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Parents and family law lawyers are asking how they should respond to the impact of COVID-19 on the Ontario court system. We have summarized the current Ontario family case law on COVID-19 to help clarify how courts expect parties to act, and how courts will react, during these unprecedented times. The summaries are in chronological order, from newest to oldest. We will update this list as the Court provides more guidance.

All References to the “March 15 Notice” refer to the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings dated March 15, 2020.

All References to the “April 2 Notice” refer to the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update.

Note: This summary is not legal advice and is provided for informational purposes only.

Family Case Law Summary

Last Updated: June 26, 2020

Table of Contents

Grover v. Batra, 2020 ONSC 3893, Bloom J. (June 23, 2020) ..................................................... 12

Hearty v. Hearty, 2020 ONSC 3875, Smith J. (June 23, 2020) ..................................................... 12

McKeogh v. McKeogh, 2020 ONSC 3872, Bloom J. (June 22, 2020)........................................ 12

Osborne v. Osborne, 2020 ONSC 3826, Nishikawa J. (June 19, 2020) ..................................... 12

O.M. v. S.K., 2020 ONSC 3816, Ryan Bell J. (June 19, 2020) ...................................................... 13

Rossi v. Rossi, 2020 ONSC 3822, Jarvis J. (June 18, 2020) ........................................................ 13

Warsame v. Abdulla, 2020 ONSC 3821, Faieta J. (June 18, 2020) ............................................. 13

Jerome v. Jerome, 2020 ONSC 3813, Jarvis J. (June 18, 2020) ................................................. 14

Thibert v. Thibert, 2020 ONSC 3807, Pomerance J. (June 18, 2020) ........................................ 15

K.A.B. v. P.M.S.B., 2020 ONSC 3803, Carey J. (June 18, 2020) .................................................. 15

Burke v. Bouzane, 2020 ONSC 3739, Summers J. (June 18, 2020) ........................................... 17

Stewart & Bernard v. Fuhgeh et al., 2020 ONSC 3789, Shelston J. (Jun 17, 2020) ............... 17

Burrell v. Burrell, 2020 ONSC 3762, Bondy J. (June 16, 2020) ................................................... 17

Dill v. Harris Dill, 2020 ONSC 3757, Ramsay J. (June 16, 2020) ................................................. 17

CAS v. C.F. and J.M., 2020 ONSC 3755, McGee J. (June 16, 2020) ........................................... 17

Herman v. Kideckel, 2020 ONSC 3782, Nishikawa J. (June 16, 2020) ...................................... 18

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Numair v. Numair, 2020 ONSC 3737, Jarvis J. (June 15, 2020) .................................................. 18

CAS v. J.U. and B.P.-M., 2020 ONSC 3753, Breithaupt Smith J. (June 15, 2020) .................. 19

Khan v. Khopekar, 2020 ONSC 3727, Bloom J. (June 15, 2020) ............................................... 19

Medu v. Medu, 2020 ONSC 3696, McSweeney J. (June 12, 2020) ............................................. 19

CAS v. S.K. et al, 2020 ONSC 3689, Smith J. (June 12, 2020) ..................................................... 20

Mott v. Green, 2020 ONSC 3761, Bondy J. (June 12, 2020)......................................................... 20

Natale v. Crupi, 2020 ONSC 3663, Jarvis J. (June 11, 2020) ....................................................... 21

Edwards v. Robinson, 2020 ONSC 3658, Jarvis J. (June 11, 2020) .......................................... 21

Callwood v. Callwood v. Purdy, 2020 ONSC 3657, Desormeau J. (June 11, 2020) ............... 21

Cole v. Barrett, 2020 ONSC 3656, McDermot J. (June 11, 2020) ............................................... 22

Director, Family Responsibility Office For The Benefit Of: Sabaa Yasmine Shaikh v. Ali, 2020 ONSC 3649, MacPherson J. (June 11, 2020) ......................................................................... 23

Lim v. Chung, 2020 ONSC 3638, Kiteley J. (June 10, 2020) ........................................................ 23

CAS v. A.H. and J.P., 2020 ONSC 3449, Summers J. (June 10, 2020) ...................................... 24

Bayar-Mestiri v Mestiri, 2020 ONSC 3620, Faieta J. (June 9, 2020) ........................................... 24

Madi v. King, 2020 ONSC 3611, Ryan Bell J. (June 9, 2020) ....................................................... 24

V.R. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 3508, Horkins J. (June 9, 2020) .......................................................................................................................................................... 25

Dhaliwal v. Dhaliwal, 2020 ONSC 3590, Pazaratz J. (June 8, 2020) ........................................... 25

Stefanska v. Chyzynski, 2020 ONSC 3570, Horkins J. (June 8, 2020) ...................................... 26

Smyrnios v. Aliferis, 2020 ONSC 3563, Lemay J. (June 8, 2020) ............................................... 26

Kostyrko v. Kostyrko, 2020 ONSC 3537, Lemay J. (June 8, 2020) ............................................ 27

Russell v. Ramcharan, 2020 ONSC 3546, Petersen J. (June 5, 2020) ...................................... 27

Mohamed v. Vaz, 2020 ONSC 3529, Bondy J. (June 5, 2020) ..................................................... 27

Hughes-Kani v. Zoldi, 2020 ONSC 3528, Bondy J. (June 5, 2020) ............................................. 28

A.T. v. M.H., 2020 ONCJ 277, Sherr J. (June 5, 2020) ................................................................... 28

Zeitoun v. Abdallah, 2020 ONSC 3500, Mackinnon J. (June 4, 2020) ....................................... 28

M.P.M. v. A.L.M., 2020 ONSC 3491, Grace J. (June 4, 2020) ....................................................... 28

Kruis v. Marry, 2020 ONCJ 273, Baker J. (June 4, 2020) .............................................................. 28

Miller v. Miller, 2020 ONSC 3485, Ramsay J. (June 4, 2020) ....................................................... 29

Berthelot v. Hayward, 2020 ONSC 3591, Van Melle J. (June 3, 2020) ....................................... 30

Deveaux v. Najnudel, 2020 ONSC 3480, Braid J. (June 3, 2020) ................................................ 30



Sears v. Coristine, 2020 ONSC 3450, Corthorn J. (June 3, 2020) .............................................. 31

Carnahan v. Sammy, 2020 ONSC 3447, Bondy J. (June 3, 2020) .............................................. 31

Burke v. Poitras, 2020 ONSC 3162, Lacelle J. (June 3, 2020) ..................................................... 31

Goulet v. DiGioia, 2020 ONSC 3461, Bondy J. (June 3, 2020) .................................................... 31

Al-Hadad v. Al Harash, 2020 ONCJ 269, Paulseth J. (June 3, 2020) ......................................... 32

Catholic Children’s Aid Society of Toronto v. K.S., 2020 ONCJ 268, Sherr J. (June 3, 2020) .................................................................................................................................................................... 32

Khanum v. Qureshi, 2020 ONSC 3451, Bondy J. (June 2, 2020) ................................................ 32

Derkach v. Soldatova, 2020 ONSC 3438, Ramsay J. (June 2, 2020) ......................................... 33

Peters v. Peters, 2020 ONSC 3431, Bondy J. (June 2, 2020) ...................................................... 33

Campagna v. Campagna, 2020 ONSC 3429, Bondy J. (June 2, 2020) ...................................... 33

Chambers v. Klapacz, 2020 ONSC 3419, Bloom J. (June 2, 2020) ............................................ 34

Hewitt v. Doyle, 2020 ONSC 3416, Doyle J. (June 2, 2020) ......................................................... 34

Baron v. Baron, 2020 ONSC 3624, Master Kauffman (June 1, 2020) ........................................ 34

Morley v. Doucette, 2020 ONSC 3402, Mitrow J. (June 1, 2020) ............................................ 35

A.M. v. A.K., 2020 ONSC 3422, Shore J. (June 1, 2020) ............................................................... 35

Milnes v. Peltonen, 2020 ONSC 3400, Shore J. (June 1, 2020) ................................................... 35

Rothschild v. Rothschild, 2020 ONSC 3390, Kiteley J. (June 1,2020) ...................................... 35

N. S. v R. M., 2020 ONSC 3359, Doyle J. (June 1, 2020) ............................................................... 36

Alleyne v. Ennis, 2020 ONSC 3406, Price J. (June 1, 2020) ........................................................ 36

Gerges v. Ayad, 2020 ONSC 3375, Lemay J. (June 1, 2020) ....................................................... 36

Campagna v. Campagna, 2020 ONSC 3379, Bondy J. (May 29, 2020) ..................................... 39

Cromwell v. Lucier, 2020 ONCJ 264, Sirivar J. (May 29, 2020) ................................................... 40

Surdyka v. Surdyka, 2020 ONSC 3366, Jarvis J. (May 29, 2020) ............................................... 41

Walton v. Walton, 2020 ONSC 3364, Bondy J. (May 29, 2020) ................................................... 41

Desimone v. Desimone, 2020 ONSC 3361, Jarvis J. (May 29, 2020) ......................................... 41

El Mor v. Dief, 2020 ONSC 3354, Diamond J. (May 29, 2020) ...................................................... 42

Williams v. Williams, 2020 ONSC 3341, Gareau J. (May 29, 2020) ............................................ 42

N. S. v R. M., 2020 ONSC 3359, Doyle J. (May 28, 2020) .............................................................. 42

Clemente v. O’Brien, 2020 ONSC 3287, McGee J. (May 28, 2020) ............................................. 42

Burke v. Bouzanne, 2020 ONSC 3336, Doyle J. (May 28, 2020) ................................................. 43



Daniel v. Henlon, 2020 ONCJ 259, O’Connell J. (May 27, 2020) ................................................. 43

Panaia v. Alves, 2020 ONCJ 255, O’Connell J. (May 27, 2020) ................................................... 43

Mauro v. Mauro, 2020 ONSC 3318, Bloom J. (May 27, 2020) ...................................................... 44

