As I write this, the Ontario Court of Justice has just expanded its operations to begin hearing previously adjourned Case Conferences.  This is the first step to seeing a light at the end of the tunnel that is the Ontario courthouse Covid-19 response and restrictions on family law proceedings.

On March 28, 2020, the Ontario Court of Justice shut down most of the work it does in family law proceedings.  All Trials, Motions, Case Conferences and other matters were adjourned for 8-12 weeks.  Unless absolutely necessary, no one is to go to the courthouse unless ordered to do so or if the person cannot e-mail documents. Urgent and emergency family law matters were the sole item that the courts would hear, and the definition of urgency was very narrow.  All documents relating to the motions are to be e-mailed to the court unless unable to do so.  The urgent areas of law that the court will hear are:

  1. Urgent matters under the Child, Youth and Family Services Act;
  2. Urgent domestic matters, including custody and access motions, motions for restraining orders, Hague (international child abduction) applications, non-Hague abduction cases;
  3. Refraining motions under the Family Responsibility and Support Arrears Enforcement Act (the FRO).

On May 7, 2020, the Ontario Court of Justice began hearing adjourned Case Conferences.  However, new proceedings will not be heard unless they are urgent.  The good news is that everyone who was expecting to move their matter forward from March onward can expect to begin taking their next steps. The bad news is that unless you have an urgent issue, such as domestic violence that requires an emergency restraining order or custody order, your matter probably will not move forward very quickly.

Each courthouse will set how they will schedule matters or have documents filed.   Each courthouse may expand other matters that they will deal with. Trials and other matters not otherwise being heard are adjourned for a longer period; now to July 6, 2020.  As the court brings more up-to-date technology into the courtrooms and improves its remote conferencing abilities, it is my sincere hope that more matters will be opened up to resolution, perhaps in an even more efficient way than it did before.

Let’s now take a look at a couple of the cases that are coming out of the family law courts during the pandemic:

  1. The decision of Justice Pasaratz in the Superior Court of Justice (Family Court) on March 24, 2020, Ribiero v Wright.  Justice Pasaratz refused a mother’s claim to allow a 9 year old child to go for access to the father’s home because of her unsubstantiated concern that the father will not appropriately social distance during Covid-19 (where there was no evidence that there were medical issues with either parent or the child specifically).

The Court explained the reason why this matter was not deemed to be urgent, spotlighting the following issues:

  1. That court orders should continue to be respected;
  2. The importance of having both parents remain in contact with the child during the pandemic and that a child’s life and relationship with parents can not be put on hold indefinitely;
  3. The kind of facts and evidence that will be necessary for the court to consider a matter urgent and the expectation of a plan as to how parents will manage Covid-19.

This case has been popularized for it’s straightforward and empathetic manner in outlining the issues that parents dealing with access and custody matters may and do face during the pandemic.  Most importantly, Justice Pasaratz encourages parents to put aside their differences and, as he says, “act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.”

You can read this case on CanLII here: https://www.canlii.org/en/on/onsc/doc/2020/2020canlii23204/2020canlii23204.html?resultIndex=2

  1. C.Y. vs F.R., Ontario Superior Court of Justice, heard on March 20, 2020.

This case confirmed that the test in Rosen v Rosen must be met before the court could hear an urgent motion before a case conference was held in the matter.

In this case, a father returned from abroad during the pandemic and removed the children from the mother’s home and refused to return them unless the mother agreed to 50/50 residence.  The children were ill and presented with a fever, however the father took them out in public and did not social distance.  The court found that the matter was urgent and that the father was essentially using the pandemic to create a new status quo of the children being with him instead of living with the mother.  The father was ordered to return the children and indicated that the parents could set up an access schedule with a follow up hearing by phone scheduled with the court.

You can read this case on CanLII here: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1875/2020onsc1875.html

There are a few general takeaways coming out of caselaw since the pandemic began:

  1. Court orders should be respected.
  2. General blanket assumptions that children should not leave their primary residence to visit their other parent is rejected and refusing to allow a child to visit may be deemed to be withholding the child.
  3. The pandemic is not a time to change the children’s residential status quo.
  4. The pandemic is not vacation time.
  5. Generalized concerns about the other parent’s social distancing and isolation protocols are not reason for an urgent or emergency motion to suspend parenting time.

During the pandemic, the court’s operations and approach to cases are evolving quickly.  It’s important if you are in a case yourself or if you’re a lawyer, to check the updates at ontariocourts.ca or the local practice directions are your local courthouses.  CanLII is a great, free, public resource to look at the new cases that are coming from the Ontario courts on a daily basis.

Stay safe, and take care.