On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled family law hearings were adjourned until further notice. Similarly, as of March 20, 2020 the Ontario Court of Justice adjourned all scheduled family law hearings until May 29, 2020. Both courts continue to hear urgent and emergency family law matters.
According to the March 15, 2020 Notice to the Profession, the Ontario Superior Court of Justice will only hear urgent family law matters such as:
- requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
- urgent issues that must be determined 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 (including for example the need for a non-depletion order);
- in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
The Superior Court of Justice has implemented protocols, including the appointment of a Triage Judge to determine whether a particular case is “urgent” and should be scheduled for a hearing.
On April 2, 2020, the Ontario Superior Court of Justice released an updated Notice to the Profession, stating in addition to urgent and emergency matters, the court will also hold remote hearings for (a) requests for consent orders submitted by Form 14B Motions under the Family Law Rules; and (b) Case Conferences with a potential limit on the number of issues that can be addressed at the hearing.
What constitutes an urgent family law matter?
There have been a few recent decisions released in respect to urgent family law matters which give guidance on how the courts are interpreting “urgency.”
In Ribeiro v. Wright, 2020 ONSC 1829, Justice Pazarantz provides a great insight on the procedure the court will consider when determining “urgency”. In Riberio, Justice Pazarantz noted that the existence of the COVID-19 crisis will not automatically result in a suspension of in-person parenting time and that parties should not presume that raising COVID-19 considerations will necessarily result in an urgent hearing. Additionally, Justice Pazarantz noted parenting issues in the context of COVID-19 will be dealt with on a case-by-case basis.
Specifically, to succeed on an urgent access motion Justice Pazarantz stated that parties will need to show the following:
- A parent initiating an urgent motion will be required to provide specific evidence or examples of behavior or plans by the other parent that are inconsistent with COVID-19 protocols.
- The parent responding to an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to, including social distancing, the use of disinfectants, compliance with public safety directives etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals that fully address all COVID-19 considerations in a child-focused manner.
- Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend with their child at home.
In Onuoha v. Onuoha, 2020 ONSC 1815, Justice Madsen commented on interpretation of the Court’s Notice to the Profession, stating that the determination of urgency is intended to be simple and expeditious. It is not intended to create a motion unto itself. As well, Justice Madsen noted a determination as to urgency is without prejudice to either party on the substance of the motion when it is eventually heard.
In Douglas v. Douglas (March 25, 2020), Justice MacPherson noted that the Court must take guidance from the Notice to the Profession that was issued confirming all court operations are suspended when determining urgency. Justice MacPherson pointed out that per the Notice, the Chief Justice of Ontario called “upon the cooperation of counsel and parties to engage in every effort to resolve matters” during this time while regular court operations are suspended.
Justice MacPherson further noted that “all counsel and parties must be aware that actions taken in these unusual circumstances, may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.”
In L.B-M. v. M.M., 2020 ONSC 1958, Justice Kiteley stated that it was necessary to determine if the matter met the urgency test on two levels (1)whether it was urgent within the meaning of the Court Notice, and (2) whether it was urgent within the meaning of the Family Law Rules regarding hearing a motion before a case conference.
How can we assist
Our experienced family lawyer can assist parties seeking to bring an urgent family law motion. At Gilbertson Davis LLP, we advise and represent clients on a full range of family law matters. Contact us for a consultation regarding COVID-19 and access or any family matters related to COVID-19.
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