Parents and family law lawyers are asking how they should respond to the impact of COVID-19 on the Ontario court system. We have summarized the current Ontario family case law on COVID-19 to help clarify how courts expect parties to act, and how courts will react, during these unprecedented times. The summaries are in chronological order, from newest to oldest. We will update this list as the Court provides more guidance.
All References to the “March 15 Notice” refer to the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings dated March 15, 2020.
All References to the “April 2 Notice” refer to the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update.
Note: This summary is not legal advice and is provided for informational purposes only.
Family Case Law Summary
Last Updated: April 21, 2020
The father brought an urgent motion for equal time sharing with the parties’ three year old daughter. The father had not seen the child since separation in February 2020. He faced criminal charges for assaulting the mother and she made allegations respecting his mental health.
Nuance Difficult in COVID-19 but Must Do Something
Justice Pazaratz commented that “[c]ases like this involving young children and families in crisis require a level of sensitivity and cautious creativity which is difficult to achieve within the constraints imposed on the court by COVID-19. We are limited in how much we can accomplish. But doing nothing is not an option, when it comes to protecting all of a child’s physical and emotional needs.”
Some Level of Access was Urgent
The Court found this case struck a middle ground of urgency. The father’s request for equal time sharing was not urgent. The issues needed to be addressed cautiously and specifically to ensure the child’s wellbeing. At the same time, the father’s request for some time sharing was urgent as there was no reason to delay the inevitable contact between parent and child.
Case Conference Ordered
The Court ordered that the matter would proceed to an expedited Case Conference. If the issues were not resolved at the Case Conference, the matter would move on to a hearing.
The respondent brought an urgent motion to set aside two 2019 final Orders and requested leave to file an Answer.
Parties Who Cause Their Own Delay Can Wait
Justice Pazaratz stated “The bottom line: If you are served with an Application in April 2018; if you don’t even try to file an Answer until October 2018; and if you then pay very little attention to your file for the next year and a half – then you can’t come to court in the middle of the COVID-19 crisis, and claim that your matter is urgent. Your requests can be dealt with when things get back to normal.”
10 MB Means Short Submissions
Justice Pazaratz also stated that 10MB can be hundreds of pages depending on the formatting but materials should in fact be “…brief and efficient.” This means urgent motions should be five to six pages at most (including attachments). Documents should be typed, double spaced, with a 12 point font.
The respondent brought a motion to reduce his monthly spousal support payments of $17, 224.00 and argued that this matter involved a “dire issue regarding the parties’ financial circumstances.”
The respondent was an anesthesiologist earning $634,747.00 per year but heath problems forced him to stop working in the summer of 2019. As a result, his income dropped to $104,400 per year. The Court deemed this matter urgent given the extent of the reduction in income.
The custodial mother passed away in March 2020. A family friend cared for the child until the maternal grandparents could travel from Vietnam after the COVID-19 pandemic. The Court deemed the parties’ joint motion urgent because “someone needs to have authority to make decisions for the child on a temporary basis.”
The Court did not specifically discuss COVID-19 issues but decided this access dispute during the emergency period. There were outstanding criminal charges against the father in relation to the mother.
The self-represented wife sought an urgent hearing for retroactive child and spousal support claiming she would need to sell the family home.
The Court confirmed that the wife’s deadline to respond to the husband’s existing Motion to Change was suspended under the Civil Management and Emergency Protection Act. The Government of Ontario continued the state of emergency for four more weeks as of Tuesday, April 14, 2020. This meant that the wife had until May 12, 2020 to serve and file her responding materials and the matter was therefore not urgent.
The mother sought an ex parte order for a restraining order against the father, interim sole custody, access at her discretion and permission to serve the father by email. The mother submitted, among other things, that:
- The father sexually abused the child;
- The father physically and verbally abused the mother and child; and
- The father continued to make threats, including that he would harm himself and others.
The Triage Judge found the restraining order, residency of the child, and the father’s current access to be urgent issues. The Court deemed custody and child support as non-urgent. The Court granted the restraining order on a “temporary temporary without prejudice basis” and ordered that the child would continue to reside with the mother who could supervise access with the father at her discretion.
The father brought a contempt motion against the mother who refused to allow his March Breach access to proceed as scheduled. The Triage Judge deemed this matter urgent.
At the hearing, the Court dismissed the father’s motion. The best interests of the child are paramount when considering contempt and it was in the child’s best interests to suspend access for four weeks.
The Court based this decision on two considerations:
- It was unreasonable to require the mother to drive from Windsor to London for access exchanged during a pandemic. The parties would reasonably need to stop for bathroom breaks. This put the mother’s family, including the child, at increased risk of exposure.
- The father and the paternal grandfather continued to work on renovating the father’s girlfriend’s house together. The Court noted this was not self-isolating behavior and did not accept that there was zero contact between the two men and others while working.
The Court balanced the need for continued parental relationships with the risk of COVID-19 exposure. The Court noted that the consideration included an increased risk to family members and not just the child in question. The Court took into account that the mother made significant, voluntary arrangements for the child to have daily remote contact with the father via FaceTime, telephone and an on-line game.
Furthermore, the Court noted that it was reasonable to assume the twelve year old child expressed her views and preferences about access to her mother. The Court did not have independent information about these views and preferences at the time.
The Court heard this Motion to Change on March 11, 2020, before the COVID-19 pandemic. The parties disputed the terms of a final order related to spousal support and the joint line of credit.
In the decision, the Court acknowledged the pandemic and stated: “[s]ince the hearing, I appreciate the parties may already be feeling or anticipating the economic impact resulting from the emergency measures imposed on all residents of the province in the effort to contain the pandemic. This may well bring additional uncertainty to the financial obligations under the Final Order. In any event, I recognize the limited court operations at this time make it difficult for the parties to address their responsibilities under the Final Order, including through the annual review process provided for in the terms of that order. I encourage them to attempt to resolve the issues and bring some certainty between them where possible.”
The parties had two teenagers with special needs. One child experienced high functioning autism. The other child had ADHD and anxiety. The mother believed the father, who had sole custody, withheld the children from her over March Break.
After reviewing the evidence, the Court determined the real issue was the children worried that visiting their mother would increase their risk of getting COVID-19. They took the Prime Minister’s direction to “stay home” very seriously. The mother also worried that the father may have unduly influenced the children.
The parties consented to a temporary without prejudice order that access would resume and:
- both parties would encourage the children to attend access visits;
- the parents would encourage the children to communicate with the mother face-to-face by electronic means at least 3 times a week;
- the parties could tell the children that access could resume because there was no evidence that either household was a health risk to them due to COVID-19;
- both parties would follow government orders and requirements as set out on the public health services website for COVID-19.
The mother argued, and the Court agreed, that the father’s Motion to Change was not urgent and should not proceed during the COVID-19 crisis. Justice Mackinnon awarded the mother costs because, among other things, “[t]he determination of urgency according to the Chief Justice’s directive was and is intended to be a summary exercise.”
The mother brought a motion to suspend the father’s in person access until after the COVID-19 pandemic. The child had a genetic condition called hypotonia which caused, among other things, respiratory issues. The child was at high risk if he contracted COVID-19. The Court deemed the matter urgent at the triage stage and at the hearing itself.
Material Change in Circumstances
The Court made detailed observations about the effect of COVID-19 on society and found that the onset of the pandemic was a material change in circumstances which could potentially justify a change in the existing Court order.
Access For at Risk Child to Resume with Conditions
The Court declined to suspend the father’s in person access. No medical evidence demonstrated the child would be at risk spending a few hours per week at his father’s house with appropriate precautions. No evidence showed the father failed to comply with public health directives and, in the past, the father voluntarily missed access because he was sick.
Access would resume on April 24, 2020 after the child finished his course of antibiotics. The Court ordered that the father must:
- comply with any future public health directives relating to Covid-19;
- wear a mask when he was within two meters of the child; and
- forgo in person access if he had any symptoms of illness.
What Would Justify Suspension of Access?
The Court listed the following circumstances which might justify a suspension of access in the future:
“1) evidence of a disregard for the safety and well-being of the child by the father by disregarding the directions relating to Covid-19;
2) specific medical evidence relating to this child that access to the father would place the child at significant risk;
3) increased and better general information about Covid-19 relating to the risk of taking a child with [the child’s] medical conditions for access visits out of his home even with safeguards and precautions in place;
4) Specific evidence relating to the increased risk within the child’s community of Sault Ste. Marie and the risk of the child travelling from his home to the father’s residence.
5) The child or the parents becoming ill in circumstances that a visit or visits would place the child at significant risk. Should the child become ill, he should reside with his primary parent, namely his mother, with access temporarily suspended to the father. Should the father exhibit Covid-19 symptoms, his access shall be suspended.
6) A more restrictive order being made by the authorities to quarantine or restrict public movement in the community. In the event of such a restriction, the child would remain with his mother as primary caregiver.”
The child was removed from her mother’s care following her birth and brought to a place of safety. The mother admitted to using fentanyl during the pregnancy and the child was experiencing symptoms of withdrawal.
The matter was “clearly urgent” per the Ontario Court of Justice directive.
