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‘No one knows what tomorrow will bring:’ Urgent matters for kids, families persist as pandemic rages

‘Right now, families need more cooperation. And less litigation,’ judge says in decision

‘No one knows what tomorrow will bring:’ Urgent matters for kids, families persist as pandemic rages
Vanessa Lam

When Smith v. Sieger, 2020 ONSC 1681 came before Justice Ronald Kaufman in Newmarket, Ont. last week, he was faced with “competing affidavits” that raised issues which “would be important in normal times.” 

“Unfortunately, these are not normal times,” wrote Kaufman in the decision. “The situation is changing as we speak. When this motion was served, we had open borders and they are about to be closed. Just prior to the motion, there was an earthquake in Utah that is interfering in air traffic. No one knows what tomorrow will bring.”                                     

The motion — centring on a 16-year-old child in a Utah educational program — is one of many family law cases that are coming before the court amid efforts to contain COVID-19 infections. Legal Aid Ontario said this week that more family staff lawyers are being added to increase capacity. The Law Society of Ontario also announced on March 25 an emergency family law referral phone line “to assist people who are self-represented and trying to determine whether or not their family court matter meets the criteria to be heard by the Court on an ‘urgent’ basis.” While the Ontario Government passed a regulation Mar. 20 to automatically extend statutory timeframes during the length of the provincial state of emergency, family lawyers are still facing some short timelines for urgent cases. For example, the Ontario Court of Justice said it will “continue to adhere to the existing statutory timelines for urgent matters” listed in its COVID-19 Pandemic Planning scheduling directive. A place of safety matter in a child protection case, for instance, will still be heard within five days, the chief justice advised lawyers. 

Other urgent matters (which will go forward “on a prioritized basis,”) include temporary care and custody hearings, restraining orders, status review hearings,  secure treatment orders, urgent custody/access motions, Hague applications and non-Hague abduction cases and Family Responsibility and Support Arrears Enforcement Act refraining motions.

With families sheltered in place and taking other precautions, maintaining the “status quo” for separated parents — such as shared school pick-up or drop-off visits — is no longer feasible, says Vanessa Lam, who runs her own law office. Worse, lost income or tight quarters could exacerbate issues with child support or domestic violence, she says.

“It’s going to be a daily struggle to figure out how to serve the needs of our clients,” says Lam.

Many issues are raised in Kaufman’s decision — the child’s entitlement to participate in determinations, the future of the child’s schooling, the child’s passport. But the urgency of the matter was “predicated upon the impact of the Covid-19 pandemic virus and the recent announcements by Prime Minister Justin Trudeau and President Donald Trump of the imminent closure of the border shared by Canada and the United States,” wrote Kaufman.

Kaufman is far from the only judge facing new realities. In another recent family law decision in Hamilton, Ont., Justice Alex Pazaratz closes with a paragraph stating, “None of us have ever experienced anything like this.”

“Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day,” wrote Pazaratz in Ribeiro v Wright, 2020 ONSC 1829 “a. The disruption of our lives is anxiety producing for everyone. b. It is even more confusing for children who may have a difficult time understanding. c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.  d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance. e. Right now, families need more cooperation. And less litigation.” 

In that case, the mother of a nine-year-old did not “want her son leaving the home for any reason – including seeing the father.” But Pazaratz declined to let the matter go forward as “urgent.” While safety is paramount, wrote Pazaratz, parents must also recognize the practical limits faced by the court system, and “work together to show flexibility, creativity and common sense,” the decision said. 

Pazaratz set out the following considerations:

a.     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 which are inconsistent with COVID-19 protocols.  
b.   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.
c.     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. 
d.   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.

Another decision that has gotten attention is Jackman v. Doyle, released Mar. 20. In that case, a parent had recently returned from Brazil and did not have a formal parenting agreement. When the children fell ill, the parent treated it as a “normal” fever — with Tylenol — citing advice of family and friends in the medical profession. 

“During the telephone hearing, the respondent confirmed that the children did indeed have a fever this past week (approximately 101 degrees),” wrote the judge in the decision. “Notwithstanding the fact that the children had been ill this week, the respondent apparently took them to public places including stores and drove with them to Sarnia yesterday to visit his elderly mother. This would normally be some cause for concern, but in light of the current COVID-19 situation, the applicant is understandably extremely concerned for the children’s well-being and argues that the respondent’s entire decision-making has been called into serious question.”

On the ground, the family law bar is quickly circulating such decisions and collaborating to keep everyone up to date on the issues, say Lam. Knowing someday soon, lawyers will all be competing for the same court dates at the same time, says Deepa Tailor, managing director of Tailor Law PC, in Mississauga, Ont. 

“The nature of the advice we are giving our clients has changed. We have guidance as to what to do with urgent matters — but we don’t have a heck of a lot of guidance of what happens to nonurgent matters,” she says.  “Out of court options - mediation or negotiation outside of court — may be a more viable option, given the fact that the courts are closed are a more viable option. The problem we encounter is that ADR isn’t always viable for some families, during the best of times.”      

Lisa Kadoory, a lawyer at Kadoory Cho Family Law in Richmond Hill, Ont., says that going forward, the bar is hoping for more consistent guidelines from region to region in terms of practice directions, virtual signing and e-filing. Some issues, such as when a scanned signature is acceptable, are still unclear at times, she notes.

Clients may also face new challenges as time goes on. For people in the process of divorce, they may find their soon-to-be-ex-spouse is under their nose while they try to have private conversations with a lawyer. Client conduct that doesn’t rise to the “urgent” level to be heard immediately may come back to the fore once court resumes, says Kadoory, citing recent case law.

“One thing that everyone has been talking about is, if these public safety directives are in place for the longer haul, and this is not something that will pass in the next few weeks, is there ability to expand access to family courts beyond urgent matters?,” she says. “I definitely think there is an inclination to find a way.”

Tailor says that the current pandemic response highlights longstanding access to justice issues and investments in court infrastructure and technology which should have been made long ago.

“The reality for a lot of people is home is not safe, and now the shelter is not safe,” she says. “There is no easy answer to that.”

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