Triestino v. Triestino, 2020 ONSC 3311, Jarvis J. (May 27, 2020) ............................................. 44

Spadacini-Kelava v Kelava, 2020 ONSC 3277, Kurz J. (May 26, 2020) ..................................... 44

Burrell v. Burrell, 2020 ONSC 3269, Bondy J. (May 26, 2020) .................................................... 45

Leitch v. Novac, 2020 ONSC 3215, Faieta J. (May 26, 2020) ....................................................... 46

Hurst v. Hurst, 2020 ONSC 3258, Bondy J. (May 26, 2020) ......................................................... 47

Children’s Aid Society of the Region of Peel v. G.P., 2020 ONCJ 256, Sullivan J. (May 25, 2020) .......................................................................................................................................................... 47

Jauhari v. Jauhari, 2020 ONSC 3227, Horkins J. (May 25, 2020) ............................................... 47

Lokhandwala v. Khan et. al., 2020 ONSC 3209, Lemay J. (May 25, 2020) ............................... 48

St. Louis v. St. Louis, 2020 ONSC 3205, Mackinnon J. (May 25, 2020) .................................... 48

McKeogh v. McKeogh, 2020 ONSC 3184, Bloom J. (May 25, 2020) .......................................... 48

E.M.B. v. M.F.B, 2020 ONSC 3171, Lemay J. (May 25, 2020) ....................................................... 49

Bedi v. Shafi, 2020 ONSC 3236, Bloom J. (May 25, 2020) ............................................................ 50

Collins v. Collins, 2020 ONSC 3206 , Jarvis J. (May 22, 2020) ................................................... 51

Atkinson v. Wilton, 2020 ONSC 3212, Conlan J. (May 22, 2020) ................................................ 51

Capone v Fotak, 2020 ONSC 3146, Diamond J. (May 22, 2020) ................................................. 52

Wilson v. Khasminsky, 2020 ONSC 3179, Kaufman J. (May 21, 2020) ..................................... 53

Levesque v. Windsor, 2020 ONSC 3110, Mackinnon J. (May 21, 2020) ................................... 53

Medu v. Medu, 2020 ONSC 3159, McSweeney J. (May 20, 2020) ............................................... 53

Grover v. Batra, 2020 ONSC 3089, Bloom J. (May 20, 2020) ....................................................... 53

Brazeau v. Lejambe, 2020 ONSC 3117, Bale J. (May 19, 2020) .................................................. 54

Walia v. Walia, 2020 ONSC 3064, Kumaranayake J. (May 15, 2020) ......................................... 56

Stefanska v. Chyzynski, 2020 ONSC 3048, Horkins J. (May 15, 2020) ..................................... 56

Silva v. Silva, 2020 ONSC 3073, Harper J. (May 15, 2020) ........................................................... 56

Medu v. Medu, 2020 ONSC 3055, McSweeney J. (May 15, 2020) ............................................... 57

Ade-Ajayi v. Ngure, 2020 ONSC 3095, Wildman J. (May 15, 2020) ............................................ 57

Cicci v. Cicci, 2020 ONSC 3069, Jarvis J. (May 15, 2020) ............................................................ 57

Murphy v. Connolly, 2020 ONSC 3047, Jarvis J. (May 14, 2020) ............................................... 58



Snively v. Gaudette, 2020 ONSC 3042, Bondy J. (May 14, 2020) ............................................... 58

Gagnon v. Skaade, 2020 ONSC 3034, Jarvis J. (May 14, 2020) .................................................. 58

C.A.S. v. J.N., 2020 ONSC 2999, Piccoli J. (May 13, 2020) ........................................................... 59

Dehaan v. Billings-Turner, 2020 ONSC 3002, Ryan Bell J. (May 13, 2020) .............................. 59

Valentini v. Sweet, 2020 ONSC 3004, Pazaratz J. (May 13, 2020) .............................................. 59

Burshaw v. Penney, 2020 ONSC 2980, Pazaratz J. (May 12, 2020) ........................................... 60

Noriega v. Litke, 2020 ONSC 2970, Price J. (May 12, 2020)......................................................... 60

McMurray v. McMurray, 2020 ONSC 2949, Sproat J. (May 12, 2020) ........................................ 60

Thornhill v. Schmidt, 2020 ONSC 2959, Masden J. (May 11, 2020) ........................................... 61

DePotter v. Smith, 2020 ONSC 2967, Masden J. (May 11, 2020) ................................................ 61

Allman v. Allman, 2020 ONSC 2964, McSweeney J. (May 11, 2020) ......................................... 62

Williams v. Mayen, 2020 ONSC 2928, 2020 CarswellOnt 7028, Lafreniere J. (May 8, 2020) 62

Roberts v. Roberts, 2020 ONSC 2935, Hebner J. (May 8, 2020) ................................................. 62

Fernandez v. Goicochea, 2020 ONSC 2910, Pazaratz J. (May 8, 2020) .................................... 62

Alsawwah v. Afifi, 2020 ONSC 2883, Kurz J. (May 8, 2020) ......................................................... 63

Juergens v. Tackabury, 2020 ONSC 2852, Mitrow J. (May 8, 2020) .......................................... 63

Masse v. Phillip; 2020 ONSC 2906, 2020 CarswellOnt 6417, Mitrow J. (May 8 2020) ........... 64

Snively v. Gaudette, 2020 ONSC 2895, 2020 CarswellOnt 6838, Bondy J. (May 7, 2020) .... 64

Robinson v. Darrah; 2020 ONSC 2840; 2020 CarswellOnt 6616. Tobin J. (May 7, 2020) ..... 64

J.T.K. v. A.E.M., 2020 ONCJ 244, Baker J. (May 7, 2020) ............................................................. 65

CCAS of Hamilton v. O.O.; 2020 ONSC 2882; 2020 CarswellOnt 6499, Bale J. (May 7, 2020) .................................................................................................................................................................... 66

Sneyd v. Runco, 2020 ONSC 2877, Pazaratz J. (May 7, 2020) .................................................... 66

Johnson v. Johnson, 2020 ONSC 2896, Pazaratz J. (May 7, 2020) ........................................... 66

O'Connor v. Merlo, 2020 ONSC 2531, 2020 CarswellOnt 6274, Summers J. (May 6, 2020) 67

Bevan v. Varcoe, 2020 ONSC 2844, 2020 CarswellOnt 6193, Corbett J. (May 6, 2020) ........ 67

Winiarz v. Anderson, 2020 ONCJ 238, Sherr J. (May 6, 2020) .................................................... 67

Blythe v. Blythe, 2020 ONSC 2871, Chappel J. (May 6, 2020) ..................................................... 67

Gagnon v. Skaade, 2020 ONSC 2854, Jarvis J. (May 6, 2020) .................................................... 69

Maguire v. Stephenson, 2020 ONSC 2850, Pazaratz J. (May 6, 2020) ...................................... 69

Duffitt v. Graham, 2020 ONSC 2845, Pazaratz J. (May 6, 2020) .................................................. 69



Brazeau v. Lejambe, 2020 ONSC 2843, Pazaratz J. (May 6, 2020) ............................................. 70

Kane v. Kane, 2020 ONSC 2842, McDermot J. (May 6, 2020) ...................................................... 70

Perreault v. Marleau, 2020 ONSC 2828, Mackinnon J. (May 6, 2020)........................................ 71

Burkitt v. Patterson, 2020 ONSC 2822, Pazaratz J. (May 6, 2020) ............................................. 71

Jordan v. Steele, 2020 ONSC 2834, 2020 CarswellOnt 6203, Pazaratz J. (May 5, 2020) ...... 72

Edwards v. Robinson, 2020 ONSC 2826, Jarvis J. (May 5, 2020) .............................................. 72

Wilson v. Martincek, 2020 ONSC 2820, Jarvis J. (May 5, 2020) ................................................. 72

White v. Best, 2020 ONSC 2816, Pazaratz J. (May 5, 2020) ......................................................... 73

Cossu v. Simkins, 2020 ONSC 2801, McGee J. (May 5, 2020) .................................................... 73

L.M.B. v. F.J.D., 2020 ONCJ 239, Cheung J. (May 4, 2020) .......................................................... 73

Simons v. Comrie, 2020 ONCJ 232; 2020 CarswellOnt 6162, Robert J. Spence J. (May 04, 2020) .......................................................................................................................................................... 74

VanDyken v. VanDyken, 2020 ONSC 2803, Pazaratz J. (May 4, 2020) ...................................... 74

Wilson v. Wilson, 2020 ONSC 2786, Pazaratz, J. (May 4, 2020) ................................................ 74

Zeitoun v. Abdallah, 2020 ONSC 2770, Mackinnon, J. (May 4,2020) ......................................... 74

Winiarz v. Anderson, 2020 ONCJ 238, Sherr J. (May 1, 2020) .................................................... 75

Allman v. Allman, 2020 ONSC 2779, 2020 CarswellOnt 6126, McSweeney J. (May 1, 2020) .................................................................................................................................................................... 75

Thibodeau v. Moulder, 2020 ONSC 2745, 2020 CarswellOnt6124, Howard J. (May 1, 2020) .................................................................................................................................................................... 75

Chambers v. Klapacz, 2020 ONSC 2717, Bloom, J. (May 1, 2020) ............................................. 76

Nhau v. Obahiagbon, 2020 ONSC 2765, Timms, J. (May 1, 2020) ............................................. 76

Williams v. Mayen, 2020 ONSC 2772, Pazaratz, J. (May 1, 2020) ............................................... 76

A.P. v. L.K., 2020 ONSC 2520, 2020 CarswellOnt 7026, Akbarali J. (April 30, 2020) ............. 76

Lawson v. Wycott, 2020 ONSC 2730, 2020 CarswellOnt 5871, Trousdale J. (April 30, 2020) .................................................................................................................................................................... 77

Grossman v. Kline, 2020 ONSC 2714, 2020 CarswellOnt 6001, Akbarali, J (April 30, 2020) .................................................................................................................................................................... 77

