COVID-19: Court Refuses to Hear Father’s Motion, Not Deemed “Urgent”

Mark Feigenbaum

Currently, due to the COVID-19 pandemic, Ontario courts will only decide family law matters deemed “urgent”. As we have written about here and here, several such cases have been heard and decided in recent weeks. However, a father’s recent family law application shows that not all cases will be heard, even when one of the parent tries to frame it as “urgent”.

What Happened?

The father made a request for an urgent motion pursuant to the COVID-19 guidelines in effect. He requested a police enforceability clause relating to a consent order for custody and access. 

He alleged that the mother was violating the custody and access order in several respects. The father claimed that without a paragraph authorizing police enforcement, the mother would continue to violate the order.

At Issue

The only issue was whether the matter was sufficiently urgent that it had to be heard and determined while the court system is currently shut down. 

Decision

The court began by describing the current state of the legal system in Ontario:

“The reality is that the court is in no position to hear the overwhelming majority of matters. None of the justice system participants are attending the courthouse. This includes judges, trial coordinators, judicial assistants, registrars, and reporters. Judges must do the best they can from home, and hearings are conducted in writing, or, where appropriate, through teleconferencing or videoconferencing.”

The court then explained that, asa practical matter, only those cases that are truly urgent will be entertained under the current circumstances.

However, the court also acknowledged that a definition of “urgency” must not be so narrow that avenues of relief are effectively foreclosed, and lawlessness encouraged. 

However, in this case, the court was not convinced there was a sufficient level of urgency to require the motion to be heard.

In part, the court found that there was alreadyan existing order in place and that it had not been alleged that the children were in danger. The court then stated:

“Presumably, the current situation is temporary. Once the court system is up and running again, this matter can be dealt with promptly. If indeed there has been non-compliance, the respondent is not without a remedy. Lack of access time can be made up. Costs sanctions can be imposed.

I make no determination, of course, that the applicant is in violation of the order. I remind her, however, that the COVID-19 pandemic furnishes no excuse for violating the order. If it turns out that she has done so, the court will have very little sympathy with her position, and may very well impose remedies and sanctions that she would undoubtedly find unpalatable.”

As a result, the father’s request to schedule an urgent motion was dismissed.

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.