In the last several weeks we have witnessed a shift unlike any other event in modern history: non-essential businesses are closed, families are concerned for the safety of their loved ones, and the judicial system has been forced to react to family law matters in a way that reflects the unusual nature of the times. The onset of the Coronavirus pandemic (COVID-19) has created uncertainty for family litigants attempting to interpret what effect this emergency may have on their family circumstances, parenting, and the future. Fortunately, Courts have provided some direction to parties who find themselves unsure of how to navigate this unprecedented situation.
On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice, The Honourable Geoffrey B. Morawetz, released a Notice to the Profession, the Public, and the Media Regarding Civil and Family Proceedings which instituted a suspension of regular operations at the Superior Court of Justice in an effort to protect the health and safety of court staff and litigants. The Notice provides that, until further notice, only specific urgent and emergency family matters shall be heard.
Although the Chief Justice did not provide a definitive date for when we can expect courts to re-open and operate as they have prior to COVID-19, he assured litigants that Courts would continue to hear urgent matters, recognizing the need to deal with the urgent circumstances of family law litigants in the following circumstances:
In addition to the above, the Court also has discretion to hear matters that it deems necessary and appropriate.
Recent jurisprudence provides a window into how Courts have interpreted “urgency” amidst the COVID-19 crisis.
The Ribeiro v. Wright, 2020 ONSC 1829, decision provides foundational advice for family law practitioners considering an urgent motion during the COVID-19 pandemic. We reported on Justice Pazaratz’s ruling regarding Covid-19’s impact on court separation agreements.
As held in Ribeiro v. Wright, where one parent has concerns relating to parenting issues, they should not assume that the virus will automatically result in a suspension of parenting time. Parties will be required to show that their matter rises to the level of urgency by adducing clear evidence that shows that the other parent is acting contrary to COVID-19 protocols to the extent that the child is at risk as a result of the parents' actions. In Ribeiro v. Wright Justice Pazaratz found that the mother did not adduce clear and compelling evidence in the circumstances and denied her request for an urgent motion.
Many judges have since embraced Justice Pazaratz’s decision in Ribeiro v. Wright. In Tessier v. Rick, 2020 ONSC 1886, for instance, Justice MacEachern echoed Justice Pazaratz’ views when granting the mother an urgent motion where she sought to deny the father’s access and presented evidence that the father’s use of public transit and failure to abide by social distancing directives provided by public health authorities put their child at risk. Justice MacEachern noted that, although existing court orders should presumptively be abided by, in this case the mother presented compelling evidence that the father had placed the child at significant risk by not complying with COVID-19 safety measures. Justice MacEachern found that the child’s young age (3.5 years), the evidence of significant risk of exposure to COVID-19 due to the father’s actions, and the mother’s previous attempts to negotiate with the father before seeking the motion warranted an urgent motion.
In Skuce v. Skuce, 2020 ONSC 1881, Justice Doyle permitted a father’s request for an urgent motion wherein he sought to have supervised face to face visits with his three children, aged 7, 5, and 3, after the children’s mother refused to abide by an access schedule that the parties consented to only days earlier. The mother took the position that, due to COVID-19 directives by public health officials, all future access between the children and their father should be exercised through Facetime or other video conferencing software. The father in that case is a recovering alcohol and drug addict who spent his nights at Sobriety House, a recovery facility that had taken precautions to limit the risks related to COVID-19. The mother argued that the father was not self-isolating and would likely place the children at risk when exercising access with them.
The Court found that the mother was not entitled to refuse to adhere to the terms contained in the parties’ Minutes of Settlement where their agreement was reached after COVID-19 was declared a pandemic and social distancing measures were already in place. Justice Doyle followed the reasoning of Justice Pazaratz in Ribeiro v Wright, finding that existing agreements and/or court orders should be followed unless the other party presents compelling evidence that the other parent has placed the children’s health and safety at risk. In this case, the father remained committed to social distancing protocols and offered to move in with his mother and self-isolate. Justice Doyle found that children’s best interests were served by spending time with both parents, in the absence of evidence that their health and safety are at risk.
Given the above, Courts have adopted the reasoning of Justice Pazaratz in Ribeiro v Wright in both allowing a motion or refusing a motion during COVID-19. Parties should review this decision and consult a qualified family law practitioner if they have an existing Order or Agreement before making any consequential decisions.
Litigants contemplating an urgent motion must also be aware of the new procedures in place for bringing such motions. Each Region in Ontario has created specific guidelines, depending on their existing technologies and capabilities, for permissible court hearings and how potential urgent motions are to be brought to the attention of the Courts. The Courts’ directive by Region may be found here.
For instance, in the Central West Region (which encompasses courthouses in Brampton, Milton, Orangeville, Guelph, Owen Sound, and Walkerton), all parties contemplating an urgent motion must send correspondence to the Trial Coordinator of the appropriate court which details:
The letter is then reviewed by a Judge of the Superior Court to determine whether the matter is urgent. The Judge’s endorsement, confirming whether the test for urgency has been met, is then emailed to the party making the request. If the matter is deemed to be urgent, the Judge will also include in the Endorsement the terms for service and filing of court materials related to the Motion, the date and time of the motion, and any other directives to the parties and their counsel.
As the directions regarding family law matters are region specific, it is critical that litigants ensure they are reviewing and complying with the directions applicable to the Court in which their matter would be heard.
If you believe you are experiencing a matter that requires urgent action during COVID-19, or if you have any questions about family law in general, do not hesitate to schedule a consultation with one of our lawyers.