Court File and Parties

Court File No.: FS-23-00033963 Date: 2023-03-01 Ontario Superior Court of Justice

Between: Richard F. McWhirter, Applicant And: Arianna S. Lorza, Respondent

Counsel: Stephen Kirby, for the Applicant J. Richard Forget, for the Respondent

Heard: March 1, 2023

Before: M. D. Faieta J.

Reasons for Decision

[1] The parties are the parents of two children, C.M., age 15, and A.L. age 13.

[2] The parties separated in September 2013. The parties settled the parenting issues by consent Order dated July 12, 2021. Both parties were represented by counsel. The Order provides that the parents have joint parenting time and joint decision-making responsibility for the children. Amongst other things, the parenting schedule provides that the children are to reside with the Applicant father on alternate weekends commencing on Thursday after school until return to school on Monday as well as every Thursday overnight, and alternating Monday overnights.

[3] The Respondent mother left for Florida with the children in April 2022. At a motion heard on August 22, 2022, the respondent was ordered by Justice Sharma to return the children to Ontario by August 24, 2022.

[4] Pursuant to a further Order, C.M. attends a school in New York State for the 2022/2023 school year that accommodates his educational needs.

[5] After spending the Christmas break with the Respondent, the children were not returned to Ontario on January 9, 2023 for the resumption of school.

[6] The Applicant states that the children have never resided outside of Ontario and, in particular, that they have never resided in Colombia.

[7] The Applicant alleges that the children are being wrongfully retained by the Respondent mother in Columbia and on January 23, 2023 commenced this Application for their return to Canada.

[8] A case conference was held on January 30, 2023. The Respondent did not attend in person or by videoconference. Justice Shore ordered that this Application be heard on March 6, 2023. The Applicant’s materials were ordered to be filed by February 13, 2023. He did so. The Respondent’s materials were ordered to be filed by February 21, 2023. She has not done so. Any reply was to be filed by February 24, 2023.

[9] The Respondent states that she only received notice of Justice Shore’s Order in mid-February 2023.

[10] On February 24, 2023, the Respondent filed a Notice of Change in Representation which indicates that she has chosen to be represented by J. Richard Forget.

[11] On February 27, 2023, the Respondent filed a Form 14B motion for an order to adjourn the hearing of this application to April 5, 2023, or a date acceptable to all counsel. The Notice of Motion states that Mr. Forget was retained on or about February 26, 2023. The affidavit of Erika Morbeck was filed in support of this motion and states that:

We were recently retained last week under the understanding the motion was in late March. Mr. Forget is leaving for health issue vacation this Friday [March 3, 2023] to the 24 th of March. The opposing lawyer is showing no sympathy for adjourning the matter yet they filed a 178 page affidavit. I am the paralegal and we are drafting responding materials and motion. An adjournment will not delay the matters because Hague conventions take time in any event. [Emphasis added]

[12] This motion for adjournment is not a proper Form 14B motion as it does not come within the scope of Rule 14(10) of the Family Law Rules, O. Reg. 114/99.

[13] At my direction, a videoconference hearing was scheduled for 8:30 am today to address the Respondent’s motion.

[14] In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, at para. 37, the Ontario Court of Appeal provided the following non-exhaustive list of considerations for deciding whether to grant an adjournment:

Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.

[15] To this list of considerations, I would add that, as in child protection cases, the consequence of an adjournment must also be measured from the child's perspective and thus a court must consider the impact of delay on the best interests of the child: Children's Aid Society of Toronto v. S.C.M.K., 2021 ONCJ 347, para. 11.

[16] In Leigh v. Rubio, 2022 ONCA 582, M.L. Benotto J.A., at para. 20, explained the need for timely hearings in these type of cases:

Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues

[17] Rule 37.2 of the Family Law Rules, O. Reg. 114/99, which came into force on October 3, 2022 provides that an “international child abduction case” shall be disposed no later than six weeks after the case is commenced. While not specifically applicable because the children are outside of Ontario, the mischief addressed by this rule is nonetheless applicable. The hearing of this motion on March 6, 2023 is exactly six weeks from the date that this Application was filed.

[18] Finally, Rule 2(2) of the Family Law Rules, O. Reg. 114/99 which requires the court to deal with cases justly, and Rule 37.2(2) of the Family Law Rules, O. Reg. 114/99 which addresses international child abduction cases in the context of Rule 2(2), are further considerations.

[19] In this case, the teenage children have been removed from their schools, removed from their social network and removed from contact with the Applicant father and removed to a country where they have never resided and where they are forced to live with little facility in the Spanish language.

[20] From the Applicant’s perspective, he states that the Respondent has commenced custody proceedings in Colombia. Both parties are represented by counsel in Colombia. A pre-trial proceeding has been scheduled for March 2, 2023 for the purpose of the Respondent seeking a temporary order granting her custody rights.

[21] The Respondent seeks an adjournment of the Applicant’s motion because she has retained a lawyer who is unavailable for the March 6, 2023 hearing. Mr. Forget states that he agreed to accept this retainer because he was mistaken as to the date of the hearing of the motion. He will be travelling on March 3, 2023 to Iceland for skin treatment and returns on March 24, 2023. The first available date for a hearing is April 6, 2023. Iceland is about six hours ahead and the court indicated that it was willing to start the motion at 8:30 am to accommodate him. Mr. Forget stated that he was unwilling to participate by videoconference. He questioned whether there would be sufficient internet access available to him in order to participate.

[22] I dismiss the Respondent’s motion. In my view, the Respondent is manufacturing delay of the hearing of the Applicant’s motion. The Applicant’s affidavit is 11 pages of text with the remaining pages consisting of exhibits. Mr. Forget has had time to prepare responding materials and, according to Ms. Morbeck’s affidavit, has been drafting responding materials. He should complete that work. Further, Mr. Forget should either appear by videoconference or make arrangements for other counsel to appear on the Respondent’s behalf. Given the circumstances, an adjournment is not just.

Mr. Justice M. D. Faieta Released: March 1, 2023