The two part saga of Batchelor v Batchelor presents a warning to parties bringing family law matters to Court during the COVID-19 period: include all relevant background information in electronic filings or risk misleading the Court.
This particular example begins with a father’s urgent motion described in Batchelor v. Batchelor, 2020 ONSC 1921. The father sought 50/50 time sharing claiming that he had not seen the parties’ child since February 2020. With only the benefit of the father’s materials, Justice Pazaratz, as Triage Judge, called this a “hybrid case” and found the request for immediate equal time sharing non-urgent because the “dynamics” (including allegations about domestic violence and the father’s mental health) needed to be “cautiously and specifically addressed”. However, it was unlikely that the father would be denied any access at the final determination of the matter so restoring some access could in fact be urgent. Justice Pazaratz ordered that the matter proceed to a Case Conference.
The Court returned to this family in Batchelor v. Batchelor, 2020 ONSC 2522 after the mother filed a cross-motion. The mother’s materials revealed, among other things, that the mother herself had brought an urgent motion in February 2020 before the suspension of Court operations. This motion resulted in a “temporary-temporary without prejudice order (pursuant to minutes of settlement) requiring that the father not attend at the child’s daycare and/or educational facilities.” Nowhere in the father’s materials did he mention this previous order.
As a result, Justice Pazaratz struck his previous endorsement stating that he would not have “concluded that the father’s current motion was now “urgent” within the context of the COVID-19 protocols” had he known about the February Order. The Court reminded counsel and parties that judges are “completely reliant on the information set out in materials filed electronically” because they do not have the physical files during this time.
This case ultimately represents a cry for understanding. “All relevant background information” must be disclosed to the Court so it can make efficient use of its limited resources and make just decisions. Justice Pazaratz stated: “we can’t allow people to jump the queue by presenting incomplete or misleading information to a Triage judge, to obtain an accelerated “urgent” hearing.” Parties risk wasting their own resources pursuing a decision which the Court may revise upon eventually learning the omitted information. This case tells us that despite the pandemic, the Court cannot let decisions stand when they were made on a piecemeal and misleading record. To promote efficiency and cost effective litigation, parties need to present the whole situation from the onset of the urgent motion.
This blog post was written by Kathleen Broschuk, a member of the Family Law team. Kathleen can be reached at 613-369-0362 or at firstname.lastname@example.org.