Court File and Parties
COURT FILE NO.: 1356/18 DATE: 2024-11-29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Harry Persaud, Applicant – and – Natasha Jeffrey, Respondent
COUNSEL: Joshua Cohen, Counsel for the Applicant Respondent, Self-Represented
HEARD: November 27, 2024
Endorsement
THE HONOURABLE MR. JUSTICE A. PAZARATZ
Introduction
1We constantly tell parents not to bring motions too early. (“Shouldn’t this wait for a Case Conference?”)
2Maybe we also need to tell them not to bring motions too late. (“Another motion after all this time? Why haven’t you arranged a trial by now?”)
3Earlier this week I released a decision in another file in which I explained how unfair it is for parents to let their family court case sit in limbo for a huge amount of time, and then suddenly bring a flurry of urgent motions for more temporary orders -- even though they could have had final order by now if they had paid better attention.
[4] The message: a. If you could have had a trial by now, you should have had a trial by now. b. Don’t try to rush a judge into guessing about a child’s best interests based on untested affidavit evidence at a late-stage motion, when you had plenty of time to schedule an oral hearing where factual and credibility determinations could have been made. c. Just because you decide you’re suddenly in a hurry, don’t try to force us to be less careful with children.
5That was this week’s earlier case.
6Today’s case is worse.
[7] The earlier case, Sham v Lee 2024 ONSC 6598, involved a bitter parenting dispute about children ages 12 and five. a. There were serious allegations of family violence. The father had been charged with assaulting the oldest child. b. After an unsuccessful Settlement Conference on May 16, 2023, the parties adjourned their case to the timelines. The court invited them to schedule either a further Settlement Conference or Trial Scheduling Conference when ready. But instead, the parents did nothing to advance the main application toward a final resolution. c. A September 29, 2023 motion dealt with temporary issues and OCL involvement. d. After that the parents did more nothing. They ignored disclosure orders and timelines. They just let the file sit dormant, even though each party expressed dissatisfaction with the temporary order. e. Then on November 8, 2024 the father suddenly brought an “urgent” motion, supported by two affidavits – one of them 31 pages long with multiple typed, single-spaced observation notes from an access supervisor. f. The mother responded with a cross-motion supported by a 60-page affidavit, with similarly lengthy and complex attachments. g. The father wanted to change restrictions on his parenting time. The mother said he should have less time. An OCL section 112 clinical investigator held a disclosure meeting in January 2024, but neither party obtained the OCL’s written report. h. There were enormous factual and credibility disputes relating directly to the best interests test. Safety issues! And yet both parents urged me to make major decisions involving the children – within a one-hour timeslot on a busy motions list -- based on completely contradictory and untested affidavit materials. i. I told them it was too late in the litigation timeline to decide such important and complex issues by motion. They had plenty of time between May 2023 and November 2024 to organize the file, schedule a trial - and even complete a trial! j. Upon (forced) reflection, counsel apparently realized they had asked the impossible. They withdrew their motions and scheduled a Trial Scheduling Conference for March 2025.
8Now, if deliberately putting your case on hold for 18 months strips you of moral authority to suddenly bring a complicated “urgent” motion – how about letting your court application sit dormant for almost six years? And then insisting that weighty parental decisions have to be made instantly, based upon hundreds of pages of disputed and untested affidavit material?
Background and Timelines
9I will briefly summarize the timelines and issues on today’s motion concerning the parties’ almost nine-year-old daughter.
10December 2015: The parties’ daughter was born. The parents had an unmarried, turbulent relationship but never lived together. The child always resided with the mother.
11August 2017: The parties’ relationship broke down completely.
122018: The father commenced this application.
13February 2019: The parties had a Case Conference.
14June 22, 2019: There was an incident while the father was visiting the child. The father ended up being charged with assaulting the mother.
