Update: Family Law Matters During COVID-19
By Lauren Cooper | June 9, 2020 (Updated July 6, 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. Let’s take a closer look at each court’s status, as well as issues around child access and support, as of July 6, 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, 2020 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, 2020 to include new Applications and non-urgent Motions, effective May 19, 2020. 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
The most recent Notice was issued on June 25, 2020, confirming that some in-court hearings will resume at specified court locations commencing on July 6, 2020. You can see this latest notice here: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-june-25-2020
For us in the Northwest region of Ontario, there will be only one courtroom re-opening at the present time, at the courthouse in Thunder Bay (of the total of 56 SCJ and 93 OCJ courtrooms province-wide). Courtrooms will be re-opened by the Ministry of the Attorney General based on their fulfillment of comprehensive health and safety measures, including modifications that have been made to the courtroom. Additional courtrooms may be ready to re-open for the next phase, set for September 15, 2020.
The Notice indicates that “trials and other hearings that are urgent or which were scheduled to be heard during the suspension of the Court’s regular operations will be given priority…. Litigants and lawyers are asked to come to court at least 30 minutes in advance because of extra screening requirements… Litigants should only bring family members or other supports to court with them where absolutely necessary…” This is because of restrictions on the number of people permitted in the courtroom, for safety reasons.
This means that the majority of family matters will still be heard remotely, by way of either video (primarily Zoom) or teleconference. Ultimately, it will be the court determining what matters proceed in-person, and what matters proceed remotely.
For the short-term, this will likely mean that non-urgent Motions, like urgent Motions, will require the party to start by filing a short, focused 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 also continuing to process “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 had adjourned many of its intake court dates to June, July and August. For non-urgent child protection (CYFSA) and family matters, many of these intake court dates will again be adjourned to dates in September, October and November 2020. The OCJ recently announced that they will be hearing Case Conferences and Settlement Conferences, but still will not be hearing new Applications 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
The latest notice, dated June 17, 2020, is here: https://www.ontariocourts.ca/ocj/covid-19/covid-19-family-matters
As of July 6, 2020, only the following matters will be proceeding by in-person attendances in the Ontario Court of Justice (unless specified):
- Child protection (CYFSA) trials and summary judgment motions;
- Child protection (CYFSA) Settlement Conferences or Trial Management Conferences;
- Urgent family law trials and focused hearings (as determined by a judge);
- Family Law Settlement Conferences and Trial Management Conferences.
A judge must determine if your matter is ready to proceed for an in-person hearing. This may require a remote appearance (by video or telephone) before a judge.
The May 7, 2020 Notice will remain in effect so that the OCJ will continue to hear urgent matters and, subject to local direction, other family law matters, including certain in-chambers requests.
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, unless the court provides you with an in-person court date. 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. The courts may hear a limited number of trials in-person for those that are ready to proceed, if the issues are deemed important or urgent by the reviewing judge and a courtroom is available.
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/en/getting/type_domesticviolence.asp
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.
DISCLAIMER:
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.