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| David Frenkel |
The relevant part of the notice is as follows: “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); 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 a result, it may be important for family law lawyers to have a concise set of guidelines to consider before embarking on taking their matters to court.
With respect to parental issues, the following principles have been derived from the most recent reported court decisions:
1. To meet the notice’s requirement of urgency:
a. The concern must be immediate; that is, one that cannot wait for resolution at a later date;
b. The concern must be serious in the sense that it significantly affects the health, safety or economic well-being of parties and/or their children;
c. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare or dire financial circumstances) rather than theoretical;
d. It 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. (Thomas v. Wohleber 2020 ONSC 1965, Justice Marvin Kurz.)
b. The concern must be serious in the sense that it significantly affects the health, safety or economic well-being of parties and/or their children;
c. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare or dire financial circumstances) rather than theoretical;
d. It 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. (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. (Reitzel v. Reitzel 2020 ONSC 1977, Justice Lene Madsen.)
3. If children in the particular circumstances are safe, then that will likely be a factor reducing the likelihood that the court will find the matter “urgent.” (Eden v. Eden 2020 ONSC 1991, Justice Theresa Maddalena.)
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. (Eden v. Eden.)
3. If children in the particular circumstances are safe, then that will likely be a factor reducing the likelihood that the court will find the matter “urgent.” (Eden v. Eden 2020 ONSC 1991, Justice Theresa Maddalena.)
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. (Eden v. Eden.)
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. (Eden v. Eden.)
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.” (Reitzel v. Reitzel.)
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. (Reitzel v. Reitzel.)
8. Access matters may be further complicated since the Office of the Children’s Lawyer is not conducting Voice of the Child reports at the present time. (Reitzel v. Reitzel.)
9. Any determination of potential urgency or lack of urgency is wholly without prejudice to either party on the ultimate hearing of the motion. (Reitzel v. Reitzel.)
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.” (Reitzel v. Reitzel.)
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. (Reitzel v. Reitzel.)
8. Access matters may be further complicated since the Office of the Children’s Lawyer is not conducting Voice of the Child reports at the present time. (Reitzel v. Reitzel.)
9. Any determination of potential urgency or lack of urgency is wholly without prejudice to either party on the ultimate hearing of the motion. (Reitzel v. Reitzel.)
In a more general approach, the consensus from the courts with respect to family law litigants is as follows:
- In this time of the COVID-19 pandemic, there is a requirement that all participants in the justice system — judges, lawyers and spouses/parents — shoulder greater responsibility than they usually are required to assume in family litigation. They must assume this mantle of responsibility in order to ensure that the most urgent cases can continue be adjudicated by the court in these days of crisis. (Thomas v. Wohleber)
- The notice’s test of urgency must be strictly enforced in order to ensure that the court’s limited administrative resources are available to deal with the most serious and urgent of cases. (Thomas v. Wohleber)
- Without rigorous enforcement of the Notice, even extremely urgent cases; those that call for immediate court involvement to protect children, the safety of vulnerable spouses or extreme financial need, will have to queue up behind less urgent matters. This raises the considerable risk of harm by delay. (Thomas v. Wohleber)
- Only the most urgent matters will be heard by the court until the circumstances arising from the COVID-19 pandemic allow it to hear a broader range of proceedings. To do otherwise would overwhelm the court’s presently limited administrative capabilities. (Thomas v. Wohleber)
- Individuals involved in family law disputes must follow Health Canada safety protocols to keep children safe and healthy. (Eden v. Eden)
- Parents should set aside their conflicts and consider first and foremost the best interest, health and safety of their children, while at the same time acting reasonably and responsibly. (Derkach v. Soldatova 2020 ONSC 1992, Justice Maddalena)
- We all have to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children. (Ribeiro v. Wright 2020 ONSC 1829, Justice Alex Pazaratz)
- Children need all of the adults in their lives to behave in a co-operative, responsible and mature manner and especially for vulnerable children, it is up to the adults to provide reassurance that everything is going to be OK. (Ribeiro v. Wright)
David Frenkel is a lawyer with the Halpern Law Group and practises exclusively in the area of family law. He can be reached at dfrenkel@halpernlawgroup.ca.
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