Everyone is feeling stress and anxiety during this COVID-19 pandemic, and that strain is heightened for many former couples arguing over parenting time with children and support payments.
As tough as this situation is, ex-spouses must do everything they can to resolve their disputes before escalating matters through the courts.
In Ontario and right across the country, most courts are closed except to hear urgent or emergency issues. Judges are cautioning parents to work together and be flexible to ensure they're putting their children's physical and emotional well-being first. They have said that they will be looking to see if parents have made good faith efforts to communicate, show mutual respect, and come up with creative and realistic resolutions.
It's also important to keep in mind there are financial risks for bringing unsuccessful motions: if you lose, you will have to pay both your costs as well as those of the other side
Applications without evidence unlikely to proceed
In a recent Alberta case, a judge warned that emergency applications should not be brought to the court without good-faith attempts to resolve the issue with the other parent.
Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful, Justice Robert A. Graesser wrote in his decision.
Closer to home, a triage judge in Ontario turned down a mother's urgent motion to suspend a father's access to his children out of concern he wouldn't observe appropriate social distancing protocols. Justice Alex Pazaratz stressed that parents should not presume that the pandemic automatically suspends in-person parenting time, "nor that a suspension of parenting time or threat of suspension will necessarily result in an urgent emergency hearing.
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"Everyone should be clear about expectations during this crisis," Pazaratz wrote in his ruling. "Parents want judges to protect their children. But with limited judicial resources, and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem solving before they initiate urgent court proceedings."
What is an urgent/emergency matter?
I know this state of limbo is frustrating for many family law litigants. Motions that would normally be filed in court when one side isn't producing disclosure or otherwise dragging their feet can't be processed. I have a client whose ex-husband is living in the matrimonial home. She wants to sell it, but he's not agreeing and refuses to buy her out. Normally, I would bring a motion for partition and sale, but that would be wasting my client's money as it doesn't qualify as an emergency matter.
Since the pandemic began, judges in this province have issued more than 1,000 family law decisions dealing with urgent and emergency motions. That said, the courts are operating on extremely limited resources now and frowning on litigants and lawyers who attempt to frame non-emergency matters as urgent.
I had first-hand experience of this issue recently representing a client who is an essential health care worker. She and her former partner separated last summer and didn't have a custody order in place. Because my client is a nurse on the front lines and doesn't want to put her children at risk, they have been staying with her mother during her parenting time.
The father filed an emergency motion to increase his parenting time, but the Triage Judge ruled that it didn't fit the criteria of an urgent situation. Right now, judges want to see evidence that parents have tried to come to some kind of arrangement between them before petitioning the court.
Some examples of urgent matters the courts will hear include:
- When the safety of a child or parent is at risk due to violence or harm
- When a child is at risk of being wrongfully removed from his/her home
- When the child's well-being is at risk due to medical reasons or issues related to parenting time or communication with a child.
How you act today could have repercussions later
Family law litigants who have been trying to use the COVID-19 crisis to gain advantage or skirt their responsibilities should think twice. People who demonstrate poor behaviour during an international crisis will be held accountable once the courts reopen. Judges have repeatedly been saying that this is a time for cooperation and reasonableness towards your ex-spouse, not a time to create more conflict.
One silver lining to this pandemic is that it has forced the entire legal system to become more efficient through electronic motion filing for virtual hearings. Going forward, if lawyers can file motions from their desks rather than sitting in a courtroom all day, clients will be able to resolve their legal matters more cost-effectively.
Co-parenting is challenging at the best of times. Maintaining a healthy dynamic with your ex during a global pandemic can be a minefield. If you can find positive ways to resolve conflicts now, and approach it through the lens of what's best for your children, you'll have a more productive relationship in the long run.