[15] July 29, 2022: At a contested motion Justice Bingham granted a temporary without prejudice order which included: On consent: a. Sole decision-making to mother. b. Primary residence to mother. c. Father pays $418.00 per month child support based upon $45,000.00 estimated 2022 income. Not on consent: d. Father to have supervised parenting time by a professional third-party supervisor he is to select. Father to advise mother of his chosen supervisor by August 12, 2022. e. Father’s time to be once per week for a maximum of two hours (after the first three visits which are one hour). f. Father pays costs of supervision. g. Father and mother to implement supervised parenting time as soon as possible. h. Father may revisit frequency, duration, or level of supervision after he has had supervised time for at least 20 weeks.
[16] Justice Bingham noted that a Settlement Conference was just two months away, September 20, 2022. a. That would have given the parties an opportunity to review how parenting time was going, prior to the expiry of the supervision period. b. But instead of taking advantage of that opportunity to discuss the issues and explore options, the parents adjourned that Settlement Conference. They adjourned all future conferences.
[17] October 11, 2024: More than two years later, with no intervening steps in the main application, the father brought an urgent motion seeking a variation of the July 29, 2022 temporary order. His requests included: a. Unsupervised parenting time every Tuesday, Thursday and Saturday. b. Mother to be directed to comply with future orders without obstruction. c. Authority to attend child’s school and extracurricular events. d. Police enforcement. e. Leave to file materials exceeding standard limits. f. Costs.
18October 11, 2024: The father executed a 114-page affidavit. Numerous letters and supervision observation notes were attached.
19October 16, 2024: The father prepared a 10-page factum.
20October 18, 2024: The mother filed a 14-page affidavit including exhibits.
21October 20, 2024: The father executed a 63-page affidavit, including 56 paragraphs of narrative and numerous letters exchanged between lawyers.
22October 25, 2024: Both parties were present with counsel for the first return of the father’s motion. Justice Brown’s endorsement included the following:
[2] The Applicant currently has supervised parenting time pursuant to a Temporary Order made by Justice Bingham, dated July 29, 2022. He is now seeking unsupervised time.
[3] This litigation began in October 2018. The parties had a Case Conference in February 2019. No further Conferences have been held in the more than 5 1/2 years since then.
[4] The Court has an obligation to promote the primary objective of the Rules by active management of cases. This includes controlling the progress of cases. By my count, there have been four Settlement Conferences and a combined Settlement Conference and Trial Scheduling Conference booked since the February 2019 Case Conference, all of which have been adjourned. In these circumstances, the Court must step in.
[5] The child had only just turned 3 years old when the last Conference was held. She is now almost 9. This significant passage of time in and of itself would suggest that a Settlement Conference is a necessary first step in advance of Motions being brought and argued.
[6] Having reviewed the evidentiary narratives presented by the parties for the purposes of the Motion, I am of the opinion that the parties would benefit from a Conference prior to the Motion being argued.
[7] A Conference will allow the parties the opportunity to discuss the parenting issues in a less confrontational setting and the opinion of the Court may assist them to move from positions that may have become entrenched over the years.
[8] The parties shall return for a Settlement Conference on October 28, 2024, at 12:00 noon before me via Zoom. No materials need to be filed for this date.
[23] October 28, 2024: The parties attended for a Settlement Conference with Justice Brown. They consented to a temporary-temporary without prejudice order granting the father parenting time: A) Every Sunday, from 12:00 noon to 2:00 pm commencing November 3, 2024 and to increase by one hour every fourth visit; B) December 26, 2024 from 11:00 am to 3:00 pm; C) The parties shall exchange the child at the Rymal Road police station in Hamilton. D) Telephone access every Friday at 5:00 pm and if he has to work overtime that day, he will advise the Respondent in advance; and, E) The parties shall communicate using a parenting App and all communications shall be civil and child focused. The motion was adjourned to the timelines, and a Settlement Conference was scheduled for January 22, 2025.
