Court File and Parties

COURT FILE NO.: FC-20-20 DATE: 2020/06/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: O.M., Applicant AND S.K., Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Erin Lepine, for the Applicant Areesha Zubair, for the Respondent

HEARD: June 5, 2020

ENDORSEMENT

Background

[1] S.K. requested an adjournment of O.M.’s motion, scheduled for June 11, 2020. I denied S.K.’s request, provided brief oral reasons, and advised the parties that I would provide more detailed written reasons for my decision. These are my written reasons.

[2] To situate S.K.’s request, some substantive and procedural background is required.

[3] O.M.’s application was issued on January 7, 2020. At a case conference on January 15, 2020, Master Fortier described this as a “high conflict matter” and scheduled a motion for temporary relief, to be heard on an expedited basis.

[4] I heard the parties’ motions for interim relief on February 11, 2020. The issues included custody of and access with the parties’ four and a half year old daughter, child support, spousal support, and temporary exclusive possession of the matrimonial home. At the time I heard the motions, the parties were living separate and apart in the matrimonial home.

[5] While the motions were under reserve, counsel for O.M. advised that O.M. wished to introduce fresh evidence. S.K. objected. Before a procedural motion could be scheduled, in-person court proceedings were suspended because of the COVID-19 pandemic, with only urgent matters being heard virtually.

[6] The availability of virtual hearings was expanded as of May 19, 2020. On May 22, O.M.’s motion – now focused on the implementation of minutes of settlement – was scheduled to be heard on June 11.

[7] Counsel agreed on a schedule for the exchange of material leading up to the motion on June 11.

[8] On June 1, the day before O.M. was scheduled to serve S.K. with his motion materials, S.K. changed counsel; her solicitors of record are now Davies Law. When Davies Law was retained on June 1, the firm was aware of the June 11 motion and Tanya Davies was available to appear on S.K.’s behalf. Following the firm’s retainer on June 1, counsel for the parties agreed to a minor change in the timeline for the service of materials; there was no request to adjourn the June 11 motion date.

[9] On June 2, after O.M. had served his notice of motion and affidavit in accordance with the agreed upon timetable, Davies Law wrote to trial coordination and Ms. Lepine to advise that S.K. was seeking an adjournment for medical reasons that rendered her unable to respond to the motion or to provide instructions to counsel. Ms. Lepine advised that O.M. opposed the adjournment request. I then convened a case conference.

[10] On June 4, S.K. provided an affidavit in support of her adjournment request. Her affidavit is five pages in length and consists of 44 paragraphs. In her affidavit – for the first time – S.K. stated that “I have been advised by Davies Law, my solicitors of record, and do verily believe that my lawyer, Ms. Tanya Davies, is no longer available on June 11, 2020 to attend to the motion. She will be away until June 15, 2020.”

Grounds Advanced in Support of the Adjournment Request

[11] S.K. asked that the motion be adjourned to June 25. S.K. advanced two grounds in support of her request: (i) the unavailability on June 11 of S.K.’s counsel of choice, Ms. Davies; and (ii) her inability for medical reasons to respond to the motion and to instruct counsel.

Discussion

[12] The granting or refusing of an adjournment is a discretionary act. As summarized by Perell J. in Ariston Realty Corp. v. Elcarim Inc. at para. 34, depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge may need to weigh a number of relevant factors. These factors include:

• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• the need for justice not only to be done but appear to be done;
• the circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• any prejudice not compensable in costs suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to process proceedings in an orderly fashion; and
• the need of the administration of justice to effectively enforce court orders.

[13] When dealing with an adjournment request in family proceedings, the best interests of the child should be added to the list of relevant factors.

[14] After considering and weighing the relevant factors, including the best interests of the parties’ young daughter, I concluded that an adjournment of O.M.’s motion would not be in the interests of justice.

[15] S.K. unilaterally exercised a self-help remedy on May 15, 2020 when she left the matrimonial home with the parties’ daughter. O.M. has not had parenting time with the child since May 15. S.K. claims that she fled with her daughter as a result of an incident on May 10 when O.M. was giving their child a bath and that she told the police about what had happened. The Children’s Aid Society is also involved. Thus far, however, no charges have been laid and the Children’s Aid Society has not made any recommendations regarding O.M.’s parenting of his daughter.

[16] Three days after the alleged incident with the child on May 10, S.K. signed minutes of settlement that purport to resolve all parenting issues between the parties on a final basis. The minutes of settlement provide for the parties to have joint custody of their daughter and a 2-2-3 parenting schedule. On May 15, counsel for S.K. confirmed that S.K. would be moving forward with the parenting schedule set out in the executed minutes of settlement. On May 18, S.K. claimed to be at the parties’ agreed upon exchange location (although no exchange took place on that day because O.M. was not in a position to attend the location). Then, on May 19, counsel for S.K. proposed an alternate time for an exchange. At no time in the various communications between the parties or their lawyers did S.K. raise the very serious allegation she has now levelled against O.M..

