Triestino v. Triestino: Urgent Motion to Vary an Order During COVID-19

Factual Background

The mother in this case brought an urgent motion, without notice to the father, to request an Order varying a temporary Order which allowed the father in-person access with the parties’ two children. In the mother’s affidavit, she informed the court of a letter drafted by York Region Children’s Aid Society which included serious concerns about the father and that due to the father’s lack of cooperation with CAS, it would remain involved with the family. The mother’s affidavit also noted that in late May 2020, the father was charged with breaching a Restraining Order and criminal harassment. The father had failed to comply with an Order for costs in the previous proceedings in this case. The mother requests to make this motion without notice to the father as she is concerned about “the irrational, erratic and Order non-compliant behaviour of the father” and the escalation of that behaviour to harm of her or the children.

Legal Analysis

During the COVID-19 pandemic, the Superior Court of Justice released a Notice to the Profession which outlines when a case may be considered urgent. This was further explained in Thomas v. Wohleber where the court noted 4 criteria for considering a case urgent, which are 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 the 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 rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that described the manner in which the concern reaches the level of urgency.

In following the Notice to the Profession and Thomas v. Wohleber, the court decided the mother’s motion met the urgency test and that the temporary order would be varied to reflect a suspension of the in-person access by the father. This was based on the concern of the father’s behaviour, the recent criminal charges, the CAS letter, and his failure to comply with the cost Order. Though the mother was granted leave to bring the urgent motion without notice, all materials of her motion were required to be served upon the father to give him the opportunity to respond.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.