[24] November 20, 2024: The father brought a further urgent motion alleging the mother had withheld his parenting time as set out in the October 28, 2024 consent order. His requests included: a. Police enforcement. b. Additional make-up time. c. Adjourning the January 22, 2025 Settlement Conference to March 2025 or later. d. Penalties for the mother’s repeated non-compliance with orders. e. Costs on a full-indemnity basis, payable forthwith and in any event of the cause. f. A warning to the mother that further non-compliance may result in additional penalties, including fines or contempt proceedings. g. Exchanges to continue to occur at the Rymal Road police station. h. Parties to refrain from any conduct that may negatively influence the child during exchanges. i. Parties to continue to use AppClose. j. Sharing of child’s school and medical information. k. Neither to make any negative or derogatory comments about the other in the presence of the child. l. Service of the order on the Hamilton Police Service and the Ontario Provincial Police m. Each party to carry a copy of the order at all times during exchanges to facilitate enforcement.
25November 20, 2024: The father’s supporting affidavit was 16 pages long.
26November 22, 2024: The mother filed a Notice of Change of Representation, indicating that she would be representing herself.
The Parties' Positions
27So altogether, on a court file which is six years old and nowhere near trial – with no apparent inclination by the parties to try to reach a final resolution – I was presented with hundreds of pages of untested motion documents, with the parents advancing diametrically opposed versions of events. And the father wanted me to decide all of this within a one-hour timeslot on my list with five other motions.
[28] The father’s narrative includes the following: a. He set out a long list of complaints about the mother and her interference with his relationship with the child for many years. b. He was always an active and loving father. c. After separation the mother obstructed his involvement. The estrangement caused tremendous emotional distress for himself and his young daughter. d. He denied the allegations of inappropriate behaviour which led to the July 29, 2022 order for supervised parenting time. But he hoped to transition to a period of unsupervised parenting time as quickly as possible. e. He made arrangements for supervision at YWCA Hamilton Supervised Parenting Services, but the mother was uncooperative and caused significant delay before the supervised time could start. f. Once the supervised visits started, he attended faithfully and the visits went extremely well. The observation notes consistently reflect positive interactions between the father and the daughter. g. The supervised visits were frequently disrupted or frustrated by the mother who would often cancel or simply fail to show up. These interruptions of parenting time strained the father’s relationship with the child and interfered with rebuilding the bond between them. h. At the supervision site the mother would make inappropriate statements and engage in conflict with staff. i. Ultimately, on August 27, 2024 the YWCA cancelled his visits because of the mother’s failure to bring the child to the supervision site regularly. This has resulted in a complete breakdown in the father’s ability to have even supervised parenting time with the child. j. The mother has cut off the child’s contact with the paternal family, and deprived the child from experiencing the father’s Caribbean-Hindu heritage. k. In May 2022 he entered into a peace bond following allegations of family violence which the father firmly denies. l. The father was previously employed earning $45,000.00. On May 19, 2023 he lost that job unexpectedly due to downsizing. This created financial hardship which delayed his ability to retain counsel to bring the matter back to court. He has now found another job.