[17] S.K.’s behaviour – signing minutes of settlement and then, in the days following, acting in accordance with the parenting schedule provided for in the minutes – is completely at odds with her allegation. I also observe that S.K. has not moved to vary the minutes of settlement. That said, my present task is to determine whether to grant an adjournment. Both parties should want this matter addressed as quickly as possible. More importantly, it is in the child’s best interests that the parenting issues are dealt with as soon as possible.

[18] If a parent is wrongfully preventing access, justice must be done sooner rather than later for the child and the parties (Becker v. McGrath, 2016 ONSC 2476, at para. 7). To grant an adjournment would prejudice O.M. and the child. At the same time, an adjournment could be viewed as rewarding S.K. for engaging in self-help behaviour by withholding the child. S.K. proposed supervised access to O.M. if an adjournment were granted. Based on the evidence before me, there is no reason for O.M.’s parenting time with his daughter to be supervised. The executed minutes of settlement belie S.K.’s suggestion.

[19] Because of S.K.’s unilateral conduct, O.M. has not had parenting time with his daughter since May 15. The practical consequence of granting an adjournment would be to extend, for a further two weeks, the time O.M. will not have seen his daughter in person. Any adjournment would exacerbate the risk of harm to the father-child bond resulting from S.K.’s prevention of access. There are no adverse procedural effects associated with refusing the adjournment.

[20] The medical evidence proffered in support of the adjournment request is hearsay in nature, and sorely lacking in detail. Contrary to her doctor’s recommendation that the motion date “be extended to at least July 13th”, S.K. requested a briefer adjournment to June 25. S.K.’s alleged inability to respond to the motion and to instruct counsel was raised only after O.M.’s motion materials were served. I also observe that on being advised that her request for an adjournment was opposed, S.K. was able to engage with and instruct counsel to fully advance her position in respect of the adjournment. The evidence simply does not support an adjournment based on medical reasons.

[21] Nor am I prepared to grant an adjournment because of the unavailability of Ms. Davies, S.K.’s counsel of choice, on June 11. In her affidavit, S.K. described the “delicate nature” of the motion and her wish for senior counsel at the Davies Law firm to represent her. Counsel emphasized that O.M. now seeks an order for interim custody and an interim order that he have primary care of the child. Given S.K.’s decision to withhold access, O.M.’s decision to seek an interim change to the minutes of settlement ought not to have taken counsel for S.K. by surprise.

[22] When her firm was retained by S.K., Ms. Davies was aware of, and apparently available for, the June 11 motion date. Indeed, an associate in Ms. Davies’ firm negotiated a modification to the timetable to accommodate her firm’s recent retainer. Ms. Davies’ unavailability was not raised in counsel’s initial letter to the court requesting an adjournment. It was not until June 4, in her affidavit sworn in support of her adjournment request, that S.K. stated she had been advised “by Davies Law” that Ms. Davies was no longer unavailable on June 11. Crucial details were not included: in particular, S.K. did not identify who at Davies Law provided her with the information, nor did S.K. state when she learned that Ms. Davies was no longer available. Given the paucity of details and the timing of the disclosure, it appears to me that Ms. Davies’ unavailability was raised as an afterthought to support the adjournment request. I should also note that in the days preceding the case conference, S.K. worked with counsel other than Ms. Davies, and S.K. was ably represented by counsel in connection with her adjournment request.

Conclusion

[23] For these reasons, I refused S.K.’s adjournment request. I ordered a modified schedule for the exchange filing of material for the June 11 motion:

• S.K. is to serve her responding materials by no later than June 8, 2020 at 4 p.m.;
• O.M. is to serve any reply materials by no later than June 10, 2020 at 4 p.m.;
• the parties are to serve their respective factums by no later than June 10, 2020 at 4 p.m.; and
• all materials for use on the motion are to be filed by no later than June 10, 2020 at 4 p.m.

[24] At the conclusion of the case conference hearing, I heard the parties’ positions on costs. As the successful party, O.M. is presumptively entitled to his costs. He requested the amount of $1,500. S.K. maintained that she was not in a position to pay such an amount. In my view, in the circumstances of this case, a fair and reasonable amount of costs for S.K. to pay O.M. is $1,000, all inclusive. These costs are to be paid within 30 days.

Justice R. Ryan Bell Date: June 9, 2020