COVID-19 and Family Law Matters
On March 17, 2020, the Superior Court of Justice (SCJ) in Ontario, and many other courts across the country suspended all regular operations until further notice. Since then all criminal, family and civil matters that were scheduled to be heard on or after March 17, 2020, were adjourned. The Court has continued to hear urgent matters. This is an effort to continue to provide access to justice across the province in these unprecedented times.
Urgent Matters in Family Court
Only urgent family law events or matters required to be heard by statute will be heard during this emergency period. The presiding Justice determines the urgency of family law events or matters. This includes:
- requests for urgent relief relating to the safety of a child or parent. For example, a restraining order, or other restrictions regarding contact, or exclusive passion of the home;
- urgent issues that they must determine relating to the wellbeing of a child. This includes essential medical decisions or issues relating to the wrongful removal or detention of a child;
- dire issues regarding the parties’ financial circumstances including the need for a non-depletion order;
- in a child protection case, all urgent or statutorily mandated events.
Find all the details of the notice issued by the Chief Justice G. B. Morawetz here.
Materials for urgent motions are to be filed with the local trial coordinators via email. The parties and/or the parties and their lawyers will set a date for the hearing via teleconference. The Triage Judge hearing the motion remotely will not have access to the complete court file. They will rely on written materials and oral submissions only in making their determination.
Rulings on Urgent Motions
Across the Province of Ontario, we have had a number of urgent family motions brought and decisions released. The first released decision from the SCJ was Ribeiro v. Wright, 2020 ONSC 1829. One parent was looking to suspend all in-person access of the other parent because of COVID-19. Specifically, the mother did not believe the father would maintain social distancing (the parties had joint custody of their nine-year-old child).
Words from Justice Pazaratz
In Riberio, the Triage Judge, Justice Pazaratz, did not allow the matter to proceed as an urgent hearing. Justice Pazaratz set out clear reasons and noting that:
… there is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child (para 7).
And despite the serious health concerns and directives from the government and public health officials that make it clear we are in extraordinary times … and a strict policy of social distancing has been ordered,
We all have to work together to show flexibility, creativity, and common sense – to promote both the physical and emotional well-being of children …
We are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be place “on hold” indefinitely without risking serious emotional harm and upset.
In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever (para. 9).
Each family will have its own unique issues and complications. There will be no easy answers (para. 17).
But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely (para. 18).
Justice Pazaratz noted that COVID-19 parenting issues would be dealt with on a case-by-case basis.
A similar determination was made in Le v. Norris, with respect to the regular weekend access of a two-year-old child. Justice Conlan noted that the parents shall follow “responsible adherence to the existing Court Order”.
In Smith v. Sieger, the parties were disputing the return of their son to his father in Canada. Justice Kaufman granted the request for the return of the child to Canada given the imminent closure of the border between Canada and the U.S.. This was also due to the health concerns facing society at large. The child was to be quarantined for the recommended 14 days upon his return home to Canada.
In Onuoha v. Onuoha, the father sought the return of his daughters to Nigeria. Justice Madsen noted this was not the first time this family matter had been before her. Also, the father sought the return of the children to Nigeria since December 2019. Justice Madsen notes that the matter was not urgent. Given the Official Global Travel Advisory in place, to avoid non-essential travel outside of Canada until further notice, that this was not the time to hear this motion or to expose the children to international travel in the face of the Travel Advisory (para. 10).
A Parent Working in Health Care
In Zee v. Quon, heard on March 27, 2020, Justice Nakonechny, determined that the parties had an agreement in place, and their eight-year-old child should return to the equal time-sharing schedule the parents had in place prior to COVID-19 despite the fact that the Applicant was a health care professional and the Respondent expressed his concerns about the child’s safety in the Applicant’s care.
Based on what the Court has offered us to date and our brief summary here (we note not all cases have been reported), not all COVID-19 motions will be urgent. In most, regular orders and agreements should be followed.
To assist the SCJ, the Law Society of Ontario is offering self-representing litigants the opportunity to obtain 30 minutes of free assistance to determine whether their matter is urgent through the emergency family law referral line (Toll-free: 1-800-268-7568).
We also have been advised by the Court and expect that the matters the Court will hear over the coming weeks will expand on April 6, 2020, those details are expected to be released April 2, 2020.
Related blog: COVID-19 and Your Employment