COURT FILE NO.: FC-12-FO-549(1)
DATE: 2020/12/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MELANIE CHRISTINA FLYNN, Applicant (Responding Party)
AND:
JOHN MARTIN MAYER, Respondent (Moving Party)
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: Brent Balmer for the Applicant (Responding Party), Ms. Flynn Phaedra Klodner for the Respondent (Moving Party), Mr. Mayer
HEARD: December 9, 2020
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] In accordance with the consolidated Regional Notice to the Profession issued on June 26, 2020 effective July 6, 2020 and the Protocol for Central South dated April 7, 2020, electronic materials were filed electronically:
a. The Respondent Father/Moving Party filed:
i. Motion Form attaching Notice of Motion dated September 11, 2020;
ii. Affidavit of John Mayer dated September 5, 2020;
iii. Reply Affidavit of John Mayer dated December 7, 2020;
iv. Draft Order (in Word format); and
v. Affidavits of Service.
b. The Applicant Mother/Responding Party filed:
i. Affidavit of Melanie Flynn dated December 2, 2020; and
ii. Affidavit of Service.
[3] Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse unless such materials were submitted to the Court via the newly-released Family Submissions Online Portal[^1].
[4] In addition to the above materials, I requested copies of the parties’ most recent Form 35.1 Affidavits from court staff and was provided with the Applicant’s Form 35.1 dated August 23, 2018 and the Respondent’s Form 35.1 dated November 16, 2020. I confirm that I do not have access to any other portion of the Continuing Record. For ease of reference, I refer to the Applicant as “Mother”; to the Respondent as “Father”; to the parties’ daughter, Chloe Alyssa Lee Anne Marie Mayer born December 17, 2010, as “Chloe”; and to the parties’ son, John Martin Jr. Mayer born April 4, 2012, as “John Jr.”
Scope of Motions and Relief Sought
[5] Father’s Motion seeks:
a. leave for the motion to be heard on an urgent basis in advance of a Case Conference;
b. immediate enrolment of both children in in-person school at St. Agnes Roman Catholic School in Waterloo; and
c. costs.
[6] Father’s Motion Form further sought leave to commence a Motion to Change proceeding, which leave was granted by Madam Justice C. Braid on September 22, 2020, and Ms. Klodner advises that same is in the process of being issued by court services.
Summary of Conclusions Reached
[7] For the reasons that follow, I conclude that:
a. this motion can be heard on an urgent basis in advance of a case conference; and
b. that is in the best interests of Chloe and John Jr. to attend school in person commencing Monday, January 4, 2021.
Background in Brief and Parties’ Positions
[8] The parties had been in active litigation for almost eight years, from 2012 (based on their separation less than six months after the birth of John Jr.) through to February 27, 2020 when they reached Final Minutes of Settlement. The Final Minutes of Settlement have been incorporated into the draft Final Order of Madam Justice J. Walters dated February 27, 2020 but that Order has not yet been issued and entered. A copy of the draft Final Order is attached as Appendix “A” hereto. The substantive content pertinent to today’s motion is: (1) that the parties have joint custody and shared parenting of the children; (2) that the children spend 8 nights