The Coronavirus pandemic has created an unprecedented global public health emergency. Almost every facet of daily life has changed, and uncertainty about the future continues to grow with each day that passes. For those involved in a separation or divorce, uncertainty and worry are familiar feelings. The financial pressure, the strain on interpersonal relationships, and parenting difficulties often experienced by those involved in family law litigation are all compounded by this new “post-coronavirus” world we seem to be living in. The COVID-19 situation has resulted in extraordinary circumstances and everything about life as we know it seems to have changed overnight, including but not limited to the public’s ability to access court in order to pursue legal remedies. The courts have been grappling with finding a balance between ensuring access to justice during a pandemic continues to operate while implementing the appropriate safety measures and precautions that the current public health situation demands. Developments in court operations, practices and procedures are being issued frequently and the family law bench is doing its best to navigate matters for litigants effectively during these trying times.

Dealing with Cases of Divorce, Property Division, Support and Children

The Superior Court of Justice (“SCJ”) deals with matters of divorce, property division, support and children. On March 13, 2020, an Advisory Notice to Lawyers, Litigants, Witnesses, Jurors, Media and Members of the Public Regarding COVID-19 was issued by the Superior Court of Justice (“SCJ”) to notify the general public, counsel and others involved in the judicial system that those who are required to be in court and have had possible exposure to COVID-19 should not attend court in person and/or could try to make arrangements to address matters by phone or video conference. 

At that point in time, the Superior Court of Justice was open to the public and media but advised that those experiencing COVID-19 symptoms, those advised to self-isolate, those who had travelled in the previous 14 days from an area under a Travel Health Advisory, or those in any other category set out on the Ministry of Health website should not attend court (including those with symptoms such as fever, cough, difficulty breathing and others listed by the Ontario Government.)

A remarkable 2 days later, on March 15, 2020, another Notice to the Profession, the Public and Media Regarding Civil and Family Proceedings was issued suspending all regular operations effective March 17 2020, until further notice. The SCJ would continue to hear only urgent matters during this emergency period and indicated that regular filing of documents (e.g., a court application to start a new proceeding, etc) at court could continue.  Further, that parties were still required to comply with court orders and Family Law Rules (i.e., the rules outlining procedure specific to family law litigation) requiring the delivery of documents as between parties.

Limited family law proceedings can be filed online through the Ministry of the Attorney General’s website (i.e., a “joint divorce” – where you and your spouse agree and apply for a divorce and have resolved other family law matters or a “simple divorce” – where you apply for a divorce on your own because you and your spouse cannot agree to a divorce and you are not making any other family law claims.)

“Urgent family law events” as determined by a “triage judge” (or a judge who will act as gatekeeper deciding what’s urgent enough to actually proceed to a motion), or events required to be heard by statute (i.e., law passed by the government) would be heard during this emergency period, including:

  1. Requests for urgent relief relating to the safety of a child or parent (e.g., restraining order, restrictions between a party and child, exclusive possession of a home, etc.)
  2. Urgent issues that must be decided about the well-being of a child including “essential medical decisions” or issues relating to the wrongful removal or retention of a child.
  3. Dire issues regarding the parties’ financial circumstances (e.g., a non-depletion order for a spouse that is disposing of assets improperly);
  4. In a child protection case (i.e., a case involving a Children’s Aid Society), all urgent or statutorily mandated events (e.g., an initial hearing after a child has been brought to a place of safety, etc.)

Effective April 6, 2020, matters being dealt with by the SCJ (which will vary among the 8 regional boundaries across the province) were expanded to deal with non-emergency issues

In Toronto and the Central West Region, the Superior Court of Justice is also going to deal with:

  1. Emergency motions;
  2. Consent motions (i.e., where all parties agree to the relief being requested from the court);
  3. Motions in writing (where all parties agree that the motion can proceed based on written materials only); and
  4. Case conferences (this is usually the first court appearance that parties in family litigation attend; at present, case conferences are limited to 30 minute hearings on 1 or 2 urgent issues as identified by the parties in a short document for the judge to read). 

To date, all materials are being submitted to courthouses via email and if they meet the appropriate requirements are being dealt with over telephone or videoconferencing. Parties can serve court documents to each other without additional permission from the court or other party at this time. (See the Regional Notice for Central West Region for areas such as Brampton, Guelph, Milton, Orangeville, Owen Sound and Walkerton and the Regional Notice for Toronto Region.)

Dealing with Support and Children

The Ontario Court of Justice (“OCJ”) deals with support and children, but not divorce or property division. All non-urgent matters, including trials, have been adjourned for the period between March 28, 2020, and May 29, 2020, and parties should be requesting an adjournment by emailing or faxing the trial coordinator at the OCJ. 

Please contact your closest Court in Ontario for more information on how to proceed with your case. However, these requests may not be dealt with by the court until they resume normal operations again.

As per the COVID-19 Notices and Updates (updated March 28, 2020) the Ontario Court of Justice will only deal with emergency matters at this time. Court documents can be filed by email.

Urgent family law hearings will be held by telephone unless a judge orders otherwise and will be prioritized on the following basis:

  1. Child protection matters involving the Children’s Aid Society (CAS): place of safety hearings, temporary care and custody hearings, restraining orders, status review hearings, and secure treatment orders.
  2. Domestic matters: urgent custody/access motions, motions for restraining orders, Hague applications and non-Hague abduction cases; and
  3. Refraining motions (i.e., asking the Family Responsibility Office not to take certain support enforcement steps against a payor).

What is the Bottom Line For Separated Spouses and Family Law Litigants?

At this time both family law lawyers and their clients are strongly encouraged to use their best efforts to try to resolve matters outside of litigation. This, however, does not necessarily mean that those in a truly urgent situation as described above are without recourse: and a series of decisions have already been rendered on various issues including financial issues and custody and access issues of an urgent nature. With the help of modern technology, meetings between parties and counsel and/or various forms of alternative dispute resolution such as professional mediation or arbitration through video conferencing and phone calls are possible in balancing time-sensitive family law matters with public health and safety concerns. While it remains unclear how long it will be until the courts return to “business as usual” the family law bench and the family law bar as a whole have made significant efforts to streamline processes and employ modern technology to ensure access to justice for families in Ontario during this pandemic. The COVID-19 pandemic situation is one that is fluid and rapidly evolving each day, and it seems that the courts and the legal profession are doing their best to adapt as necessary for the benefit of the public.

The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, on how to find justice during a pandemic, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers at Kain Family Law.