The matter proceeded on an expedited basis. With respect to COVID-19, the mother could not see the child in person because the Society suspended face to face access during the pandemic. The mother’s case manager at her shelter would help facilitate video access.
The child resided with both parties equally. The father withheld the child. The mother brought an ex parte urgent motion for an order for police assistance, makeup access, and an order that the parties return to the week about parenting regime.
The Court found this matter met the definition of urgency on a without prejudice basis because it involved the wellbeing of a child and alleged wrongful retention of the child. The father must be given notice and email service would be acceptable given the pandemic.
The father brought a 14B motion for leave to proceed with an urgent motion for access with his newborn son. The mother filed a cross motion for, among other things, child support, and an order that the father comply with the terms of his criminal recognizance by refraining from direct or indirect contact with her and remaining 100 meters away.
The mother lived with the father and his family after immigrating to Canada in 2018. The mother claimed they abused her and the father was arrested for assaulting the mother in July 2019. The parties engaged in ongoing Court proceedings around the issue of support. The mother could not access public financial assistance due to her immigration status. The child was born in 2020 with some health problems and remained in hospital. The parties could not agree to access arrangements that fit in with the father’s bail conditions, the mother’s insistence that access be supervised, and the hospital’s own rules.
At this time, the ONCJ was scheduling urgent case conferences. The issues in this matter did not meet the standard for an urgent motion because they did not affect “the safety or well-being of a child.” However, the Court stated that the matter should proceed to a case conference where the parties could address the immediate need for child support, access issues and any COVID-19 concerns.
The father requested a police enforcement clause be urgently added to the Consent Order for custody and access because of the mother’s alleged violations of that Order.
The Court deemed the matter non-urgent because:
- There was an existing Order in place;
- No one alleged the children were in danger;
- The current temporary situation could be promptly dealt with once the Court resumed full function.
No Self Help
The Court warned the mother that COVID-19 does not provide an excuse for violating Orders. The father could seek make up time and costs as a remedy.
Not a Lawless Society
The Court also remarked that the definition of urgency cannot be so narrow that “avenues of relief are effectively foreclosed, and lawlessness is encouraged.” There must be a “rudimentary level of court oversight.”
The results of a January 2020 trial dictated the parties’ parenting schedule. Beginning in March 2020, the mother withheld the child for a variety of reasons including COVID-19 and her general distrust of the father. The Court previously deemed the matter urgent per the March 15 Notice and the April 2 Notice. By using the framework in Ribeiro v Wright, the Court ordered that the mother follow the parenting schedule and that the father receive make up time.
No Self Help
The Court could not condone the mother’s unilateral actions. The mother did not include any specific evidence of the father’s failure to comply with covid-19 protocols. Parties cannot use COVID-19 to revisit trial results. If the mother wanted to change the parenting regime because of COVID-19 she needed to bring her own motion.
The mother withheld the children from the father. The father was a nurse practitioner at Windsor Regional Hospital. The Court deemed the matter urgent because “it relates to the well-being of these two children and the alleged wrongful retention of the children from their father.” The motion would return by teleconference on April 22, 2020.
The paternal grandparents had custody of the child. They wanted to suspend the mother’s access due to COVID-19 concerns. The Court found that the grandparents failed to provide evidence supporting the matter’s urgency. Specifically:
- they did not provide a medical note indicating the child’s asthma required special precautions;
- they only presented hearsay evidence that the mother took her other two children to Wal-Mart; and
- The fact another child in the mother’s home previously had pneumonia was not grounds to suspend access- particularly since the mother voluntarily missed access while that child was ill.
The matter was presumptively urgent because it dealt with the wellbeing and potential wrongful removal of a 4-year-old child.
The mother and the maternal grandparents allegedly withheld the 14 year old child. The father had sole custody per the final order of May 16, 2018.
The child and the mother quarantined for 14 days upon their return home from Cuba. The quarantine ended on April 3, 2020 and the father demanded the return of the child by April 5, 2020. The mother then claimed the family was exposed to COVID-19 again and needed to self-isolate until April 17, 2020. The father then brought this motion.
The Court found the father presented no evidence challenging the veracity of the mother’s explanation as to the necessity of the second quarantine period. The mother’s emails made it clear the child would be returned by April 17, 2020. The motion was not urgent but, due to the high conflict nature of the matter, the Court ordered the matter come back on April 21, 2020 to ensure the child was returned. The Court dismissed the father’s request for police enforcement.
The Triage Judge deemed the matter urgent because “[t]he father raises issues relating to the safety of the very young female children (ages 1 and 3) relating to the mother Ms. Thompson’s access in view of her physical and mental health and her choice of partner. Further, the existing interim order was entered into on consent on a without prejudice basis, and the circumstances existing at that time have substantially changed.”
The mother sought an order to suspend the father’s access visits with their seven year old son “until social distancing and other measures related to the safety risks of COVID-19 are eased”. The mother opposed the fact that the father took the son for a walk in the park with his other son and a friend during the pandemic.
The Court deemed this matter non-urgent. The walkers obeyed government directions at the time of their outing by staying six feet apart. The walk did not raise concerns about the father’s judgement and the existing Order should be followed.
This matter was deemed urgent because the Court needed to address how contact between the child and the father would take place during COVID-19.
After the father’s last access visit, the child told the mother that they engaged in activities over March Break such as visiting friends, and having sleepovers. Concerned about COVID-19, the mother emailed the father but received no response. The mother withheld the child but facilitated virtual access with the father three times a day.
The father argued that he followed all safety measures and the activities described by the child occurred before the state of emergency.
The Court found the mother withheld the child based on reasonable concerns for safety but ordered that access should resume. The Court also ordered that the father:
a) “ meticulously adhere to COVID-19 safety measures – including social distancing; use of disinfectants; compliance with public safety directives; and
b) within two hours after the end of each occasion the child is in his care, inform the mother in writing, by text or email, of the child’s activities engaged in while with him and the steps he took to keep her safe and promptly respond to any questions she may have about the child’s time with him.”
The Applicant father brought an urgent motion seeking access to his children. The Respondent mother brought a cross motion for supervised, graduated access, and child support. The Court determined this matter was not urgent and cited the following reasons:
- No parenting order or agreement has been made since the parties’ separation. There is no status quo the court can reasonably rely on, especially given the fact that the father has not independently exercised his parental duties since the separation in November 2019.
- According to the evidence, there is no issue related to the safety or the well-being of the children.
- Given the limited independent parenting exercised by the father, the request for immediate overnight access every weekend was deemed to be unreasonable.
- The mother had previously offered the father supervised access, but this offer, which the Court agreed was quite sensible, was never accepted.
- The mother alleges that the father was violent with her during their relationship. She further alleges that the father has been violent against the children on several occasions. Given the severity of these allegations, further evidence needs to be gathered before a determination can be made on any parenting arrangement.
- The father failed to present a realistic proposal on the precautions he intends to take to keep his children safe during the current situation with COVID-19.
The Court indicated that on consent of both parties, they may proceed with the motion in writing in respect to parenting schedule and child support as provided by the Regional Protocol dated April 7, 2020.
The Applicant mother brought an urgent motion seeking an order suspending access by the Respondent father to the parties’ child. The Trial Judge granted the mother’s motion and deemed the matter to be of immediate and serious concern directly related to the child’s safety and well-being.
The parties’ child is a nine year old boy diagnosed with breathing issues. The parties disagreed as to the severity of the child’s medical condition. While the father claims that the child has outgrown the need for his current medication, the mother insists that the condition remains a serious health concern. The mother alleges that the father’s new partner works as a dog-walker and house sitter, which increases her potential exposure to COVID-19. In light of her son’s condition, the mother believes the circle surrounding her son needs to be as small as possible.
The Court, citing the principles in Ribeiro v. Wright, 2020 ONSC 1829, reminded the parties that parenting schedules may be altered where “risk factors related to the health or other circumstances of a child or other members of a household” may exist. The Court stated that if the child’s respiratory issues are as serious as alleged by the mother, suitable precautions need to be taken to insure the child’s health and safety.
The Court ordered that the motion should be heard when both parties have submitted proper affidavit materials with sufficient evidence of the child’s health condition, and proceeded to set timelines and schedule the teleconference.
The mother withheld the children because one of them was particularly vulnerable to COVID-19. The father rejected offers of video access because he faced criminal charges and the terms of his release order restricted contact with the mother and her parents. The father was unsatisfied with the medical advice provided by the mother and believed that she was overstating the risk. The mother provided a letter from the child’s doctor.
The father asked to transfer the matter to the Superior Court. The request was deemed non-urgent. However, the medical evidence showed the parties needed to exercise caution around their daughter’s health. In this case, “[p]rudence requires that an alternative to face to face visits take place for the time being. At this stage there is no knowing whether this will be a few more weeks or many, but it will end. There will be lots of time to re-establish regular in person visits, soon.”
The Court held that [hone and video visits should be arranged through family counsel and criminal counsel should be consulted to see if the terms of the release order could be varied to accommodate virtual access.
This matter was before the court by way of Motion to Change a final Order which gave the father custody, but did not provide access to the mother. An Order was made on February 21, 2020, which granted the mother access on alternating weekends and every Tuesday. On March 21, 2020, the father told the mother access would be cancelled due to COVID-19.