[29] The mother’s narrative includes the following: a. She denies the father’s allegations about interfering with his relationship with the child. b. The father has not been candid about his past drug charges. c. During cohabitation the father was hostile and aggressive. He was verbally and physically abusive toward their daughter and also toward her daughter of a previous relationship. He created significant stress in the home and exposed both of her children to a great deal of negative behaviour. d. In 2018 the Children’s Aid Society became involved due to worries about the father’s parenting skills and use of inappropriate discipline toward the mother’s older child. In 2019 the Society confirmed their daughter was at risk of emotional and physical harm as a result of being exposed to adult conflict and physical violence. The daughter and her sibling disclosed to CAS concerns about the father making negative and belittling comments to the mother’s older child and to the mother. e. The father’s aggressive and inappropriate behaviour within the home had a significant impact on the young child. She experienced social and developmental delays. Her situation improved after separation, but more problems arose since the commencement of the father’s supervised visits. f. Years ago the father spoke to the mother of suicide and wrote a suicide note to their daughter. g. The father was physically intimidating toward the mother and her extended family. h. Prior to the July 29, 2022 supervised parenting time order, the father had assaulted the mother during an access exchange, leaving her with a concussion (for which she had to be hospitalized and receive follow-up treatment). i. The father was equally responsible for delays in arranging the commencement of supervised parenting time. j. The mother attached unsworn (inadmissible) letters from a number of people commenting on the negative impact supervised parenting time has had on the child. k. The mother gave her own examples of problems: The father encourages the child to be aggressive and he taught her martial arts during visits. The child then used martial arts on her peers at school, at home, and during sporting events. He teaches her that it is acceptable to physically assault another child if they bother her or say something she does not like. She’s been getting in a lot of trouble with her aggressive behaviour, and this has affected her social development. l. During supervised visits the father would ask the child probing questions about her sibling, which caused the child to be uncomfortable. m. The father has no insight with respect to the young child’s needs or stage of development. He has given their daughter coffee during their visits, and does not interact with her in an age appropriate manner. n. The mother did not miss as many visits as the father alleges, and he himself was responsible for some visits being missed. The mother only cancelled if the child was ill or had a sporting event which she was required to attend. o. The YWCA ultimately terminated its involvement after the father failed to show up on July 21, 2024. This was very frustrating for the child, and after that she didn’t want to attend any further visits. p. Unsupervised time is not in the child’s best interest. The father has a violent history and the child’s safety cannot be ensured if there is no supervision. q. The mother shares the father’s Caribbean background, and she ensures that the child is exposed to the same heritage. r. The mother is still afraid of the father, and is trying to have the expired peace bond “updated”.
[30] The father’s November 20, 2024 affidavit includes the following narrative: a. On November 3, 2024 he attended the Rymal Road police station for the first unsupervised visit exchange, pursuant to the October 28, 2024 order. The child exited the mother’s vehicle, appeared hesitant, and frequently looked back at the mother. After the father briefly spoke to the child, she expressed a desire to return to her mother. The father believes the mother was influencing the child not to go with the father. b. On November 10, 2024 the mother brought the child to the police station parking lot. When the father met the child she again appeared hesitant and went back to her mother. Again, the visit did not take place. c. On November 15, 2024 the father received a phone call from the daughter. She seemed hesitant to speak and provided short answers. When he asked what she would like to do during the upcoming visit, she said she was scared of the father and that she didn’t want to attend. They spoke for about 15 minutes. She raised her voice during the call, which the father described as uncharacteristic. d. On November 17, 2024 the mother cancelled less than two hours ahead of his scheduled parenting time, claiming that the daughter was unwell.
[31] The father’s contested urgent motion came before me on November 27, 2024. a. The mother had recently discharged her lawyer because she says her “Legal Aid ran out”. She was representing herself but intended to get Legal Aid again and retain a lawyer. b. She had not had enough time to respond to the new allegations in the father’s November 20, 2024 affidavit. She was seeking an adjournment to prepare a responding affidavit. c. She said she is not seeking to change the terms of the October 28, 2024 order she had consented to. She took the child to the police station at the designated times and will continue to do so. But so far the child has refused to go with the father. d. The father’s lawyer requested that I immediately make a police enforcement order (among other things) to ensure that the child goes with the father for the weekly visits.
Analysis
32Clearly, this is a very complex, difficult, high-conflict file, involving serious allegations of domestic violence and emotional trauma to a young child.
33It is also a file which, according to the court docket, is 2,231 days old.
342,231 days! And in all that time – despite their years of escalating allegations back and forth – these parents haven’t taken a single step toward a final resolution. In fact, they went out of their way to avoid making progress. The court kept scheduling conferences to try to help them resolve issues and defuse tensions. The parents kept adjourning those conferences, and ultimately they adjourned their case to the timelines. Their somnolent approach gave no indication that either parent felt there was any urgent need to address any problem.
