juin 25. 2020

COVID-19 Case law: A Summary

Jackman v. Doyle, 2020 ONSC 1928 (CanLII)

How have the courts been ruling on family law cases relating to COVID-19? Here is a summary:

Smith v. Seiger 2020 ONSC 1681 – March 18, 2020

In Smith v Sieger, an urgent motion was brought for relief that (if granted) would provide the immediate return of the parties child from the United States who was enrolled in an education program in Utah. The parties shared joint custody of the child and the urgent matter was brought to the court in light of the closure of the US/Canada border and Prime Minister Trudeau’s call for Canadians to return home.

The applicant states that the parties came to an arrangement recently that the child was to return to Canada subject to the applicant assuming sole decision making on health and education issues; this arrangement was later disputed. In its decision the court continues to give priority to the best interests of the child and granted the relief requested by the applicant in its entirety. Due to the travel, the court recommend the child be self-quarantined for 14 days in the care of the applicant until that period of isolation is completed and no further health issues arise.

Hrvoic v. Hrvoic, 2020 ONSC 1711 – March 19, 2020

In Hrvoic v Hrvoic, commercial and family counsel participated in a case conference via telephone to discuss a non-urgent matter pertaining to applicant seeking the respondent to sell their shares in the family business to the applicant. In its endorsement the court stated:

While the underlying litigation is not at all urgent, the parties have made the current stay pending appeal issue urgent by their unilateral acts. Ms. Hrvoic has not yet complied with Justice Dow’s order, so the issue of whether the order ought to be stayed is both time sensitive and important. I note that counsel did not ask me to grant an interim stay pending the hearing of the motion for a stay pending appeal. I therefore make no assessment of the merits of the motion for leave to appeal.

The motion for a stay pending appeal was set to be heard on March 30, 2020.

Ribeiro v Wright, 2020 ONSC 1829 – March 24, 2020

In Ribeiro v Wright, an Emergency Notice of Motion of Applicant was submitted March 22, 2020 in addition to an Affidavit of the Applicant on same. The urgent motion was brought by one party to suspend all in-person access because of COVID-19. The trial judge has not authorized this matter to proceed as an urgent hearing at this time.

See our coverage of this case: here

Onuoha v. Onuoha, 2020 ONSC 1815 – March 24, 2020

In its ruling the court found the matter not urgent at this time as the children are currently residing in Canada with the other parent and stressed this is not the time to move the children to another jurisdiction in light of the travel advisory guidelines. The court concluded:

The request to have the motion heard may be renewed when international travel advisory is lifted. However, as indicated, it would be preferable that the matter not be heard through a summary process, but as a long motion on the fulsome materials filed by the parties. At the “to be spoken to” on June 2, 2020, if the motion has not already been heard, I would direct that this matter be heard promptly and as a matter of priority.

Douglas v Douglas, Court File No: 684/19 – March 25, 2020

In Douglas v. Douglas, there was currently no court orders in place dealing with parenting time. On March 18, 2020 the mother noted concerns with respect to the other party’s exposure to COVID-19 and wished to have the child remain in her care. The father brought a motion seeking reinstatement of the regular arrangements with respect to access. In its decision the court continues to highlight its priority to respond in accordance with the best interests of the child and that the removal of one parent from a child’s life (even temporarily) must be exercised cautiously.

The court ultimately deemed the matter not urgent or an emergency due to the lack of indication that the child’s safety is at risk. See more of our coverage on this case: here.

Chrisjohn v. Hillier, SCJ Court File No: F1098/18 – March 26, 2020

In Chrisjohn v. Hillier, the applicant brought an emergency motion to the court seeking a police assistance order due to the respondent withholding access to the child out of fear of the applicant’s lack of social distancing measures. The court found the respondent’s conduct in contravention to the existing order and therefore constituted the matter as urgent. The court stresses that cases of similar facts are all unique to the circumstance and should not presume access withheld is not warranted in some situations.

Le v. Norris, 2020 ONSC 1932 – March 26, 2020

In, Le v. Norris the current access order held that the child was to live with the applicant and the respondent had access twice per week. The issues to the court were two fold: (i) if the applicant had breached any existing order for access between the respondent and child; and (ii) whether the applicant should be ordered to remain within a certain radius of their home. The applicant stated they had no intention of moving from their current home thus disposing of the second issue. With respect to the second issue, the applicant filed a motion and emailed a letter addressed to “Your Honour” [sic].

The court ultimately ruled that although the reasons the applicant had for not obeying the existing order were not reasonable, albeit understandable in light of the COVID-19 situation. The court concluded that the parties should make very effort possible to adhere to any existing court orders in light of the circumstances.

Perkins v. Macierzynska, SCJ Court File No: FC-19-876 – March 27, 2020

In Perkins v. Macierzynska, an urgent motion was to be heard because of unilateral action of the respondent to move the child. The applicant submitted the respondent is in breach of the temporary order dated June 27, 2019.

On the facts, the respondent was taking care of the child because the applicant had pneumonia and the child later retracted flu like symptoms. The child was taken to the hospital, given medication and informed they would recover in about a week. In its ruling, the court accepted that due to the COVID-19 pandemic the parents did act prudently to keep the child in the care of the respondent however the respondent did not have the right to decide what is in the best interests of the child in the face of a valid existing order and should have consulted with the applicant. The court did not find on the evidence that the applicant had failed or was unable to adhere to COVID-19 protocol and stated the existing order should be upheld.