The mother brought an urgent motion in this case arguing that the parties’ 8 year old daughter was being wrongfully withheld from her during her access times.
Given COVID-19 and what the court said was clearly the “wrongful removal or retention of the child”, the court found urgency in this matter. The Court was clear, however, that this did not preclude the applicant father from arguing that the test for urgency was not met at the motion. The Court relied on the March 15 Notice in making its decision.
The mother withheld the children citing unsubstantiated COVID-19 concerns. The Court deemed the high conflict matter urgent and reinstated access between the children and their father. The Court cited the mother’s history of withholding the children, the fact she failed to raise new issues before the Court and her history of anxiety impacting her parenting decisions.
The Court relied on Le v. Norris’s standard of “reasonable adherence to the existing court orders. The Court ruled that the parties should follow the existing access schedule except Wednesday access would now occur electronically to minimize the number of exchanges.
Since the mother’s withholding was unjustified and unilateral, make up time was appropriate.
The Court affirmed that withholding a child from the access parent meets the definition of urgency in the March 15 Notice.
In this high conflict matter, the mother made allegations of intimate partner violence against the father. The temporary order provided that access exchanges should happen at the police station. The father insisted that exchanges occur at his house citing concerns about exposure to COVID-19 at the police station and the general inappropriateness of a police station for access exchanges.
Citing the March 15 Notice, Thomas v Wohleber, and Ribeiro v Wright, the Triage Judge deemed this matter urgent because the parties risked escalating the narrow issue. The Court ruled that the existing order should be followed however, in the hopes of resolving the problem at hand, the Court also made a “temporary [sic] temporary without prejudice order” that access exchanges should continue at the police station but, to minimize exposure risk, the parties should not leave their cars, and the children should walk between cars to complete the exchange.
The facility where the father normally exercised supervised access closed because of COVID-19. The father sought, on an urgent basis, to vary the existing order so a family member could supervise his access with the child. There were outstanding criminal charges against the father and a non-association order prevented contact between the parents.
The Court deemed this matter urgent citing two concerns:
– it was important to facilitate an ongoing relationship between the father and his child; and
– it was important to ensure that any access arrangements reflect the need to protect the safety of all family members in light of the criminal charges and the non-association order.
Since the parents could not legally communicate, they would not be able to make COVID-19 arrangements without the Court’s help. Alternative access, such as videoconferencing, would also not be possible.
The Triage Judge deemed the father’s ex-parte 14B motion non-urgent.
The father provided only an email to the Trial Coordinator indicating he needed urgent relief due to wage loss as a result of COVID-19. He could not afford his monthly child support payments to the mother and the son was not in the mother’s care anyway.
The Court required better evidence to make a determination of urgency and the mother must be served. The father, a self-represented litigant, should also provide a draft of his Motion to Change and Financial Statement if he brought the matter again.
The mother brought an urgent motion requesting:
– the return of the parties’ son to her care;
– that the father be prevented from taking the son to the cottage;
– police enforcement; and
– that the current parenting schedule be suspended until a police enforcement schedule is added to the parties’ current final order.
Adjusting Court Orders
The Triage Judge found this matter non-urgent because the father correctly agreed to revert to the court ordered schedule until further agreement or order.
The Court noted that, even though the parties generated a motion, they had in fact been communicating about reasonable scheduling adjustments. It may make sense to adjust the schedule to account for “the current situation, each parent’s availability, on-line education through the school board, and other considerations.” The Court encouraged the parties to keep communicating.
For the purpose of the urgency determination, the fact that none of the documents were signed or commissioned was acceptable. However, at a motion, “both parties would have had to be sworn in by the judge hearing the motion and their respective statements in the written materials adopted under oath or affirmation.”
The parties could wait for the matter to be spoken to in June or schedule an earlier case conference per the Regional Protocol issued by RSJ Arrell on April 7, 2020.
The respondent sought an urgent motion that the applicant post security for costs for their upcoming trial. The respondent cited “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.”
The respondent said this matter was urgent so he could recover the large sum of money the applicant owed to him plus costs. The applicant was selling her house with a closing scheduled for April 16, 2020. The respondent had two outstanding costs orders secured by writs of execution against the property. Additionally, the respondent claimed that the applicant failed to comply with almost every order in the proceeding (including serving updated Financial Statements) and unlawfully took $35,000.00 from him.
The Court deemed this matter non-urgent because
– Trials are suspended.
– The applicant’s inability to post security for costs could only work to the disadvantage of the applicant per Rules 24(15 and (16).
– An order for security for costs is not the same as a non-depletion order.
– It is not possible to get security for costs as “execution before judgement” or to obtain an updated Financial Statement (unless the failure to provide one indicates the case is a waste of time or a nuisance).
This was a Motion being dealt with on an urgent basis. The parties’ four children(7, 9, 10, 11) were in the Respondent father’s care for March break. They were to be returned to the Applicant mother on March 29, 2020, but the father refused to do so, for several reasons relating to COVID-19. An urgent motion was brought on April 3 and a motion was granted.
Children returned, matter still deemed urgent
The children were returned to the mother on April 6, 2020. Father stated that because he returned the children, the matter was no longer urgent. However, Justice MacEachern deemed it still urgent as the father, who moved to Mississauga in September 2019 without notice, now moved back to the Ottawa area. This now created a dispute about the children’s time sharing arrangement.
Parties’ existing Final Order and parenting terms
The parties already had a December 2018 final Order, which provided a two-week rotating schedule for the children, except for during the school year, where the children returned to the mother’s care every weekday for homeschooling.
The father’s position was that the parties should follow the December 2018 final Order, except with no weekday exchanges as schools are closed and this transporting every day is not in the children’s best interests.
The mother’s position was that the children had been with her primarily since September 2019, creating a new status quo, and there for this should continue. The mother also began a Motion to Change in February to address this and the father was in default of responding.
Temporary Orders Made
The Court found that despite COVID-19 disruptions, the schedule as provided in the December 2018 final Order and the interpretation of same did not change. The arrangements made for homeschooling could not be separated out from the overall schedule for the children. Further, with a status quo in place as of September and the father’s default in responding to motion materials, the Court would not allow a change in the existing parenting schedule. On a temporary basis, the children would remain primarily with their mother and would alternate weekends from Friday noon to Monday noon with their father.
The parents already engaged in two Case Conferences and were case managed. The Court adjourned the March 19, 2020 Settlement Conference because of the COVID-19 pandemic. The father brought a motion requesting a half hour Case Conference on the parenting issues.
The Court granted the motion and provided similar directions to those in Ghazanfari v. Pasalar below.
The father brought a motion requesting an urgent Case Conference. He alleged that the mother denied him access to their two children.
Justice Jarvis granted the motion without further explanation. He provided, among other things, that:
“(a) The parties are to schedule the first available date for a Case Conference through the trial offices. Court administration shall fix a date in the event that the parties are unable to agree or a party fails or refuses to provide a timely date; …
(d) No more than two issues may be conferenced. The total time allotted will be ½ hour. If practical, the parties or their lawyers (if one or both of the parties are represented) are expected to discuss, and agree upon, the conference issues before the conference; …”
The Court also stated: “[t]he parties are to consider the observations of Pazaratz J. in Ribeiro v. Wright… They will be expected to have realistic solutions to the disputed issues which take into account the current COVID-19 crisis.”
The mother withheld the two teenage children and brought an urgent motion to deny the father’s parenting time arguing that he refused to abide by physical distancing protocols when he did not have the children. The Court found the matter urgent but denied the mother’s relief finding the parties should maintain their status quo arrangement.
Changing Standards of Behaviour- Self-Isolation vs Social Distancing
The mother relied on the fact the father refused to self-isolate after returning from the United States one day after the World Health Organization declared COVID-19 a pandemic and before the government mandated self-isolation after travel. The father did eventually self-isolate for 14 days.
The Court ruled that “[t]he preventative measures advocated by authorities and the differences between “self-isolation” and “physical distancing” continue to evolve. The Respondent’s initial resistance and then acquiescence combined with his failure to comply with rigorous self-isolation, given that evolution and his evidence as to his commitment to compliance does not raise the kind of concerns that require an interruption in the children continuing to see their father. If he were to now depart from the current self-isolation rigorous protocol, that could demonstrate recklessness. But not at the time and in the circumstances in this case.”
How to Know What the Covid-19 “Rules” Are
The Court denied the mother’s request to order “personalized ground rules” for the family but instead linked specific government websites where the parties could find the expected standard of behaviour.
Make Up Time and Parenting Plan
The Court ordered make up time for the 14 day period the father had to self-isolate.
The high conflict parents had a history of assault charges against each other. The mother withheld the children starting February 14, 2020 because she felt “disrespected” by the father. The parties had no contact conditions between them.
The Court deemed the matter urgent because of the mother’s withholding and the fact that the mother was living with and involved with a person who had a previous history of being charged and convicted of sexually assaulting and sexually interfering with a child.
The high conflict parents signed Minutes of Settlement respecting property and financial issues in January 2020. The settlement provided that:
- the matrimonial home would be listed for sale by April 1, 2020;
- the wife would have exclusive possession of the home until closing;
- the parties would select a mutually agreeable and arms-length realtor by February 29, 2020; and
- the parties would conduct certain revocations as recommended by the realtor.
