Since the COVID-19 pandemic began, courts have had to consider parties’ requests to hear motions and decide whether a matter meets the “urgency test” (set out below) on a case-by-case basis. In a recent decision, an Ontario court considered whether a mother’s motion met this test in the context of a more recent Notice to the profession expanding the range of matters that qualify as “pressing.”

The Background

The parties were separated and had two children. The children resided with the mother.

In September 2019, a temporary order was made dealing with in-person access by the father to the children (“the temporary order”).

The father subsequently had his pleadings struck and failed to comply with a costs award in the mother’s favour.

More recently, the mother swore an affidavit, which indicated that the father had been charged with criminal harassment and breaching a restraining order. Furthermore, a letter from the Children’s Aid Society (CAS) outlined serious concerns about the father, and the CAS indicated that it had decided to remain engaged with the family as a result of the father’s lack of cooperation.

The mother brought an urgent motion without notice to the father for an order varying the temporary order. She claimed that she was concerned about the father’s irrational, erratic and non-compliant behaviour, and that the notice of motion might make his behaviour worse.

The Court’s Decision

In finding that the mother’s motion met the urgency test, the court considered the Notice to the Profession, dated March 15, 2020, as revised on April 2 and May 5, 2020 (“the Notice”). As we have noted in previous blog posts, the Notice outlines what may be considered urgent:

• 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);
• 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;
• dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order; and
• 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.

The court then considered the Central East Region Notice to the Profession (“the CER Notice”), effective May 19, 2020, which expanded the range of matters permitted under the Notice to include matters qualifying as “pressing.” The general outline for the requisite test is as follows:

• the concern must be immediate; that is, one that cannot await resolution at a later date;
• the concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
• 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 something theoretical; and
• it must be a concern that has been clearly particularized in evidence and examples that describe the manner in which the concern reaches the level of urgency.

In this case, given the mother’s evidence and the CAS letter, the motion met the urgency test. The court decided that a temporary order should issue suspending the father’s in-person access to the children, but that he should be given an opportunity to respond.

Lessons Learned

Only matters that qualify as “urgent” are being heard during the COVID-19 pandemic.

If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. We remain open to help our clients, but are taking precautions to keep safety paramount. While we may not be able to meet in our office, our lawyers are fully prepared to continue to offer all of our legal services paperless and conduct important meetings using digital technology. Our goal is to always empower clients to make informed decisions about their future.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online if you have a family law matter you need help with.

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