The case of Bozzo v. Cartagena came before the Superior Court of Justice in Hamilton on April 3, 2020, pursuant to the Notice to the Profession of the Chief Justice of Ontario, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ (“Chief’s Notice”).
The Respondent mother had allegedly unilaterally terminated the Applicant father’s access. The father brought a contempt motion and was able to establish at the “triage” court level the requisite “urgency” to be able to proceed with a motion.
The parties filed electronic court materials/evidence and the hearing was conducted by way of teleconference.
There was a final order dated May 30, 2019 which provided for gradually increasing access for the father. His access at present was supposed to be alternating weekends, with one of every two weekends including overnights. According to the father’s materials, he had not had any access since mid-December 2019. It is curious that the father chose to wait for almost four months to bring a motion and then did so in the midst of a global pandemic. The mother, in her evidence, outlined that she had actually brought a motion to change in mid-February 2020 to terminate the father’s access, alleging abuse and neglect on the part of the father. The father denied these allegations.
The Honourable Madam Justice Brown found that the father’s motion for contempt and his request for make-up access was not urgent within the meaning of the COVID-19 protocol. However, she found that the issue of the father’s access with the child was urgent within the meaning of the Chief Notice.
Justice Brown notes that there is no specific definition of urgency in the Chief’s Notice. She referred to the Case of Thomas v. Wohleber, 2020 ONSC 1964, and certain factors that might be considered in assessing urgency. In that case, Justice Kurz stated as follows:
“1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s heath, welfare or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.”
She also referred to the recent decision of Ribeiro v. Wright, 2020 ONSC 1829, made during this COVID-19 pandemic, where the Honourable Justice Pazaratz stated that “there is a presumption that all orders should be respected and complied with”, and she agreed with him.
Justice Brown stated that, “if, because of the circumstances the court presently finds itself in, a litigant is free to unilaterally disobey the access provisions contained within an order without any recourse by the access parent, court orders would have no meaning. This cannot be the case, even now.”
So, even though the mother had been denying access since mid-December 2019, the issue of access was determined to be urgent. The father was awarded access in accordance with the final order, adjusted to account for the fact that he had not seen the child for more than three months.
Also, worth noting is the mother’s attempt to continue to limit the father’s access based on her concerns regarding the risk to the child of face-to-face access with the father in the midst of the pandemic. The Judge did not agree that this was a valid argument. She stated that there was no evidence regarding the father’s behaviour or plans that was or might be inconsistent with COVID-19 protocols.
At DKGC LLP, we fight for our clients and their rights. It’s not just our duty, it’s also our privilege.