Some of the terms of the settlement failed to be implemented and COVID-19 created barriers to implementation. The father requested, and was granted, an urgent Case Conference to discuss these issues.
At the Case Conference, the Court ruled, among other things, that:
- the father’s proposal with respect to listing the house was reasonable. The parties should re-evaluate the COVID-19 restrictions on listing by April 15, 2020 and then check in biweekly. Reassessing the situation every two weeks would help keep the matter out of Court.
- the wife’s position that she would cooperate with the attendance of the proposed real estate agent once the pandemic “ended” was unreasonable. The Court would not indefinitely extend the wife’s obligation to list and sell the home. The Court stated that the trigger for proceeding would be when real estate agents in Toronto resume open houses.
- it would be difficult to assess and conduct repairs to the home while also social distancing. However, the parties could send pictures of the house to the realtor, discuss the issues, and start lining up contractors for the post-pandemic period.
The wife sought an urgent order staying a portion of the March 10, 2020 final order. The provision in question directed the removal of a preservation order that prevented the husband from depleting his RRSPs. Justice Baltman heard the matter entirely in writing per the March 15 Notice.
Staying the Removal of a Preservation Order is Urgent
The Court deemed this matter urgent. As the March 15 Notice included the placement of a non-depletion order, it arguably also included a motion to stay the removal of a preservation order.
COVID-19 Shortens Analysis
The Court found that the wife’s appeal of the final order failed the first part of the cumulative test for a stay. As articulated in Zafar v. Saiyid, this step involved a preliminary assessment of the merits of the case to ensure there was a genuine issue to be tried. As COVID-19 seriously restricted judicial recourses, the Court concluded it was not necessary to consider the other two criterion.
The Triage Judge granted the mother’s urgent motion on a temporary without prejudice basis. The mother sought a restraining order against the father, suspension of the father’s access, permission to serve the father by email, and a police enforcement clause.
The parties separated on February 5, 2020 after an incident which resulted in the father being charged with assault causing bodily harm, strangulation, assault, and historical assault against the mother. The father remained in custody but could be released at any time.
Father Refused to Take the Children
The parties shared the children equally per a long standing status quo. The father withheld the children citing COVID-19 concerns caused by the mother’s job as a hospital nurse. He eventually returned the children but then refused to take them back as scheduled forcing the mother to take unpaid time off work.
Risking Unemployment is Serious and Immediate Harm
The mother could not return to work without returning to the status quo parenting arrangement because she did not have other child care options. The Court determined that her resulting risk of job loss as potential serious and immediate harm.
The mother withheld the parties’ 17 month old son. The father brought an urgent motion for:
- access according to the existing consent order;
- expanded access; and
- release of $35,000 to each of the parties from approximately $210,000 in net sale proceeds of their jointly owned home.
The Court found the existing order still effective and held that the mother should resume the regular access schedule. The other issues lacked urgency as required by the March 15 Notice.
No Self Help
If the mother wanted to terminate face to face access between the father and son, then she needed to bring her own motion to vary the existing order. The mother was “not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time.”
Need Specific Evidence
The Court found that if the mother did indeed bring a motion, it would be unsuccessful because her accusations lacked specificity and the father provided evidence of his efforts to protect their son during the pandemic.
Actions May be Judged Later
The Court, citing Justice MacPherson in Douglas v. Douglas (March 25, 2020 ONSC), reminded the parties 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.” The Court echoed Ribeiro v Wright and implored the parties to be reasonable.
In the context of a high conflict parenting arrangement, the father sought to resume access with his seven year old daughter. The father had not seen or spoken to the daughter since June 24, 2019 when a physical altercation occurred between the parents during a drop off. The mother withheld the child since that time.
This matter was originally scheduled for March 2020 but adjourned due to COVID-19. The father then brought an urgent motion.
The Court deemed this matter urgent because of the “very negative effects of wrongful, prolonged parental estrangement on a young child.” The Court found the mother’s behaviour qualified as the “wrongful removal or retention of a child” per the March 15 Notice.
The Court found both parents at fault for the “incident” and ruled the mother was actively discouraging her daughter from having a relationship with the father. The Court granted the father’s request for a gradual return to access starting with FaceTime visits.
The husband requested leave to bring an ex parte motion for a Certificate of Pending Litigation (CPL) on the matrimonial home. The wife recently listed the property for sale. The husband argued that the home could not be listed or sold without his consent and sought a CPL to protect his interest, which was to an equalization of net family property
Justice Mackinnon dismissed the request for urgency because:
- The husband relied on spousal rights contained in s. 21 of the Family Law Act however, since the divorce was already granted, the husband was not a spouse and could not rely on the provisions; and
- The well-established law dictated that a claim for an equalization of net family property does not call into question an interest in land and accordingly does not entitle the claimant to a CPL.
A previous Endorsement deemed the matter urgent. The parents disagreed over when the father’s parenting time should resume after potential exposure to COVID-19.
The father’s co-worker tested positive for COVID-19 but had not attended work since March 13, 2020. The father did not work near the affected co-worker. The father’s facility closed on March 23, 2020 and the father began self-isolating.
The father argued that his access should resume immediately as he had not been exposed to his co-worker for over three weeks. The mother argued that the father’s access should resume 14 days after the father (and his roommates) began social distancing and self-isolating, and on the condition that none of them showed signs or symptoms of COVID-19. The fourteen days would expire four days after the motion.
No evidence demonstrated the father disobeyed COVID-19 protocols. However, Justice Diamond stated that the father could have been exposed to colleagues after March 13, 2020 who picked up the virus from the ill co-worker. Even though there was only a small chance of transmission, Justice Diamond held that in “uncertain times, it is preferable to avail oneself of certainties when available.”
The Court granted the mother’s motion. The Court did not find the father did something wrong but rather, waiting four more days to resume access minimized risk for all.
The mother, a Minnesota resident, brought an Application for child support from the father, a self-represented Ontario resident, under the Interjurisdictional Support Orders Act (ISOA). The parties had three children.
The mother brought her application for support in Minnesota on September 18, 2020. The Notice of Hearing was issued in the ONCJ on January 22, 2020. The father was served on January 29, 2020. The hearing was scheduled for March 31, 2020.
COVID-19 Barriers for Self-Represented Litigants
The Court stated that it would normally proceed with the mother’s application based on her written materials since the father did not file responding materials, request an oral hearing or attend Court on the date originally set out for a hearing. However, COVID-19 presented “considerable obstacles for a self-represented litigant who might wish to respond to the [mother’s] application.” These obstacles included restrictions on physical access to the courthouse as well as warnings from the government to say at home.
The father’s materials were due before any restrictions began, however, the Court also took notice that many self-represented litigants in ISOA cases do not file written material in advance of the hearing date.
The Court balanced these considerations with the fact the mother supported three children on her own and made an order adjourning the hearing (to give the father a final opportunity to participate) while also granting the mother temporary support.
The support order accounted for the father’s potential decrease in income as a taxi driver during COVID-19.
The Society proposed that access be at its discretion. The Court agreed. The Society was unable to facilitate supervised access due to COVID-19. Barriers included the lack of drivers and the fact that foster parents are concerned about transmission. The Society provided electronic access.
The mother did not provide alternative solutions to manage the transmission of COVID-19 or the concerns about her parenting. Her historical lack of candour meant supervision was necessary.
The Court took judicial notice of the fact that the Society is providing reduced services in Toronto. The Society is not conducting home visits and is only checking on families by telephone or using technology. The Society is only responding in person to urgent and emergency calls. Additionally, community supports, schools and daycares are closed.
The Court agreed that the Society’s policy prevents meaningful contact between parents and young children however, “the lack of access is not a reason to return children to a parent or parents who by their conduct or circumstances are unable to provide a safe and risk-free home for their children.”
The Society would resume face to face access when safe. The parties would not need to return to Court.
The mother had spent increasing amounts of access time with the child. The Court rejected the Society’s blanket suspension of access due to COVID-19. The Society did not allege the mother failed to follow COVID-19 directives and provided no evidence of same. The Court cited Ribeiro v. Wright.
The father brought an urgent motion to resume access with the parties’ two year old son. The mother withheld the child citing COVID-19 concerns. She claimed the father failed to demonstrate how he would keep the child safe.
Per the June 6, 2019 final order, the parties shared joint custody and the father exercised access on alternating weekends and scheduled mid-week visits. In December 2019, the mother brought a motion to change but the case conference was adjourned to be spoken to in June because of the pandemic.
The Court found this withholding matter urgent in reasons nearly identical to Elsaesser v. Rammeloo below and proceeded to set timelines and schedule the teleconference.
The Triage Judge found the mother’s motion urgent. The father refused to return the children (ages seven years and six years) to the mother’s care as scheduled because she was a healthcare worker. The father usually exercised access on alternate weekends and Wednesdays per a Separation Agreement.
Determinations of Urgency Are Summary and Without Prejudice
The Court noted that determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.
