Court File and Parties
COURT FILE NO.: FS-18-19172 DATE: 20200529
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Anne Campagna Applicant – and – Craig Sylvano Anthony Campagna Respondent
Counsel: Gino Morga, for the Applicant Deborah L. Severs, for the Respondent
HEARD: in writing May 29, 2020
THIS MOTION HAS BEEN BROUGHT PURSUANT TO THE PROTOCOL IN PLACE DURING SUSPENSION OF NORMAL COURT OPERATIONS DUE TO THE COVID-19 OUTBREAK.
Endorsement of Triage Justice
BONDY J.
1) Introduction
[1] The applicant, Jennifer Anne Campagna (“Ms. Campagna”), and the respondent, Craig Sylvano Anthony Campagna (“Mr. Campagna”), have separated. They have two children whose full names and dates of birth I was not given. They are identified in the materials as Ella (age 7) and Austin (age 5).
[2] By an interim order dated September 28, 2018, residency of the children is shared with the respondent father having parenting time on the weekends from Friday at 3:00 p.m. until Monday at 9:00 a.m. and the applicant mother having parenting time during the week.
[3] The parties recently lived in separate houses, each located within the municipality of LaSalle, Ontario. The applicant mother is in the process of moving to the nearby community of Harrow, Ontario which is a hamlet located within the nearby town of Essex.
[4] The respondent father seeks leave to bring an urgent motion as it relates to:
- The respondent father’s time with the children of the marriage, namely Ella (age 7) and Austin (age 5); and
- Confirmation that the children’s school shall remain the same in light of the applicant mother’s intention to relocate to Harrow.
[5] The respondent father also seeks a second case conference.
2) Urgency
[6] This matter comes before the court during a time when the court has suspended its normal operations due to the global COVID-19 pandemic. At this time, the court is only hearing those motions that meet the definition of urgency set out in the Notice to the Profession of the Chief Justice of Ontario (the Chief Justice’s notice). The Chief Justice’s notice includes the following:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
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.
[7] A determination as to whether a matter meets the definition of urgency is intended to be simple and expeditious. It is not intended to be a motion in and of itself: see Onuoha v. Onuoha, 2020 ONSC 1815.
3) Conclusion
a) The issue of the children’s school
[8] I was at somewhat of a disadvantage because, notwithstanding the extensive array of facts discussed in respondent’s counsel’s letter, there was nothing to give me any guidance as to whether there are any current orders in place as to decision-making. Presuming decision-making to be shared on the information before me, I do not find the issue of which school, if any, the children will be attending in September is urgent for three overarching reasons.
[9] The first is that, as was suggested by applicant’s counsel, September is still three months away. The COVID-19 crisis may abate in the meantime, and the courts may well be open for the hearing of motions prior to then.
[10] The second is that it is equally possible that COVID-19 may not abate, or that the predicted second wave will occur in or prior to September, and as a result the children will not return to school even then.
[11] The third is that the respondent father’s request appears to be related to an upcoming motion to further expand his parenting time. The decision as to which school the children attend would be better decided in conjunction with that issue in order that all the relevant information be before the court.
b) The issue of Mr. Campagna’s time with Austin
[12] I could find no suggestion in the materials filed by the respondent to suggest that Austin had not received parenting time with his father in accordance with the interim court order of September 28, 2018. It follows that there is no urgency with respect to Austin’s parenting time with his father.
c) The issue of Mr. Campagna’s time with Ella
[13] The respondent father maintains that the applicant mother is deliberately frustrating the respondent father’s parenting time by leaving the decision regarding attendance for parenting time to Ella. The respondent father also states that the applicant mother makes arrangements for Ella to sleep over at her maternal grandmother’s house or to go shopping on the weekends when she is supposed to be with her father.
[14] The respondent father also maintains that the applicant mother tends to tie his parenting time to the issue of child support.
[15] The applicant mother denies all those allegations. She however agrees that Ella sometimes misses scheduled parenting time with her father.