[35] It is perhaps easier to speculate why the mother was less concerned about delay. The parent who likes the status quo is rarely in a hurry to create opportunities for change. a. The child has always been in her care. b. There have been long periods when the father had no contact with the child. c. Then he only had limited, supervised time – which the mother felt was safest. d. She says his involvement in the child’s life has had a negative impact on their daughter. e. He wasn’t pursuing his claims persistently or effectively. She feels this is indicative of his lack of interest and commitment. f. So there was really very little incentive for her to speed up his claims. g. If he was content to do nothing, so was she.
[36] But the father’s litigation behaviour is more difficult to reconcile. a. His lawyer characterized his November 2024 motion(s) as so urgent that even a couple of weeks of delay would cause “irreparable harm.” b. But the father’s lengthy materials set out that he has been unhappy about the mother’s alleged interference with his parenting, at least as far back as 2018. He says the child has been suffering emotionally for years because of what he characterizes as alienation by the mother. c. Quite apart from the mother alleging the father has done all sorts of terrible things for many years – even the father alleges that there have been all sorts of problems since even before 2018. That’s why he started his Application in 2018. d. The obvious question: If things have been so bad for so long, why didn’t he do anything about it sooner? e. It’s not just that he failed to take the initiative or didn’t know what to do. We scheduled court dates. He cancelled them.
[37] I want to be clear about the significance of the enormous delay on this file. a. Substantively, it doesn’t change anything. b. The parenting dispute between the parties is legitimate. It always has been. c. At every stage, the best interests of this child have to be identified and protected. The child should not suffer any prejudice due to the litigation behaviour of one or both of her parents. d. Indeed, no matter what has transpired in the past, the court’s unwavering commitment is to promote family repair. e. Now that both parties are finally engaged – family court is here to help them, and to help their daughter.
[38] The real problem is the procedural way in which the father has decided to suddenly – and very aggressively – re-activate his claims. a. He has filed three lengthy affidavits with hundreds of pages of supporting documents. b. He’s suddenly asking for all sorts of very heavy-handed relief, including police involvement to force his time with the child. He admits the child has recently expressed reluctance to see him. But he dismisses her stated feelings, insisting they are the product of parental alienation. c. The mother disputes much of what the father has to say (and she needs an adjournment to dispute his most recent affidavit). d. The father disputes much of what the mother has to say. e. Their versions of events are diametrically opposed. f. They have both described at least six years’ worth of problems. g. Each alleges the other is behaving in a manner which is physically or emotionally damaging to an almost nine-year-old child.
39The volume of material filed by the father is far beyond what could realistically be addressed on a regular motions list.
40But apart from the quantity of evidence on this motion, the main concern is the quality and sufficiency of the evidence.
The Problem with Late-Stage Motions
41Complex, bitterly contested motions based on incomplete and untested affidavits usually make it impossible to make necessary credibility and factual determinations -- let alone fully understand the personal situation and needs of each parent and each child. Affidavits simply don’t give judges all the information we need to make proper determinations.
42In Sham v. Lee I described how late-stage motions to re-argue temporary parenting orders do a disservice to children who deserve proper consideration of all the best interest factors, based upon a thorough presentation and testing of all relevant evidence at an oral hearing:
3 In the early stages of a family dispute, motions are often unavoidable. a. Time is limited. b. Things are in flux. c. Children are disrupted. Often in despair. Sometimes in danger. d. Emotions are high. e. Decisions have to be made. f. Finances and parenting issues need to be stabilized.
4 Judges do the best they can with imperfect affidavit evidence on crowded motions lists -- because something has to be done. Quickly.
5 But once a temporary order is in place, that should be the end of the “motion stage.” a. The focus should switch to achieving a final resolution for the family. That’s why we offer comprehensive case management. b. The best result for everyone is usually a negotiated settlement. A consent order. And that’s how most cases conclude. c. But in a small number of cases, an oral hearing will be required. Where witnesses will testify and be cross-examined. Where all the issues will be thoroughly reviewed and a decision will be made, once and for all.