Withholding is Urgent
The Triage Judge deemed the matter urgent based on the March 15 Notice, the developing case law on this issue, and the final court order. In addition to Ribeiro v. Wright, the Court relied on the following cases:
- Chrisjohn v. Hillier, London Court File No. F1098/18 “in which Mitrow J. held that parents must act responsibly in the face of the COVID-19 pandemic to ensure that children’s safety is protected, but that this should not result in a “widespread suspension of in-person parenting time” between a child and a parent.”
- Skuce v. Skuce in which “Doyle J., in the context of a COVID-19 access case, found the question of withholding parenting time in contravention of a court order to be an urgent issue within the meaning of the [March 15 Notice].”
The Court added that “there also may be risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments” to the parenting schedule.
In deeming withholding urgent, this case is distinguishable from Douglas v Douglas (March 25, 2020), ONSC, MacPherson J [unreported].
The mother brought a motion to change two final court orders, requesting:
- permission to travel with the children without the father’s consent;
- an increase to child support by $34.00 per month;
- enrollment in Our Family Wizard; and
- application of RESP funds to post-secondary expenses.
The mother did not provide an affidavit supporting her position. Citing the March 15 Notice, the Court deemed the matter non-urgent, noting:
- the government restrictions on travel;
- the nominal requested increase in child support; and
- the fact that no children pursued post-secondary education at the time.
The father sought an urgent motion or case conference as a result of the mother’s ongoing pattern of denying access. The mother previously brought an Application for custody and support of the parties’ eight year old son which remained ongoing.
Pre-Pandemic Withholding Not Urgent
The father claimed he last saw the child in January and he alleged the mother engaged in a pattern of denying access with her most recent reason being COVID-19.
- The denial of access began before COVID-19 for unrelated reasons; and
- There was no pre-existing order.
The mother did not get a chance to respond to the father and the Court anticipated she would present a different version of events.
The Court denied the motion but emphasized that “children have a right to a meaningful relationship with both of their parents and in person access can occur if both parties follow the government health directives.”
Heightened Obligation to Negotiate in Good Faith
The Court found this matter should not stall given the pandemic and there is a heightened obligation to negotiate in good faith. The Court stated that:
- The parties have experienced counsel;
- The mother brought the Application for custody and support;
- The mother now has the father’s time sharing proposal and she must respond with a proposal that’s in the child’s best interests with reasons; and
- “… the steps taken or not taken between now and when the case conference is held will be judged by the court.”
The Toronto Triage Judge declined to set a September trial date on consent based on the parties’ 14B motion because the matter was not urgent under the Notice from the Chief Justice of Ontario. The Court cited its authority under Family Law Rules 2(2) and (2)(3)(d).
The Court was still determining how they would give out trial dates and how they would assign priority to cases at the June rescheduling court. The Court would not schedule matters in advance of that time and these parties could not jump in line to get a September date (even by consent).
The wife, citing dire financial circumstances, brought an urgent motion for her “share” of the net sale proceeds of the matrimonial home held in trust. The wife operated a small business which was forced to shut down during the pandemic. She applied for government relief but had not yet received funds.
Non-Urgent per Thomas v Wohleber
The Court found this matter non-urgent on a without prejudice basis per the Thomas v. Wohleber threshold: courts must strictly enforce the March 15 Notice’s test of urgency so that “limited resources” are available to deal with “the most serious and urgent of cases”.
What Evidence Is Needed for “Dire Financial Circumstances”?
The Court reminded parties that judges do not have full court files and found that it lacked evidence to make a determination of urgency in this case. Notably:
- the wife did not file a Financial Statement. A Financial Statement would be essential to determine “dire financial circumstances” and grant the relief requested;
- the wife should also file a Net Family Property statement because it was not clear to the Court how the parties’ outstanding equalization obligations could impact the distribution of net sale proceeds; and
- the wife should file the results of any application for government funds (or the timeline for determination).
The Court indicated the wife could bring the motion again with a more fulsome evidentiary record or the Court would also accept a 14B motion for consent order. The Court warned that costs could flow from unreasonable behaviour.
The mother brought an urgent motion for return of her nine year old child.
The mother and father shared custody. The child primary lived with the mother. The maternal grandmother refused to return the child to the mother because the child made physical abuse allegations against the mother’s live-in boyfriend. The father supported the grandmother’s position.
The Triage Judge previously found the matter presumptively urgent. The Court remained concerned about returning the child to the mother’s full time care without:
- further investigation by the Family and Children’s Services of Waterloo Region;
- evidence of the child’s views and preferences; and
- evidence of the mother’s mental health, drinking and her boyfriend’s behaviour.
The mother could not guarantee the boyfriend would not be alone with the child if returned full time.
The Court ordered, among other things, that the child should remain with the grandmother and continue to exercise access with the father on alternating weekends as per usual. The child would spend the other weekends with the mother and not be left alone with the boyfriend.
The parties lived together in the matrimonial home. Justice Mackinnon previously deemed the mother’s motion urgent. The mother sought:
- exclusive possession of the matrimonial home;
- contact between the children (ages 11, 13 and 17) and the father restricted to video chat or telephone; and
- the father to pay mortgage payments in lieu of child support.
Exclusive Possession and Parenting Urgent; Financial Issues Non-Urgent
The Court found the first two matters urgent and granted the relief sought. Justice Doyle would not deal with the financial aspects as the Court did not have Financial Statements or other financial information.
The Court based its reasons on: the mother’s health issues, the father’s failure to comply with COVID-19 protocol, and the children’s needs. The mother met the onus in Ribeiro v. Wright.
Notably the father had alternative accommodation with his girlfriend.
The Mother’s Health Issues
The mother has serious health concerns that put her at increased risk of COVID-19 including: lupus, heart issues, Sjorgren’s syndrome, fibromyalgia and asthma.
A doctor’s letter confirmed that the mother should self-isolate as much as possible, avoid contact with other people, and not leave her home unless absolutely necessary.
Father’s Non-Compliance and Poor Attitude
The father did not follow the COVID-19 protocol required by the mother’s health. The father frequently left the house and refused to confirm where he went. He sometimes went to see his girlfriend when he claimed he was just driving around. The father refused to wash his hands when returning to the home. The father’s attitude put the children and mother at risk.
Best Interests of Children
The Court found that
- it was in the best interests of the children to stay in the home with a parent;
- a deterioration of the mother’s health would affect the children; and
- two of the children had asthma;
The Court ordered that the father could bring the matter back after April 17, 2020 to provide the Court with the measures he took to minimize the risk to the family and specifically of how he avoided contact with others since the date of the Order. Costs could be heard via written submission.
The mother wanted to suspend the father’s access to the parent’s three year old daughter until the father could provide evidence that he complied with recent COVID-19 protocols. A temporary Order provided the daughter primarily lived with the mother.
The Court found that the mother respectfully raised reasonable, child focused pandemic concerns to the father and tried to collaborate him on a COVID-19 approach. However, the father ignored those concerns. When the father finally did communicate with the mother he stated, among other things, that she had “nothing to teach [him] about Covid-19”.
Good Parents Communicate During Pandemics
The Court found that “[a] parent’s failure to communicate and meaningfully co-operate where a child’s safety and well-being are involved is a failure to parent, especially in the current environment.”
The Court further stated that “[g]good parents will be expected to comply with the [government] guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant.”
Access Suspended until Father Answered Mother’s Questions
While some of the mother’s requests were unsupported by the authorities (i.e. using face masks in public), the Court stated that the “father’s refusal to engage with her where the priority should be ensuring the safety and well-being of the child unacceptable.”
Per Ribeiro v. Wright, the Court gave the father the opportunity to, by affidavit, “specifically and absolutely assure the mother (and this Court) that current COVID-19 safety measures will be diligently followed”. The Court suspended the father’s access until he addressed the following:
(a) Where he is taking the child during access visits;
(b) That he will not take the child to a playground;
(c) That he practise social distancing;
(d) That he comply with public safety directives regarding COVID-19 and the use of disinfectants;
(e) Whether he or any of the roommates with whom he resides are still working, and whether he or any of his roommates are currently under self-isolation and/or quarantine;
(f) Whether his roommates are practising social distancing;
(g) Whether his roommates or any other individuals are present during his access visits with the child.
The mother made an urgent motion for return of the children and a police enforcement clause. The father withheld the children (aged six and four) based on reports from the children that the mother’s alleged boyfriend (R.D) sexually abused them.
Court Cannot Generally Condone Unilateral Action
The matter met the threshold for “urgency”, because “the Court cannot permit or condone unilateral behaviour by parents, except perhaps briefly and in the most serious of circumstances.” However, the mother’s request for police enforcement was not urgent.
Matter Should Have Been Resolved Outside of Court
Citing Ribeiro v Wright’s call for parties to be mindful the Court’s practical limitations, the Court expressed confusion about why the parties brought this matter. Both parties agreed the children would have no access with R.D. so there was virtually no risk to the children.
When Should Access Resume?
The sticking point was the resumption of access. The mother wanted access to resume immediately while the father wanted to wait until the police interviewed the children Concerns of the mother influencing the children did not make sense since she exercised daily phone access.
