Failed love in time of COVID-19: What is urgent?

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Given the COVID-19 lockdown, the courts are now hearing only urgent matters.

Failed love in time of COVID-19: Pandemic and family law

What is an urgent family law matter?

Generally, parties who have not yet started a family court proceeding cannot bring a motion unless they have had a case conference. Given the rise in family law issues during this COVID-19 period, families will require instant access to the courts whether they have had previous interaction with the court or not.

For those who have not had previous interaction with the court, they will have to go through a two-step urgent procedure.

First, if the parties are not presently before the courts and by inference have not yet had a case conference, they will have to meet the first test for urgency pursuant to Rule 14(4.2) of the Family Law Rules. This provision allows the court to dispense with a case conference if the court is of the opinion that there is a situation of urgency or hardship or a case conference is not required for some other reason.

The leading case on this issue is Rosen v. Rosen [2005] O.J. No. 62 and it provides that a matter can proceed in the absence of a case conference if:

a) The moving party shows that s/he has made enquiries about the availability of a case conference; and
b) The moving party makes efforts to settle the matter outside the court process

This is not an insurmountable hurdle. In this COVID-19 era, part a) of the Rosen test will be easy to prove as the superior courts have suspended operations for an indefinite period. With respect to part b), most reasonable parties will have attempted to settle this matter before finally resorting to the courts thus satisfying this requirement.

 Also, the courts have discretion pursuant to s. 2(3) to 2(6) of the Family Law Rules to dispense with the requirement of a case conference.

Once the parties for whom this present court motion is their first interaction with the courts have passed this first Rosen hurdle of urgency, they can then proceed to step two in the process; namely, does their matter meet the test for urgency pursuant to the Superior Court Practice Directions referred to previously? This is the test that all litigants have to satisfy before the court will deal with their substantive matter.

A prima facie case will be established if the matter is one of those already listed in the Practice Direction list of urgent matters. (See also Kostyrko v. Kostyrko 2020 ONSC 2190, paragraph 33 and Zee v. Quon endorsement by Justice Nakonechny, paragraph 1). For example, a unilateral breach of a court order will meet the test for urgency as outlined in the Amended Practice Direction for Toronto (see Kostyrko, paragraph 37 and Skuce v. Skuce 2020 ONSC 1881, paragraph 38). In addition, if the fact of the case outlined by the moving party discloses an urgent matter, the courts will hear it (Kostyrko, note 13 at paragraph 47).

It is important for the parties to know that self-help remedies such as refusing access to the noncustodial parent will not be viewed well by the court in the absence of an extremely good reason supported by independent evidence (Kostyrko, note 13, paragraph 47). The courts do not wish to encourage the parties to exacerbate an already tense situation. Furthermore, there is no telling how long this COVID-19 lockdown will last and/or its effects when it is hopefully over.

It appears unlikely that the courts will be able to maintain the current list of matters that are considered urgent the longer the COVID-19 lockdown period lasts. We are still some 12 to 18 months away from a vaccine.

The increased pressure and anxiety on the family owing to unresolved issues cannot continue over a long period of time. For example, the parent whose access has been unilaterally terminated by the custodial parent will become more desperate. The situation of the woman who cannot get the consent of her spouse to access moneys held in trust from the sale of the matrimonial home will become more dire.

The present model is not sustainable.

This is part two of a three-part series. Part one: Failed love in time of COVID-19: Pandemic and family law.

Carol Shirtliff-Hinds is founder and managing partner of Shirtliff-Hinds Law, a boutique law firm in Newmarket, Ont. She practises Family Law and Criminal Law. E-mail her at carol@shirtlifflaw.ca

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