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ONTARIO: Struggle over children emerges as primary concern in urgent court cases

Family courts continue to receive applications for people who can’t wait for the regular resumption of Ontario’s court system
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When Ontario’s courts shut down most of its operations, it became clear that not everything can stop in a pandemic and a process quickly developed to accommodate urgent cases.

Ontario’s family court judges created a system allowing a triage judge to first vet cases to determine that they were indeed of an urgent nature. When they started hearing urgent cases via teleconference, a threshold emerged both on what constitutes urgent and how the judges viewed certain situations.

Children were clearly the major concern.

“What really started to arise right away in my practice was… do I need to send my child for either parenting time or access to parenting time,” said Barrie lawyer Ashley McInnis. “The first round of cases that we were exposed to were actually primary parents… applying to the court on an urgent motion to suspend access.

“The court stated that suspending access did not meet the urgency test, but also went on to comment about how everybody should be abiding by COVID-19 protocols” and that parenting time was an important aspect of the child’s well being as well.

McInnis brought two motions. The first involved one parent denying the other parents access related to concerns over COVID-19. The mother thought it safer to keep the child in one home, allowing the father access only through video streaming or on the driveway while maintaining a distance.

The challenge was that the couple had developed their own separation agreement without going to court, meaning there was no formal court order in place. Although it had been working, “it kind of blew up” as a result of the pandemic.

Just the same, the Barrie judge ultimately decided to keep the status quo. The agreement the pair had in place prior to COVID-19 would remain. The decision, added McInnis, came very quickly — within seven business days.

“By the time I had filed my material it was becoming very clear (by cases heard) that court orders were to be obeyed” and simply a fear of the spread of COVID-19 wouldn’t result in a change of pre-existing schedules, including ones not previously endorsed by the courts, said McInnis.

Courts were indicating that in order to change a parenting order, the person wanting the change had to provide clear and particular examples of how the child would be in danger without it. COVID-19 concerns theoretically are not enough to change those orders or agreements, said Barrie family lawyer Cindy Scharff.

“The concern has to be immediate,” she observed of the results of the applications for hearings that were being made in Ontario, the majority of which were rejected.

The message the courts are sending is if the case can wait then it should. For a court to wade in now, the situation has to be serious and material rather than speculative and has to be clearly outlined with evidence, by example, Scharff added.

The courts also dealt with what happens when one of the separated parents is a health care worker, said Barrie lawyer Amanda Chapman who followed the early cases.

“The court has said as a health professional they know what their obligations are and what guidelines they need to follow and you should trust that they would follow them. The access would continue,” she said.

McInnis had another case that was already in the bowels of the court system and in litigation when the pandemic struck. The mother, deemed the primary caregiver in the court order, also wanted to stop access because of COVID-19. The dad was getting the child every second weekend and every Wednesday.

The judge decided the case should go to a case conference to address the conflict instead of a hearing and it was heard within a week.

“A case conference is a great way to have a more informal discussion with the judge, with the judge giving very strong views, and that worked in the second case, to avoid a motion completely,” said McInnis.

The message, she said, is that the physical courtrooms may be closed, but courts are still available to help people .

“Nobody should be in a situation where they’re being denied their rights under a court order or not seeing a child because they think they can’t do anything about it right now,” she said. “It’s just getting around the procedural hurdles.

- Marg. Bruineman, Local Journalism Initiative, BarrieToday




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About the Author: Marg. Bruineman

Marg. Buineman is a Local Journalism Initiative reporter covering justice issues based out of BarrieToday. The LJI is funded by the government of Canada
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