The Court ordered, amongst other things, that:
- “…the existing equal timesharing regime in relation to both children shall be resumed effective Thursday April 2, 2020 at 5:00 p.m. The transition has been slightly delayed – out of an abundance of caution — to ensure that it occurs after the police have had an opportunity to complete a scheduled interview. However, if the police interview is further delayed, the transition shall nonetheless occur.”
- The children should have no contact with R.D.
The issue of costs and make up time could be addressed after COVID-19.
The custodial mother brought an urgent motion to return the child from Newfoundland where the child had vacationed with the father. The father refused to return the child on the basis that it would be dangerous to travel from Newfoundland back to Ontario.
The Court found the motion to have the child returned was sufficiently urgent but the other relief sought by the mother (for example, a restraining order) was not.
The Court noted that the parties long ago agreed that the child would reside with the mother. The child never resided with the father for more than a few days at a time. Both parents lived in Ontario.
The Court found that even if the intentions of the father were to protect the child from exposure to the virus, such intentions could not be used to unilaterally change the custody arrangement, or to change the child’s province of residence.
Among other things, the court ordered that the father deliver custody of the child in Ontario within 4 days, failing which the father return the child at the Newfoundland border within 7 days . While the court allowed the parties to vary the deadlines by agreement, the child must be delivered into the custody of the mother within 8 days.
The Court commented that the removal of children still engages s. 7 of the Charter and must only be done in accordance with the principles of fundamental justice. Often parents in CAS litigation come from marginalized sectors, peoples and groups. Justice Sullivan stated: “I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.”
Children’s Aid Society of the Region of Peel (PCAS) continued to work with the mother via video conference while the children remained in her care. PCAS indicated that the type and level of continued supervision is assessed and based on each family and the children’s needs. In this case, the mother was working with the Society while the father, who the Court described as domineering, no longer lived in the home.
The Court took notice of the fact that school remained closed and this took away an important community support for the family.
The mother made a request for an urgent ex parte motion regarding the father’s access. The Society took no position. The Court found the only potentially urgent issues were:
– if the father’s access with the children should be temporarily suspended;
– if so, for how long; and
– if so, what alternative electronic access would be appropriate?
The Court took notice of the fact that:
– COVID-19 meant it was impossible for self-represented litigants, like the father, to speak with Legal Aid Ontario at the courthouse.
– However, COVID-19 Pandemic Planning – Scheduling of Family Matters in the Ontario Court of Justice COVID-19 and the Notice to the Bar and Public Regarding Family Matters at the Ontario Court of Justice in Milton (March 23, 2020) (both available online) provided information as to how individuals can receive advice from Legal Aid Ontario over the phone; about the Law Society of Ontario’s emergency family referral line during COVID; and about the Law Society of Ontario referral service.
– The father was an experienced litigant.
Matter Urgent; Access Suspended
The Court deemed the matter urgent and ordered the matter move forward to a hearing. In the meantime, the Court suspended the father’s in person access and ruled that regular contact occur via videoconference, social media or telephone. The Court took the following into consideration:
– The mother and some of the children exhibited COVID-19 symptoms;
– One of the children experienced exacerbated anxiety because of COVID-19;
– The father failed to provide the mother with answers to reasonable questions about his plan to implement COVID-19 safety measures;
– The father’s parents participated in access exchanges and only recently returned from a cruise;
– The father lived with two roommates;
– The father may continue to work outside the home;
– There was no evidence as to contact the father may have with others and what workplace health and safety precautions are in place to protect him against the spread of COVID-19.
At paragraphs 28-30, the Court detailed a list of information about COVID-19 that the father should provide to the mother.
Little Risk of Harm in Making a Temporary Covid-19 Access Schedule
The Court also encouraged the parties to communicate amongst themselves. The Court noted that “if they agree, in writing, to suspend or vary access to ensure their children’s well-being during the COVID-19 pandemic (a) a variation order is not required; (b) a future finding of contempt (or a Rule 1(8) ruling) is extremely unlikely; and (c) the court will not automatically consider that a new status quo has been established.”
The Triage Judge found the father’s motion for access non-urgent and the matter would return to be spoken to upon the resumption of regular court.
The two minor children (ages 12 years and 14.5 years) lived with the mother. The father exercised no parenting time except for attending the occasional sporting event. The mother made allegations of stalking, harassment and abuse. The Family and Children’s Services of Waterloo Region (“FACS”) did not support any unsupervised parenting time for the father.
In making its decision, the Court considered that:
- The father had not asked for more access since separation six months ago;
- There were no issues of safety and wellbeing;
- Given the children’s ages, their views should be heard via a Voice of the Child Report and the OCL is not conducting those reports at this time; and
- FACS needed more evidence to make a determination about appropriate parenting.
This request for an urgent motion involved allegations that the children (ages 6 years old and 12 years old) did not wish to attend access with their father or that the mother was refusing to send them for access.
Citing the March 15 Notice, the Triage Judge deemed this matter non-urgent because:
- the children were safe,
- there had been no case conference nor was there a Court order in place,
- the matter required a case conference,
- the access issues will be dealt with during the normal course of litigation, and
- the matter may require the assistance of the OCL.
The Court emphasized that “these children need their parents to act reasonably and responsibly at this time”.
The Triage Judge deemed the father’s motion non-urgent. The father sought to change the existing access order and implement a police enforcement clause. The current access order provided that both parents exercise access in the matrimonial home. The father sought access in his own home.
With reference to the March 15 Notice the Court determined this matter was not urgent because:
- The safety of a child or parent was not at risk;
- This was not the time to request a police enforcement clause as it could increase the children’s exposure to COVID-19;
- The “dueling parents” needed to be reasonable, stop the litigation, and act in their children’s best interests during this unprecedented time.
The Court stated that the father caused concern by bringing the children to a pet store and to visit elderly family. The Court emphasized “everyone MUST follow Health Canada safety protocols to keep these children safe and healthy” but declined to amend the existing order by suggesting the parties act reasonably instead.
The wife brought an urgent motion for a “vesting order” and transfer of the husband’s interest in the matrimonial home to her so that she could obtain re-financing to pay off the high- interest mortgage before it became due on March 31, 2020.
Motion Deemed Urgent
The Court deemed the wife’s motion urgent per the March 15 Notice.
The mortgage would come due on March 31, 2020 and the bank would not grant an extension. Deferring the matter until after the pandemic could “could cause significant financial hardship to the moving party including her ability to afford to keep her home, despite being owed enough money to do so.” The wife had made efforts to resolve the issue directly.
Service Rules Must Be Respected
The Court emphasized that parties must file proof of service. The Court also took issue with the fact the wife served the husband with a Motion Record on March 26, 2020 indicating the motion would be heard on March 25, 2020. This impacted the husband’s ability to respond to the motion.
In Thomas v Wohleber, Justice Kurz set out the test for urgent motions during COVID-19. This case is also significant because it deals with financial circumstances (as opposed to custody and access issues).
Test for Urgent Motions in Normal Circumstances
Justice Kurz noted the Oxford Dictionary definition of urgent:
“1.demanding or requiring immediate action or attention; pressing (an urgent need for help). 2. expressing a need for prompt action or attention; insistent (an urgent call for help).”
Rosen v Rosen sets out the usual test to bring an urgent motion before a case conference. It defines “urgent” as contemplating “abduction, threats of harm, [or] dire financial circumstances” and mandates that, before bringing an urgent motion, parties and counsel must:
- Determine the availability of case conference dates; and
- Confer with each other to try and arrive at a short term resolution before the matter goes to court.
Four Factor Test for Urgent Motions in Covid-19
“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);
- 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.”
Justice Kurz identified the following factors which are “necessary in order to meet the Notice’s requirement of urgency:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- 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;
- 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;
- 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.”
Urgency Standard Must be Rigorously Enforced
While Justice Kurz declined to rule on whether the current urgency standard is higher than Rosen v Rosen, the Court “emphasize[d] the scrupulousness with which the urgency standard must presently be enforced” and noted that some urgent matters in a non-pandemic situation do not meet the standard of urgency in a pandemic.
This strict standard protects the Court’s resources for the most serious of urgent of cases (i.e. protection of children, safety of vulnerable spouses, or extreme financial need) and guards against the considerable risk of harm by delay in those cases.
Justice Kurz cited both Ribeiro v Wright, and Onuoha v Onuoha. By post-script, Justice Kurz echoed Ribeiro’s comment that courts will look “to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”
Analysis: Determination of Urgency on Facts of Case
In this case, the wife brought an urgent motion without notice after her husband allegedly depleted their joint line of credit. The wife sought: the return funds, a subsequent freezing of the line of credit account, a non-dissipation order, and financial disclosure.
Justice Kurz granted the first three items stating the following factors “raise[d] concerns of dire circumstances” for the wife and children:
- the husband’s erratic behavior;
- the husband’s admission through lawyer’s letters that he unilaterally depleted the joint line of credit and held the funds in another account;
- the lack of justification for his unilateral conduct;
- the debt was over eleven times the wife’s annual income;
- the line of credit represented liquid funds the wife could use to help herself and the children in an emergency;
- the wife was jointly and severally liable for the debt and could not repay it if the bank called in the loan;
- there was a risk the husband would deplete the funds since he removed them after agreeing not to.
