Court File and Parties

COURT FILE NO.: FS-21-0019-00 DATE: 2023-09-07

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: K.S. v. L.S.(D)

HEARD: September 5, 2023, at Fort Frances, Ontario

BEFORE: Fitzpatrick J.

COUNSEL: K. Hansen, for the Applicant M. Cupello, for the Respondent

Endorsement on Adjournment Request

[1] The Respondent moves to adjourn a trial tentatively scheduled to commence September 11, 2023. The Applicant is opposed. At the conclusion of oral argument, I advised counsel the motion for an adjournment was denied without costs and that brief reasons would follow. Here are those reasons.

[2] This is a mobility case. The parties began living together in 2018 and were married in November 2019. There is one child of this relationship. She was born XXXXX, in Fort Frances, Ontario (“A.R.”). The Respondent is the birth mother of A.R. The parties separated on June 13, 2021.

[3] The Respondent has relocated to Saskatchewan. A.R. has remained primarily with the Applicant in Fort Frances. The parties have agreed to resolve the issue of the equalization of matrimonial property. The parties have resolved an issue of interim arrears of child support. The significant outstanding matter for trial is the Respondent’s request to relocate A.R. on a permanent basis to Saskatchewan.

[4] The matter has been subject to several interim procedural orders of the Court. The issue of the involvement of the Office of the Children’s Lawyer (“O.C.L.”) has been a live one since August 2021. In September 2021, Newton J. noted in an endorsement that the parties were considering whether the OCL would assist. As of March 2023, the Respondent had yet to formalize a request for an appointment of the OCL. On March 8, 2023, Nieckarz J. in an endorsement dealing with procedural matters for this file, placed the matter on a trial list commencing August 28, 2023, and ordered the matter would proceed virtually. Nieckarz J. also provided at paragraph 9;

9. If the Respondent seeks the appointment of the OCL, her motion shall be brought immediately as the agreed upon trial dates are not to be jeopardized by this request, made at this late stage in the proceeding. (emphasis added).

[5] On April 20, 2023, R.S.J. Warkentin heard the Respondent’s motion for an order for an OCL report. The Applicant was initially opposed to the motion as it was framed as a request for a Voice of the Child report. However, the Respondent sought to amend the motion to seek only an OCL report. The Applicant consented to such an order provided the report could be completed no later than July 26, 2023. R.S. J. Warkentin then ordered;

An order shall issue requesting the involvement of the OCL in this proceeding, provided that they confirm they will have their report to the court completed on or before July 26, 2023. If they are not able to complete their report by July 26, 2023, then the order seeking the involvement of the OCL shall be vacated. (emphasis added).

[6] The OCL could not complete its report by July 26, 2023. Various emails between the OCL clinician assigned to this matter and counsel were placed before the Court on this motion. In my view the significant extracts of those emails and the dates thereof are as follows. All the emails were copied to the appropriate parties. This list simply shows the sender;

July 11, 2023 Clinician

I am the OCL Clinician assigned June 26, 2023 to complete the investigation of this family matter. I note that I have copied my Supervisor on this email.

I am in receipt of the documentation submitted to the OCL, namely the April 20, 2023 OCL Order, and the Endorsement of the same date. Upon review, I note that there is a requirement stipulated in the Endorsement that the OCL investigation and Report be completed and submitted to the Court by July 26, 2023, and, failing that, the OCL Order would be vacated.

Given the comprehensive requirements of an OCL investigation, it is typically completed within 90-120 days of assignment. As such, it is not possible for this matter to be completed at my end by July 26, 2023.

If there is flexibility in this matter that would allow for the OCL to complete its investigation and file a Report by a projected timeframe of October 31, 2023, then I am prepared to proceed. If Counsel would like to convene a 3-way conference call to discuss this situation further, I would be happy to do so.

Please advise how you wish to proceed.

July 17, 2023 Clinician

As previously indicated, the timeline for an OCL Report is a minimum of 90 days, which takes us past the time set for the start of Trial. Upon consultation with my Supervisor, I can advise the following position of the OCL:

1. Upon consent of the parties/Counsel, Trial could be delayed to allow for the completion of the full OCL investigation and Report. In such a case, I would anticipate completion by the end of October 2023.

2. Should either/both parties or Counsel oppose such extension, the OCL is prepared to proceed with its investigation and acquire as much information as it can in the time remaining before Trial. In such a case, I would author an on-consent Incomplete Report of the OCL, and likely do so by the end of August 2023, as I am away on vacation in early September. It would be unlikely that there would be any parenting time, decision-making, or mobility recommendations provided, but it may be possible to provide some associated recommendations, such as counselling, etc. Such option would at least allow the parties and the Court to have access to whatever information the OCL is able to obtain in the time allowed, and to have that information considered.

July 18, 2023 Respondent’s Counsel

My client is not willing to consent to the delay of the trial, but she is willing to consent to an incomplete report of the OCL (option #2 outlined in Mr. Butt's e-mail). This is, of course, subject to the Respondent's consent to same.

July 20, 2023 Applicant’s Counsel

I have spoken to my client for instructions. She has instructed to request an adjournment of the trial to allow time for a full OCL report. She is agreeable to an incomplete report in the alternative, if an adjournment is not granted when requested.

