Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DIANA CAROLINA GOMEZ DUQUE, Applicant
AND:
JAVIER RICARDO SANCHEZ HURTADO, Respondent
BEFORE: The Honourable Justice J. Breithaupt Smith
COUNSEL: Maria Norka Zagazeta, Counsel for the Applicant (Not Present) Ash Mazinani, Counsel for the Respondent (Not Present)
HEARD: In Chambers
Endorsement
1The Respondent (“Father”) brings a request, pursuant to the Central South Consolidated Practice Direction effective June 30, 2025, for a determination of scheduling of a motion as urgent. The applicable portions of the Practice Direction read as follows:
Family motions which require immediate access to the court and for which it is impractical to follow the standard procedures arise in three contexts: (a) Motions without notice (ex parte); (b) Urgent motions to be heard prior to a case conference; (c) Urgent Short notice after a case conference has been held.
A motion without notice is brought pursuant to Rule 14(12) of the Family Law Rules and only permissible where: (a) The nature or circumstances of the motion make notice unnecessary or not reasonably possible; (b) There is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences; (c) There is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; (d) Service of a notice of motion would probably have serious consequences.
If a court order is necessary to preserve life, the health or safety of a child or the party, liberty, property or to address the immediate danger of a child’s removal from Ontario and time is of the essence, a party may request that a motion be heard immediately, without notice (Rule 14(12)), prior to a case conference (Rule 14(4.2)) or on short notice (Rule 3(5)).
The Emergency Motion Request Form must be fully completed and submitted to the Trial Coordinator along with the Notice of Motion, the Affidavit in support of the motion and an affidavit of service if applicable.
2The required documents were submitted to the court by Father’s counsel this morning. For clarity, it is indicated that these materials were served upon the Respondent (“Mother”) by email to her counsel at 9:42 a.m. today, and an Affidavit of Service has been filed.
3Father seeks a motion argument date prior to a case conference, and thus Rule 14(4.2) is engaged. Rule 14(4.2) precludes a motion from being heard in advance of a case conference except “if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.”
4In her analysis of Rule 14(4.2) in Rosen v. Rosen, 2005 CanLII 480 (ON SC) (hereinafter “Rosen”), Wildman, J. set out a two-step process for demonstrating urgency: (1) the moving party must inquire as to the availability of case conference dates; and (2) settlement discussions must be attempted. At paragraph 12, Her Honour wrote:
Absent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established. However, it is possible that the situation could still be so extreme that the court must intervene immediately…
5Recently, an Associate Justice of this Court has opined that there are “limitations” to the Rosen approach and that new considerations must be applied, including a determination of the potential for delay to be a tool of coercive control (see Abu Kibash v. Gamal, 2026 ONSC 2969 at paragraphs 16 through 22). In the matter before him, A. J. Kamal relied upon evidence of other forms of family violence, including allegations of financial abuse as a tool of coercive control, to conclude that a motion for spousal support was urgent and could be brought prior to a case conference.
6Of concern is the clarity and intention of the following comment (emphasis added):
- It is also important to consider the allegations of abuse and power dynamics in considering the test for urgency. We cannot allow the delays in the court system, including prolonged dates to get a case conference or motion, to further exert control over the process. This consideration favours granting the request for an urgent motion. I am concerned that the Respondent may be using the delays, the house, and not paying bills to inflict harm and control over the Applicant. This needs to be considered through a proper record at a motion.
7I would not presume to second-guess A. J. Kamal’s conclusions on the evidence before him. I do not question the potentially serious and life-altering impact of financial manipulation and abuse as a weapon of coercive control wielded by one spouse against another (or against children). I agree strongly that, in an applicable case (such as the one before A. J. Kamal), evidence of family violence may well render moot the second requirement of Rosen that parties conduct settlement negotiations prior to obtaining an urgent argument date.
8However, his instruction to consider systemic delay arising in our over-burdened family justice system as potentially connected with coercive control must be clearly limited to situations in which family violence is pleaded. It is not for a jurist, addressing a triage scheduling request for urgency in the midst of a busy court day, to embark upon an unprompted analysis of the impact of institutional delay as triggering or exacerbating possible family violence. As the Supreme Court of Canada addressed at length in the landmark case of R. v. Jordan 2016 SCC 27, [2016] 1 SCR 631, delays in the justice system have a myriad of negative impacts upon the parties, the witnesses, and the reputation of the administration of justice. A consideration of such negative impacts is inherently embedded into Justice Wildman’s reminder that “it is possible that the situation could still be so extreme that the court must intervene immediately.”
9Some evidence of the manipulation of scheduling by the allegedly controlling party which is calculated to incur delay must be tendered before a triage jurist must consider the impact of delay as family violence. Institutional delay arising from a family justice system that is arguably past its breaking point cannot, alone, justify the waiver of the case conference as some sort of institutionally-generated tool of coercive control. To do so would either reframe every delayed case as one in which the triage jurist must consider family violence, even if not otherwise pleaded, or effectively rescind the requirement of a case conference, as almost all cases could qualify for the exemption as a result of ever-changing scheduling challenges.
10Of course, many jurisdictions in Ontario have very different processes than exist in Ottawa. Not all jurisdictions enjoy the specialist consolidation of the Unified Family Court. Many areas are vastly under-resourced from a population standpoint. Some localities have Associate Judges and others rely heavily on Dispute Resolution Officers. It cannot be presumed that the use of a specific online calendar feature is the right solution for every courthouse. At the present time, there is no one-size-fits-all solution to the resource/scheduling problem in our Family Courts. A. J. Kamal’s commentary should therefore not be taken as carte blanche to leverage institutional delay as the sole rationale to dispense with a case conference.
11The case before me is a classic example of a matter in which the only feature upon which the request to dispense with a case conference is grounded is delay. In this case:
a. The Respondent Father seeks to limit contact between the parties’ 12-year-old daughter and the Applicant Mother because of conflict between the Applicant Mother and the parties’ 16-year-old daughter.
b. The altercation between the Applicant Mother and the parties’ 16-year-old daughter took place on December 30, 2025. A no contact order is in place.
c. Since December 30, 2025, the older child has lived with the Respondent Father, and the younger child has chosen to live with the Applicant Mother.
d. On January 15, 2026, the child protection agency closed its file.
e. On January 16, 2026, Mother initiated the Application. Father’s Answer is not on Case Center. Any Reply from Mother is not on Case Center. Neither party has uploaded Form 35.1 and Form 35.1A Affidavits. It is not clear whether pleadings are closed.
f. As of yesterday, June 24, 2026, the Respondent Father was advised (presumably through counsel) that an urgent case conference date was available on July 6, 2026 at 2:15 p.m. Although the evidence is not clear, presumably that same conversation led to the conclusion that a regularly scheduled case conference would be in October, as this is mentioned in the Respondent Father’s Affidavit.
12Thus, the Respondent Father has waited six months after the critical events to obtain a case conference date and has been provided with an option that is two weeks’ hence.
13To be fair, the Respondent Father pleads in the alternative in his Notice of Motion that the matter be scheduled for an urgent case conference. He does not actually seek substantive relief regarding parenting time in his Notice of Motion. Thus, his counsel has properly attempted to narrow the scope of the urgency triage request.
14The Respondent Father’s alternative triage request that the urgent case conference date be scheduled for July 6, 2026 at 2:15 p.m. is granted. The case conference will take place in person unless otherwise ordered by the conference judge. The balance of the motion is dismissed.
J. Breithaupt Smith J.
DATE: June 25, 2026