Is it urgent? Courts and Covid-19

Several individuals are finding difficulty navigating parenting schedules as a result of relief efforts and recommendations put in place by the government,to curb the spread of the virus.  This includes but is not limited to: closures of schools and daycares, health and safety advisories requiring individuals to remain isolated in their homes, avoiding interactions with outside individuals (particularly those returning from travel), and various day to day sanitation measures.   These issues are further complicated by the fact that if parties are unable to come to amicable solutions amongst themselves, or with the assistance of counsel, the Court is not readily available as their operations have been limited to dealing with urgent matters only. 

How do you know if your matter is urgent?

Given the unprecedented nature of the COVID-19 efforts, there is a level of uncertainty with respect to what types of issues meet this threshold.  It is always important to consult a Family Lawyer in these circumstances to better understand what is av.   With respect to dealing with parenting disputes, recent commentary from Justice Pazaratz from the Hamilton Superior Court sheds significant light on this issue.

A motion was filed where a Mother sought an Order to suspend all parenting time between the child and his Father due to the Mother’s concerns that the Father was not practicing social distancing .  The motion did not proceed, as it was deemed non-urgent, however, His Honour made the following commentary for future litigants seeking to bring motions of a similar nature:

The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful period for everyone.

On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.  On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show  flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing. 

His Honour went on to give direction with respect to the types of evidence they expect to receive on motions of this nature, ultimately called on parents to act in a cooperative, responsible and mature manner, advising that in the current state cooperation should be favored over litigation.  

A the full text of this decision can be found here.

Three Tips to Make the Process Easier

1.            Health and safety should be paramount, but should not be used as a weapon to limit time between a parent and child unless legitimate and proven concerns exist.

2.            Remember that these are exceptional circumstances, and changes in current arrangements (financial, parenting schedules etc.) will be temporary. 

3.            Maintaining a flexible and solution oriented approach to any issues arising from these changes will keep conflict down and reduce unnecessary legal fees. 

Remember – the law does not account for these circumstances and taking a hardline approach to navigating these issues will do you no favours.  Be flexible, be reasonable, and remember this too shall pass !

If you do need any assistance in dealing with these issues, please do not hesitate to arrange a free 30 minute consultation.  Rest assured – our firm remains fully functioning and the safety of our staff and clients remains paramount.