Kawartha-Haliburton Children's Aid Society v. A.R. and D.F, 2020 CarswellOnt 6017, S. McLeod J. (April 30, 2020).................................................................................................................... 79

Natale v. Crupi, 2020 ONSC 2735, Jarvis, J (April 30, 2020) ....................................................... 79

Pollard v. Joshi, 2020 ONSC 2701, McGee, J. (April 30, 2020) ................................................... 79

Browning v. Browning, 2020 ONSC 2697, Tobin, J. (April 30, 2020) ........................................ 80



Fluet v. Arbarbanel, 2020 ONSC 2705, Master Kauffman (April 29, 2020) ............................... 80

Lakhtakia v. Mehra, 2020 ONSC 2670, Horkins, J. (April 29, 2020) ........................................... 81

Carter v. Carter, 2020 ONSC 2683, Jarvis, J. (April 29, 2020) ..................................................... 81

Malinowski v. Malinowska, 2020 ONSC 2644, McSweeney, J. (April 29, 2020) ...................... 81

Chen v. Jin, 2020 ONSC 2664, Jarvis, J. (April 28, 2020) ............................................................. 82

Venditti v. Adorno, 2020 ONCJ 216, Sullivan, J. (April 28, 2020) ............................................... 82

Ahmadi v. Kalashi, 2020 ONSC 2666, Jarvis, J. (April 28, 2020) ................................................ 82

Wallegham v. Spigelski, 2020 ONSC 2663, Pazaratz, J. (April 28, 2020) ................................. 82

Bartolini v. Hill, 2020 ONSC 2657, Ramsay, J. (April 28, 2020) .................................................. 83

Haaksma v. Taylor, 2020 ONSC 2656, Kurz, J. (April 28, 2020) .................................................. 83

Allman v. Allman, 2020 ONSC 2634, McSweeney, J. (April 28, 2020) ....................................... 84

West v. West, 2020 ONSC 2630, Diamond, J. (April 28, 2020) .................................................... 84

Sereacki v. Berdichevsky, 2020 ONSC 2623, 2020 CarswellOnt 5789, Faieta J. (April 27, 2020) .......................................................................................................................................................... 84

Scheulderman v. Kingston, 2020 ONSC 2615, 2020 CarswellOnt 5761, Trousdale J. (April 27, 2020) .................................................................................................................................................... 85

Jeyarajah v. Jeyamathan, 2020 ONSC 2636, Kumaranayake J. (April 27, 2020) ................... 85

Girard v. Laufman, 2020 ONSC 2619, Pazaratz, J. (April 27, 2020) ........................................... 86

Garrison v. Cordukes, 2020 ONSC 2635, MacEachern, J. (April 27, 2020) ............................ 86

C.L.B. v. A.J.N., 2020 ONCJ 213, Sherr, J. (April 27, 2020) ......................................................... 86

Lovric v. Olson, 2020 ONSC 2563, Braid J. (April 27, 2020) ........................................................ 88

Gillespie v. Jones, 2020 ONSC 2558, Diamond, J. (April 27, 2020) ........................................... 89

Brown v. Kirwan, 2020 ONSC 2588, Hebner J. (April 24, 2020) .................................................. 89

Medu v. Medu, 2020 ONSC 2582, McSweeney J. (April 24, 2020) .............................................. 90

Golevski v. Golevski, 2020 ONSC 2553, Hebner J. (April 24, 2020) .......................................... 90

Gosnell v. Miinch, 2020 ONSC 2546, Hebner, J. (April 24, 2020) ............................................... 90

McKee v. Hebert, 2020 ONSC 2545, Hebner J. (April 24, 2020) .................................................. 91

Berube v. Berube, 2020 ONSC 2591, Howard, J (April 24, 2020) ............................................... 91

Castor v. Hazell, 2020 ONSC 2590, Pazaratz, J. (April 24, 2020) ................................................ 91

Smith v. Bowen, 2020 ONCJ 212, O’Connell, J. (April 24, 2020) ................................................ 91

T.P. v. C.S., 2020 ONCJ 210, Paull, J. (April 24, 2020) .................................................................. 92

Yeates v. Yeates, 2020 ONSC 2548, Jarvis, J (April 23, 2020) .................................................... 92



Booth v. Bilek, 2020 ONSC 2523, Baltman, J (April 23, 2020) .................................................... 92

Smith v. Smith, 2020 ONCJ 219, Caspers, J. (April 23, 2020) ..................................................... 93

Paolatto v. Paolatto, 2020 ONSC 2544, Hebner, J. (April 23, 2020) ........................................... 93

Snively v. Gaudette, 2020 ONSC 2543, Hebner J. (April 23, 2020) ............................................ 94

Manning v. Ross, 2020 ONSC 2529, Lemon J. (April 23, 2020) .................................................. 94

Batchelor v. Batchelor, 2020 ONSC 2522, Pazaratz, J. (April 23, 2020) ................................... 94

Bedi v. Shafi, 2020 ONSC 2461, Bloom J. (April 23, 2020) .......................................................... 95

Zychla v. Zychla, 2020 ONSC 2484, Ryan Bell, J (April 22, 2020) .............................................. 95

Lam v. Chuang, 2020 ONSC 2479, Faieta J. (April 22, 2020) ....................................................... 96

Purdy v. Purdy, 2020 ONSC 22440, Sproat, J. (April 21, 2020)................................................... 96

Medu v. Medu, 2020 ONSC 2465, McSweeny J. (April 21, 2020) ................................................ 96

Banner v. Chicoski, 2020 ONSC 2457, Maddalena, J. (April 21, 2020) ..................................... 96

Grant v. Grant, 2020 ONSC 2455, Madsen, J. (April 21 2020) ..................................................... 96

Simpson v Freeman, 2020 CanLII 28954, Hebner, J. (April 20, 2020) ....................................... 97

Light-Morrow v. Chaves, 2020 ONSC 2434, Minnema, J. (April 20, 2020) ............................... 97

Warry-Poljanski v. Poljanski, 2020 ONSC 2431, McLaren J. (April 20, 2020) ......................... 98

Tomkins v. Che, 2020 ONSC 2424, Madsen, J. (April 20, 2020) ................................................. 98

Tessier v. Rick, 2020 ONSC 2391, MacEachren J, (April 20, 2020) ........................................... 98

Colasuonno v. Colasuonno, 2020 ONSC 2061, Charney J. (April 20, 2020) ........................... 99

Matus v. Gruszczynska, 2020 ONSC 2353, McGee J. (April 17, 2020) .................................... 100

Batchelor v. Batchelor, 2020 ONSC 1921, Pazaratz J. (April 17, 2020) .................................. 100

Poyton v. Blake, 2020 ONSC 1920, Pazaratz, J. (April 17, 2020) ............................................. 101

Roberts v Roberts, 2020 CanLII 28298 (April 17, 2020) .............................................................. 101

Lam v. Chuang, 2020 ONSC 1888 (April 17, 2020) ....................................................................... 102

Chatelain v. Eeuwes, 2020 ONCJ 191 (April 16, 2020) ................................................................ 102

Jefic v. Grujicic, 2020 ONSC 2340 (April 16, 2020) ...................................................................... 102

Stapley v. Stapley, 2020 ONSC 2337 (April 16, 2020) ................................................................. 102

Heywood v. Jallad, 2020 ONSC 2336 (April 16, 2020) ................................................................. 103

Oliver v. Oliver, 2020 ONSC 2321 (April 16, 2020) ....................................................................... 103

Hermanus v. Laurin, 2020 ONCJ 190 (April 16, 2020) ................................................................. 104

Jumale v. Mahamed, 2020 ONSC 2316 (April 16, 2020) .............................................................. 104



Trudeau v. Auger, 2020 ONCJ 197, Kwolek, J. (April 15, 2020) ............................................... 104

Native Child and Family Services v. S.D., 2020 ONCJ 186 (April 15, 2020) .......................... 105

Fowkes v Anderson, 2020 CanLII 28299 (April 15, 2020) ........................................................... 106

Sezin v. Sheikh, 2020 ONCJ 187 (April 15, 2020) ......................................................................... 106

Ross v. Kenyon, 2020 ONSC 2283 (April 15, 2020) ..................................................................... 106

Tudor Price v. Salhia, 2020 ONSC 2271 (April 15, 2019) ............................................................ 107

Burns v Burns, 2020 CanLII 27955 (April 15, 2020) ..................................................................... 107

Lyons v. Lawlor, 2020 ONCJ 184 (April 14, 2020) ........................................................................ 107

Burton v Burton, 2020 CanLII 27532 (April 14, 2020) .................................................................. 108

Potter v. Gibson, 2020 ONSC 2268 (April 14, 2020) ..................................................................... 108

Jennings v. Thompson, 2020 ONSC 2236 (April 14 2020) ......................................................... 108

Bartlett v. Loewen, 2020 ONSC 2230 (April 14, 2020) ................................................................. 108

Tigert v. Smith, 2020 ONSC 2220 (April 14, 2020) ........................................................................ 108

Ramirez-Scrimshawn v. Ingram, 2020 ONSC 2278 (April 14, 2020) ........................................ 109

Lovric v. Olson, 2020 ONSC 2269 (April 14, 2020) ...................................................................... 110

Russell v. Daoust, 2020 ONCJ 188 (April 9, 2020) ....................................................................... 110

Courchesne v Goodwin, 2020 ONSC 26893 (April 9, 2020) ....................................................... 111

Smith v. Smith, 2020 ONCJ 180 (April 9, 2020)............................................................................. 111

Courchesne v Goodwin, 2020 CanLII 26893 (April 9, 2020) ...................................................... 111

McNeil v. McGuinness, 2020 ONSC 1918, 2020 CarswellOnt 4833, Pazaratz, J (April 8, 2020) ........................................................................................................................................................ 111

Leach v. MacDonald, 2020 ONSC 2178 (April 8, 2020) ............................................................... 112

