COVID-19 and Family Law

A guide to the courts during the current pandemic

COVID-19 and Family Law

In response to the COVID-19 pandemic, the courts originally limited hearings to only “urgent” matters. Even as the courts expand operations, it is expected that urgent matters will continue to take priority.

Each level of court has released a notice addressing what is an urgent family law issue, including risk to the safety of a child or parent, risk to the well-being of a child (including medical decisions), risk of removal of a child, child protection matters and cases where irreparable harm will occur if the application is not heard.

The case law has added to these definitions. The courts have determined that parents’ concerns around COVID-19 and their children’s well-being is understandable, and that this is “uncharted territory.” Ribeiro v. Wright, 2020 ONSC 1829, the leading case on urgency, has been relied on repeatedly by the BC courts. The court denied the urgency application, noting that a concern relating to COVID-19 in itself was not enough to make the issue an urgent one. In Thomas v. Wohleber 2020 ONSC 1965 the court noted that to be urgent, a matter must be immediate, serious, real and clearly described in evidence.

Parenting and COVID-19

The courts must balance the health, safety and well-being of children with the presumption that parenting time with both parents is in a child’s best interests. This has arisen in multiple contexts, including parents who are front-line workers, children that must travel significant distances between homes, an identified increased health risk to children, living with extended family and blended families, parents who must rely on third-party caregivers, and parents who do not follow COVID-19 protocols.

In BC, Dr. Elterman, a leading child psychologist, released recommendations, which were adopted in N.J.B. v. S.F., 2020 BCPC 53. In line with these recommendations, there is a presumption that existing parenting arrangements and schedules continue, with modifications according to health guidelines where appropriate, unless outweighed by the risk to the child.

There is a clear expectation that every member of a child’s household comply with COVID-19 protocols and that unnecessary exposure of children to risk will not be tolerated. Several decisions have emphasized that the focus during this time is on the children and not the rights of parents. There is no presumption that children should reside in the household with the least amount of risk during the pandemic (SAS v LMS, 2020 ABQB 287).

The courts continue to maintain that court orders must be followed and unilateral action or self-help remedies be discouraged. Ivens v. Ivens, 2020 ONSC 2194 warned that parents should not use the COVID-19 pandemic as an opportunity to seize the sole right to parent their children. The courts have also been clear on their expectation that parents will be practical and exercise their common sense.

Support and COVID-19

To date, there has been little jurisprudence in Canada addressing applications to vary support as a result of changes in income due to COVID-19. Some guidance can be found in Jumale v. Mahamed, 2020 ONSC 2091. However, this will inevitably change as the pandemic’s economic effects continue and long-term timelines become clear.

Moving Forward

The Court of Appeal has recently introduced videoconferencing appearances and the Supreme Court is instituting Telephone Conference Hearings for non-urgent, one-issue matters that were booked during the court’s suspension period. As family law practitioners, it is important to work with clients to find alternatives to litigation and help them exercise common sense.

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