Update: Family Law Matters During COVID-19
By Lauren Cooper | June 9, 2020
COVID-19 has caused rapid changes to society as a whole and the Ontario court system has been required to operate in a limited capacity. At this time, the courts are only able to hear matters that are urgent, with some exceptions. Let’s take a closer look at each court’s status, as well as issues around child access and support, as of June 2020.
Superior Court of Justice
On March 15, 2020, the Superior Court of Justice for Ontario issued a “Notice to the Profession, the Public and the Media” regarding the suspension of all regular court operations. The Notice stipulated that courts would only continue to hear “urgent” family law matters until the court resumes normal operations. On April 2, the Superior Court of Justice issued an update that they would begin hearing short Case Conferences in addition to “urgent” Motions.
This Notice was again updated on May 13 to include new Applications and non-urgent Motions, effective May 19. Each Notice is supplemented by regional notices and you can view the Northwestern region Notices here: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-nw
So what does this mean? Non-urgent Motions, like urgent Motions, will require the party to start by filing a short, focussed summary of the Motion (including the reason that it should proceed) that will be reviewed by a triage judge, who will decide whether the Motion will be heard immediately. The Superior Court of Justice is now also hearing “basket Motions,” which are Motions that do not need to be orally argued because they are done on consent and/or can be submitted as written documents.
Ontario Court of Justice
On May 19, the Ontario Court of Justice held an intake court to reschedule all matters that had been adjourned due to COVID-19, with some exceptions. The Court has adjourned many of its intake court dates to June and July, which will be attended via teleconference. They recently announced that they will be hearing Case Conferences and Settlement Conferences, but will not be hearing new matters at this time, unless they are urgent in nature. You can read the Notices from the Ontario Court of Justice here: https://www.ontariocourts.ca/ocj/covid-19
Currently, neither the Superior Court of Justice nor the Ontario Court of Justice are hearing trials, but plans are underway to facilitate this in the future.
What is considered “urgent”?
In the past, someone denying access to a child was typically not considered urgent (even though it could be considered serious) because if a parent was wrongfully withholding a child, the other party could initiate a court proceeding and schedule a Conference date (the required step before bringing a Motion). However, because of COVID-19, suspending access to a parent can now be considered an urgent matter, because parents may not be able to initiate the standard court proceeding to have their child returned. Exposing a child to a risk of COVID-19 can also be considered urgent, but you will need to present proof of how the other parent/caregiver is exposing the child(ren) to this risk. General concerns due to normal access or the other party’s line of work are not sufficient reasons to deny access.
What is not considered “urgent”?
The courts have very different opinions than the public on what they consider urgent. For example, wrongful withholding of a child may not be considered urgent if it began before the COVID-19 pandemic, and you did not take immediate action.
Before the COVID-19 crisis, “urgent” meant that a child’s safety was in danger, or there was a risk of a child being removed from the jurisdiction. It also applied to situations of hardship–i.e., that dire financial consequences would be experienced if the person could not have their matter heard (examples include orders for temporary support payments or for the non-depletion of assets). With the current restrictions and the process that is in place for having a Motion heard by the court, it will be up to the triage judge to decide – on a case-by-case basis – whether a particular situation will be heard by a judge.
What if there is already an existing court order?
Court orders and agreements of the parties are still expected to be followed during this time. When it comes to custody and access, COVID-19 concerns alone are not a sufficient reason to disobey court orders and agreements. There has to be evidence that the other party is exposing children to risk. General concerns about the children travelling between two households or one party’s line of work will not be sufficient reasons for withholding a child and will not override an order or agreement. The expectation is that access schedules will continue in accordance with the order/agreement, unless otherwise agreed by the parties (on either a temporary or permanent basis).
When it comes to support payments, the Family Responsibility Office (FRO) has released a statement that support payors are still expected to continue paying support or arrears that they have been ordered to pay. If your income or employment has been affected by COVID-19, they recommend contacting their office immediately. You can find more information here: https://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility
How is the court hearing matters? What is the new process?
Right now, urgent Motions are being heard via teleconference or videoconference. Materials have to be submitted to court electronically. New Applications and Motions to Change can be started in the Superior Court of Justice, but not the Ontario Court of Justice. Conferences can be booked and heard via teleconference, however there is limited availability and there may be a wait of several months to schedule a Conference. The courts are not hearing trials at this time, but are expecting to expand operations to include trials shortly.
Seek Legal Advice
If you are unsure whether you need to start a legal proceeding, it is important that you obtain legal advice immediately. The Law Society of Ontario has launched a telephone help line for people who are self-represented (referred to as “Self-Represented Litigants” or “SRLs”), to help you determine if your family matter needs to be heard by the court on an urgent basis. This service is free and can be accessed at 1-800-268-7568 or 416-947-3310.
If you make less than a certain amount and need legal assistance with an urgent family matter you may qualify for coverage from Legal Aid Ontario. You can find more information here: https://www.legalaid.on.ca/en/getting/eligibility.asp
If you do not qualify for legal aid but are experiencing domestic abuse, Legal Aid Ontario will pay a lawyer to give up to two hours of free legal advice. Inquire about this service at a shelter, community agency or legal clinic to receive a referral voucher. You can find more information here: https://www.legalaid.on.ca/services/domestic-abuse
Some matters can be dealt with if they are simple or uncontested. It is important to search for alternative solutions before you commence an urgent Motion, and the court has asked the public and legal community to make efforts to resolve disputes outside of court, as court resources are limited at this time.
The lawyers and staff at Henderson Family Law have been in regular contact with current clients during the pandemic. If you are a past client, or are looking for legal representation regarding court orders and other issues related to a family law matter, please contact us.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.