Court File and Parties
COURT FILE NO.: FC-23-205 DATE: 2023/08/08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MICHAEL DREW, Applicant AND: SUNBUL KAKER, Respondent
BEFORE: Justice Jennifer Breithaupt Smith
COUNSEL: T. Miller, Counsel for the Applicant T. Lattanzio, Counsel, for the Respondent
HEARD: August 8, 2023 – IN CHAMBERS
Endorsement
[1] No one appearing. Matter addressed in Chambers.
[2] The Respondent brings an urgent motion alleging that the Applicant has overheld the child and denied her any meaningful parenting time. She alleges that the child has been kept out of his daycare by the Applicant, who she attests is a drug dealer living in a hotel with the child. The Respondent’s Notice of Motion and Affidavit were delivered to Applicant’s counsel by email at 3:27 p.m. today. The Respondent has requested that the Court determine whether this matter is urgent for scheduling purposes.
[3] The procedure in Central South Region is governed by the Notice to the Public and Profession effective February 13, 2023 (the “Consolidated Notice”). The Consolidated Notice provides an avenue for urgent matters to be addressed outside of the usual course. This is for judicial direction as to scheduling for an urgent hearing timeslot, and, in family litigation matters, is entirely without prejudice to the determination of urgency under the Rosen test (see Rosen v. Rosen). At page 5 of the Consolidated Notice, the following guidance appears:
Urgent matters are matters which require immediate access to the court and for which it is impractical to follow the standard procedures. Generally, a matter is urgent if a court order is necessary to preserve life, the health or safety of a child, liberty, property, to address the immediate danger of a child’s removal from Ontario and time is of the essence. Urgent requests are to be made by e-mail to the respective Trial Co-ordinator Offices.
[4] I find this matter to be urgent for triage purposes, having regard to the potentially dangerous situation in which the parties’ young child may currently be living (that is, if Father is in fact dealing drugs from a hotel room).
[5] Central South Region is woefully underserviced at this time. The Unified Family Court at Kitchener, as a single example, continues to wait for a fifth chair to be filled which has now been vacant for roughly two years. The four judges of the Unified Family Court at Kitchener are thus each doing 125% of their expected workload, and this is only one example of a problem that is rampant throughout Ontario and, indeed, across the country. Our generalist colleagues, who otherwise assist us whenever possible, are themselves overburdened. Many are booking additional cases to be heard before and after the regular court day’s proceedings. This is completely unsustainable. It is incomprehensible that the public, and particularly vulnerable children and families, should be so poorly assisted. Until such time as judicial vacancies are taken seriously, it cannot be said that litigants truly have access to justice.
[6] The only available urgent slot is on August 24, 2023 at 10:00 a.m. This family cannot wait for that date unless there is the possibility of a substantive judicial decision being rendered, which cannot be done at a conference. In order to alleviate any requirement that the Rosen test for urgency need be argued on the motion, and to preserve the available urgent date for argument, I am therefore booking this matter for an Urgent Case Conference, at a special appointment time on Thursday, August 10, 2023 at 9:30 a.m., with the motion to be argued on August 24, 2023 at 10:00 a.m.
[7] In the circumstances, Temporary Order to go:
- The Respondent’s Notice of Motion and Affidavit dated August 8, 2023 are to be accepted by Court staff for filing in the absence of proof of service.
- The matter is scheduled for an urgent case conference on Thursday, August 10, 2023 at 9:30 a.m., to be conducted virtually via Zoom at: https://ca01web.zoom.us/j/65212670916?pwd=eG1SVklBSzdBNTNqdUJKZC91QTU3dz09 or by calling toll free: 1-855-703-8985. Meeting ID: 652 1267 0916 Passcode: 980471
- The requirement for Case Conference Briefs is waived. By 4:00 p.m. on Wednesday, August 9, 2023, counsel are to email a short memorandum setting out each party’s position to the Judiciary Assistants, attention Justice Breithaupt Smith, noting the file name and number in the subject line, to: kitchener.scjja@ontario.ca CC: kitchener.superior.court@ontario.ca.
- The matter is further scheduled for argument of the Respondent’s Motion on Thursday, August 24, 2023 at 10:00 a.m., to be conducted virtually via Zoom at such exact connection details as will be provided by the Trial Co-ordination Office.
- The Applicant shall serve and file any responding material on the motion by Monday, August 14, 2023.
- The Respondent shall serve and file any reply material by Friday, August 18, 2023.
- Both parties to provide Confirmations and Draft Temporary Orders in the usual course.
J. Breithaupt Smith J. DATE: August 8, 2023