As quarantining and social distancing continue in the face of the Coronavirus pandemic (COVID-19), many parents continue to require the assistance of the courts to deal with urgent parenting issues. While both the Superior Court of Justice and Ontario Court of Justice have recently expanded available court services to include hearing of non-urgent matters effective May 19, 2020, the extent of this expansion differs across the court locations across Ontario with many court locations still effectively triaging requests for urgent hearings. This means that courts will first consider whether your matter is sufficiently “urgent” to warrant being dealt with by way of an urgent hearing.

As more cases are heard, the scope of which cases are considered “urgent” has continued to expand to cover new scenarios. From a parenting perspective, while the case of Douglas v Douglas, 2020 ONSC 2160 (which was heard on March 25, 2020, not long after the Superior Court of Justice and Ontario Court of Justice regular operations were initially suspended as a result of COVID-19) seemed to indicate that matters where one parent has reduced the other’s parenting time as a result of COVID-19 would not be considered urgent unless there was an existing court order, the more recent case of Chahine v Martin, 2020 ONSC 1825 may be changing that.

Douglas v Douglas: Without a previous court order, a unilateral elimination of parenting on the basis of COVID-19 concerns isn’t urgent?

In the case of Douglas, which was heard on March 25, 2020,the Applicant Father had brought a motion to resume the status quo parenting arrangement for the parties’ son, since on March 18, 2020 the mother advised the father that she would no longer be allowing the father to have parenting time as a result of her concerns about COVID-19 (namely that the father was potentially exposed to the virus through his employment at Lowes; that the child had recently been sick and that she believed transporting the child between their homes was “unnecessary travel”). While the father had initiated a court proceeding prior to COVID-19, there were not yet any court orders pertaining to parenting time at the time of the father’s motion. However, the father had been having regular parenting time for just over a year, since February 2019 (the parties had separated in December of 2018) every other weekend and every Thursday.

Despite the mother’s unilateral termination of the father’s parenting time, which had been in place for over a year, the Honourable Justice MacPherson found that while the matter was understandably very important to the father, it was not, in his view, urgent nor was it an emergency as there was no indication that the child’s safety was at risk. As a result, the father was unable to proceed with his motion to reinstate the status quo parenting schedule.

As the number of COVID-19-related parenting matters heard has increased, the courts have made it clear that that the existence of the COVID-19 crisis will not automatically result in a suspension of in-person parenting time, and that in fact, “[i]n most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing (see the case of Ribeiro v Wright, 2020 ONSC 1829).

A number of subsequent cases have since distinguished the case of Douglas based on the fact that there was no prior court order setting out the father’s parenting time in Douglas (see Kostyrko v Kostyrko, 2020 ONSC 2190 and Skuce v Skuce, 2020 ONSC 1881). While that means the courts have become more willing to discourage “self-help” remedies by parents, it seems that the court’s willingness to reinstate regular parenting schedule (absent genuine COVID-19 related concerns) may therefore only apply to matters where there is an existing court order on parenting. Therefore, this could potentially leave separated parents without existing parenting orders in place with little remedy in the event one parent decided to unreasonably use COVID-19 as an excuse to limit parenting time.

Chahine v Martins: Not so fast…

Despite, the decision in Douglas, the more recent case of Chahine v Martins, which was heard on April 14 and decided on April 15, 2020, seems to indicate that a lack of previous court order in regards to parenting will not prohibit parties from dealing with a unilateral elimination of parenting time as a result of COVID-19 on an urgent basis in court.

In this case, the parties had separated on March 13, 2020 after the Applicant father left the home. Since then the Respondent Mother had refused the father’s request for in-person parenting time with the parties’ only daughter, on the basis that in light of the current pandemic, it was not an appropriate time for the child to be travelling back and forth between households. The father confirmed in his evidence that he was adhering to all COVID-19 safety protocols. The mother did not dispute this evidence and in fact admitted that she had been bringing the child to her own parents’, the material grandparents’, home. The father also gave evidence that he had always been highly involved in the child’s life and the mother, again, did not dispute his evidence.

The Honourable Justice Faieta ultimately found that the mother’s reasons for refusing to allow the father to have in-person contact with the child had nothing to do with the child’s best interests: Justice Faieta found that the mother’s concerns regarding COVID-19 were “hollow” given that she had offered no evidence to counter the father’s evidence that he was complying with all COVID-19 safety protocols and given that she had admitted to visiting her own parents regularly. As a result, Justice Faieta found that the child’s best interests were served by having two parents fully participating in her life and development, and therefore ordered a shared and equal parenting plan as per the father’s request.

It should be noted that in this case, the triage judge did note when assessing urgency that the police had already been previously involved with the family and there was a risk of the case escalating to being a high conflict case. Once the matter came before Justice Faieta for the urgent hearing, the mother attempted to argue that the father’s motion should not have been scheduled for a hearing by the triage judge as the matter was not urgent. However, the Honourable Justice Faieta cited recent civil law proceeding and found that the court’s and the parties’ limited resources should be used to address the merits of the substantive relief sought on the scheduled hearing rather than to re-consider the administrative decision to schedule the hearing. So while the triage judges concerns’ about further escalation and conflict may have been a factor in finding the matter to be urgent (the police involvement later turned out to be an unnecessary call by the mother), it is at least clear that the courts do not wish to waste time or resources revisiting whether a matter is “urgent” once it has already been determined by a triage judge to be so and has been scheduled for a hearing.

While it remains to be seen how subsequent cases treat the case of Chahine v Martins and it’s apparent expansion of “urgent” parenting issues to include matters where there is no previous court order regarding parenting, what is clear is that courts are ensuring that COVID-19 isn’t being used as a reason for limiting parenting time unless there is a genuine concern for a child’s health and safety. And as the courts continue to expand their services, it will only be easier to secure a non-urgent appearance before a judge, whether by way of conference or motion, so that parenting issues can be addressed as expeditiously as possible.

The family lawyers at Mills & Mills LLP can assist in navigating urgent parenting issues, as well has assisting with addressing all parenting issues stemming from separation. Contact us online or at 416-682-1025.

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