The disclosure issue could be dealt with through normal litigation and did not qualify as urgent. The matter would return by teleconference to allow the husband to respond to the issues.
While the Respondent’s request for interim child support presumptively fit the urgency requirement identified in the March 15 Notice, Justice Diamond found that the Court did not have enough materials to determine the request for urgency or request for child support (which were both based on the same evidentiary record). The Court set out a timetable to file further materials and the matter would return in two weeks.
Saperia v. Vlasiu, 2020 ONSC 2301 (April 16, 2020)
The matter came back before the Court on April 15, 2020 where Justice Diamond affirmed that he Respondent’s motion was not urgent.
Counsel agreed there was urgency but the Court still had to determine whether the matter was urgent per the March 15 Notice and the Family Law Rules. The parties had not attended a case conference.
Urgency Found on Parenting and Support
The Court found the parenting motion and the anticipated cross motion urgent since the children were separated and not routinely seeing each other or their other parent. The Court found the Applicant’s motion for temporary support urgent because she needed to show income to gain permanent accommodation. The Court needed evidence of the Respondent’s income.
Order for Section 30 Assessment
With respect to the s. 30 assessment, and despite the fact the parties consented to one, the Court declined to make an order subject to receiving more details, including:
- the date the assessment would begin and the expected completion date;
- whether the assessor would use remote technology to conduct the assessment;
- whether the assessor would conduct or arrange psychological testing of either parent or either child;
- whether the assessor would hold a disclosure meeting with the parties to be followed by preparation of the assessment report, in which case, the expected date for completion of the assessment report;
- whether the parties agreed on the cost and the payment of the cost.
The Court encouraged the parties to return to “triage mediation” to make an interim agreement until the assessment was completed.
Justice Kiteley recorded the teleconference and encouraged “the parties to agree that the parenting aspects of these motions are heard in the context of the amendments to the Divorce Act effective July 1, 2020.”
B-M. v. M.M., 2020 ONSC 2238 (April 15, 2020)
The matter came back to Court on April 8, 2020. Justice Kiteley affirmed that the matter was indeed urgent. The Court noted the April 2 Notice lessened the standard of “urgency” from “dire financial circumstances” to “issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order.” This matter was heard when the April 2 Notice applied.
Since March 24, 2020, the father brought three emergency motions on the same access and financial issues. The Court held that the issues were not urgent.
The Court deemed that the access issue could be urgent if there was a complete denial but, in this case, the mother agreed to comply with the existing order and continue the father’s two hour weekly supervised visits. The Court stated the parties could work out “common sense details”, like holding the visits in an open park, without involving a Judge.
The Court barred the father from brining further motions on financial or property issues.
The Court “urge[d] both parties to use some common sense and stop abusing extremely limited judicial resources.”
The Court deemed the father’s motion presumptively urgent because:
- He claimed the mother listed her house for sale and intended to move the child from Hamilton to Pembroke without his consent; and
- He did not want the child living in the house while it was being shown to the public due to COVID-19.
Temporary Order without Notice or Prejudice
Because the father raised concerns impacting the immediate safety, and wellbeing of the child, the Court made a short term, temporary, without prejudice, and without notice order providing that the mother:
- “…shall not relocate the ordinary residence of the child… outside of the City of Hamilton”; and
- “… shall not allow strangers into her residence for purposes of marketing the home for sale.”
Procedurally, the Court ordered the mother be served with the materials and given a chance to respond. The matter would return by teleconference. At that point, the presiding judge will make a formal determination of urgency.
Justice MacEachern echoed Ribeiro v Wright, and provided both parties with a copy to review before they took further steps in this matter. MacEachern J specifically followed the evidentiary requirements identified in that case when making her order.
Presumption: Follow Existing Orders
Justice MacEachern held that the parties should presumptively follow the existing order which provided the father with access.
The mother denied access because of Covid-19 concerns including:
- The father’s failure to practice social isolation;
- The father minimizing the risk of COVID-19; and
- The father’s use of public transportation (including public transportation with the child).
As a result, MacEachern J indicated she would treat the father’s urgent motion as “the mother’s motion to suspend or vary the father’s access due to her allegations that the father is exposing the child to significant risk due to not complying with COVID-19 safety measures.”
Found Urgency Applying Both the Rosen and COVID-19 Tests
The Court deemed the access issue urgent.
Covid-19 Test: Per the March 15 Notice the Court granted urgency because the mother intended to withhold the child indefinitely; the child was only 3.5 years old; and the COVID-19 concerns engaged the apparent safety and wellbeing of the child.
The mother’s unsworn evidence met her burden under Ribeiro v Wright, to “provide specific evidence or examples of behavior or plans by the father that are inconsistent with COVID 19 protocols and expose the child to risk.”
Rosen Test: The suspension of the court and the mother’s attempts to negotiate met the Rosen v Rosen test.
Three Issues Found Non-Urgent by COVID-19 Test
The Court found the father’s following requests non urgent:
- make up access,
- removal of the child’s social media accounts; and
- removal of pictures of the child from the internet.
The father did not provide, as required by the March 15 Notice, an evidentiary basis for his allegations that these issues created an immediate state of urgency related to the child’s safety and well-being.
Police Enforcement Clause Denied
MacEachern J denied the police enforcement clause because of the state of emergency and the Court’s own tools to enforce compliance.
(no link available as of April 1, 2020)
The mother made great progress and was about to resume overnight weekend access with the child who was placed with the maternal grandfather. Though difficult, the Court declined to expand the mother’s access given COVID-19 concerns.
Agency Resources and Obligations
The Agency did not have the resources to safely transport the child for access or to monitor the mother’s access and compliance with terms.
The Agency needed to protect the best interests of the children under their care and they needed to comply with all COVID-19 considerations and precautions.
The Court distinguished this case from Ribeiro v Wright, because there was no status quo of overnight access or order providing for same. The Court stated “[t]his is not the time to commence new routines and activities that increase community interactions and do not support social distancing.”
Risk of COVID-19 Spread
The mother provided sufficient evidence that she followed all recommended COVID-19 precautions. However she lived with a disabled child vulnerable to the virus. This created concern that visits would put both households at risk. The child going back and forth between households engaged the risk of community spread.
This was a high conflict situation. Prior to the COVID-19 pandemic, Justice Audet identified a list of matters qualifying as “urgent” including support. The mother subsequently brought an urgent motion for support during the COVID-19 pandemic. Justice Shelston declared the matter non-urgent as “the circumstances have changed dramatically as a result of the pandemic” and “the court is not operating on its usual schedule.” Support orders could be made retroactively.
Justice Shelston reminded the parties that they should attempt to collaborate and avoid confrontation as their conduct could later be reviewed by the Court.
The mother requested face-to-face access with her 13-year-old daughter whom the Society apprehended from her on March 20, 2020. Due to COVID-19, the Society only offered “virtual” access 2-3 times per week according to the child’s wishes via Facetime, Zoom, telephone or text.
In this case, given the Society’s concerns, and the fact that the mother had not followed the current orders; and the fact there was no status quo for face to face contact; the Court found that virtual contact was in the best interests of the child and was enough to maintain meaningful personal contact between the child and the mother.
The Court distinguished this case from Ribeiro v Wright as there was no existing access order and there were concerns about the mother’s parenting skills outside of COVID-19.
The Court noted the Society’s obligation to keep the child safe from COVID-19.
This case involved a husband who missed two court ordered March deadlines to pay spousal support arrears via bank draft. Taking notice of the COVID-19 situation, the Court gave the husband until April 7, 2020 to provide a replacement draft “as long as it was safe to do so” and expressed hope that circumstances may return to normal by that time. The Court also noted that while the husband’s advanced age might make it difficult for him to obtain the draft, he was still required to comply with court orders.
S.W-P. v. S.P., 2020 ONSC 1913 (March 27, 2020)
The father brought an urgent motion to change the 2-2-3 schedule. The father wanted the 12-year-old child’s primary residence to be with him, with the mother having parenting time as agreed between the mother and the child.
This would not normally qualify as “urgent”, but the father’s materials raised concerns about the immediate physical and emotional wellbeing of child. The child engaged in “self-help” by running away from home and involving the police. There were also concerns about the mother’s boyfriend.
Acknowledging the Court’s difficulty in managing parenting issues for soon-to-be teenagers, Justice Pazaratz encouraged the parties to pursue therapy and get professionals involved.
(no link available as of April 1, 2020)
The Test for Urgent Motions Met
The Court granted the mother’s request for an urgent motion because it dealt with the suspension of her access rights to her eight-year-old daughter as well as a request that the father be restrained from contacting her place of work.
These circumstances met the test in Rosen v Rosen, because:
- Superior Court of Justice’s operations are suspended and case conferences cannot be scheduled; and
- The mother attempted directly and through counsel to reinstate the court ordered access.
Access Orders Should Be Followed for Children of Healthcare Workers
The mother worked at Sunnybrook Hospital. The father refused to give the child to the mother until after the COVID-19 pandemic concluded because of the mother’s occupation.
Citing Ribeiro v Wright, the Court found that “[i]t is in the child’s best interests to return to the equal time sharing schedule that has been in place for some time. The [father’s] proposal that the child remain with him for an indefinite period with only Facetime access to the mother was not in the child’s best interest. It disrupted the status quo and it signals to the child that the mother may not be capable of caring for her and keeping her safe.”