Thibert v Thibert, 2020 CanLII 26427 (April 8, 2020) ................................................................... 112

Land v. Tudor, 2020 ONSC 2163 (April 8, 2019) ........................................................................... 113

Officer v. Sawyer, 2020 ONSC 2156 (April 8, 2020) ..................................................................... 113

Matijcio v. Killick, 2020 ONSC 2058 (April 8, 2020) ..................................................................... 114

Stewart v Reid, 2020 ONSC 2262 (April 7, 2020) .......................................................................... 114

White v. Tracey, 2020 ONSC 2154 (April 7, 2020) ........................................................................ 115

Ghazanfari v. Pasalar, 2020 ONSC 2145 (April 7, 2020) ............................................................. 115

McArdle v. Budden, 2020 ONSC 2146 (April 7, 2020) ................................................................. 116

Livingstone v. Cooper, 2020 ONCJ 174 (April 6, 2020) .............................................................. 116



Rothschild v. Rothschild, 2020 ONSC 2117 (April 6, 2020) ....................................................... 117

Booth v. Bilek, 2020 ONSC 2116 (April 6, 2020) ........................................................................... 117

Harrington v. Dennison, 2020 ONSC 2114 (April 6, 2020) ......................................................... 118

Matour v. Hashemian, 2020 ONSC 2112 (April 6, 2020) ............................................................. 118

Ahmadi v. Kalashi, 2020 ONSC 2047 (April 3 2020) .................................................................... 118

Thomson v. Fleming, 2020 ONSC 2036 (April 3, 2020) ............................................................... 119

Hamad v. Al-Rewashdy, 2020 ONSC 2093 (April 3, 2020) .......................................................... 119

Lee v. Lee, 2020 ONSC 2044 (April 3, 2020) .................................................................................. 120

Mohamed v. Osman, 2020 ONCJ 172 (April 3, 2020)................................................................... 120

Children’s Aid Society of Toronto v. S.S., 2020 ONCJ 170 (April 2, 2020) ............................ 121

Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169 (April 2, 2020) ............................ 121

Chin v. Omeally, 2020 ONSC 2029 (April 2, 2020) ........................................................................ 122

Elsaesser v. Rammeloo, 2020 ONSC 2025 (April 2, 2020) ......................................................... 122

Bruni v. Daunheimer-Bruni, 2020 ONSC 2017 (April 2, 2020) ................................................... 123

Francis v. Francis, 2020 ONCJ 171 (April 1, 2020) ...................................................................... 123

Mills v Mills, 2020 ONSC 2008 (April 1, 2020) ............................................................................... 124

Theis v. Theis, 2020 ONSC 2001 (April 1, 2020) ........................................................................... 124

Phipps v. Petts, 2020 ONSC 1999 (March 31, 2020) .................................................................... 125

Guerin v. Guerin, 2020 ONSC 2092 (March 31, 2020) ................................................................. 125

Balbontin v. Luwawa, 2020 ONSC 1996 (March 31, 2020) ......................................................... 126

Scharafanowicz v. DeMerchant, 2020 ONSC 1916 (March 31, 2020) ...................................... 127

Placha v. Bennett, 2020 ONCJ 164 (March 31, 2020) .................................................................. 128

Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167 (March 30, 2020) .. 129

Children’s Aid Society of the Region of Halton v. T.B, 2020 ONCJ 166 (March 30, 2020) 129

Reitzel v. Reitzel, 2020 ONSC 1977 (March 30, 2020) ................................................................. 130

Derkach v. Soldatova, 2020 ONSC 1992 (March 30, 2020) ........................................................ 131

Eden v. Eden, 2020 ONSC 1991 (March 30, 2020) ........................................................................ 131

Baijnauth v. Baijnauth, 2020 ONSC 1974 (March 30, 2020) ....................................................... 132

Thomas v. Wohleber, 2020 ONSC 1965 (March 30, 2020) .......................................................... 132

Saperia v. Vlasiu, 2020 ONSC 1963 (March 30, 2020) ................................................................. 134

B-M. v M.M., 2020 ONSC 1958 (March 30, 2020) ........................................................................... 134



Scion v. White, 2020 ONSC 1915 (March 30, 2020) ..................................................................... 135

L-A.F. v. K.V.S., 2020 ONSC 1914 (March 30, 2020) .................................................................... 136

Tessier v Rick, 2020 ONSC 1886 (March 30, 2020) ...................................................................... 136

Dnaagdawenmag Binnoojiiyag Child and Family Services v. B.RP, 2020 ONSC 1988 (March 30, 2020) ................................................................................................................................... 137

Purdy v. Purdy, 2020 ONSC 1950 (March 27, 2020)..................................................................... 138

Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941 (March 27, 2020) ........................................................................................................................................................ 138

Baker v. Maloney, 2020 ONSC 1929 (March 27, 2020) ................................................................ 139

S.W-P. v. S.P., 2020 ONSC 1913 (March 27, 2020) ....................................................................... 139

Zee v. Quon (March 27, 2020), ONSC, E.L. Nakonechny [unreported] ................................... 139

Le v. Norris, 2020 ONSC 1932 (March 26, 2020) ........................................................................... 140

Douglas v Douglas (March 25, 2020), ONSC, MacPherson J [unreported] ........................... 140

Cooper v. Teneyck, 2020 CanLII 23789 (ON SC) (March 26, 2020) .......................................... 141

Skuce v .Skuce, 2020 ONSC 1881 (March 26, 2020) .................................................................... 141

Davis v. Eby, 2020 ONSC 1876 (March 26, 2020) ......................................................................... 143

Lyons v. Lyons, 2020 ONSC 1850 (March 26, 2020) .................................................................... 143

Ribeiro v Wright, 2020 ONSC 1829 (March 24, 2020) .................................................................. 143

Onuoha v. Onuoha, 2020 ONSC 1815 (March 24, 2020) ............................................................. 143

Burton v. Woods, 2020 ONCJ 158 (March 23, 2020) ................................................................... 144

Jackman v. Doyle, 2020 ONSC 1875 (March 20, 2020) ............................................................... 144

Hrvoic v. Hrvoic, 2020 ONSC 1711 (March 19, 2020) .................................................................. 145

Smith v. Sieger 2020 ONSC 1681 (March 18, 2020) ..................................................................... 145

S.A. v. Y.M. 2020 ONCJ 147 (March 16, 2020) .............................................................................. 145



Grover v. Batra, 2020 ONSC 3893, Bloom J. (June 23, 2020) The Applicant brought an urgent motion requesting, among other things, that the matrimonial home be listed for sale; and that the parties defer the mortgage.

The Court awarded the Applicant partial indemnity costs of $5,000.00 payable within 60 days. The Court took into account her “substantial success …on the motion, the bitter and acrimonious nature of the interactions between the parties leading up to the motion and its argument, and the limited means of the parties during the pandemic.”

Hearty v. Hearty, 2020 ONSC 3875, Smith J. (June 23, 2020) The Applicant father brought a motion to restrict the mother from changing the children’s school or moving outside of the school district.

Even though this matter was heard in the pandemic period, the Court did not discuss urgency. COVID-19 was not a key issue but the pandemic did allow one of the children to spend more time with the father and the Court found that this increased parenting time should continue because the child enjoyed it.

McKeogh v. McKeogh, 2020 ONSC 3872, Bloom J. (June 22, 2020) This costs decision arose out of the Applicant father’s May 25, 2020 motion on parenting time. The Respondent mother restricted access and kept the child with the maternal grandmother to protect the child from COVID-19. The Court ordered that the parties return to the week about schedule set out in the existing agreement. The Court also found that it was in the child’s best interests that both parents comply with COVID-19 directives.

The Court ordered that the mother pay the father $3,500.00 (slightly less than partial indemnity costs of $3,613.74) taking into account the father’s substantial success and the mother’s limited means.

Osborne v. Osborne, 2020 ONSC 3826, Nishikawa J. (June 19, 2020) The Respondent wife brought a motion to enforce the terms of an alleged settlement with the Applicant husband. The motion was originally scheduled for March 12, 2020. The Court found some urgency so the matter proceeded in June.

Do Not Submit Lawyer’s Affidavit on Material Issues

With respect to COVID-19, the Court commented that “[s]ubmitting a lawyer’s affidavit as evidence regarding material issues in dispute is inappropriate, since the lawyer has no personal knowledge of the matters in dispute on the motion.”

The Applicant’s counsel submitted that the Applicant could not swear the affidavit in his office because of health concerns and COVID-19. The Court found this did not justify the lawyer’s


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affidavit because the “court has been flexible in accepting affidavits sworn remotely or unsworn affidavits, as stated in the Notice to Profession.”

O.M. v. S.K., 2020 ONSC 3816, Ryan Bell J. (June 19, 2020) The Court heard this high conflict parenting motion which included allegations of alienation, abuse and assault. The matter pre-dated COVID-19 but was delayed due to pandemic court closures and procedural issues discussed further in Madi v. King, 2020 ONSC 3611.

Rossi v. Rossi, 2020 ONSC 3822, Jarvis J. (June 18, 2020) The Applicant brought an urgent motion for a Case Conference on support and disclosure issues.

“Considering the “pressing importance” test set out in the Chief’s Notice, the observations of Kurz J. in Thomas v Wohleber (although under the earlier iteration of the Chief’s Notice) and later refined by McGee J. in Clemente v. O’Brien”, the Court ruled that the matter must continue to a Case Conference on disclosure and support.

Respondent’s Tactical Delay

The Court based its decision on the following factors which were consistent with the Applicant’s concerns about the Respondent tactically delaying the proceeding:

- The Respondent’s failure to adequately explain the change in his position dealing with expert evidence;

- The Respondent denying the Applicant’s entitlement to spousal support; and - The significant difference in the parties incomes combined with the Respondent’s

position that any such determination must await disclosure, including questioning.

