Desimone v. Desimone, 2020 ONSC 3361

Court File and Parties

NEWMARKET COURT FILE NO.: FC-20-388-00 DATE: 20200529 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rachel Christine Desimone, Applicant AND: Giovanni Mario Desimone, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Rachel Christine Desimone, Self-Represented Ingrid Saffrey, Counsel for the Respondent

HEARD: In Writing

Urgent Case Conference Request

Urgent Case Conference Request

1As 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”].

2The applicant (“the father”) seeks leave for an urgent case conference to deal with parenting of the parties’ seven-year old daughter (MSD born April 28, 2013). The respondent (“the mother”) opposes this request. The parties separated in March 2015 and, since then, MSD has primarily resided with her mother and had access with her father pursuant to a verbal agreement. In his April 29, 2020 affidavit the father deposes that he has wanted the child to spend more time with him than the mother allows and that when his lawyer wrote to the mother in February 2020 to try to discuss formalizing a parenting agreement the mother responded with starting an Application.

3Without directly addressing whether the father’s request for a conference is urgent or pressing, the mother maintains in her May 2, 2020 affidavit that, among other things, no involvement of the court is needed, the father’s parenting is deficient and his request for a fixed schedule is really intended to decrease the time MSD spends with her. That, according to the mother, would not be in the child’s best interests. The mother says that there have been extensive discussions and negotiations between the parties: the father’s evidence suggests otherwise.

The Test for Urgency

4A case conference may not be held unless the issue, or issues, are urgent or pressing. 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.

5The 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:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. 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;
3. 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;
4. 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.

6In Clemente v O’Brien, 2020 ONSC 3287, McGee J. held that the test for “pressing” must be applied in a manner consistent with the long-standing for urgency that pre-existed the current pandemic and as set out in Rosen v. Rosen:

32Urgency as set out in the original Notice to the Profession was a higher standard than in Rosen. With the May 19, 2020 expansion has come a relaxing of that initial standard; but to now set it below that of Rosen would in my view undercut a vision for the Family Court that we must not leave behind as we transition to a new normal. This is a full circle worth travelling whether the test for urgency be for a motion, as it was in Rosen v. Rosen or for a Case Conference during a period of suspension.

33I therefore characterize a pressing issue as set out in the May 19, 2020 Central East Notice to the Profession as a standard no less than that required for an urgent motion during regular court operations pursuant to Rosen v. Rosen, and that as a precondition to granting leave, the court must be satisfied that the moving party has engaged in genuine, broadly optioned and diligent settlement discussions.

7I agree with this approach.

Analysis

8Unlike Clemente there is evidence in this matter, although contradictory, of efforts to resolve what appears to be a fluctuating and informal parenting plan. These efforts have been compromised by the pandemic and there is no certainty as to when the courts will reopen or, if reopened, the range of matters that will be allowed to be heard. Between now and then, it is clear that there will be ongoing parenting conflict that will not be in the child’s best interests. The mother’s assertion that she supports the child’s relationship with her father is inconsistent with the parties’ evidence, particularly her own evidence.

9In Matus v. Gruszczynska, 2020 ONSC 2359, at para. 15 McGee J. observed that “[p]arenting is an essential service” and in Di Vetta v Di Vetta, 2020 ONSC 2347, at para. 9 I commented that “[u]nreasonable failure to support a child’s relationship with the other parent is a failure of parenting”. In my view, the father’s request is pressing and a case conference must be held.

Directions

10The father’s motion is granted. The following directions shall apply:

(a) Court administration shall schedule the first available date for a Case Conference after June 9, 2020 before the assigned case conference judge; (b) The conference shall be restricted to dealing with formalizing a temporary, without prejudice parenting plan; (c) The parties shall comply with the revised CER Notice to the Profession dated April 17, 2020 (paragraph 3) dealing with form and length of the parties’ briefs; (d) Each party shall file as part of their case conference brief their proposed parenting plan to be in effect until September 7, 2020. This plan does not form part of the length restriction in the April 17, 2020 CER Notice to the Profession; (e) The total time allotted will be three-quarters of an hour or such further time as the case conference judge may allow; (f) Briefs may be signed and filed electronically; (g) The father shall file his Brief by Wednesday June 3, 2020 (4:00 p.m.) and the mother her Brief by Monday, June 8, 2020 (4:00 p.m.); (h) Confirmation that the conference is proceeding (i.e. delivery of a Form 17F) is dispensed with. If the parties settle the conference issues before the teleconference, they must so advise the Court and provide a draft Order to issue on consent.

11The parties will be expected to have realistic solutions for the conference. Costs may be awarded.

12In 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 is dispensed with. The parties may submit a formal Order for signing and entry once the court re-opens.