On March 15, 2020, the Honourable Justice Morawetz, the Chief Justice of the Ontario Superior Court of Justice suspended all regular court operations effective March 17, 2020, in order to protect the health and safety of all court users and to help contain the spread of COVID-19. This includes conferences, motions, first appearances, to be spoken to dates, and trial for all family matters. The only exceptions were with respect to urgent matters which were, and continue, to be dealt with on a case-by-case basis. Courts across Canada have enacted similar suspensions in their jurisdictions.
Recent Court Decisions
On March 19, 2020, the Honourable Justice Myers stated in the case of Ali v. Tariq, 2020 ONSC 1695 (CanLii) that "this seems to me to be a matter that counsel acting in good faith ought to be able to lead their clients to settle today."
Court Matter Determined not to be Urgent
On March 24, 2020, the Honourable Justice Pazaratz heard a case, Ribeiro v Wright, 2020 ONSC 1829 (CanLii), in which the Applicant mother brought an urgent motion to withhold access of the parties' son to the Respondent father. The mother stated that she was practicing social isolation in her house and did not want her son leaving her house for any reason, including seeing the father. The Honourable Justice Pazaratz did not authorize the matter to proceed on an urgent basis and stated, "I am not satisfied that she (the mother) has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future." It is important to note that the parties did have an existing court order in place with respect to access. Justice Pazaratz confirms that parenting issues with respect to COVID-19 will be dealt with on a case-by-case basis as follows:
- The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
- The parent responding to such 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; use of disinfectants; compliance with public safety directives; etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals which 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 time with their child at home.
Court Matter Determined to be Urgent
On March 20, 2020, the Honourable Justice Diamond heard a case, C.Y. v. F.R., in which the Applicant mother brought an urgent motion for the return of the parties' children to her care. There was no existing court order or separation agreement in place with respect to access in this matter. Justice Diamond determined that the motion did meet the test of urgency and interim relief was required. In this case, the children were primarily with the mother and the father attended at the mother's house and took the children for the second week of their private school March Break. The father refused to return the children to the mother's care unless she agreed to 50/50 parenting time. Both children experienced fevers of approximately 101 degrees with the father and during which time the father took the children to public places and to visit their elderly grandmother in Sarnia. The mother's concern was heightened as a result of COVID-19.
In returning the children to the mother's primary care, Justice Diamond determined that the children's status quo was unilaterally altered by the father's actions. Justice Diamond made no order with respect to access at the time but set a return telephone hearing on March 27, 2020.
As detailed above, COVID-19 has affected all court matters and in particular family matters with respect to access. Parties will continue to bring urgent motions before the court but the test of whether the matter is urgent must be determined first.
Access
Ribeiro v Wright confirmed that parties who have a separation agreement or court order in place with respect to access cannot unilaterally change the access schedule because of COVID-19. Parties should not be taking advantage of this pandemic to put a different schedule in place as the courts will not look kindly upon this.
However, there is the reality that issues with access will continue to arise for a number of reasons associated with COVID-19, including but not limited to:
- Parents who are unable to work from home and may be interacting with the public on a daily basis (e.g., individuals in essential services such as doctors, nurses, hospital staff, people working in a grocery store, etc.);
- Parents returning to Canada whom must self-isolate for 14 days, which includes children travelling with a parent as they must also self-isolate for the 14-day period;
- Parents who fail to comply with social distancing or take reasonable health precautions;
- Parents who rely on their own parents, the children's grandparents, to look after the children; and
- Blended families where children have access with step-parents.
Justice Pazaratz, in Ribeiro v. Wright, states that "there will be little time or tolerance for people who don't take parenting responsibilities or COVID-19 seriously."
Test for Urgency
The test to determine urgency in a family law matter continues to be governed by Rosen v. Rosen 2005 CanLii 480 (ONSC), in which Justice Wildman held that in addition to a matter being urgent, a motion shall proceed in the absence of a case conference if the moving party provides evidence (a) that he/she has made inquiries about the availability of case conference dates, and (b) of his/her efforts to settle the matter outside the court process.