August 1, 2023 Clinician

Further to my OCL investigation of this family situation, I am writing to update you on the current situation.

You will recall that the OCL proceeded on the basis of providing an on-consent Incomplete investigation, with the Report being submitted at the end of August 2023, and containing as much information as could be obtained by that time. In the alternative, and in the event Ms. Derkson and her Counsel were successful in getting a Trial adjournment, the OCL was to complete a full investigation and Report, with likely completion by the end of October 2023. Such options hinged, in part, upon the Trial set for September, the timelines of a typical OCL investigation, and the inherent challenges associated with this Clinician's travel to Fort Frances for out-of-jurisdiction investigation.

I can confirm that I have now completed administrative telephone calls with both parents, and have completed one interview with each parent. As an initial plan that worked with this Clinicians' travel schedule and the potential for weekend visits, the weekends of August 5/6/7 and August 19/20/21 were identified as potential times when the OCL could attend Fort Frances. Travel arrangements were set for the weekend of August 5/6/7. However, it has now been determined that Ms. Derkson is no longer available the weekend of August 5/6/7, and Ms. Shoemaker and the child are not available the weekend of August 19/20/21.

As such, and in light of the conflicting schedules, it is not possible for this Clinician to provide any substantive information in this matter by the end of August 2023.

Upon consultation with OCL Head Office, the OCL has determined that it now cannot, and will not, pursue the Incomplete report option. The OCL will keep its file open pending a decision by the Court on the adjournment of Trial to allow the OCL to complete a full investigation and Report. I note, however, that such full investigation now cannot continue until mid-September at the earliest, given this Clinician's vacation schedule during the first two weeks of September, Therefore, the completion of a full investigation and Report is now projected to be late November or early December 2023.

I ask that Counsel please keep me apprised as to any further developments on the decision to adjourn Trial or not. If Trial is not adjourned. The OCL will end its involvement in this matter. (emphasis added)

[7] In my view these emails fairly and accurately lay out what has occurred on this file in the last four months. The Respondent now comes before the Court asking the trial be adjourned and placed on a November running trial list. That sitting commences November 14, 2023. The Applicant points out the Clinician is projecting to complete the report after the sitting has commenced in November.

[8] R.S.J. Warkentin made a clear and direct procedural order on April 20, 2023. It was not a “suggestion”. It was an order. It effectively gave the OCL 98 days to complete the required work. Ultimately the OCL retains the authority not to become involved in matters. The matter unfolded as it did. The post July 26, 2023 “work around” did not work. The order of R.S.J. Warkentin says that if no report is completed by July 26, 2023, then the order appointing the OCL was vacated. The Clinician is to be commended for trying to make it work past the July deadline. But it did not work in the time allotted by a court order. In my view, the order appointing the OCL for this file was vacated on July 27, 2023.

[9] We will have limited judicial resources in this Region for the foreseeable future for a variety of reasons. I take no pleasure in having to set this out, but it is a hard reality that decisions have to be made in a context where there are unprecedented demands being made on a very small judicial complement. The best interests of children are always paramount in family cases. However all cases compete for limited judicial resources. Where the parties cannot resolve their disputes themselves and there is a need for an adjudication, the availability of the judicial resources allocated by the government to deal with these issues for the population of this Region have to take a prominent role alongside the best interest of the child or children at issue.

[10] R.S.J. Warkentin made a considered and appropriate procedural decision for this matter in April 2023. It should have been taken as a complete answer to the problem placed before the Court today. However, the appropriateness of the decision of April 2023 has been amplified by events following July 26, 2023.

[11] There is no guarantee a judge will be available to hear this case in November 2023 given the trial time demands of serious criminal matters currently before the Court. There is no guarantee the OCL will have its report completed by the commencement of the November 14, 2023, sitting. All other matters on the August running list have been resolved or adjourned on consent. We have a judge available to hear this case on September 11, 2023, virtually as previously directed.

[12] The respondent pointed to a note made by Nieckarz J. on the trial scheduling endorsement form on June 27, 2023. It stated;

An OCL clinician has been appointed. Given the number of matters currently on the running list, counsel may wish to consider the October list if the clinician cannot complete their report in time for the August/September list. (emphasis added)

[13] In my view this was a direction from the court. It left it to counsel to consent or not. They did not agree. Fair enough. Counsel were not ordered to agree to an adjournment. Now the Respondent suggests the November list. This is not practical.

[14] Balancing all competing interests, it seems to me that it is in A.R.’s best interest that her parents dispute about where she is going to live gets adjudicated sooner rather than later. Sooner starts September 11, 2023. In deciding this I have taken into consideration the adage that justice delayed is justice denied. In my view it continues to be an apt piece of wisdom.

[15] The Respondent’s motion is therefore dismissed. I did not award costs today but that should not be taken as an acknowledgement that success was divided. The matter needs to get on to trial and resources should be used to focus on that enterprise.

[16] In the event counsel wish to have a further trial management conference with the judge assigned to hear this trial on September 11, 2023, they may approach the trial coordinator to arrange same. The trial coordinator was in attendance on this motion as scheduling was a potential issue. She is well aware of the particular importance of having this matter now proceed in an efficient manner.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

DATE: September 7, 2023