The Court also found that, as health care professionals, the mother and her employer “are well aware of the protocols to prevent transmission of infection” and necessary precautions would be taken if the mother returned to work.
Even though the issue of alienation was not before the Court, Justice Nakonechny noted that the two older children refused meaningful contact with the mother and now the father wanted to keep the youngest child. The father also included a scathing letter written by the couple’s oldest child against the mother.
This case, much like Ribeiro v Wright, emphasizes that parties must follow existing court orders during COVID-19.
The father brought an urgent motion because the mother withheld the child. The mother indicated she was not complying with the existing access order because:
- the father allegedly harassed and stalked her;
- she did not have the opportunity to have the order varied;
- the ongoing COVID-19 crisis; and
- her fragile mental health.
The Court accepted none of these reasons.
With respect to COVID-19, the Court expressed sympathy about the mother’s anxiety but said that her concerns could be addressed “through responsible adherence to the existing Court Order.” According to Justice Conlan this meant “being practical and having some basic common sense”. The parties needed to “respect physical distancing” and do everything they could to make sure neither of them, nor the child, contracted COVID-19. This included following all precautionary measures recommended by relevant governments and health authorities.
(no link available as of April 1, 2020)
In this case, the father brought an urgent motion for resumption of the usual access schedule prompted by the mother withholding the child because of COVID-19.
The Court stated that “the total removal of one parent from any child’s life must be exercised cautiously”, however, still found that this motion was not urgent.
Withholding Over the Other Parent’s Time During COVID-19 is Not Urgent
In making its decision, the Court relied on the Notice to Profession of the Chief Justice of Ontario dated March 18, 2020 (the “Chief’s Notice”) and the subsequent Notice dated March 24, 2020.
The Chief’s Notice defined urgent and emergency family law matters as those concerning “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.” The Court stated that this language purposefully mirrors the Convention on Civil Aspects of International Child Abductions (the “Hague Convention”) and would not be applicable when the issue is parenting time. In other words, withholding over the other parent’s time during COVID-19 is not urgent.
The Court commented that, in the future, there may be urgent abduction cases under the Children’s Law Reform Act, but this was not such a case. Here the child’s safety was not at risk.
Parties Could be Judged for Inappropriate Withholding After Pandemic
Despite this ruling, the Court noted that termination of all contact between the child and the father cannot be in the child’s best interest and the Court could later determine that the withholding parent acted inappropriately.
The Court emphasized that parties and counsel need to meaningfully communicate.
Cooper v. Teneyck, 2020 CanLII 23789 (ON SC) (March 26, 2020)
The father brought an urgent motion for police enforcement of access. The mother withheld the children because of COVID-19 concerns around the father’s unspecified workplace. The Court found the matter non-urgent.
The Court cited Ribeiro v Wright and considered an additional factor: “there may be risks related to the health or other circumstances of a child or other members of a household that may necessitate adjustments,” i.e. a child living with an immunocompromised person.
Police enforcement was not the answer. The existing order governed and the parties needed to work together to craft adjustments for COVID-19. The Court encouraged parties to write down their adjustments and consult a mediator to help.
By urgent motion, the father requested that supervised face to face contact with the children resume according to the Minutes of Settlement dated March 16, 2020. The history of litigation involved the father’s sobriety issues. He lived in a sober living facility but would be moving back to his parents’ house.
The mother argued that due to COVID-19, the father’s access should be restricted to two-hour video conferences three times per week. She argued the father was not respecting social distancing.
The Court deemed this matter urgent because it was in the best interests of the children for the legal aspects of their time with their father to be solidified.
This case met the criteria identified in the Ribeiro v Wright because it involves:
- the safety of the child;
- the restriction of contact;
- issues relating to the retention of the children; and
- upholding respect and compliance with existing Court orders.
“1. Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator’s office. If so, the dates available should be included in the materials before the court;
- Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance. For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date and so this date must be taken into account in determining urgency;
- Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
- Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;
- Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, dire financial circumstances;
- Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or
- If there are other pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues, this may bring the matter out of the normal procedure as it may require immediate attention by the court.”
Self Help Discouraged
The Court deemed the father’s motion urgent and chastised the mother’s use of world events to try and usurp the consent order. The Court cannot be seen to condone this type of behavior. Parties must respect existing Court orders.
The Court granted the father face to face access with necessary supervision and modification for COVID-19 concerns
Davis v. Eby, 2020 ONSC 1876 (March 26, 2020)
A family member overdosed at the father’s house while the 18-month-old child was present. The mother brought an urgent motion that the father’s access be supervised or suspended. The parties also raised financial issues. The court only deemed the access issue urgent and made an order for supervised access.
Justice Williams heard the motion before the COVID-19 pandemic. She stated: “I have made the decisions in the endorsement based on the written and oral submissions of the parties. Where the realities of the pandemic have affected a decision or my reasoning, I have said so.”
Ribeiro v Wright outlined the considerations for COVID-19 urgent motions and how parties should arrange custody and access during this pandemic. It is one of the leading COVID-19 cases.
The Court denied the mother’s request for an urgent motion to suspend the father’s parenting time due to COVID-19. The mother was specifically concerned that the father would not enforce proper social distancing for the child. Additionally, her household practiced social isolation and she did not want the child leaving her home. You can read our blog post on this case here.
In Onuoha v. Onuoha, the Court declined to hear a father’s urgent motion after his regular motion was adjourned because of COVID-19. The father wanted to return his daughters to Nigeria after their mother unilaterally moved them to Ontario in 2019.
Not the Time to Hear a Travel Based Motion
The Court found that this motion should not be heard on an urgent basis because:
- current government recommendations to avoid non-essential travel “could not be more clear” and “[t]his is not the time to hear a motion on the return of children to another jurisdiction”; and
- the matter should be heard only once the Court could review the entire, voluminous record which was not possible under the current emergency procedures.
At the same time, the mother needed to make every reasonable effort so that the children could speak regularly with the father through FaceTime, Skype, or telephone.
Without Prejudice Status Quo
The father was concerned that adjourning the motion would prejudice his position. In response, the Court said it was obvious that the matter was adjourned because of the global pandemic and the adjournment was made without prejudice to either party on the substance of the motion.
Determinations of Urgency Should Be Fast
Justice Madsen made this decision based on emails from counsel and previous knowledge of the matter. The Court emphasized that determinations of urgency should be simple and expeditious.
The mother brought an urgent motion because the father withheld the child. The father had limited access per the trial decision but refused to accept it. He engaged in a self-help remedy while waiting for his appeal to proceed. The Court deemed the matter urgent and suspended the father’s access. The Court also ordered that CAS and the police apprehend the child and return them back to the mother.
The Court found the mother’s motion presumptively urgent per the March 15 Notice, the father’s alleged unlawful withholding of the children over March Break, and the COVID-19 situation.
Court Disagrees Whether Withholding Over Parenting Time is Urgent
This case does not sit comfortably with the endorsement of Justice MacPherson in Douglas v Douglas where withholding over the other party’s parenting time did not qualify as urgent given the global pandemic. Lawyers and parties should note that Douglas v Douglas is the more recent decision by five days which may matter given the quickly changing circumstances.
Children’s Fevers Not a Deciding Factor
The children had fevers while in their father’s care and he still took them to the store and to visit his elderly mother. The Court did not explicitly cite the children’s’ illness as a consideration for returning the children to their mother and instead, relied on following the status quo as reason enough. This approach may again be outdated given the evolving public health guidelines.
Father Did Not Get to Deliver a Substantive Response
Procedurally, the father did not get a chance to deliver a substantive response to the mother’s motion but was offered an opportunity to share “his side of the story” by telephone hearing.
Matter Returns to Court
This matter came back before the Court on March 27, 2020 as reported in Jackman v. Doyle, 2020 ONSC 1928.
The father missed the deadline to file his responding material and the mother argued the matter was no longer urgent given the children had returned to her care. The father argued that the terms of the earlier Endorsement rendered his access very limited and he sought the opportunity to address these issues on an urgent basis. The Court was not prepared to “foreclose the [father’s] request for access terms without first reviewing his responding materials” and made arrangements for the matter to proceed by telephone conference.
The parties created an urgent situation due to their ongoing, tactical maneuvers which included, among other things, the husband summarily firing the wife from the family business without notice and the wife borrowing $60,000 from the joint line of credit.
In Smith v Sieger, a father brought an urgent motion to return his teenager to Canada from Utah where the child had been attending school.
The Court granted the father’s urgent motion because of:
- the imminent closure of the border between Canada and the United States; and
- the recommendations of health professionals and government authorities regarding Canadian citizens out of the country
Notably, the decision also provided that, upon his return, the child must self-quarantine for 14 days subject to further medical recommendations.
This was a focused trial of the parties’ motions to change final parenting orders regarding their 10-year-old daughter. Of note was the Court’s ruling that “the child shall spend half the March Break with each parent. For clarity, this does not include the additional two weeks when school has been ordered closed by the Ontario Government from March 23 to April 5 this year and will not include any additional times that the Ontario Government closes school due to the COVID-19 virus.”