Covid-19: “Urgent” Family Law Matters

Mark Feigenbaum

Due to the COVID-19 pandemic, the Ontario Superior Court of Justice suspended all regular operations, effective Tuesday, March 17, 2020, and until further notice, as noted on its website. 

However, some urgent family law matters may still be heard, 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.

A recent decision had to determine whether an application brought by a father for the return of his children to Nigeria qualified as an urgent matter.

What Happened?

The father sought the return to Nigeria of his two daughters, who had been brought to Ontario by the mother in October 2019. 

The father claimed that he had not consented to the mother bringing the children to Ontario. He had previously applied to both Nigerian and Ontario courts in an effort to have his children returned. 

The father’s current case was set to go to court on March 25, 2020, when the matter was adjourned due to the Covid-19 pandemic. It was re-scheduled for June 2, 2020.

On March 18, 2020, by email, the father’s lawyer requested that the case go forward on the basis that it is an international kidnapping. The lawyer argued that adjourning to June 2 would greatly prejudice the father’s case. 

The mother’s lawyer responded by email stating that the matter was not urgent and should remain adjourned until June  2. The mother’s lawyer noted the suspension of the court and the travel restrictions in effect. Further, the lawyer stated that she personally was experiencing symptoms of Covid-19 and was awaiting a test. 

Decision

The court began by stating that while the case may have appeared to be an “urgent” matter because it related to the wrongful removal or retention of a child, the court did not find the matter urgent. The court explained that the children were residing with their mother in Ontario and the global pandemic had resulted in wide-spread travel restrictions, including an international travel advisory issued by the Government of Canada, which sought to restrict all non-essential travel outside of Canada. 

The court stated:

“This is not the time to hear a motion on the return of children to another jurisdiction. Indeed, were the father to be successful, any order would likely not be capable of being implemented for weeks or even months. It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein. Considering the language of the Chief’s Notice, the children’s “safety” and “well-being” are protected, for the time being, by remaining where they are in the care of their mother in Ontario. While the matter is very important to the parties, it is not in my view currently “urgent”.”

As a result, the court found that the matter was not urgent and upheld the postponement until June 2, 2020. 

The court advised that the request to have the motion heard may be renewed when the international travel advisory is lifted. 

Finally, the court stated that it expected the mother would make every reasonable effort to ensure that the children are able to speak regularly with the father by Skype, FaceTime, telephone or other means, if she had not already been doing so. 

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.