Rules and regulations continue to evolve with respect to covid-19 and the court process that you should know about (see below).
Lawyers now have access to family law court decisions in Ontario and some relevant precedent to rely on, in light of the unprecedented impact of covid-19 and its effect on the court process. These recent decisions shed further lights on how judges are dealing with the Notice to the Profession, which was released March 15, relating to non-child protection issues.
Lawyers reading the Notice read the following:
“Only URGENT family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
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); and
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.”
As noted by David Frenkel, in his recent article for Lawyer's Daily, the following principles have been derived from the most recent reported court decisions (as per Frenkel's analysis):
1. To meet the notice’s requirement of urgency to get in front of judge, the concern at hand must be immediate (that is, one that cannot wait for resolution at a later date), must be serious in the sense that it significantly affects the health, safety or economic well-being of parties and/or their children, must be a definite and relate to something tangible (a spouse or child’s health, welfare or dire financial circumstances), and must be one that has been clearly particularized in evidence and examples that describe the manner in which the concern reaches the level of urgency. (In the case of Thomas v. Wohleber 2020 ONSC 1965, Justice Marvin Kurz.)
2. The determination of urgency should be simple and expeditious, recognizing the summary nature of the determination.
3. If children in the particular circumstances are safe, then that will reduce the likelihood that the court will find the matter “urgent” and therefore hear your case at this time . The court is only hearing emergency situations at this time, and it is all lawyers duty to ensure that the test of urgency is strictly enforced to free up the courts resources during this pandemic, as they only have limited administrative capabilities.
4. A court may view a request for a police enforcement clause negatively as it could put the children at an increased risk of COVID-19 exposure, so this may be a disadvantage to your case or request if it involves police enforcement or the need to same.
5. A court may find justifiable cause for concern when one of the parents permits the children to be at non-essential places of COVID-19 exposure, such as attending a pet store and permitting sleepovers. It is therefore, imperative, to remain in self-isolation with your children during this time. In the event that you are bringing your children to playdates, such as a sleepover in one case or the pet store in another, you may lose access temporarily as this is now a 'cause for concern' with respect to parenting. In the event that your partner withholds access and has evidence that you have been engaging in this type of behavior, you may have little to no recourse. Follow Health Canada Safety Protocols or speak with your lawyer for more information.
6. Access-related matters will be found to be urgent where there is a question relating to the “safety of a child or parent,” or an urgent issue related to a child’s “well-being.” However, the above rules are all still applicable.
7. If a party brings an urgent motion for access, they should ensure that they have sufficient evidence to explain why a motion for access was not brought prior to the COVID-19 restrictions being implemented.
8. In the event that the OCL is involved in your case, your matter may be further complicated since the Office of the Children’s Lawyer is not conducting Voice of the Child reports at the present time.
9. Any determination of potential urgency or lack of urgency is wholly without prejudice to either party on the ultimate hearing of the motion.
More importantly, during this time it is necessary for parents to set aside their conflicts and consider the best interest of their children as paramount. While this notion seems 'holier than thou' it was verified in the recent case of Derkach v. Soldatova 2020 ONSC 1992, by Justice Maddalena. Parents must act reasonably during this time frame and put their children first.
I care about my clients rights, and when I notice that my client or any opposing party is attempting to engage in behavior that is not in the children's best interests, such as trying to limit the other parent's access in light of covid-19, I remind them that the threshold for limiting contact is a very high one. At the moment, the emotional and physical well-being of the children must be paramount, and not the notions of 'revenge' or 'winning'. Children NEED adults to cooperate, coparent and act maturely. If you think your partner is at risk or putting the children at risk of contracting covid-19, speak to your lawyer about your legal rights. Ultimately, our children's interests remain the most important in the eyes of the law.