Court File and Parties
COURT FILE NO.: FS-09-8036 DATE: 2020-06-03 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Esther Carnahan Applicant – and – Haider J. W. Sammy and Bushra Fatah Respondents
Counsel: Esther Carnahan, acting in person The Respondent, Haider J. W. Sammy, was not served and did not participate in the urgency assessment The Respondent Bushra Fatah was not served and did not participate in the urgency assessment
HEARD: June 2, 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] This was a request by the applicant mother that a motion to change be heard on the basis of urgency.
[2] The applicant, Esther Carnahan, and the respondent, Haider J. W. Sammy, have two children, Karma Justice Carnahan born January 9, 2006 (“Karma”), and Genesis Diane Carnahan born February 6, 2007 (“Genesis”).
[3] The respondent, Bushra Fatah, is the children’s paternal grandmother. She has had custody of the children since a court order made by me on March 28, 2011. That same order gave both the applicant mother and respondent father unsupervised access.
[4] Presumably this is a high conflict situation. I say that because access exchanges most recently took place at “New Beginnings” which is a local supervised access centre.
[5] New Beginnings is temporarily closed due to the COVID-19 crisis and, as a result, the applicant mother has not had face-to-face access with her children for some time.
[6] The applicant mother seeks an order that the access exchanges take place at the respondent grandmother’s house, and that the applicant’s boyfriend, Harry Wasylyk, conduct the pickups and drop-offs.
2) Urgency
[7] 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 (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.
[8] 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
[9] As said above, the material filed by the applicant mother indicates that the children’s face-to-face access with her has been frustrated by the temporary closure of New Beginnings where access exchanges took place. I conclude this matter meets the definition of urgency set out in the Chief Justice’s notice. Accordingly, the motion may proceed.
[10] The motion shall be limited to the issue of whether the procedure currently in place for access exchanges should be changed either temporarily or on a final basis.
[11] 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.
4) Procedural Orders
[12] I make the following orders, all subject to further direction of the motions judge:
The applicant, Esther Carnahan, may request the registrar’s office to open a motion to change file and may file her motion to change by email no later than Friday, June 5, 2020, at 4:00 p.m.
The applicant shall serve the respondents by regular mail effective no later than June 15, 2020, at 4:00 p.m.
The respondents shall have until Monday, June 22, 2020, at 4:00 p.m. to serve and file a responding affidavit, by email.
The applicant shall have until Wednesday, June 24, 2020, at 4:00 p.m. to serve and file her reply affidavit.
The affidavits of the parties a) shall be limited to affidavits by the parties only, without leave of the court; b) shall not be longer than 10 pages, excluding exhibits; c) shall include only those exhibits relevant to the issue of whether the procedure currently in place for access exchanges should be changed either temporarily or on a final basis; 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 hearing of 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 affiant, and the date of execution; h) In the event the affidavit and exhibits cannot be sent as a single document, then each exhibit 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, and the letter of the exhibit where applicable.
The applicant Esther Carnahan and her boyfriend Harry Wasylyk shall each file up-to-date form 35.1 affidavits.
The motion shall be scheduled by trial coordination any time after Wednesday, June 24, 2020, at 4:00 p.m.
Christopher M. Bondy Justice Released: June 3, 2020