Court File and Parties

Newmarket Court File No.: FC-18-55670-00 Date: 2020-06-19 Superior Court of Justice - Ontario

Re: Steven Matthews Lopes, Applicant And: Brittany Emily Amanda Bass, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: Dayna Shoot, Counsel for the Applicant Abba Katz, Counsel for the Respondent

Heard: In Writing

Urgent Case Conference Request

[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].

[2] The applicant (“the father”) requests leave for an urgent case conference to deal with access by the respondent (“the mother”) to the parties’ 5 ½ year old child who primarily resides with him. The mother disputes that the situation meets the test of urgency or of pressing importance.

[3] A case conference may not be held unless the issue, or issues, are urgent or pressing. The Chief’s Notice frames what may be considered urgent:

(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; (d) in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

[4] The Central East Region (“CER”) Notice to the Profession effective May 19, 2020 expands the range of matters permitted under the Chief’s Notice to include matters qualifying as “pressing”. Although decided under a previous iteration of the Chief’s Notice, Kurz J. in Thomas v. Wohleber, 2020 ONSC 1965 at para 38 framed the general outline for the requisite test which, in my view, should be only modestly relaxed:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

[5] In Clemente v O’Brien, 2020 ONSC 3287, McGee J. held that the test for “pressing” must be applied in a manner consistent with the long-standing for urgency that pre-existed the current pandemic and as set out in Rosen v Rosen:

[32] Urgency as set out in the original Notice to the Profession was a higher standard than in Rosen. With the May 19, 2020 expansion has come a relaxing of that initial standard; but to now set it below that of Rosen would in my view undercut a vision for the Family Court that we must not leave behind as we transition to a new normal. This is a full circle worth travelling whether the test for urgency be for a motion, as it was in Rosen v. Rosen or for a Case Conference during a period of suspension.

[33] I therefore characterize a pressing issue as set out in the May 19, 2020 Central East Notice to the Profession as a standard no less than that required for an urgent motion during regular court operations pursuant to Rosen v. Rosen, and that as a precondition to granting leave, the court must be satisfied that the moving party has engaged in genuine, broadly optioned and diligent settlement discussions.

[6] As I noted in Desimone v. Desimone, 2020 ONSC 3361, I agree with this approach as it applies to urgent case conference requests.

[7] There is no evidence in this matter that the parties attempted any discussions about the father’s concerns before he brought his motion. That, in my view, is a pre-condition to consideration of any urgent motion or case conference request.

[8] The father’s motion is dismissed without prejudice to it being renewed if the parties cannot resolve the parenting concerns which prompted the motion. Costs are reserved to the earlier of final disposition of these proceedings or the disposition of any motion should one become necessary. The parties may wish to consider a Voice of the Child Report which, if they are agreed, I would be prepared to consider.

[9] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval is dispensed with. The parties may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis Date: June 19, 2020