of Justice - Ontario
Re: Sabrina Alexandra Triestino, Applicant And: Italo Triestino, Respondent
Before: The Honourable Mr. Justice D.A. Jarvis
Counsel: Judith Holzman, Counsel for the Applicant Yaroslav Obouhov, Counsel for the Respondent
Heard: In Writing
Urgent Motion Order Request
[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].
[2] The applicant (“the mother”) has brought an urgent motion without notice to the respondent (“the father”) for an Order varying that part of a temporary Order made by MacPherson J. on September 3, 2019 dealing with in-person access by the father to the parties’ two children residing with her. In her affidavit sworn on May 25, 2020 the mother said that the father had been charged on May 19, 2020 with breach of a Restraining Order and criminal harassment. In an April 22, 2020 letter from the York Region Children’s Aid Society (“the Society”) serious concerns about the father were noted and the Society indicated that it had made a clinical decision to remain engaged with the family as a result of the father’s lack of cooperation with it and to engage with the Society.
[3] In the current proceedings between the parties, the father’s pleadings have been struck and he has failed to comply with a costs award in the mother’s favour. On November 20, 2019 McGee J. dismissed a motion by the father to set aside the Order striking his pleadings without prejudice to his renewing a request for that relief if he paid the costs Order by January 10, 2020. It does not appear that was done because the mother says that she filed a Form 23C affidavit for an uncontested Trial Order that McGee allowed her if the costs were unpaid. A hearing was scheduled for April 1, 2020 but had to be adjourned as a result of the current COVID-19 pandemic pursuant to the Chief’s Notice.
[4] The mother claims that she is concerned about the irrational, erratic and Order non-compliant behaviour of the father and that notice of this motion may only escalate behaviour harmful to the children (and possibly her). Given that evidence, the September 3, 2019, Order of MacPherson J., the father’s recent criminal charges and his failure comply with, at the very least, the costs Order, the mother has, prima facie, cause to be concerned.
[5] The Chief’s Notice frames what may be considered urgent:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child; c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order; d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
[6] The Central East Region (“CER”) Notice to the Profession effective May 19, 2020 expands the range of matters permitted under the Chief’s Notice to include matters qualifying as “pressing”. Although decided under a previous iteration of the Chief’s Notice, Kurz J. in Thomas v. Wohleber, 2020 ONSC 1965 at para 38 framed the general outline for the requisite test which, in my view, should be only modestly relaxed:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[7] Based on the mother’s evidence and the Society letter, I am persuaded that her motion meets the urgency test set out in the Chief’s Notice and that a temporary Order should now issue suspending in-person access by the father but that he should be given an opportunity to respond.
[8] The following is ordered on a without prejudice basis;
(a) Leave is granted to the mother to bring this motion on an urgent, without notice, basis; (b) Paragraph 1 of the Order of MacPherson J. dated September 3, 2020 is suspended, effective immediately; (c) The father shall be entitled to nightly telephone or videocall calls with the children at 7:00 p.m. to be initiated by the mother, such calls not to exceed thirty minutes; (d) The mother shall forthwith serve the father with her motion material, this endorsement and any Order that may be issued; (e) The father shall have until Tuesday, June 3, 2020 (3:00 p.m.) to file material in response to the mother’s material; (f) The mother shall deliver her reply (if any) by June 5, 2020 (4:00 p.m.); (g) All material may be served by email and file electronically with the court; (h) Delivery of Form 14C confirmations is dispensed with; (i) No other motion or material shall be filed by either party except as set out above; (j) The motion shall be restricted to forty-five minutes. Each party shall have fifteen minutes to make their argument in chief; the mother shall be entitled to a five-minute reply. The extra time is for use by the motion judge; (k) Court administration shall schedule a return of the mother’s motion for hearing no earlier than Monday, June 8, 2020 (12:00 noon); (l) The lawyers shall agree before the motion is argued on one amount for costs, such amount not to be referenced in the parties’ material or submissions until argument has concluded.
[9] There is evidence in the material of the father’s involvement of the children in these proceedings and harassment of the mother. Without determining the merits of those allegations, any discussion of adult issues in this case or about this case with the children by either party is unacceptable and will be sanctioned. To be even clearer, the father is to have no contact with the children except as set out above or as may be arranged through counsel pending the return of the mother’s motion.
[10] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval by the father is dispensed with. The mothers may submit a formal Order for signing and entry once the court re-opens.