Bring Realistic Solutions; Costs May Incur

Jarvis J. emphasized that “[t]he parties will be expected to have realistic solutions for the conference. Costs may be awarded.”

Warsame v. Abdulla, 2020 ONSC 3821, Faieta J. (June 18, 2020) The Canadian Applicant mother brought an urgent motion for, among other things, the immediate return of the parties’ daughter from Michigan and an order that the American Respondent father no longer have face to face access.

Per the terms of the Consent Order, the child primarily lived with the mother in Toronto but exercised access with the father in Toronto and at his home in Michigan. Since March 21, 2020, the mother refused to allow the child to travel to Michigan because:

- social distancing requirements in the United States dangerously loosened; and - the daughter would have to be quarantined for 14 days upon her return to Canada.







In June, the father showed the mother proof of a Toronto hotel booking before he exercised access but he actually took the daughter to Michigan during the visit and refused to return her until August 3, 2020. He claimed this time represented make up time plus his scheduled four weeks of summer access.

Urgency

The Court affirmed this matter’s urgency.

Bring a Motion; No Self Help

“Rather than working cooperatively during the COVID-19 pandemic, both parents are guilty of ignoring the Consent Order and exercising self-help. The Applicant should have brought a motion in March 2020 for an Order to temporarily vary the access provisions of the Consent Order before unilaterally taking such action. The Respondent should have brought a motion for make up access time before unilaterally attempting to take such action.”

Access Restricted because Trust at Issue

The Court made a police enforceable order. The Court found, among other things;

- it was in the child’s best interests to remain with the father for eight more days, following which, the father would be permitted to have access for one July weekend and one August weekend;

- since trust was an issue, the access would take place in Ontario and the father must deposit his passport with the mother; and

- make up access for the father’s usual four week access time in the summer could be addressed at the August 26, 2020 Case Conference.

Jerome v. Jerome, 2020 ONSC 3813, Jarvis J. (June 18, 2020) The Applicant wife sought leave to bring an urgent motion for:

- the Respondent husband to maintain court-ordered support and expenses; - disclosure; and - listing of the matrimonial home for sale without the husband’s signature.

The wife claimed the husband was not complying with the October 30, 2019 order mandating the sale of the house, the winding up of the family business and disclosure of household and personal use expenses from the business account. She also claimed he redirected funds from the business.

Urgency because Unexplained Depletion of the Business Account Funds

The Court deemed this an urgent matter because “[n]otwithstanding the usual precondition for granting leave that there be evidence of settlement discussion efforts, the unexplained depletion of the business account funds by the husband elevates the wife’s motion to one of urgency and raises a serious concern about his financial probity.”




The Court ordered the parties to take reasonable steps to resolve the issues before the motion (i.e. selling to house, agreeing on what disclosure was missing; providing explanations for disputed sums).

Thibert v. Thibert, 2020 ONSC 3807, Pomerance J. (June 18, 2020) The supervised access facility, “New Beginnings”, was closed because of COVID-19. The father brought a motion seeking that a family member be able to supervise access instead. Notably, the father awaited a 2021 trial related to domestic violence charges. The mother opposed this motion.

The Court found it was in the best interests of the children to make an order for alternative supervised access.

Party Seeking to Restrict Access Bears Onus of Proof

The mother failed to demonstrate that the supervisors proposed by the father were not suitable. “Mother may be more comfortable with people that she knows, but her comfort level is not the determining factor. The core issue is the best interests of the children”.

Best Interests of the Child; In Person Contact

“It is in the best interests of the children that they have a continuing relationship with their father. The criminal charges will not be tried until 2021. The pandemic has been operating for close to three months. While virtual visits have taken place, in-person contact is clearly preferable to communication over a computer screen. There is every indication that all parties, including the proposed supervisors, have been abiding by the health protocols relating to the COVID-19 pandemic, and that the virus itself is not a reason to restrict access.”

The Court also found that, due to the father’s appropriate interactions with the children at New Beginnings, access visits should increase in frequency.

K.A.B. v. P.M.S.B., 2020 ONSC 3803, Carey J. (June 18, 2020) This matter was heard on April 24, 2020 and written reasons were released on June 18, 2020.

The father brought a motion to enforce the shared parenting order and the mother brought a cross motion suggesting new conditions for the parenting order.

The Basis for the Dispute

The mother unilaterally withheld access from the father (a nurse practitioner at the Windsor Regional Hospital Emergency Department). The dispute began with a series of withholding incidents.

- The father sought an order to get permission to take the children to Cuba for March Break.

- The mother claimed she was not withholding consent to travel but trying to negotiate a future holiday schedule.





- The father won the motion but stayed in Canada for the planned 13 day vacation because of COVID-19.

- During the vacation time, the father took the children to visit extended family in Sudbury. The mother claimed this was unsafe.

- Upon the children’s return to the mother, she unilaterally withheld them for an equivalent 13 days of “make up time.”

- She then refused to return them at all until the end of the pandemic.

The Court affirmed the initial finding of presumptive urgency.

No Self Help; Parenting Order Upheld

The Court ordered that the parties resume shared parenting.

Mother’s Evidence did not Support Position

The father’s evidence showed he was “a responsible and knowledgeable medical professional who is rigorously adhering to the protocols established by the government, both at his employment in the hospital and in his interaction with his children and others.” His evidence included:

- the safety procedures he took at work (including the “hot” and “cold” zones of the emergency room);

- the safety precautions taken on the trip to Sudbury (including social distancing); and - his experience working during the SARS epidemic.

The mother provided deficient evidence that failed to support her position. The Court found her position was “not based on either fact or science”. The Court specifically found:

- She “ridiculed” the father’s SARS experience and his professional qualifications; and - “There is no evidence that the hospital has not adequately addressed the risks in every

aspect of their facility. To date, there is no evidence of COVID-19 spread in the WRH. The mother’s 55-paragraph affidavit relies on newspaper reports, uncredited hearsay and her own medical opinions to justify her arbitrary and unilateral disrespect of an existing court order.”

Distinguishable from Ribeiro v Wright

The mother tried to rely on Ribeiro v Wright by asking the court to show “zero tolerance” for the father’s alleged failure to respect COVID-19 safety measures. The Court stated this case was distinguishable from Ribeiro v Wright because here, the mother unilaterally suspended access without Court authorization and failed to provide evidence the father was not following COVID-19 safety protocols.

Do Not Use COVID-19 to Advance Your Position

The Court found the mother considered Ribeiro v Wright too narrowly. The Court stated:

“Regretfully, the material and the arguments in this case by the mother has led me to the conclusion that the message set out in Ribeiro needs clarification and expanded. There


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must also be zero tolerance for those who would use the COVID-19 and the role of essential health care professionals and other essential service providers recklessly, as a weapon, in order to advance their own position in ongoing parenting conflicts”

Burke v. Bouzane, 2020 ONSC 3739, Summers J. (June 18, 2020) The Court made a costs endorsement that did not discuss COVID-19. The underlying motion concerned the parties’ choice of school for the children and, while it was heard during the pandemic period, COVID-19 was also not a factor.

Stewart & Bernard v. Fuhgeh et al., 2020 ONSC 3789, Shelston J. (Jun 17, 2020) Shelston J. case managed this matter for over a year. Here, he ruled on whether the father should be permitted to move to set aside previous orders and whether parts of the father’s affidavit should be struck. The Court did not discuss COVID-19.

Burrell v. Burrell, 2020 ONSC 3762, Bondy J. (June 16, 2020) This costs decision arose following the Applicant’s successful motion to compel the Respondent to close the sale of the matrimonial home to a third party.

The Court ordered that the Respondent pay the Applicant full indemnity costs. With respect to COVID-19, the Court found that the Respondent engaged in bad faith behavior by misrepresenting “his fear of the COVID-19 virus in order to achieve other, nefarious ends.” The Respondent’s unreasonable behaviour (including failing to provide a basis in law for his position and lacking insight or not caring about the consequences of his actions) also impacted the award.

Dill v. Harris Dill, 2020 ONSC 3757, Ramsay J. (June 16, 2020) The father filed a motion to vary the final order dated November 14th, 2018. On June 16th, 2020 he moved for a temporary order. The May Case Conference was adjourned because of a health emergency. The Court then deemed this matter urgent because “[t]he child’s schooling and residence are in issue and cannot wait.”

CAS v. C.F. and J.M., 2020 ONSC 3755, McGee J. (June 16, 2020) The Court heard the contested motion for access.

The relationship between the parents was described as unstable and violent. The mother lived independently with the child while the father had supervised access through the Society. Due to the COVID-19 crisis, the Society’s facilities closed on March 17, 2020. This resulted in the suspension of all in person access. Since then, two successful supervised visits were conducted using the father’s sisters as supervisors. They were monitored by FIT workers via video.









Society’s Position: The Society sought a temporary order that the Respondent father have supervised access at the discretion of the Society. This access would be supervised by family members and monitored via video.

The mother opposed the motion and would only agree to in person supervised access by the Society.

Held: The Society Must Facilitate Access

Following the existing COVID-19 case law, the Court found that “there is no presumptive authority extended to the Society to suspend in-person access to parents without formulating some alternative measures… Access is a very important element for the child’s “best interest, protection and well-being.””

Remote Supervision Sufficient

The Court granted the Society’s motion. The Court found that remote supervision from the Society sufficiently reduced the risk of harm to the child. As a result of COVID-19 related closures, all Ontario child protection agencies needed to determine alternative forms of service. The York Region CAS had assessed and re-evaluated “…family member supervisors monitored by a FIT worker for the initial sessions”. In this case, remote supervision happened successfully on both occasions.

Herman v. Kideckel, 2020 ONSC 3782, Nishikawa J. (June 16, 2020) The father was successful in his urgent motion for an order resuming his parenting time with the parties’ eleven year old daughter per the Parenting Separation Agreement and Final Order. The mother, an allergy and immunology specialist, withheld the child based on concerns about the father’s safety measures in relation to the COVID-19 pandemic.

