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Pick Up the Phone: The Court’s Message to High Conflict Counsel in COVID-19

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Pick Up the Phone: The Court’s Message to High Conflict Counsel in COVID-19

Posted July 9, 2020

Two recent cases from the Ontario Superior Court of Justice demonstrate a clear message that the Court has run out of patience for aggressive litigation tactics as COVID-19 continues. Haaksma v. Taylor, 2020 ONSC 2656 laid out counsel’s new duty to assist the Court in its pandemic triage role. This duty consists of a heightened duty of candor and the cooperation of counsel. Dhaliwal v. Dhaliwal, 2020 ONSC 3590 then demonstrated the importance of counsel’s cooperation in the face of evolving COVID-19 court procedures.

In this case, the Respondent father brought an urgent motion, returnable June 10, 2020, asking for the immediate sale of the matrimonial home where the parties’ children, ages 7 and 4, currently lived. As of June 8, 2020, the mother’s counsel failed to file responding material and the father’s lawyer sought to have his motion proceed as a basket motion per the Amendment to the Central South Region Notice dated May 12th re. Criminal, Family, Civil Expansion. This Amendment held that: “If no responding material is filed 3 days prior to the original motion date then the moving party must file a confirmation to that effect, and the motion will proceed as an unopposed basket motion, and the original motion hearing date will be vacated.”

The Court declined to hear the matter as a basket motion because it anticipated the mother would have wanted to file responding materials due to the “profound relief” sought. Justice Pazaratz noted that neither counsel had offices in the Central South Region so the Applicant’s counsel in Mississauga may have inadvertently failed to file materials or may have been unaware of the Central South Region policy.

Justice Pazaratz chastised the Respondent’s lawyer for not double checking with the other side to see if reply materials would be filed. His Honour stated:

“a. The rules don’t require such action.

b. But it’s more than professional courtesy.

c. If it is likely that the Applicant will have some opposition to the Respondent’s request, it is cheaper for the parties if their lawyers can communicate productively – rather than obtain an unopposed order and then have to deal with a subsequent motion seeking to set the order aside.

d. Sometimes files become “high conflict” because people won’t take simple steps to avoid problems.”

This matter had a history of high conflict litigation fueled by the parties’ counsel which colored the Court’s view towards the present situation. Nevertheless, Dhaliwal highlights key trends in family litigation that parties and counsel should keep in mind.

  1. Even though many Regions are now (virtually) opening their Courthouse doors to increased family matters, the Court clearly still relies on counsel to help manage the backlog of cases and reduced capacity.
  2. Ribeiro v Wright, 2020 ONSC 1829 placed a burden on parents to communicate and resolve problems before coming to Court. Dhaliwal demonstrates that this burden extends to counsel as well.
  3. This means that, at present, it remains inappropriate to rely on opposing counsel’s potential mistakes without further discussion— particularly when those mistakes involve the application of new pandemic rules. COVID-19 depleted the Court’s patience for gamesmanship.
  4. This trend may continue into the post-pandemic world as family litigation remains prohibitively expensive, slow, and resource heavy.

We are grateful to Articling Student Chanelle Willard for writing this blog post.   For more information, please contact Kathleen Broschuk, a member of the Family Law team.  Kathleen can be reached at 613-369-0362 or at kathleen.broschuk@mannlawyers.com.

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