More guidelines from Justice Pazaratz

Justice Pazaratz sits as the triage judge in the Superior Court of Justice in Hamilton. He has seen a significant number of cases during the pandemic and has had to make decisions about whether or not those cases meet the standard of urgent as set by Chief Justice Morawetz in mid-March.

In the case of Wallegham v Spigelski 2020 ONSC 2663, he dealt with a motion by the father, who claimed that the mother had not permitted in-person access for some weeks, despite a final consent order from 2016 setting out a regular access regime for the father.

Justice Pazaratz made the decision that there was a parenting issue needing quick attention:

“the mere fact that a long-standing time-sharing arrangement has been suspended by one of the parties, places this matter into the ‘potentially urgent’ category. This is a preliminary determination, without prejudice to either party on the ultimate hearing of the motion.”

He gave the mother time to file responding documents, then ended his decision with some “additional guidance in the hope of averting disaster for this family:”

“while COVID-19 initially thrust parents and judges into ‘uncharted territory,’ with dozens of cases being reported weekly, we’re quickly reaching the stage where there really should be no mystery about the balancing act courts are going to engage in. . . . in general terms, most cases seem to be reinforcing the view that ‘COVID-19 awareness’ and ‘meaningful timesharing’ are not mutually exclusive. To the contrary, they can co-exist quite effectively and safely with just a little bit of extra work and cooperation among parents. . . . So, before anyone files any more materials. Before the father proceeds with his threatened motion to change custody and primary residence. Before we further inflame matters with claims for things like costs and make-up time. This would be a really good time for everyone to sit down and talk.”

There is no doubt truth to Justice Pazaratz’s comments for many of those involved in family court disputes at this time, but we must hope that he and Ontario’s other family court judges are aware that sitting down to talk is not a safe option for a woman who has fled an abusive relationship.

Case: Using court’s resources efficiently

At the present time, further to Chief Justice Morawetz’s mid-March Notice to the Profession, courts can deal with urgent matters either via teleconference or in writing.

In Grossman v Kline 2020 ONSC 2714, Justice Akbarali was dealing with a motion by the mother of a four-year-old to suspend the equal parenting time regime in place with the father or, alternatively, require him to follow strict COVID-19 protocols.

He set out two reasons in deciding to hear the matter in writing:

“First, the parties [both of whom had lawyers] have ably put forth their positions in their written material, and as a result, the motion can be determined justly if heard in writing.

Second, . . . Dealing with cases justly includes, among other things ‘giving appropriate court resources to the case while taking account of the need to give resources to other cases’ Family Law Rules 2(3)(d). During this partial shutdown of the court’s operations due to the COVID-19 pandemic, it is more important than ever to consider how court resources should be deployed. I also note that my decision to hear the motion in writing is supported by the court’s duty to promote the primary objective by active management of cases, including ‘if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.’ FLR 2(5)(g)