Zee v. Quon, SCJ Court File No: FS-16-412436 – March 27, 2020

In Zee v Quon, the court found the suspension of the applicant’s access to the child and that the respondent be restrained from contacting the applicant’s place of employment fit the urgency requirement. The court identified that:

The Applicant is a health care professional. She and her employer are well aware of the protocols to prevent transmission of infection. If the Applicant is required to return to work, I am satisfied that she will take all necessary precautions to keep her child safe while in her care.

Its decision also stated:

The matter before me is sufficiently urgent to warrant the Applicant’s motion proceeding in the absence of a case conference. Under Rule 14(4.2) of the Family Law Rules the Court may dispense with the case conference if it is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interests of justice.

Eden v. Eden, SCJ Court File No: 171/19 – March 30, 2020

In Eden v Eden, an application was brought to vary orders dated August 9, 2019 and January 24, 2020, in addition to requesting a police enforcement clause. On the facts, the parents exercised a rotating access arrangement in and out of the matrimonial home. The respondent held concerns that the applicant had not followed COVID-19 protocol; specifically relating to the applicant permitting the children to go to the pet store, visit grandparents, and have a sleepover at a friends. The court concluded that the facts the matter was no urgent and denied a change in the existing order.

Jackman v. Doyle, 2020 ONSC 1875 –March 20, 2020

In Jackman v Doyle, the applicant was seeking urgent relief and the court stated:

In accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 (“the Notice”), Justice Shore reviewed the applicant’s motion materials and found that since the matter related to, inter alia, the alleged unlawful withholding of two children (especially in light of the current COVID-19 situation in the greater Toronto area and the rest of Canada), the motion fit the “urgency requirement” as set out in the Notice

The court found the matter sufficiently urgent to warrant to applicant’s motion proceeding in the absence of a case conference.

Jackman v. Doyle, 2020 ONSC 1928 – March 27, 2020

The endorsement for Jackman v Doyle dated March 27, 2020 The applicant opposed the respondent’s request for an adjournment, arguing that since the children have now been returned to her, the urgency (and in fact the crux) of her motion is now moot and the motion is no longer necessary.

The court stated:

[7] While I understand the applicant’s frustrations with the respondent failing to comply with the timetable, I do not entirely agree with her position. Though responsibility for further delay does lay at the feet of the respondent, I have yet to receive his sworn evidence offering his side of the story. Before the events of earlier this month giving rise to the applicant’s motion, there was no fixed access schedule although it appears that the parties would typically agree upon when and how the respondent would exercise access to the children. The respondent takes the position that given the terms of my Endorsement dated March 20, 2020, and with the children now under the applicant’s primary care, his access has been rendered very limited and he seeks the opportunity to address this issue on an urgent basis.

[8] Since I have yet to receive or review any responding materials, I am not in a position to assess whether the respondent’s request for access terms (whatever those may be) fit the “urgency requirement” as set out in the Chief Justice’s Notice to the Profession dated March 15, 2020 (“the Notice”). In my view, and consistent with the directives in the Notice, I am not prepared to foreclose the respondent’s request for access terms without first reviewing his responding materials. If those responding materials satisfy the “urgency requirement”, then the motion shall be scheduled to be argued before me as the designated judge…

[12] In summary, I make the following interim Order:

  • a) The applicant shall continue to have primary care of the children, and the respondent shall have reasonable weekly parenting time as the parties may agree pending further court Order.
  • b) The parties shall only communicate through Our Family Wizard with communication limited to matters dealing with the children.
  • c) The applicant’s motion is further adjourned to a telephone hearing before me on April 3, 2020 to address the issue of whether the respondent’s request for access terms is sufficiently urgent to warrant the applicant’s motion being argued. The Family Scheduling Office will provide the parties with the call-in particulars.
  • d) This Endorsement is an Order of the Court enforceable by law from the moment it is released.
  • e) Costs of today are reserved to me as the presiding judge on April 3, 2020
  • LBM v. MM, 2020 ONSC 1958 – March 30, 2020

    In LBM v MM, the court was satisfied that the parenting and support motions brought by the Applicant and the anticipated cross-motion by the Respondent was urgent.

    LAF v. KVS, 2020 ONSC 1914 – March 30, 2020

    In LAF v KVS, the court ruled that the relocation of the child and the potential for prospective purchases of the respondent’s house and spreading COVID-19 did deem the matter urgent.

    Saperia v. Vlasiu, 2020 ONSC 1963 – March 30, 2020

    In Saperia v Vlasiu, the court (following a previous endorsement stating the matter was urgent) concluded that in the absence of any responding materials they were not in a position to assess whether the respondent’s request for interim child support does indeed fit the urgency requirement.

    Scion v. White, 2020 ONSC 1915 – March 30, 2020

    In Scion v White, the court previously issues a “triage endorsement” which allowed access requests to proceed as potentially urgent, but financial and property issues were not at this time. Respondent continued to file emergency motions of which the court continued to not permit.

    [This post by Russell Alexander first appeared on FamilyLLB.com on March 31, 2020]