Court File and Parties

Court File No.: 734/18 Date: 2020-06-30 Superior Court of Justice – Ontario – Family Court

Re: Jenny Muchiya Hiebert, Applicant And: Isaac William Hiebert, Respondent

Before: The Honourable Justice Robert B. Reid

Counsel: M. VanderSpek, Counsel, for the Applicant C. McCollum, Counsel, for the Respondent

Heard: June 29, 2020

Decision on Motions

[1] Two motions were before the court: one by the respondent primarily for an order allowing him specific parenting time with the three children, and one by the applicant for an order that access by the respondent be according to the wishes of the children.

[2] As a preliminary matter, the applicant submitted that the motions are not urgent and that both should be adjourned until a case conference is held.

[3] By way of brief background, the parties were married in September 2008 and separated on August 21, 2019. There are three children, who I will refer to by their initials: IEH, born February 2, 2010, IMH, born August 3, 2011, and ELH, born September 16, 2012.

[4] Following separation, the children have resided primarily with the applicant, subject to parenting time with the respondent.

[5] The arrangement by agreement was for the children to spend Tuesdays and Thursdays with the respondent from 4:00 p.m. to 8:00 p.m. in alternate weeks. As well, the children were with the respondent on alternate weekends from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. The schedule was devised because the respondent worked day and evening shifts in alternate weeks.

[6] From March 20, 2020, the parties agreed to change the schedule so that the children were with the respondent Monday, Wednesday and Friday from 4:00 p.m. to 8:00 p.m. during alternate weeks. During the other week, the children were with the respondent from Saturday at 10:00 a.m. to Sunday at 7:00 p.m., and two weekdays from 10:00 a.m. to 2:00 p.m. The change was made at the request of the applicant. Her workload as a PSW increased due to the COVID-19 pandemic, and the respondent temporarily was able to adjust his work schedule to accommodate the change.

[7] The respondent’s motion results from the decision of the applicant to suspend scheduled access as of May 23, 2020. The respondent wishes to maintain his contact with the children and sees no reason based on his historically positive involvement with the children for his parenting time to have been interrupted. He is concerned that the applicant has been alienating the children from him.

[8] The applicant has concerns about the safety of the children while in the care of the applicant, based in part on an allegation that the respondent spanked ELH and IMH on May 19, 2020 and because of her worries about the respondent’s lack of anger management. FACS Niagara apparently has an open file concerning the family, and the applicant wants that file to be before the court when access is considered. The applicant also alleges that the children are afraid of the respondent and do not wish to have contact with him.

[9] The parties made a separate 14(b) motion on consent requesting the involvement of the OCL, which was granted by the order of Justice Scott, dated June 22, 2020. If the OCL accepts the assignment, the children’s views may be made known through that office.

Urgency

[10] Generally, motions may not be brought prior to the completion of a case conference. Sub-rule 14(4.1) of the Family Law Rules allows the court discretion to hear a motion in advance of the conference where there is a situation of urgency or hardship or where for some other reason it is in the interest of justice to do so.

[11] Bringing a motion in advance of a case conference is an exceptional step. It is well-established that the policy against those proceedings is based on a preference to find a consensual resolution without the need for what has been described as a “war of affidavits”.

[12] Neither party has secured a case conference date. Anecdotally, counsel for the respondent advised that she requested an in-person case conference and was told by the trial office that they were not available. Counsel for the applicant advised that she has been provided with timely dates for virtual case conferences on other matters.

[13] The case law that has developed over the past three months during the partial closure of the courts during the COVID-19 pandemic on the matter of urgency is not helpful in this case. Those cases relate to decisions on urgency in the context of the Notice to the Profession issued by the Chief Justice. Matters heard by the court were limited to those that were deemed urgent by a triage judge. That procedure arose because of the restriction in available technological resources to facilitate virtual hearings. There has never been a change to either the rule preventing motions in advance of case conferences or to the basis on which urgency is considered.

[14] It is undisputed that the respondent has not seen the children since May 19, 2020 which to date is about six weeks. Parenting time by a non-custodial parent is typically considered to be an important matter to be exercised where there is no clear danger or other evidence that contact is not in the best interest of the children. However, a case conference could well have been scheduled, if not already heard, if a request for an early date had been made by either party. Likewise, it is quite possible that an early date can be provided now so that the parties can negotiate and meet in a conference setting (albeit virtually) in the near future.

[15] I note that the applicant has unilaterally imposed a change in the status quo as to the respondent’s parenting time with the children. There does not even appear to have been any suggestion about some form of supervised access. Her conduct in the matter will need justification as the matter proceeds through litigation. However, the change in status quo has not related to the children’s primary residence or geographical location. Some electronic communication is occurring between the respondent and at least some of the children. As such, this is not one of those situations where the applicant’s actions require immediate judicial correction.

Conclusion

[16] Based on the foregoing, I find that these motions are not matters of urgency, and as such there will be no order as to the respondent’s parenting time in advance of a case conference. The motions are therefore adjourned without a date.

[17] The parties are to contact the trial co-ordinator at St. Catharines to secure an early case conference date.

[18] Following the case conference, the parties are at liberty to bring the motions forward for a virtual hearing, on a minimum of seven days’ notice, if so advised. Any supplementary affidavit materials are to be served and filed in accordance with the normal rules.

[19] Although I am not seized of the matter, it may be assigned to me, since I have heard the full argument on the merits based on the materials filed to date.

[20] On consent, FACS Niagara will be requested by the court to provide a letter summarizing its involvement with the family to be provided as soon as possible.

Costs

[21] Submissions on costs were made at the motion hearing by the respondent. Counsel for the applicant asked to provide written submissions.

[22] I encourage the parties to resolve the matter of costs consensually. In the event they cannot, written submissions may be made on the following basis:

a. The respondent is to serve and file his Bill of Costs by July 10, 2020. Since oral submissions have been made, no further material is required. b. The applicant is to serve and file her Bill of Costs, and written submissions consisting of no more than five pages, by July 17, 2020. c. The respondent is to serve and file any reply submissions consisting of no more than five pages, by July 24, 2020.

Reid J. Date: June 30, 2020