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We have spent a lot of time during the COVID-19 pandemic covering cases where the courts are asked to determine whether or not a matter is urgent. While some matters might be deemed insufficiently urgent, leaving the parties to have to wait until courts resume normal activities before pursuing their matters, some types of issues are clearly urgent enough to warrant a hearing. One type of issue that falls into this category are those involving the safety of the people involved. A recent decision from the Ontario Superior Court of Justice highlights this.

An urgent application

The mother involved in the case brought an urgent motion without notice to the respondent father. She sought a variation of a temporary order made on September 3, 2019. The temporary order allowed in-person access by the father to the parties’ two children, both of whom reside with the mother. The mother’s affidavit stated that the father had been charged on May 19, 2020 with breaching a restraining order and for criminal harassment. The mother claimed that the father is irrational, erratic, and behaves contrary to court orders. She said she is concerned about the safety of her and their children.

In addition, the York Region Children’s Aid Society (“the Society”) noted serious concerns about the father and had decided to remain engaged with the family. The Society stated the father had failed to cooperate with it.

The court noted that the parties had already appeared in court and that the father had failed to comply with a costs award in the mother’s favour.

Determining if the matter is urgent

The court listed points from a Notice to the Profession issued on May 19, 2020 that expanded the types of matters to be permitted to be hear. They are as follows:

  • The concern must be immediate; that is one that cannot await resolution at a later date;
  • The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
  • The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
  • It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

The court found that based on the mother’s affidavit she had met the requirements set out in the urgency test. The court did not address the merits of the allegations, but noted that the evidence warranted a decision to not permit the father to have any contact with the children except for a nightly phone call initiated by the mother.

If you have experienced a change in circumstances, or have found that an existing child custody or support agreement is no longer working in your best interests, the team at Gelman & Associates can review your situation and determine what types of changes should be sought. Our offices can be reached Monday to Friday from 8 AM to 8 PM. To schedule a brief consultation, call us at (844) 769-0737 or 1-844-769-0737, or contact us online.

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