The Court awarded the father costs on an amount close to a partial indemnity basis. The Court declined to award full indemnity costs because while the mother failed to comply with the parenting order, this non-compliance was not in bad faith given the “exceptional circumstances”.

Numair v. Numair, 2020 ONSC 3737, Jarvis J. (June 15, 2020) The wife brought a motion for a “broad range of injunctive relief of a financial nature against the husband, the parties’ business partners (who are married to each other) and the two companies in which both couples are shareholders.” The wife essentially wanted the partners added as parties and alleged they acted with the husband to deplete assets and prejudice her family law equalization rights.

Pressing and Urgent because of Prima Facie Merit

The Court found the wife’s motion met the test for urgency because it had prima facie merit. “The unchallenged, alleged failure of the husband to make meaningful disclosure is serious as are the allegations of financial misconduct. The actions of the [partners] in failing to provide meaningful information to the wife so as to distance themselves from the parties’ financial


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dispute raise, together with the husband’s behavior, important financial issues that are pressing and urgent.”

The Court ordered that the matter proceed to a motion. Amongst the detailed procedural orders, the Court made a non-depletion order, a Mareva injunction, and disclosure orders incurring a $1,000.00 daily penalty for non-compliance

Cannot Rely on 25 Page Affidavit

The Court found the wife’s request to rely on:

- a 25 page affidavit with 91 exhibits, - A transcript of the husband’s questioning; and

a factum excessive in the current COVID-19 pandemic and Court restrictions.

Disclosure Obligations are Real

The Court emphasized that the husband needed to meet his disclosure requirements.

“There is simply no excuse any longer for persons involved in family law litigation to ignore their disclosure obligations or, where third parties are involved, to unreasonably fail to provide relevant financial information not subject to privacy concerns. This especially applies to the proposed respondents in this case due to their close business involvement with the parties.

The court is watching.”

CAS v. J.U. and B.P.-M., 2020 ONSC 3753, Breithaupt Smith J. (June 15, 2020) The Children’s Aid Society of the Regional Municipality of Waterloo asked for a Final Order for statutory findings regarding a six-month-old child. They also sought to place her in Interim Society Care for a six-month period. The Protection Application was originally served to the mother on December 4, 2019, and to the Father on December 10, 2019. This matter did not relate to COVID-19.

Khan v. Khopekar, 2020 ONSC 3727, Bloom J. (June 15, 2020) The Court dismissed an Application for Divorce that did not relate to COVID-19.

Medu v. Medu, 2020 ONSC 3696, McSweeney J. (June 12, 2020) This was the Court’s final Endorsement relating to the mother’s urgent motion for return of the children. Previous to this hearing, the Court establish urgency in the matter (April 21), ordered the return of the children (April 24), determined other relief (May 15), and ordered costs (May 21).

Further Remedy Regarding the Respondent’s Overholding






In May 2020, the Court granted a partial remedy for the Father’s overholding of the children in March. Specifically, the Court had ordered that the children remain in the care of the mother from April 27, 2020, to May 15, 2020.

The father now asked that “the court order resumption of the parties’ final order access schedule in August, and not wait until late September.” The Court however, agreed with the mother and ordered that the father’s mid-week access be suspended for the summer leaving him with alternate weekend access only.

Once school resumed, the children would return to the access schedule defined in the Final Order. Justice McSweeney based this decision on the children’s need for both parents’ involvement during the 2020 school year as COVID-19 majorly impacted their routines and created new precautions.

COVID-Necessitated Temporary Change of Access Location

The Court relocated the exchange area to the parking lot of the YMCA until resumption of the children’s in-person attendance at school.

CAS v. S.K. et al, 2020 ONSC 3689, Smith J. (June 12, 2020) The Children’s Aid Society of Ottawa sought to continue the Temporary Order dated April 30, 2020, on a with prejudice basis and that the three-month-old child be placed in the temporary care and custody of the Society. The Society also sought an Order that the parents should have access with the child at the Society’s discretion.

The Court found that following“… the Child’s best interest, protection and well-being, the Child is to remain in the care and custody of the Society with access to the Mother, at the Society’s discretion, pending the completion of these proceedings.” The evidence tangentially concerned COVID-19 in that the mother fell out of her routine of counselling as a result of the pandemic. She further submitted her worry about the child during COVID-19 was justified and not paranoia.

Mott v. Green, 2020 ONSC 3761, Bondy J. (June 12, 2020) The father sought an order granting him custody and a week on week off shared residency arrangement. He also sought an order that each party be entitled to health, education, and welfare information and documents of the child.

The parties had one child. The mother was charged with assault on April 27th, 2020, the same day the parties separated, during an altercation with the father. She maintained that she acted in self-defence. According to the father, he only saw the daughter on one occasion between the separation and the date he filed his motion (June 3, 2020).

Urgent

The Court found this matter met the definition of urgency as it involved an allegation of wrongful removal and/or retention of a child.

The Best Interest of the Child; Parenting Time Granted for Both Parents





The Court highlighted the fact that these “…are extraordinary times. As was observed by Pazaratz J., at para. 13 of the decision in Ribeiro v. Wright, 2020 ONSC 1829, "In troubling and disorienting times, children need the love, guidance and emotional support of both parents.’”

As a result, the Court determined that the best interests of the child would be served by dividing her time equally between her parents. Although both parties presented “serious flaws in their parenting abilities”, they had been involved in the child’s life in the recent past. Justice Bondy also found that the parties each had a very close relationship to the child.

Natale v. Crupi, 2020 ONSC 3663, Jarvis J. (June 11, 2020) A Case Conference was held on May 13, 2020, regarding the weekday access-exchange location. The father brought an urgent motion with leave because the issue did not resolve, however, neither party complied with the Chief’s Notice and submitted lengthy evidence. The Court refused to hear the father’s motion as presently constructed and outlined strict procedural guidelines if the parties wished to pursue the issue further.

Edwards v. Robinson, 2020 ONSC 3658, Jarvis J. (June 11, 2020) The mother brought an urgent motion regarding the father’s alleged withholding. Jarvis J. found that “the issues involved had less to do with consequences of the current pandemic than a parenting dispute but that the (then) absence of contact between the children and their mother warranted an urgent case conference.” The parties did not reach a resolution at the Case Conference so the Court heard the urgent motion.

Parenting is an Essential Service (Even When COVID-19 Is Not the Barrier to Access)

In deciding the non-COVID-19 issues, the Court quoted Matus v. Gruszczynska, 2020 ONSC 2353: “parenting is an essential service.” The Court explained that this was “said in the context of an urgent motion during the current COVID-19 pandemic crisis and the caution, expressed in that decision and elsewhere, that the pandemic must not be used as an excuse to interfere with children’s time with their parents. That caution applies equally to cases where COVID-19 concerns are not the precipitating reasons but where timely access to court is impeded by a parent’s behaviour.”

Callwood v. Callwood v. Purdy, 2020 ONSC 3657, Desormeau J. (June 11, 2020) The child, born in 2012, lived with his uncle in Cornwall. This was a “long saga” where the parents and uncle disputed who should care for the child.

Among many issues, the Court revisited its previous order on mobility given the COVID-19 situation. The governing court order provided that the child should not be removed from the City of Cornwall. The Court previously dismissed the uncle’s request to move to Perth with the child citing the child’s special needs, the love of his biological and extended family, and stability.

The Court now allowed the uncle to move to Perth with the child for the following reasons.




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- Since the previous order, the pandemic hit and there were fewer stabilizing factors in Cornwall. For example, the child no longer had school, counselling, the same home, or opportunities to go into the community.

- The uncle maintained residences in both Cornwall and Perth to follow the Court’s order but the Cornwall landlord illegally evicted the family so the child was forced to stay in a hotel.

- The child had a place of residence in Perth that was not a hotel. - While there was 149 kilometers between Perth and Cornwall, the father lived an equal

distance from both cities while the mother lived much closer to Perth. - The child’s status quo was living with the uncle and enjoying access with his parents.

This would not change.

With respect to changing the access regime, it was not in the best interests of the child to change caregivers because his need for consistency and routine was important and especially so in the pandemic.

Cole v. Barrett, 2020 ONSC 3656, McDermot J. (June 11, 2020) This costs decision resulted from an April 15, 2020 urgent motion where the Respondent mother refused to provide timesharing to the Applicant father. The father also argued for a right of first refusal and for the child to switch childcare providers. The Court determined that the parties needed to return to the status quo and success was therefore divided.

Unreasonable but not Bad Faith Behaviour

With respect to COVID-19, the father argued that the mother behaved unreasonably and in bad faith by refusing access after the father self-isolated following his partner’s return from out of country travel. He argued the mother attempted to change the status quo through COVID-19 restrictions.

The Court agreed the mother behaved unreasonably because she had no evidence that the father failed to meet COVID-19 safety requirements and the father did isolate for 14 days. The unreasonableness of her actions was obvious because the mother relaxed her position upon seeking legal advice.

The Court declined to find the mother acted in bad faith so the cost consequences of Rule 24(8) did not apply. The Court did not find malice in her actions but did find she acted in a “confused” manner. Once she had legal advice, she immediately provided access to the father. This access did not adhere to the status quo but it could be seen as consistent with her position that the shared arrangement was on a trial basis and the child did not like it.

Partial Recovery because Limited Ability to Pay

The Court ultimately ordered partial recovery costs of $3,000.00 against the mother because of her limited ability to pay.



Director, Family Responsibility Office For The Benefit Of: Sabaa Yasmine Shaikh v. Ali, 2020 ONSC 3649, MacPherson J. (June 11, 2020) The Respondent father brought an urgent motion requesting an order terminating the Warrant for Committal dated June 6, 2019. The Family Responsibility Office (FRO) opposed the motion. On May 27, 2020, the Court ordered that the Warrant for Committal be suspended “until further court order”. FRO did not participate in this proceeding through the Court’s administrative error and now FRO sought to set aside the suspension of the Warrant for Committal and dismiss the father’s motion.

