Court File and Parties
COURT FILE NO.: FS-20-20874 DATE: 20200605 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ashley Hughes-Kani Applicant – and – Matthew Zoldi Respondent
Counsel: Mary Anne Ducharme, for the Applicant No one appearing for the respondent
HEARD: June 4, 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
BONDY J.
1) Introduction
[1] The applicant, Ashley Hughes-Kani, and the respondent, Matthew Zoldi, have one biological child, Zaidyn Zoldi born May 9, 2017 (“Zaidyn”). Although the parties are separated, there is no written agreement or court order in place regarding parenting or decision-making for the child.
[2] The parties recently made a verbal agreement that the child would reside with each parent for five days at a time. Pursuant to that agreement the respondent father took the child on May 14, 2020. Once he had the child, the respondent father refused to return him until May 28, 2020, notwithstanding that agreement. The day following the return of the child to the applicant mother, she left the child with an aunt to go grocery shopping. The respondent father again took the child while the aunt was babysitting, and now refuses to return him.
2) Urgency
[3] 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.
[4] 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
[5] The material filed by the applicant mother is consistent with wrongful retention of a child and, accordingly, this matter meets the definition of urgency set out in the Chief Justice’s notice. It follows that the motion may proceed.
[6] The motion shall be limited to the issue of a temporary order as to parenting time and decision-making with respect to the child. The Windsor-Essex Children’s Aid Society is involved with this family.
[7] 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
[8] I make the following orders, all subject to further direction of the motions judge:
- The applicant may proceed with her motion. It shall be served along with the application and supporting materials by email no later than Monday, June 8, 2020, at 4:00 p.m.
- The respondent shall have until Friday, June 12, 2020, at 4:00 p.m. to serve and file a responding affidavit, also by email.
- The applicant shall have until Monday, June 15, 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 a temporary order as to parenting time and decision-making with respect to the child Zaidyn Zoldi born May 9, 2017; 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.
- Each party shall file any correspondence, reports or other information from the Windsor-Essex Children’s Aid Society that they have in their possession or are able to obtain.
- The motion shall be scheduled by trial coordination any time after Monday, June 15, 2020.
Christopher M. Bondy Justice