Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Matthew Goulet Applicant
– and –
Carla DiGioia Respondent
COUNSEL:
Warren Fullerton, for the Applicant
Cheryl Hodgkin, for the Respondent
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
1The applicant, Matthew Goulet, and the respondent, Carla DiGioia, separated in mid-May 2020. They have one child, Ava Sophia Goulet born January 15, 2014 (“Ava”).
2According to the applicant father, the parties separated after an altercation which occurred while the respondent mother was attempting to surreptitiously record a conversation. The applicant father has been charged with mischief and assault and has given an undertaking not to attend at the matrimonial home.
3The respondent father maintains that Ava has not had any parenting time with him since separation. The respondent father maintains that he has made a number of suggestions as to appropriate parenting time, none of which were satisfactory to the respondent mother. The applicant father further maintains that the respondent mother has not offered any parenting time for Ava with her father other than supervised access.
2) Urgency
4This 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.
5A 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
6As said above, Ava who is about six years of age has not seen her father since the parties separated. The respondent father states that the applicant mother is not allowing parenting time. There is no court order in place. It appears the respondent mother has not brought an application seeking custody. The provisions of section 20 of the Children's Law Reform Act, R.S.O. 1990 c. C.12, provide that a child’s parents are equally entitled to custody.
7I conclude this matter meets the definition of urgency set out in the Chief Justice’s notice because it involves an allegation of wrongful retention of a child. Accordingly, the motion may proceed.
8The motion shall be limited to the issue of Ava’s access to the respondent father.
9My 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
10I make the following orders, all subject to further direction of the motions judge:
The applicant may issue his application. Mr. Goulet may file his financial statements without his notices of assessment. Those notices of assessment shall be served and filed as soon as is practical.
The application shall be served along with the notice of motion and affidavit by email no later than Friday, June 5, 2020, at 4:00 p.m.
The respondent shall have until Wednesday, June 10, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
The applicant shall have until Friday, June 12, 2020, at 4:00 p.m. to serve and file his reply affidavit.
The affidavits
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 Ava’s access to the respondent father, and the involvement of the Windsor-Essex Children’s Aid Society if any;
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 and respondent shall each also serve and file an up-to-date form 35.1 affidavit.
The motion shall be scheduled by trial coordination any time after Friday, June 12, 2020, at 4:00 p.m.
Christopher M. Bondy
Justice
Released: June 2, 2020