COVID-19 has created an unprecedented situation for the Ontario courts, which have suspended regular operations and are only hearing select matters at this time.
This blog is intended for anyone that’s currently involved in family law disputes, who are likely wondering when their financial or parenting issues will be addressed by the courts.
What family law matters are Ontario courts currently addressing?
On March 17, 2020, the Ontario Superior Court of Justice restricted its hearings to “urgent” family law matters only, including:
- Requests for urgent relief relating to the safety of a child or parent
- Urgent issues relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child
- Dire issues regarding the parties’ financial circumstances
- Urgent or statutorily mandated events in child protection cases
As of April 6, 2020, the Court began hearing some additional matters, such as consent motions, motions in writing, and case conferences dealing with one or two “urgent or pressing” issues.
Is my family law matter “urgent” enough to be heard in court?
For your family law matter to be considered “urgent” by the courts, your concerns must be:
- Immediate (i.e. cannot await resolution at a later date)
- Serious (i.e. significantly affects the health, safety, or economic well-being of parties and/or their children);
- Definite and material rather than speculative or theoretical (i.e. relates to something tangible such as a spouse or child’s health, welfare, or dire financial circumstances)
- Clearly particularized in evidence and examples.
Can I ask the court to address financial issues arising from my separation?
The following cases provide examples of when financial issues may be considered urgent:
- In Thomas v. Wohleber, the husband removed a substantial amount of money from the parties’ joint line of credit, creating a dire situation for the wife and children. The wife’s requests for the return of funds and a non-depletion order were considered urgent.
- In Baijnauth v. Baijnauth, the husband failed to pay the judgment that the wife was awarded in their family law trial. This made it impossible for the wife to discharge a high-interest mortgage on their home, which was due immediately and could not be renewed. The wife’s motion for relief that would allow her to discharge the mortgage was urgent.
- In L.B-M. v. M.M., the mother’s motion for temporary child and spousal support was considered urgent because her temporary accommodations would end the following month and, in order to obtain permanent accommodations, she had to show an income.
Can I ask the court to change my parenting arrangements due to COVID-19 concerns?
A parent’s request for a change in parenting arrangements may be considered urgent if there is real evidence that the children’s safety or well-being is at risk. Vague concerns about COVID-19 will not be considered urgent or justify a change to existing parenting arrangements.
In Ribeiro v. Wright, the mother brought a motion to suspend the father’s in-person parenting time, expressing a general concern that the father would not maintain social distancing. This matter was not considered urgent, as the mother had not demonstrated a failure, inability or refusal by the father to abide by COVID-19 protocols.
Currently, there is a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to — including strict social distancing. Where a parent wishes to change a court-ordered parenting plan, that parent must satisfy the court that the current parenting plan is no longer in the children’s best interests and that the children would be at risk if it was implemented.
A parent who initiates an urgent motion related to COVID-19 concerns will be required to provide specific evidence or examples of behaviour by the other parent which are inconsistent with COVID-19 protocols. A parent responding to such a motion will have to provide specific and absolute reassurance that COVID-19 safety measures will be adhered to. Both parents will be expected to provide specific and realistic time-sharing proposals that fully address COVID-19.
Courts expect parents to attempt simple problem-solving before initiating urgent court proceedings. Judges expect parents to make good faith efforts to communicate, show mutual respect, and come up with creative, realistic solutions.
Can I seek the court’s intervention if my ex-partner is withholding our children?
Generally, Ontario courts have made it clear that the unnecessary withholding of children without solid evidence that the other parent would, in fact, put the children at risk satisfies the current test for urgency and will not be tolerated.
What if my ex-partner refuses to follow court-ordered parenting arrangements?
Even in the context of COVID-19, courts will not condone one parent’s decision to engage in a self-help remedy by ignoring a parenting plan set out in a court order.
In Skuce v. Skuce, the mother wanted to terminate the father’s court-ordered parenting time because he had been living in a sober house with shared areas and had not been self-isolating. The father brought an urgent motion and provided evidence of his willingness to adhere to COVID-19 protocols. The mother failed to satisfy the court that the father’s court-ordered parenting time needed to be restricted, and his parenting time was ordered to continue.
What if there is no court order or agreement setting out my parenting arrangements?
When there is no court order or agreement that outlines a parenting plan, the Court is not likely to condone one parent’s disruption of a long-standing informal parenting plan.
In Jackman v. Doyle, there was no order or agreement with respect to parenting time, however, the children had been living with the mother and spending time with the father as agreed upon between the parties. The father, who had recently returned from a trip to Brazil, unilaterally took the children for a week and refused to return them unless the mother consented to equal parenting time. The Court ordered the return of the children to the mother’s residence, reasoning that it was in the children’s best interest to maintain the status quo, which the father had unilaterally altered.
What if I am a healthcare worker?
When one parent is a healthcare worker, the existence of COVID-19 will not necessarily justify the suspension of his or her parenting time.
In Zee v. Quon, the father wanted the child to remain in his care for the duration of the COVID-19 crisis because the mother was a healthcare worker at a hospital. The Court held that it was in the child’s best interest to return to an equal parenting schedule since the father’s proposal would disrupt the status quo. The Court was satisfied that, as a healthcare professional, the mother was aware of the protocols to prevent transmission of infection and would take all necessary precautions to keep the child safe.
Although the courts have provided some guidance with respect to when a family law matter will be considered sufficiently “urgent” enough for a hearing, the ultimate determination is unique to the facts of each case. Additionally, the scope of matters being heard by the courts will expand with time.
As family law lawyers, we urge anyone involved in a family law dispute to treat each other reasonably during these unprecedented times. Decision-makers, including courts, mediators and/or arbitrators, will not look favourably upon any party with a family law dispute that attempts to take advantage of the current situation.
Please note: The information in this post is subject to change given the rapidly evolving nature of COVID-19 and its impact on family law in Ontario.
If you require assistance with a family law matter, you should seek legal advice from a family law lawyer. SV Law’s family law team is available to assist you by telephone or video conference. Please do not hesitate to get in touch.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.