[16] The applicant mother maintains that the issue with Ella is complicated and that it was for that reason that a Section 30 assessment was ordered. Unfortunately, that assessment has not yet taken place due to the COVID-19 crisis.
[17] I conclude this matter does not meet the urgency criteria and that a motion based on affidavits limited to the available evidence would not likely provide the evidence necessary to make an informed judicial decision at this time for several reasons. They include the following.
[18] The first is that it appears that the parenting time missed consists of “approximately five occasions, mostly PA days where there has been no school” in the approximately 15-month timeframe commencing in March 2019 and ending at the end of May 2020. I calculate that to be one missed visit every three months. Taking the respondent father’s case at its best, that sort of sporadic missed parenting time does not meet the concept of urgency described in the Chief Justice’s notice.
[19] The second reason is that, as is often the case in high conflict cases, the parties are giving completely different versions of what is happening with Ella. It is not clear whether one is lying, both are lying, or both simply perceive the situation differently. What is clear is that without the beneficial features of a trial, such as cross-examination, it would be extraordinarily difficult, if not impossible, to make the necessary findings of fact.
[20] Presumably, that is precisely the reason the Section 30 assessment has been ordered. Once that Section 30 assessment is completed, the court will be able to assess parenting time and decision-making in the context of the best interests of the children in an informed manner.
d) Case conference
[21] I reiterate the respondent father also requested a case conference. The applicant mother disagrees.
[22] It seems to me that this is precisely the kind of situation that may benefit from a case conference. It would give the parties an opportunity to hear a judge give opinions with respect to the various issues, and accordingly assist them in making beneficial changes in their litigation strategy.
e) The weight to be given to children’s decisions regarding parenting time
[23] I have not made any conclusions as to why Ella has missed five weekends over the course of 15 months with her father, nor would it be appropriate to do so on the very frail information before me.
[24] Notwithstanding, I thought it might assist the parties in preparing for the case conference to have some understanding of their respective rights and responsibilities. I make the following observations regarding the well settled case law as to those rights and responsibilities.
[25] The applicant mother, like all parents, has a positive obligation to ensure that a child, especially a seven-year-old child, attends with the other parent in accordance with existing court orders. That is even when that child resists: see Hatcher v. Hatcher, [2009] O.J. No. 1343, 68 R.F.L. (6th) 179, at para. 17; Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8. Importantly, the decision is not to be left with the child: see Hatcher, at para. 28; B.K. v. A.P., [2005] O.J. No. 3334 (S.C.), at para. 24.
[26] When a child refuses to attend with the other parent in accordance with the terms of a court order, the parent with whom the child is then staying should treat the child the same as a child who, for example, refuses to go to school or otherwise misbehaves: see Hatcher, at para. 28; Geremia v. Harb, [2007] O.J. No. 305, 73 W.C.B. (2b) 395, at para. 44. At a minimum, that parent ought to do the following:
a. have a discussion with the child to determine why he or she does not want to go; b. communicate with the other parent to advise of the difficulty and discuss how it might be resolved; c. offer the child an incentive to go, or some form of discipline should he or she continue to refuse:
See Jackscha v. Funnell, 2012 ONSC 4234, [2012] O.J. No. 3955, at para. 17.
[27] I would ask counsel to ensure that each of their clients have read and understand those legal principles prior to the case conference being conducted.
4) Orders
[28] For the foregoing reasons I make the following orders:
- Urgency is not found and accordingly the motion may not proceed.
- The parties shall do whatever is reasonably possible to expedite the Section 30 assessment being conducted by Mr. Donlon.
- A second case conference is to be arranged by counsel with trial coordination to be held as reasonably soon as is practical.
“Electronically signed and released by Bondy J.” Christopher M. Bondy Justice
Released: May 29, 2020
COURT FILE NO.: FS-18-19172 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jennifer Anne Campagna Applicant – and – Craig Sylvano Anthony Campagna Respondent ENDORSEMENT Bondy J. Released: May 29, 2020