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Apr 2020

COVID-19 and Ontario’s Family Court System

By Jessica Chyc

The family court system in Ontario has been severely impacted by the COVID-19 crisis. In response to the pandemic, the courts have substantially curtailed operations in order to accommodate only those cases involving claims of an ‘urgent’ or ‘emergency’ nature. A review of the emerging case law indicates that the following non-exhaustive scenarios have met the threshold for urgency:

  1. Requests for urgent relief relating to the well-being of a child, and/or the safety of a child or of a parent.
  2. Requests for urgent relief on the basis of dire financial circumstances.
  3. Requests for urgent relief on the basis of an abduction or the threat of abduction.

COVID-19 related concerns of a general nature will not substantiate the restriction to, or suspension of, a parent’s access to a child because as the courts have consistently affirmed, it is generally in the child’s best interests to spend as much time as possible in the care of both parents (including during the COVID-19 pandemic).  To illustrate, in the recent Crisjohn v Hillier decision, the mother refused to permit the child to be in the father’s care due to her unsubstantiated concerns that the child would face an increased risk of exposure to COVID-19 while in the father’s care. Justice Mitrow held that “each circumstance is unique and [that] the parents will need to act reasonably in promoting the best interest of their children in relation to parenting time.”  Ultimately, the mother’s conduct was found to be unlawful and in contravention of an existing court order.

As noted in our earlier post of March 24, 2020, the parent seeking to bring an urgent motion restricting access between a parent and a child will be required to provide specific evidence of the other parent’s failure to comply with COVID-19 precautions (such that the well being of the child is jeopardized) before an order interrupting, suspending, or restricting access will be made.

The recent case of Zee v Quon involved a father’s refusal to return the child to the mother’s care on the alleged basis that the child would be at risk of contracting COVID-19 due to the mother’s assumed exposure as a healthcare worker at a hospital. The court held that, with respect to the mother’s risk of contracting the virus due to her employment as a healthcare worker, “[the mother] and her employer are well aware of the protocols to prevent transmission of the infection”. Her employment did not, therefore, disentitle her to having the child in her care pursuant to the regular access schedule the parties had set out before COVID-19 became prevalent in Ontario.

In Thomas v Wohleber, the court was faced with a scenario wherein the Respondent unilaterally removed a substantial sum of money from the parties’ joint line of credit without the Applicant’s consent.  This unilateral conduct was found to raise concerns of an urgent nature and the court ultimately ordered the Respondent to return the funds to the joint line of credit. In reaching its decision, the court further defined the grounds upon which relief can be sought on an urgent basis:

  1. The concern must be immediate such that resolution cannot be delayed.
  2. 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.
  3. The concern must definite and material rather speculative in nature. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than being theoretical in nature.
  4. It must be one that has been clearly particularized in evidence with examples illustrating the alleged urgency.

The common thread running through the emerging COVID-19 caselaw is that parties should cooperate wherever possible; however, the courts remain ready and equipped to adjudicate disputes if the safety or well-being of a parent, child, or former spouse is in jeopardy.  As always, our lawyers at SorbaraLaw remain constantly apprised of the emerging case law and are available to assist you during this pandemic.

 

 

** This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.

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