Family Law motions during COVID-19

-by Shivani Balcharan, Barrister and Solicitor, Anser Law Professional Corporation.

Due to the COVID-19 pandemic which saw the suspension of regular court operations in Ontario Courts, only urgent matters are being heard.

Known for his decisions in Family Law, the Honorable Justice Pazaratz shed some light on the framework for bringing urgent motions in family matters.  

In Ribeiro v Wright, 2020 ONSC 1829, mom brought an urgent motion to deny access of the parties’ nine year old son to dad.This was due to her fears of COVID-19. The child was primarily resident with mom and had alternate weekend access with dad.

According to mom, she was practicing isolation with her family in their home for the duration of the COVID-19 crisis and she did not want her son leaving the home for any reason including seeing dad.

Justice Pazaratz did not authorize the matter to proceed on an urgent basis and stated:

“If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.  They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.”

His Honour was ultimately not satisfied that mom had established a failure, inability or refusal by dad to adhere to the appropriate COVID-19 protocols.

Justice Pazaratz stated that the Court will deal with COVID-19 parenting issues on a case-by-case basis as follows:

1. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent who is 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. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.

His Honour urged lawyers and parents to try “simple problem solving” before turning to urgent litigation during this time. Importantly His Honour stated that “there is a presumption that all orders should be respected and complied with.”

If you are facing issues with your family law matter, please call us on 905-290-2000 or e-mail me at shivani@anserlaw.com. We have experienced lawyers ready to assist you and answer your questions.

If your matter is urgent, we are ready to help you get it before the Court.

If your matter is not deemed urgent because of the new COVID-19 protocols, there are steps which we can take to assist you, including out of court discussions or arranging Case Conferences to get input from the Court.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create a lawyer-client relationship.