The government may put into place more restrictive measures to flatten the curve of COVID-19 such as a lockdown. The overwhelming position of the courts has been that the parties and counsel need to act reasonably and "attempt some simply problem solving before they initiate urgent court proceedings."
COVID-19 Response in Saskatchewan
On March 19, 2020, Chief Justice Popescul suspended the general operation of the Court of Queen's Bench of Saskatchewan including all Pre-Trial Conferences and Chambers applications effectively adjourning all matters into June of 2020. The only exceptions made were for matters that are deemed urgent. The Saskatchewan courts have followed the same general procedures as Ontario. Courts have expressed the need for a balancing. Justice Brown in a decision of March 24, 2020, in Kulack v. Bryant, FLD 249 of 2019, states:
"Most matters will feel urgent to the parties embroiled in litigation, that is a given. The matters which are being litigated are important. The balance that must be struck is limiting matters which will be dealt with by the court in March, April and May to those that have sufficient importance within the current challenges of the reality of social distancing and isolation."
COVID-19 Response in Quebec
On March 13, 2020, The Minister of Justice and Deputy Attorney General of Quebec, Ms. Sonia LeBel, together with the Superior Court of Quebec, the Court of Quebec and the Québec Bar announced a significant reduction in courthouse services, namely restricting hearings to urgent matters only.
The specific directives for each judicial district can be found at COVID-19 Update - Superior Court of Quebec (in French only).
Custody and support applications are generally considered urgent issues and are still being heard by the courts. However, not every application for alimentary support and custody has an urgent component. The courts will assess each situation on a case-by-case basis and will only hear, for the time being, cases dealing with an imminent urgency that cannot wait until non-essential services resume their ordinary business operations.
If a custody and access rights order is already in place, parents should comply with it, unless they agree otherwise, while taking into account public health directives and good judgment. The Government of Quebec encourages parents to cooperate and seek agreements during these difficult times. A Department of Justice information page answers to frequently asked questions with respect to custody orders and changes of custody during the COVID-19 pandemic. In view of the present limitation of access to the Court system, it is well advised for parents to practice co-parenting in a collaborative manner and to try to find common ground. In searching for compromise, parents should remember that any decision concerning children must be taken in their best interest.
Recent Superior Court Judgment
In a recent Superior Court case, the father had interim custody of the parties' three minor children and he presented an urgent request for a safeguard order before the Superior Court to suspend the mother's physical access rights to the children. He suggested replacing them with access rights via technological means such as Skype or Facetime.
To justify his claim, the father argued that the mother's living environment presented dangers to the health and safety of the children and other members of the parties' families.
As for the mother, she submitted that she was aware of the required sanitary measures that had to be taken in the present circumstances of the COVID-19 pandemic, and that she did not intend to jeopardize the health of the children and other implicated parties.
Honorable Justice Johanne April of the Superior Court of Quebec heard the case and rendered an order on March 27, 2020 in Droit de la famille - 20474, 2020 QCCS 1051.
The judge indicated that her primary concern was to limit the negative impact of the COVID-19 pandemic on the children, who are already deprived of education, sports and social activities. She further noted that court orders aim to allow the children to have access to both of their parents insofar as possible, and that they must be respected. She also urged parents to "make sure they maintain the best possible conditions for their children and favour a joint exercise of their parental authority to find solutions in the absence of an agreement." (translation).
The judge went on to determine that there was no urgency to modify the mother's access rights. She found that the mother's environment did not constitute a danger to the health and safety of the children. None of the mother's family members showed any symptoms of illness and the mother knew the sanitary measures that had to be taken in these unprecedented circumstances.
Justice April indicated that notwithstanding the situation related to the presence of COVID-19, it was important to remain vigilant and to ensure that the rights of all are respected. She further concluded as follows: "Therefore, though it may seem paradoxical, the presence of COVID-19 considered a health emergency is not in itself, in the absence of symptoms for the individuals concerned, a sufficient ground requiring a change in the status quo, custody and access for the children." (translation).
The Court rejected the claim of the father, but issued an order strongly recommending that the parents follow the health and safety instructions issued by government authorities regarding the coronavirus pandemic (COVID-19).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
