Court File and Parties
COURT FILE NO.: FS-12-11928 DATE: 20200602 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Joann Peters Applicant – and – George Peters Respondent
Counsel: Ursula Miletic, for the Applicant Michael D. Frank, for the Respondent
HEARD: June 1, 2019
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] This is a decision as to whether or not motion meets the current criteria for urgency.
[2] The applicant, Joann Peters, seeks an order that the respondent, George Peters, return the children, Preston Wolfgang Peters born August 23, 2006 (“Preston”), and William Sean Peters born March 4, 2009 (“William”), to the care of the mother. She also seeks an order that the matter be transferred to Kingston.
[3] By way of background, the applicant mother was given interim custody of the children by a consent order signed November 14, 2013. The father was given supervised access by that same order. However, a final order was never made.
[4] The respondent mother moved to Kingston in July 2017 and remained there until August 2019. She then moved to her mother’s home in the hamlet of Ruthven. Ruthven is located in Essex County close to the city of Windsor.
[5] The applicant mother and children then moved back to Kingston, Ontario from Essex County in February 2020.
[6] Later that same month, on February 28, 2020, the respondent father was awarded unsupervised access over the March Break. That access began on March 13, 2020. The respondent father has not returned the children and will not give the applicant mother any access whatsoever.
[7] The children are currently residing in St. Thomas where the respondent father lives. The St. Thomas Children’s Aid Society (“St. Thomas CAS”) is involved with the family.
[8] The applicant mother is currently living in Essex County. The Windsor-Essex Children’s Aid Society (“Windsor CAS”) was involved with the applicant mother as recently as February 2020.
[9] The applicant mother would like to move back to Kingston, Ontario with the children, and that is the basis for her request that the matter be transferred back to Kingston.
2) Urgency
[10] 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, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (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.
[11] 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
[12] The material filed by applicant mother indicate that this is a case of wrongful retention of the child. Accordingly, I find this matter meets the definition of urgency set out in the Chief Justice’s notice. Accordingly, the motion may proceed.
[13] The motion shall be limited to the issue of wrongful retention of the children.
[14] My determination on urgency is without prejudice to any position the parties may take before the motions judge. In addition, my determination on urgency is a preliminary determination only, and is subject to any ruling on the issue of urgency that may be made by the motions judge, who will have had the benefit of a review of the motion materials of both parties along with submissions of counsel.
[15] The brief record before me leaves many important questions unanswered. That is not surprising given the very summary nature of this proceeding. That said, it seems to me important that counsel be aware of my observations in that regard. In particular, in addition to the affidavits of the parties, the judge hearing the motion would no doubt benefit from information from both the Windsor CAS and the St. Thomas CAS. That could be accomplished by a letter or affidavit from someone with knowledge at each CAS or in the alternative by filing the records related to the parties from each CAS. In addition, it would be helpful to know whether or not the applicant was involved with the Kingston CAS and, if so, the judge hearing the motion would benefit from similar information from that organization.
4) Procedural Orders
[16] I make the following orders, all subject to further direction of the motions judge:
The applicant may issue her application. It shall be served along with the notice of motion and affidavit by email no later than June 5, 2020, at 4:00 p.m.
The respondent shall have until June 10, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
The applicant shall have until June 12, 2020, at 4:00 p.m. to serve and file her reply affidavit.
The affidavits a) shall be limited to affidavits by the parties only, without leave of the court. The only possible exception is affidavits from any of the Children’s Aid Societies involved with the parties; b) shall not be longer than 10 pages, excluding exhibits; c) shall include only those exhibits relevant to the issue of the alleged wrongful retention of the children, and information from any Children’s Aid Society with knowledge as to the parenting qualities of the parties; d) shall include as exhibits anything in the Continuing Record relied upon by the affiant, it being recognized that the judge does not have access to the continuing record; e) need not be sworn, so long as the parties are on the conference call during the motion and affirm their affidavits to the motions judge. f) shall when possible be sent as a single document including the affidavit and any exhibits to that affidavit in order to facilitate reading and/or downloading and/or printing of the affidavit and exhibits; g) shall be given a name which includes: the name of the document, and the name of the affiant where applicable, and the date of the document; h) In the event the affidavit and exhibits cannot be sent as a single document then each exhibit shall be given a name in accordance with the preceding subparagraph and in addition the letter of the exhibit.
The motion shall be scheduled by trial coordination any time after June 12, 2020.
Christopher M. Bondy Justice
Released: June 2, 2020