Urgent because Increased Exposure Risk

The Court deemed this matter urgent because “[e]nforcing the 118-day Warrant of Committal against [the father] right now will increase his risk of exposure to COVID-19.”

Warrant for Committal Suspended because of COVID-19

The Court upheld its previous decision suspending the Warrant for Committal until “further Court order”. FRO could “bring a motion to lift the suspension as the risks associated with Covid-19 reduce and the Ontario government eases Covid-19 related restrictions”. The Court based this decision on the following factors.

- The Warrant for Committal was made one year ago under non-pandemic circumstances.

- Incarceration during the pandemic would increase the risk the father would be infected (with or without underlying medical conditions).

- “While it is imperative to the administration of justice that court orders are enforced, one has to be sensible. The Respondent is not a danger to society. He is in arrears of his support obligation.”

- There are other methods of enforcement that do not require incarceration during a pandemic.

- The father had not yet started his sentence. It would have been different if he had started his sentence already.

- The Warrant of Committal would be enforced but the suspension would protect the Respondent from COVID-19 while allowing FRO to use this enforcement tool when conditions improved.

Lim v. Chung, 2020 ONSC 3638, Kiteley J. (June 10, 2020) This was the father’s motion for an uncontested trial and for an uncontested divorce in the face of concerns that the mother absconded with the child to Korea. This dispute started before the COVID-19 pandemic period. The Court granted the requested orders. COVID-19 was not an issue.






CAS v. A.H. and J.P., 2020 ONSC 3449, Summers J. (June 10, 2020) Under a temporary order, the three-month-old child was placed in the care and custody of his maternal aunt. The Society then sought a final six-month supervision order. The mother moved for an order returning the child to her care pending the final disposition. She remained open to Society supervision, terms and conditions.

Mother’s Access

The Court found that there was reasonable concern that the child would likely be at risk of harm if returned to his mother’s care. These risks included alcohol, her relationship with another person, and her failure to follow COVID-19 protocols by bringing guests into her home and failing to physically distance.

However, the Court found the risks could be mitigated with appropriate conditions. For example: The mother’s friend would need to be present at all times to supervise the child with the mother. Both the mother and her friend would need to “provide whatever reasonable assurance is required to satisfy the Society that each has completed a fourteen-day period of self-isolation proximate in time to [the child’s] return home.”

Father’s Access

With respect to the father’s access, the Court found:

“31. Access to the father shall be at the discretion of the Children’s Aid Society of Ottawa, in keeping with the child’s best interests, subject to the following:

(i) Until such time as the Society at its discretion, reinstates face-to-face access or further court order, the father may have daily virtual access by telephone and social media means, including, but not limited to FaceTime, Skype, or other video conferencing methods, as the available technology permits.

(ii) Due to the COVID-19 pandemic, face-to-face access shall be permitted when it is possible to do so in compliance with directions from public health authorities.”

Bayar-Mestiri v Mestiri, 2020 ONSC 3620, Faieta J. (June 9, 2020) The Court deemed the mother’s Application for return of the children under the Hague Convention urgent. The children were visiting the father in Tunisia when the COVID-19 pandemic hit. The father refused to return the children or discuss the possibility of return. He then commenced a family court proceeding in Tunisia.

Madi v. King, 2020 ONSC 3611, Ryan Bell J. (June 9, 2020) The father filed an Application dated January 7, 2020 and the “high conflict” matter proceeded to an expedited motion. While the motion was under reserve, the mother sought to introduce fresh






evidence. The resulting procedural motion was not heard because of COVID-19. However, with the May 19, 2020 expansion of virtual hearings, the matter was scheduled for June 11, 2020.

The mother then sought an adjournment of the procedural motion because she retained new counsel. The Court denied her adjournment and did not discuss COVID-19.

V.R. v. Catholic Children’s Aid Society of Toronto, 2020 ONSC 3508, Horkins J. (June 9, 2020) The Court heard the mother’s appeal of a 2019 final order. The appeal was originally scheduled for January 2020 but was adjourned to May 2020. COVID-19 was not a factor.

Dhaliwal v. Dhaliwal, 2020 ONSC 3590, Pazaratz J. (June 8, 2020) The Respondent father brought an urgent motion, returnable June 10, 2020, asking for the immediate sale of the matrimonial home where the parties’ children currently lived.

As of June 8, 2020, the mother’s counsel failed to file responding material. The father’s lawyer therefore sought to have his motion proceed as a basket motion per the Amendment to the Central South Region Notice dated May 12th re. Criminal, Family, Civil Expansion. This Amendment held that: “If no responding material is filed 3 days prior to the original motion date then the moving party must file a confirmation to that effect, and the motion will proceed as an unopposed basket motion, and the original motion hearing date will be vacated.”

The Court decline to make this order.

History of Aggressive Litigation

As part of its decision, the Court noted that on February 21, 2020, the Respondent’s current lawyer and the Applicant’s previous lawyer argued a contested adjournment where the lawyers disagreed about the adequacy of service and professional courtesy. The Court declined to award costs because it did not want to encourage more aggressive litigation.

Court Assumed Inadvertence or Unawareness of Policy

In this case, because of the “profound” relief sought, the Court assumed the Applicant mother would want to respond. Justice Pazaratz noted that neither counsel had offices in the Central South Region. The Applicant’s counsel in Mississauga may have inadvertently failed to file materials or may have been unaware of the Central South Region policy.

Call Opposing Counsel and Take Simple Steps to Avoid Problems

Justice Pazaratz further commented on the lack of productive communication by parties and counsel. “I am of the view that on this particular file, before asking that this proceed as an unopposed basket motion, it would have been helpful if the Respondent’s counsel telephoned or e-mailed the Applicant’s counsel to double check whether any reply materials would be filed.

- a. The rules don’t require such action. - b. But it’s more than professional courtesy.





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- c. If it is likely that the Applicant will have some opposition to the Respondent’s request, it is cheaper for the parties if their lawyers can communicate productively – rather than obtain an unopposed order and then have to deal with a subsequent motion seeking to set the order aside.

- d. Sometimes files become “high conflict” because people won’t take simple steps to avoid problems.”

Stefanska v. Chyzynski, 2020 ONSC 3570, Horkins J. (June 8, 2020) On May 15, 2020, the father’s Hague Application was granted and the mother was ordered to return the children to Warsaw, Poland “forthwith”. COVID-19 delayed the return of the children and the parties could not agree on a suitable date.

Noting that Air Canada and LOT (a Polish airline) were offering flights between Toronto and Warsaw as of late June, the Court ordered that the children be returned to the father no later than July 31, 2020. If the resumption of travel was delayed beyond that, the father would rebook airfare no later than August 31, 2020 and within ten days of flights being offered (if seats were available).

The mother claimed that the cost of the airfare increased beyond what she could afford, and the Court ordered the father pay half of the cost because he offered. The mother was also ordered to obtain and up to date Polish passport for one of the children so they could travel.

Smyrnios v. Aliferis, 2020 ONSC 3563, Lemay J. (June 8, 2020) This high conflict matter had been case managed for a considerable period of time. The Applicant father had not exercised access with the children since the pandemic began in mid-March. The father brought a motion seeking a return to the pre-pandemic access as well as additional access. The Respondent mother sought to have the father’s in person access cancelled during the course of the pandemic.

The part of this decision relating to COVID-19 was the determination of urgency. At paragraphs 49 and 50, the Court stated:

“ First, the current pandemic should not result in a widespread suspension by one parent of access with another parent. In cases where an access order is in place, the unilateral suspension of that order and resorting to a self-help remedy will regularly rise to the level of an urgent matter within the meaning of the practice direction. See Tariq v. Kiran (2020 ONSC 2897 at para. 19), Jeyarajah v. Jeyamathan (2020 ONSC 2636 at para. 18) and Kostyrko v. Kostyrko (2020 ONSC 2190). Second, in my view, for the reasons set out in Kostyrko, the Douglas decision is distinguishable from the facts in this case because there is an order (albeit a temporary one) in place. Even if Douglas is not distinguishable, Kostyrko explains why I prefer the reasoning in Jackman v. Doyle (2020 ONSC 1875) and I again adopt my reasoning in Kostyrko.”






Kostyrko v. Kostyrko, 2020 ONSC 3537, Lemay J. (June 8, 2020) The Court released reasons for this urgent motion on April 9, 2020. The decision at hand dealt with the terms of the order and costs.

With respect to COVID-19, the Court commented on the Respondent father’s employment in the construction business. Finding that the government permitted most construction to operate through the pandemic, the Court stated “there is very little detail about what income has been lost, when it is expected to start up again, and whether it will be recouped through longer hours once the Respondent’s business is up and running. I am not persuaded that any deduction should be made to the costs otherwise payable to the Applicant as a result of the Respondent’s work situation.”

Russell v. Ramcharan, 2020 ONSC 3546, Petersen J. (June 5, 2020) The parents both brought urgent motions to determine the interim parenting schedule for their two-year-old daughter. The matter was urgent because of police involvement during recent exchanges and the mutual withholding of the child’s access to the other parent.

Though COVID-19 was not an issue in the proceeding, the Court made the following comments respecting the pandemic’s impact on the access dispute.

- Right of First Refusal in COVID-19: The Court granted the father the right of first refusal to look after the child if the mother could not do so for more than two hours (for reasons other than her employment). “This is particularly important during the COVID-19 pandemic, when public health guidelines dictate social distancing from everyone other than household members. It is in [the child’s] best interests, therefore, not to be cared for by third parties. “

- Child’s Wellbeing: “This Court has recognized that continuing parenting time with both parents is particularly important to children’s wellbeing during the COVID-19 pandemic, because they are otherwise socially isolated. They require the love, affection and emotional support of both of their parents “now more than ever”: Ribeiro v. Wright, 2020 ONSC 1829, at para.10.”

