Is my Case “Urgent” for Family Court during COVID-19? Can it be Heard by a Judge?

I have had several clients ask me if their case is truly “urgent” and if it can be heard by a judge during the COVID-19 crisis. Right now, since Family Courts in Ontario are all closed, only the most urgent cases are being heard by the Courts. However, the legal definition of “urgency” is different than that used by people in their daily lives. What you or I may see as “urgent” may be different than what a judge deems “urgent”. My job as a lawyer is to help people determine whether their specific case is ‘urgent’ or not. It’s also important to know that there are legally required steps before you can apply to the Court for a judge’s input.

There have been a number of custody and access cases since the closure of the Courts. I strongly recommend that you consult with a lawyer about your individual circumstances to see if your own special circumstances could be considered “urgent”. Many people automatically assume that having a (former) spouse who is in the healthcare field (such as a nurse or doctor) may stop that person from seeing your child during the COVID-19 crisis, and this is not necessarily true! I will provide some guidance below on cases that may assist you, and that may be comparable to your situation. Please note that this is not legal advice, only legal information.

To start, on March 15, 2020, the Office of the Chief Justice issued a “Notice to the Profession”.

Part of the Notice to the Profession specified:

Only urgent family law events as determined by the presiding justice […] will be heard during this emergency period, including:

1. 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);
2. 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;
3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. [Emphasis in original.]

The onus is on the person applying to the Court (the applicant) to convince the judge that his/her case falls within the above categories and is, therefore “urgent”. I will discuss some cases below to illustrate how a Court may determine urgency.

Parenting Cases

• Ribeiro v. Wright: One of the first cases released during COVID-19 that was an ‘urgent/emergency motion’ case was Ribeiro v. Wright on March 24, 2020. The parties had joint custody of their 9-year-old son since a Final Order in 2012. The primary residence has always been with the mother. The father always had access on alternate weekends from Friday to Sunday. The mother brought a motion to suspend all in-person access because of COVID-19. The mother was concerned that the father would not maintain social distancing for the child during his parenting time. She did not want her son leaving the home for any reason, including seeing his father, as she is practicing social isolation.

The judge decided this matter was not urgent. He sympathized with the mother’s anxiety and said this is a stressful time for everyone. However, there is a presumption during COVID-19 that all court orders or separation agreements must be respected and complied with. Meaningful and personal contact with both parents is assumed to be in the best interests of the child. Justice Pazaratz said that we cannot place all children’s lives “on hold” indefinitely without risking important family relationships. Children have to continue to see both parents, now more than ever.

The judge clarified that there may have to be a temporary hold on seeing the other parent if that parent is self-isolating for 14 days as a result of recent travel, personal illness or exposure to the illness. However, access is supposed to go ahead as planned until there is some reason, such as the above, for not proceeding with access for a temporary period.

The judge said that the Courts will deal with COVID-19 parenting issues on a case-by-case basis. He also gave the following recommendations:

1. The parent bringing the urgent motion will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols.
2. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing, use of disinfectants, compliance with public safety directives, etc.
3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
4. Both parents should spend as much time with their child at home, at this time.

Although this was not specifically mentioned in this case, it is important to note the rule that applies to emergency/urgent motions: If there is a dispute, before bringing the matter to the Court, both parents must attempt to negotiate the matter between themselves or their legal counsel or mediate the dispute with a mediator. In other words, Court should be the last resort wherever possible. There are a few exceptions to this rule in some limited cases of urgency (such as a child abduction case, the risk of immediate harm to a child, or a domestic abuse situation where you are unable to speak with the abuser and may need to urgently apply to the Court). However, Courts urge wherever possible, you should try to negotiate outside of court with the other parent. If you do not do that, the Court may reject your case as not being truly urgent, because you did not do this first step.

• Skuce v. Skuce: This was a motion argued over a telephone conference in Ottawa and the Court found the matter was urgent. The 3 children (ages 3, 5 and 7) reside with their mother. After the parties’ separation in May 2019, the parties agreed that the Father would have supervised visits with the children, supervised by his mother or her husband. In November 2019, the parties signed a Parenting Agreement which stated that the Father’s access with the children would be supervised by the Mother for 2.5 hours each Saturday or Sunday and 15 minutes at the children’s school on Tuesday mornings.

The Father is a recovering drug and alcohol addict and states that he has been clean from drugs/alcohol since November 2019. Prior to that time, he indicated he was sober from 2010 to May 2018. He outlined all of his recovery plans, including his stay at the Bellwood Rehabilitation Centre in Toronto for a 6-week program in the fall of 2019. He returns to the Sobriety House in the evenings for therapy. The Sobriety House has a number of measures to comply with COVID-19 protocol, but the mother was still concerned that he was staying in a house with many people from different households. The Mother wanted to suspend in-person access visits.

The Father requested that he have face-to-face contact with the children, but that his parents supervise the visits. The Mother requested all contact with the children and their father be over Facetime or video conferencing.

The Court decided the matter is urgent and noted that the Father intends to move out of the Sobriety House and have his access supervised by his mother. The judge found this to be reasonable and ordered access to return to normal, as per the parties’ agreement. The judge recommended access occur at the paternal grandmother’s home. He also noted that parents are to maintain the children’s routine and schedule as much as possible to give a sense of normalcy and maintain relationships.

