Court File and Parties

Newmarket Court File No.: FC-20-640-00 Date: 2020-06-23 Superior Court of Justice - Ontario

Re: Hayley Theresa McCarthy, Applicant And: James Michael Bolton, Respondent

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

Counsel: Regina Senjule, Counsel for the Applicant James Michael Bolton, Self-Represented

Heard: In Writing

Ruling on Urgent Motion 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 mother”) requests leave for an urgent motion to be heard before a case conference. She seeks custody of the parties’ two children (ages 14 and 2 years old), an Order for supervised access by the respondent (“the father’) and a restraining Order.

[3] The father, although served with the mother’s pleadings and this motion has not delivered any response to this motion.

[4] The unchallenged evidence is that the parties began cohabiting in 2008 and their relationship was marked by regular domestic violence, often precipitated by the father’s excessive use of alcohol. The mother was fearful of reporting the violence. On May 20, 2020 the mother says she was assaulted by the father. Although the police were called, attended and later removed the father from the parties’ residence, he was not criminally charged. A little over a week later the mother observed the father standing outside her bedroom window. Fearful of her safety the mother has since arranged for her mother and sister to temporarily live with her and the children. The Children’s Aid Society (“the Society”) is involved but few details about its involvement were provided except that the mother says that the Society recommended that any access take place in the maternal grandmother’s apartment supervised by the grandmother or the mother’s sister.

[5] The mother does not ask that the children be denied access to their father but is concerned about his current living arrangements and his alcoholism. She claims that the children, particularly the oldest child, have been affected by the turmoil in the home.

[6] A motion such as that now before the court must meet the test for urgency set out in the Chief’s Notice or be of pressing importance. The safety and well-being of children of children is paramount. In my view the mother’s evidence meets the requisite test of importance and urgency.

[7] The following is ordered on a without prejudice basis:

(a) The children shall primarily reside with their mother under her care and control with full decision-making authority pending further Order of the court;

(b) The father shall be entitled to such access as the mother in her discretion thinks advisable, and in the children’s best interests. In this regard the mother should be guided by whatever recommendations that may from time to time be made by the Society;

(c) The father shall not communicate with the mother except by text or email. Such exchanges between the parties shall be restricted to matters involving the children and shall not be used for any other purpose. Failure to comply with this term may invite court sanctions on the non-compliant party;

(d) Pursuant to s. 47.1 of the Family Law Act, the father shall not directly or indirectly contact or communicate with the mother except as set out in (c) above;

(e) The mother’s request for a Restraining Order is dismissed on a without prejudice basis;

(f) The next event shall be a case conference to be scheduled by the parties through the court administration on the earlier of the court re-opening to in-person attendance or remotely by teleconference or ZOOM or other modality;

[8] There was reference in the mother’s material to the paternal grandmother harassing the mother by text messages. The father would be well advised to discourage any such uninvited contact by members of his family or friends with the mother or members of her family at this time. Such conduct could reflect very poorly on him.

[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 23, 2020