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As noted in an earlier post, the regular operations of the Ontario Superior Court of Justice have been suspended under the Notice to the Profession of the Chief Justice of Ontario (the Notice) since March 15, 2020. A determination of “urgency” must therefore be made pursuant to the Notice. In a recent case, the Superior Court of Justice grappled with whether or not a father’s request qualified as “urgent.”

The Background

The parties had two children. The mother brought the children to Ontario in October 2019. The father, who was in Nigeria, indicated that he did not consent to the mother bringing the children to Ontario, and sought to have the children returned to him.

The Court’s Decision

In finding that this matter was not urgent, the court explained that the children were residing with their mother in Ontario, where their safety and well-being were protected. As a result of the global pandemic, wide-spread travel restrictions were in effect, including the international Travel Advisory of the Government of Canada. The advisory on that date stated, “Official Global Travel Advisory: Avoid non-essential travel outside of Canada until further notice.” The Advisory continued:

To limit the spread of COVID-19 many countries have put in place travel or border restrictions and other measures such as movement restrictions and quarantines. Many airlines are suspending flights. Many airports are closing, preventing flights from leaving. Exit bans are becoming more frequent. New restrictions may be imposed with little warning. Your travel plans may be severely disrupted…

Given the travel restrictions in place, the court concluded that this was not the time to hear a motion on the return of children to another jurisdiction. The court pointed out that even if the father was successful, any order would likely not be capable of being implemented for some time.

The court explained that although the father was worried about creating an unfavourable status quo, this would not be a status quo arising from a lack of diligence on his part, and would be considered on the eventual hearing of the motion.

Comments About the Summary Process Under the Notice

The court concluded by outlining a few points about the summary process under the Notice as it applied to this case. Specifically, the court noted that:

  • the determination of urgency is intended to be simple and expeditious;
  • this determination of urgency is without prejudice to either party on the substance of the motion when heard; and
  • the process for hearing urgent motions contemplates limited materials before the court, recognizing that judges do not presently have access to the physical files and that there is as yet no electronic storage of family court files.

Lessons Learned

The situation with COVID-19 is novel and unprecedented, and the courts are having to determine whether a matter qualifies as “urgent” on a case-by-case basis.

If you have questions about your rights, it is best to speak with a lawyer. We understand that this is an uncertain and stressful time. We are here to help you in your time of need. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule a confidential, initial consultation.

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