What Does “Urgent” Mean in Family Court During COVID-19

 In Family Law

The COVID-19 pandemic seriously limited the Ontario Superior Court of Justice’s ability to adjudicate family law disputes. Currently, the Court will only hear specific urgent issues and orders brought on consent by a 14B motion. In this blog we will discuss one of the key pandemic questions for parties thinking of going to court: what does “urgent” mean?

The Basic Framework

The April 2 Notice to the Profession governs the type of family law matters currently heard by the ONSC. It provides that the Court will hear:

  1. “Urgent family law events as determined by and at the discretion of the presiding judge, or events that are required to be heard by statute, including but not limited to:
    • a. 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);
    • b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions, issues relating to the wrongful removal or retention of a child, failure to comply with existing court orders and parenting plans;
    • c. issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order
    • d. 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, CAS appeals, and any other urgent motions or hearings.
  2. Consent Orders to be brought by way of 14B motions; and
  3. Case conferences on any of the issues listed in subparagraph 1 above.”

Guidance from the Case Law

Despite these guidelines, it may be difficult to know whether a specific family law concern qualifies as urgent. Thomas v. Wohleber, 2020 ONSC 1965 helpfully outlined four necessary factors to bring an urgent family motion during the COVID-19 pandemic:

Despite these guidelines, it may be difficult to know whether a specific family law concern qualifies as urgent. Thomas v. Wohleber, 2020 ONSC 1965 helpfully outlined four necessary factors to bring an urgent family motion during the COVID-19 pandemic:

  1. “The concern must be immediate; that is one that cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
  3. The concern must be [a] definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
  4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.”

Thomas v. Wohleber listed these factors under the previous March 15, 2020 Notice to the Profession but they arguably still apply today.

This case also stated that the standard of urgency must be strictly upheld to protect the Court’s limited resources for the most serious cases. The Court in Ross v. Kenyon, 2020 ONSC 2283 has since specified that the definition of urgency cannot be so narrow that “avenues of relief are effectively foreclosed, and lawlessness is encouraged.” It is clear that while the Court is offering limited services, it will still uphold the law when required.

Hybrid Cases

Courts have also started to identify “hybrid” cases.  In these cases, the requested relief is not deemed urgent but some form of related relief meets the standard of urgency. For example, in Batchelor v. Batchelor, 2020 ONSC 1921  the Triage Judge ruled that the father’s motion for immediate 50/50 time sharing was not urgent because the issues needed to be explored in more detail. However, it was unlikely that the father would be denied any access to his daughter on the final determination of the matter and the Court found that the inevitable resumption of some form of contact should not be delayed. The matter proceeded to an urgent Case Conference on this basis.

Urgency is Fluid

Urgency is a fluid concept dictated by the state of the pandemic, the availability of court resources, and the specific facts of each family. While the Court remains open in a limited capacity, families are encouraged to communicate and try to find realistic solutions without resorting to the judicial process. The Court prioritizes the most urgent matters and cases that can wait until normal operations resume will likely be deemed non-urgent.

This blog post was written by Kathleen Broschuk, a member of the Family Law team.  Kathleen can be reached at 613-369-0362 or at kathleen.broschuk@mannlawyers.com.

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