43At paragraph 9 I explained why the court needs to be vigilant in discouraging late-stage motions presented by parties seeking a cheap or quick alternative to a trial:
9 There is absolutely no excuse for this. a. There is generally a finite period of time within the early stages of a family court file when motions for temporary orders are appropriate. b. In some instances – where litigants are actually paying attention – there might even be justification for subsequent motions pending an anticipated trial. Sometimes new information or disclosure becomes available. Sometimes things change. c. But the older the court file – the longer the period since the initial temporary orders were granted – the greater the onus on lawyers and parties to explain why they are still litigating by motion and affidavit. d. Particularly where children’s issues are involved, it’s unfair to keep asking motions judges to struggle with incomplete, untested, and highly conflictual affidavit evidence. We’ll do it at the beginning, when there’s no alternative. But there’s a tipping point where you can no longer ask judges to struggle through repetitive volumes of imperfect materials – for the sake of yet another temporary order -- when in reality the parties could have already had (or at least scheduled) their trial. e. On financial issues, this lackadaisical approach is a wasteful nuisance. f. On parenting issues, asking judges to engage in guesswork because you’ve neglected your file is unconscionable.
44Starting at paragraph 30 I suggested a general approach where litigants deliberately allow their main application to sit dormant, and then suddenly bring “urgent” motions:
30 When a highly contentious file is adjourned to the timelines following an unproductive Settlement Conference, it is not an invitation for the parties to go into hibernation. The expectation is that the parties will immediately correct any disclosure or other deficiencies, so the matter can quickly be returned to the litigation stream in a “trial-ready” state. The goal should be to end the litigation, not paralyze it.
31 Parties should not be permitted to eschew opportunities to go to trial, and then attempt to litigate triable issues by way of complicated motions for temporary relief. It’s a lazy substitute for a proper determination. a. Such late-stage motions impose impossible expectations on judges. The volume of contentious and untested materials is usually enormous. Quite often these motions simply reinforce the magnitude of the long-standing rift between the parties, without giving the judge the quality of information and evidence which would be available at trial. b. As well, needless late-stage motions create an unnecessary burden on limited judicial resources. We already have too many unavoidable motions. We can’t absorb extra work simply because a party suddenly wakes up and decides they’d better do something. c. (And there is little danger that forcing parties to proceed to a trial list will overburden our system. Litigants who allow their files to become dormant usually do so because they have no intention of ever going to trial. Adjournments allow parties to procrastinate and saber-rattle. Facing the prospect of having to prepare for an imminent trial will encourage most of these cases to settle very quickly.)
32 I expressed all of these concerns to the parties and their lawyers. I stood them down to talk. For a long time. Upon their return they advised me that they were withdrawing their respective motions, and they wanted to schedule a Trial Scheduling Conference. (It’s amazing what can happen when lawyers actually talk.)
45I make no comment or prediction about how this case is going to ultimately resolve.
46But judges have the authority – and the obligation – to protect children by ensuring that appropriate procedural and evidentiary standards are maintained, when parenting issues are decided.
47Which means that despite the father suddenly deciding he’s in a hurry, we’re going to have to take the time to do things properly, and in a manner which neither abuses parental rights nor judicial resources.
