To protect the health and safety of court staff and users, the Courts in Ontario have suspended all regular operations. The Courts will only hear urgent family law matters, but the decision of what is urgent is left to the judges. The Ministry’s Guidelines indicate that the following family law matters may be urgent:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
c. dire issues regarding the parties’ financial circumstances including, for example, the need for a non-depletion order;
d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
A recent endorsement of Justice Pazaratz in Ribeiro v. Wright reminds litigants that the threshold for a matter to be considered urgent during the COVID-19 limitations is extremely high. The existence of COVID-19 in our hometowns and general safety concerns are not reason enough to deny the other parent their parenting time.
There is a presumption that all existing parenting orders and agreed upon schedules should continue to be complied with. Any minor modifications to the schedule to ensure COVID-19 precautions are adhered to may be made, as agreed upon between the parents, but children’s pre-established parenting routines should otherwise remain unchanged. As difficult and uncertain as this time is for adults, Justice Pazaratz reminds us:
… children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
The Courts may intervene if children are being unlawfully withheld. In Jackman v. Doyle, a father withheld the children from the mother without her agreement and he continued to bring them out to public places such as stores and to visit their elderly grandmother, even though they had developed a fever. The children had lived in the mother’s home before and after separation, and they had only ever had parenting time with their father within the mother’s home, under the supervision of the nanny. Justice Diamond ordered the immediate return of the children mother’s home. With respect to the father’s parenting time, Justice Diamond did not make an order, but encouraged the parties to negotiate this between themselves, failing which they could return for another teleconference the following week.
If parents have safety concerns about their children, which do not meet the current urgency threshold, they should consider other methods of resolving the dispute. A family law lawyer may be able to assist in resolving issues expeditiously. If more intervention is required, many mediators, parenting coordinators, and arbitrators are available, offering online alternative dispute resolution options to assist in resolving parental disputes.
The effects of COVID-19 on our judicial system is developing daily. There is no information available yet as to the length of time these limitations at our local family courts will be in place. It is well understood that it may difficult for many families to manage the parenting arrangements during this time. Parents are encouraged to resolve these issues between themselves whenever possible and only engage the court if a child’s safety or wellbeing, or the safety of a parent, is at risk.