Justice Doyle ruled that given the exposure by the Father to at least eight other residents and staff members, it is prudent to limit his risk to the children until the Father has returned home to his parents and has not been in contact with other people. The judge recommended that the Father does not have in-person visits with the children between March 28^th until April 11^th, and the children could see their father on April 11^th. Until then, the children could have visits with their Father over Facetime or video conferencing.

Financial Distress

• The third case does not concern ‘urgency’ with respect to access-related issues, but rather an urgency due to financial distress. The case of Thomas v. Wohleber concerns a matter where the husband, Jeremy, removed $775,643.48 from the parties’ joint line of credit, thereby draining the entire account. The line of credit (LOC) was secured against the parties’ matrimonial home in Oakville. The wife, Barbara, requested the return of those funds, the freezing of the LOC account, a non-dissipation order and financial disclosure from Jeremy.

Justice Kurz recognized Barbara’s concerns regarding Jeremy’s unilateral removal of a significant sum of money. This can create an urgent situation for Barbara and the parties’ children. The judge acknowledged that this case meets the high test of urgency. Justice Kurz ordered the immediate return to the LOC of the removed funds by Jeremy, and the account’s freezing once the funds are returned. He also ordered that funds should not be dissipated going forward.

Justice Kurz outlined the following factors as being necessary to meet the urgency requirement:

1. The concern must be immediate; that it cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of the parties and/or their children;
3. The concerns must be definite and material rather than speculative. It must relate to something tangible (a spouse or child’s health, welfare or dire financial circumstances) rather than a theoretical possibility.
4. The concern must be one that has been clearly described in evidence and with examples that describe how the matter is urgent.

The judge recognized that Jeremy’s depletion of the entire LOC may deprive Barbara of necessary resources to support herself and the children during these difficult times. Barbara is also jointly and severally responsible for repaying all funds that Jeremy removed. She would be unable to pay off the LOC if the bank, RBC, were to call the loan.

These among other factors described by Justice Kurz led the judge to see this was an urgent situation.

Spousal and Child Support

The recent case of Theis v. Theis is one of the first cases to discuss urgency as it relates to spousal and child support. In summary, the parties separated on June 1, 2015, after a twelve-year marriage. Their children spend equal time with each parent.

Ms. Theis owns a small business providing esthetic services. She has been unable to operate her business since March 25, 2020, due to the Ontario government ordering the closure of non-essential businesses. She stated that she had not worked much in the weeks previous to the mandatory shutdown. Ms. Theis continues to be obliged to pay rent and utilities for her business, as well as personal expenses for herself and for the children when they are in her care.

Ms. Theis will apply for the Canada Emergency Response Benefit (CERB) which she anticipates will provide her with $2,000 per month. However, she does not expect this to cover all her expenses and even after her business re-opens, it will take a while to rebuild her client base.

Ms. Theis also stated that Mr. Theis is presently in arrears of child support in the amount of $4,682.26. The monthly child support amount is $1,348.00.

Ms. Theis stated: “I am experiencing dire financial circumstances and am seeking an order for the release of $85,000 from the sale proceeds which is the majority of my share from the matrimonial home.” She also said that the amount she requires is almost $30,000 for legal fees (fees owed plus retainer).

However, despite the circumstances being difficult for Ms. Theis, the judge found that the evidence does not conclude that Ms. Theis is in dire financial circumstances. Justice Madsen clarified that Ms. Theis may be experiencing dire financial circumstances, but she has not made out her case to the Court. She needs more evidence, including the following:

1. Ms. Theis’ previous income before the COVID 19 situation;
2.  Ms. Theis’ total income now from all sources;
3.    Ms. Theis’ personal and business expenses; and
4.    The extent of Ms. Theis’ resources more generally.

No financial statement was provided to the Court with Ms. Theis’ motion. Given that part of the test is “dire issues related to the parties’ financial circumstances”. the judge stated that an up-to-date financial statement showing all her expenses and income, along with her current assets and debts, would be essential.

Justice Maden urged the parties to try to resolve the issue for negotiation. However, in the event they could not negotiate a settlement, Ms. Theis has the right to bring the case before the Court again, with better evidence.

Summary

These cases provide you with some examples of how judges have viewed and judged “urgency” in both parenting and financial distress cases. However, every case is different. We always advise people going through separations to consult with lawyers to receive the best legal advice pertaining to their individual situations. If you are wondering whether your situation qualifies as urgent or are looking for any legal advice during COVID-19, feel free to call our office at 705-727-4242. We are always happy to assist and are taking on new clients at this time. We look forward to meeting clients over the phone or video-conferencing (Zoom or Skype) at this time.

Article by: Livia Jozsa

Livia Jozsa often assists clients with custody and parenting issues, along with a division of property and finances. Please see her biography here: https://galbraithfamilylaw.com/barrie-divorce-lawyers/livia-jozsa/

Cases referenced in the article:

• Ribeiro v Wright, 2020 ONSC 1829 (CanLII), <http://canlii.ca/t/j60jj>, retrieved on 2020-04-17
• Skuce v .Skuce, 2020 ONSC 1881 (CanLII), <http://canlii.ca/t/j63dl>, retrieved on 2020-04-17
• Thomas v. Wohleber, 2020 ONSC 1965 (CanLII), <http://canlii.ca/t/j63dm>, retrieved on 2020-04-17
• Theis v. Theis, 2020 ONSC 2001 (CanLII), <http://canlii.ca/t/j64qm>, retrieved on 2020-04-17