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The Court is Watching (So Follow the Rules)

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The Court is Watching (So Follow the Rules)

Posted June 30, 2020

In Numair v. Numair, 2020 ONSC 3737, Jarvis J. recently gave a stern warning to a party failing to meet his family law disclosure obligation: “The Court is watching.”

In fact, all parties in family law litigation should heed this caution because, despite the limit on Court services imposed by COVID-19, parties remain subject to the Court’s scrutiny. The Court has continuously reminded parties not to take advantage, either inadvertently or on purpose, of the pandemic period. The following is a list of common holdings made in response to such behaviour.

  • Parties should not engage in aggressive or opportunistic litigation; this style is “simply unacceptable” in pandemic times (see for example: Johnson v. Johnson, 2020 ONSC 2896).
  • Orders must be obeyed despite COVID-19; unilateral action and self-help cannot be condoned by the Court. Parties should bring their own motion if they feel an order must change (see for example: Brazeau v. Lejambe, 2020 ONSC 3117).
  • Parties should not rely on COVID-19 as leverage to gain the upper hand in litigation or to change a status quo arrangement. This is particularly true for parties citing COVID-19 as a reason to withhold access to a child (see for example: Burrell v. Burrell, 2020 ONSC 3269).
  • The mere fact a health condition exists does not justify the suspension of access without medical evidence prescribing that remedy (see for example: Deveaux v. Najnudel, 2020 ONSC 3480).
  • The Court’s limited resources mean that parties need to provide short materials following any provincial and regional guidelines. Some judges have warned that unduly long materials may be disregarded (see for example: Garrison v. Cordukes, 2020 ONSC 2635).
  • Parties must be mindful of the fact that judges do not have Court files. They must disclose all relevant information in their materials to avoid misleading the Court about the matter (see for example: Batchelor v. Batchelor, 2020 ONSC 2522).

In the beginning of the pandemic, the Court faced reduced capacity and only heard the most urgent matters. Most of the case law concerned parenting disputes and the Court warned parties that their actions during COVID-19 would be subject to review after the pandemic. In Numair, Jarvis J. issued his warning in the context of a routine financial disclosure issue reflecting the increased capacity of the Court to respond to non-compliant behaviour and a broader range of issues.

In both cases it is clear that the Court remains open and the law remains in effect. Parties must comply because “the Court is watching.”

Those looking for more information about trends in the COVID-19 family case law should consult our comprehensive Guide to the Ontario Family COVID-19 Case Law. This document provides an annotated summary of all major court findings.

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

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