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A couple of weeks ago we wrote about how the courts in Ontario are responding to the COVID-19 crisis. We had noted that family issues were only being heard if matters were urgent. It’s been two weeks since that announcement and we are starting to see how the courts are responding to urgent requests. In this week’s blog, we will be looking at a motion where the courts determined the matter not to be urgent enough to warrant a hearing.

A motion concerning custody

The motion arrived before a superior court judge to act as a triage judge in order to determine how the file was to be processed. The motion and an affidavit attached were both dated March 22, a few days after the courts announced they were largely closed.

The issue was around custody of the parties’ nine-year-old son. Since a final order was issued in 2012, the child’s primary residence has been with the mother. The father had access to the child, but in 2019 brought a motion to expand parenting time. That matter had not yet been resolved at the time this matter was heard. At the time of the hearing, the father had access on alternate weekends.

The motion, brought by the mother, sought to suspend all in-person access because of COVID-19. She expressed concern that the father would not maintain social distancing when he had access. She said she and her family were not leaving their house for the duration of the crisis and does not want the child leaving, either.

Is this an urgent matter?

The judge immediately explained that there would be no authorization granted for the matter to proceed as an urgent hearing. The court noted that the well-being of children and families remained the court’s foremost consideration during the stressful period brought on by COVID-19.

The court noted that there were competing interests at play. On one hand, there is a parenting order that should be respected and complied with. But on the other hand, there are directives from all levels of government and public health officials that have stopped most daily routines and contact between people not living in the same home. The court was sympathetic to the confusion this might cause, noting that the courts were also dealing with something like this for the first time.

The court attempted to balance these competing interests, writing,

“None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives ‘on hold’ until COVID-19 is resolved.  But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset.  A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

The court stated it will continue to review COVID-19 cases on a case-by-case basis, but noted parents should not expect things such as shared custody to be stopped altogether at this time.

At Gelman Law, we understand that everyone is experiencing a difficult time. We are remaining open to help our clients, but are taking precautions to keep safety paramount. While we may not be able to meet in our office, we are fully prepared to continue to offer all of our legal services paperless and conduct important meetings using digital technology. Call us at (844) 769-0737 or 1-844-769-0737 or contact us online if you have a family law matter you need help with.

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