[48] The deliberate and prolonged inactivity on this file has seriously prejudiced this child, and undermined the court’s ability to make necessary factual and credibility determinations in a timely way. a. The father is correct that Justice Bingham’s July 29, 2022 order contemplated that a further motion could be brought. That’s one of the things that was anticipated to happen. But that’s not the only thing the parents were supposed to do. b. Justice Bingham’s endorsement makes it clear that she also anticipated the parties would continue to be actively involved in the main litigation stream and, for example, that they would soon be attending a Settlement Conference in September 2022. c. Temporary parenting orders are predicated on the assumption that the motion process is a subset of the main application. That motions offer short term solutions based on limited information, while the parents simultaneously pursue a more long-term and durable solution through the main application. Judges are keenly aware that motions are not a substitute for applications, and untested affidavit evidence is not a substitute for an oral hearing. d. In 2022 Justice Bingham was presented with a relatively contained dispute. A shorter list of allegations. The affidavits weren’t nearly as voluminous or contentious. e. Justice Bingham did what all motions judges are forced to do: Craft a temporary order which would provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. Coe v. Tope, 2014 ONSC 4002; Munroe v. Graham, 2021 ONCJ 253; Nicholson v. Nicholson, 2021 ONSC 7045; Sadiq v. Musa, 2023 ONSC 1811; Grover v. Grover, 2023 ONSC 3607; Churchill v. Elliot and Ward, 2024 ONSC 1907. f. The July 29, 2022 temporary order contemplated future litigation activity and settlement-focused case management which did not occur. Precious opportunities to narrow the issues, explore therapeutic assistance, and promote resolution were deliberately squandered. g. Instead, the deliberate inactivity of the parents has allowed years of serious allegations and counter-allegations to accumulate and fester. The file, and the nature and magnitude of the parental conflict has worsened. Needlessly so.
49Now that the parents have decided to participate, the court system is here to do everything it can – everything it could have done all along – to identify and promote the best interests of this child.
50But the father’s belated, unwieldly and needlessly aggressive motion does not assist the court with this important task. To the contrary, the damage caused by his inattentiveness is now being compounded by an inflammatory “sledgehammer” approach to his motion, which shows little child-focus or parental insight.
51Dragging your feet for six years and then suddenly demanding the cops force your little girl to come with you is not a helpful start.
52Before I decide what – if anything – to do with the father’s motion, I need to address the mother’s request for an adjournment, to allow her to respond to his latest allegations. If the father insists on proceeding, the mother should be permitted time to respond. I question, however, whether this child would be better served if the parents put this cumbersome motion on hold, and focus on our case management stream which is well-suited to assist families with these types of problems.
53(And in this respect, I declined the father’s ironic request in his most recent motion that he now wants to adjourn the January 22, 2025 Settlement Conference which he agreed to just last month. Justice Brown was trying to finally get this file moving forward. But the father wants an emergency order today, and then adjourn the Settlement Conference until at least March 2025. Isn’t adjourning conferences exactly how we got into this mess?)
54Finally, the one obvious thing that’s changed during six years of inactivity on this file is that the child is now almost nine years old. Old enough that the court needs to know a lot more about her, including her experiences, relationships, views, preferences, and comfort level. For example, it’s bad enough that the parents have selected a police station as an exchange location (the worst possible option). The father’s materials didn’t even touch upon the child’s likely emotional response if police become involved to force parenting exchanges.
55The mother agreed with my suggestion that we consider the involvement of the Office of the Children’s Lawyer. The father felt such intervention might be premature. I think OCL involvement is desperately needed.
Order
[56] Today’s order: a. The mother’s request for an adjournment to allow her to file responding materials is granted. b. The motion is adjourned to December 11, 2024 at 10:15 am. as a placeholder date. The Trial Coordinator will advise the parties of the exact scheduling of the hearing of the motion, based on judicial availability. c. The adjournment is without prejudice to the presiding judge determining the issue of whether the motion should proceed on a regular list; as a long motion; or at all. d. I am not making any change to the order the parties consented to on October 28, 2024. e. The mother shall serve her responding materials by December 2, 2024 at 4:00 p.m. f. The father shall serve any reply materials by December 5, 2024 at 4:00 p.m. g. Given Mr. Cohen’s possible travel commitments, he may participate in the motion by audio only during the Zoom hearing. h. The Office of the Children’s Lawyer is requested to consider involvement in this matter. The parties are to submit their OCL intake forms within 14 days. i. I am not seized of this matter, but if I am presiding on motions when this motion returns, it would be efficient for the matter to be returned to my attention, given the amount of time I have now spent familiarizing myself with this file.
57There is a time and a place for temporary orders. But don’t try to do by motion what you should be doing at a trial.
Justice Alex Pazaratz
Released: November 29, 2024