Mohamed v. Vaz, 2020 ONSC 3529, Bondy J. (June 5, 2020) The Applicant father and the Respondent mother separated on May 16th, 2020. The father stated that ten days later, the mother moved their child to Ottawa without consent or notice. The parties presumably lived in the Southwest Region of Ontario. Urgency Granted This matter was urgent because it apparently involved the wrongful removal and/or wrongful retention of a child. The Court ordered, among other things, that:

- the motion would proceed on the issues of where the child would live, parenting time, and decision making for the child; and

- the father could file his Application.




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Hughes-Kani v. Zoldi, 2020 ONSC 3528, Bondy J. (June 5, 2020) The separated parties parented their child according to a verbal agreement. The agreement provided that the child would alternate residences every five days. In May 2020, the father withheld the child twice and refused to return him for reasons unknown to the Court and notwithstanding the agreement. The Court deemed this matter preliminarily urgent as it involved the wrongful retention of a child. The motion could proceed on the limited issue of establishing a temporary order as to parenting time and decision-making.

A.T. v. M.H., 2020 ONCJ 277, Sherr J. (June 5, 2020) The parties had three children together. Both parties brought motions seeking temporary custody of the children or generous parenting time. The mother also sought a police enforcement order. The family had a history of domestic violence. The mother issued the Application on May 22, 2020. The Court previously deemed both matters urgent. Based on factors unrelated to COVID-19, the Court found that it was in the best interests of the children to grant interim custody to the mother. One contentious issue was whether the parties had in fact made an agreement to share the children on a 30 day basis during the pandemic; the Court found they had.

Zeitoun v. Abdallah, 2020 ONSC 3500, Mackinnon J. (June 4, 2020) In the hearing of the matter, the Court declined to grant the father more access time despite his greater availability during the pandemic period. In this costs decision, relating to both the urgent Case Conference and the Motion, the Court awarded the mother costs on less than a full indemnity basis for reasons unrelated to COVID-19.

M.P.M. v. A.L.M., 2020 ONSC 3491, Grace J. (June 4, 2020) This matter was heard before the pandemic period. On the issue of costs, both parties claimed success but for the effects of the COVID-19 pandemic on the ultimate decision. The Court stated: “A successful party is presumptively entitled to a costs order: rule 24(1). By any standard, the applicant was successful in relation to the issue that predominated. The COVID-19 emergency arose well after the trial. It affected the disposition, not the underlying findings that were favourable to the applicant, not the respondent.”

Kruis v. Marry, 2020 ONCJ 273, Baker J. (June 4, 2020) The Court ruled on the outstanding issues of make-up access time and costs. The mother prevented the father from exercising his access time on two April 2020 weekends. She claimed COVID-19 pre-empted all access. The mother said that, although the father and child did not


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spend time together physically, the father enjoyed contact by Zoom, Skype, and other applications. The Court held that “[r]emote platform access is a poor substitute for in-person access” and a short visit in the mother’s home was not a substitute for access time in the father’s home. Make Up Time The Court awarded make up time commensurate with the time withheld. Weekend days would be replaced with other weekend days; weekdays were not an appropriate substitute because both the child and the father had obligations during the week. The child was upset to have missed visits with her father and would benefit from makeup time. Moreover, “[a]s a matter of public policy, the mother should not be able to autocratically impose a reduction of court ordered access time without recompense.” Costs In awarding $1,500.00 to the father, the Court noted there was insufficient evidence to find that costs would reach the level of financial hardship however, the Court did “appreciate that, due to the public health emergency of COVID-19, this is a difficult financial time for many people, including the [mother], who has been laid off.”

Miller v. Miller, 2020 ONSC 3485, Ramsay J. (June 4, 2020) The parties were governed by a temporary consent order dated November 29, 2019. The Applicant mother stopped the father’s access on April 24, 2020 pending the negotiation of a new arrangement. She expressed concern that the father was taking the children to his workplace during the pandemic. She allowed video chats. The Respondent father moved for an order restoring his access.

With respect to COVID-19, the mother suggested “terms specifying exactly how exchanges should proceed in a public place, first refusal when the residential party needs babysitting for more than two hours, a restraining order, participation by the Office of the Children’s Lawyer and an order that the Respondent see that the children do their schoolwork while in his care.”

The Court granted the restraining order because the pattern of abuse and bullying was corroborated by a neighbour’s affidavit. With respect to the other requests, the Court found the Applicant was asking for too much. The Respondent father “has shown an understanding of the risks.” Ramsay J. stated: “I am not inclined to enshrine detailed practices in an order when the government’s recommendations change as the situation evolves. I am not worried about the children being in the care of the Respondent’s girlfriend when he is at work, and I find it hard to be concerned about a 5-year-old doing her online “homework.””

The Court provided specific instructions for access exchanges, including a new location, since COVID-19 and daycare closures meant the party would need to exchange the children in person.




Berthelot v. Hayward, 2020 ONSC 3591, Van Melle J. (June 3, 2020) The Court heard the father’s access motion relating to the fact that he had not seen the child since February 2020 and he had no idea where the child or the mother were. For that reason, the Court affirmed the Local Administrative Justice for Brampton’s preliminary determination of urgency.

The Court awarded the father $1,500.00 in costs for the initial determination of urgency as the mother should not have disappeared with the child. The father had sought full indemnity costs of $3,141.53 and substantial indemnity costs of $2,356.15. The costs of this appearance were reserved to the trial judge.

Deveaux v. Najnudel, 2020 ONSC 3480, Braid J. (June 3, 2020) The father brought a motion to have the Court determine an interim parenting schedule for his 18-month old daughter. The parties separated six months before the motion. The mother unilaterally moved to Toronto and limited the father’s parenting time. The mother did not approve of the father’s plan to bring their daughter to his current residence. Affirmed Chrisjohn v Hillier The Court endorsed Mitrow J.’s comments in Chrisjohn v. Hillier, London SCJ Court File No. F1098/18.

- COVID-19 should not result in a widespread suspension of in-person parenting time between a child and a parent.

- Although the health, safety and well-being of children remains the Court’s foremost consideration during the COVID-19 pandemic, it is presumed that meaningful personal contact between a parent and a child is in the child’s best interests.

o Children need their parents more than ever during this time. Children benefit from being nurtured and comforted by both parents who have been part of their lives.

o Efforts should be made to maximize time with both parents while minimizing transfers between households.

- Vitally important family relationships cannot be placed on hold indefinitely without risking serious long-term harm.

Insufficient Medical Evidence to Justify Unilateral Action With respect to COVID-19, the mother justified her unilateral action by stating that she and her own mother were vulnerable to COVID-19 because of underlying medical conditions. The mother stated that she had “[a] history of asthma and pneumothorax” while her mother, with whom she lived, had a history of asthma and cancer. This argument was unsuccessful because the mother failed to establish that they were more vulnerable to COVID-19 than any other member of the general public. Justice Braid held:

- “[c]laiming to have a “history” of a medical condition does not establish that a person currently suffers from that condition;” and



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- “[s]tating that someone has a history of asthma or cancer does not provide sufficient information to assess the seriousness of the particular health issue and whether it currently causes the person to be more vulnerable if they contract COVID-19.”

The mother’s evidence failed to establish that she actually suffered from the claimed conditions. Additionally there was no affidavit from the grandmother nor any medical records supporting her diagnosis of asthma and no evidence demonstrating the type of cancer she suffered from, treatment received or whether it caused ongoing health issues. Established Access for Father Every Weekend The Court concluded that it would be in the best interests of the child to spend quality time with both parents and ordered, among other things, increased access time ultimately resulting in the child spending weekends with the father.

Sears v. Coristine, 2020 ONSC 3450, Corthorn J. (June 3, 2020) The Court made a costs decision related to a 2019 motion regarding access. COVID-19 was not discussed.

Carnahan v. Sammy, 2020 ONSC 3447, Bondy J. (June 3, 2020) The Applicant mother brought an urgent Motion to Change. The Respondents were the paternal grandmother and the father. A 2011 Court Order granted custody to the grandmother and unsupervised access to both parents. The Court characterized this as a high conflict matter because access exchanges occurred at a local supervised access center. The center closed because of COVID-19 and the mother had not seen the children for some time. The mother sought an order that the exchanges take place at the grandmother’s house and that the mother’s boyfriend conduct the pickups and drop-offs. Urgency Recognized Bondy J. deemed the matter urgent on a preliminary basis because “[t]he material filed by the applicant mother indicates that the children’s face-to-face access with her has been frustrated by the temporary closure of New Beginnings where access exchanges took place. I conclude this matter meets the definition of urgency set out in the Chief Justice’s notice. Accordingly, the motion may proceed.” Among other things, the Court also ordered that the mother could file her Motion to Change.

Burke v. Poitras, 2020 ONSC 3162, Lacelle J. (June 3, 2020) The Court originally heard this matter in September 2019. The Court also received written submissions in March and April 2020. The proceeding concerned a number of property issues that did not relate to COVID-19.

Goulet v. DiGioia, 2020 ONSC 3461, Bondy J. (June 3, 2020)


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The six year old child had not seen her father since the parties separated in mid-May 2020. The separation resulted from an incident where the father was charged with mischief and gave an undertaking not to attend the matrimonial home. The father claimed he made multiple suggestions as to appropriate parenting time but the mother would only agree to supervised access. Urgency granted The Court deemed this matter urgent on a preliminary basis because it dealt with the wrongful retention of a child. Specifically:

- the mother was not allowing parenting time; - there was no Court order in place,; - the mother had not brought an Application seeking full custody; and - “[t]he provisions of section 20 of the Children's Law Reform Act, R.S.O. 1990 c. C.12,

provide that a child’s parents are equally entitled to custody.” The matter could proceed to a motion on the limited issue of the daughter’s access to the father.

Al-Hadad v. Al Harash, 2020 ONCJ 269, Paulseth J. (June 3, 2020) The Court heard a Hague Convention Application relating to the alleged wrongful retention of a child. The matter did not relate to COVID-19 as the Application was dismissed and travel issues not engaged.

Catholic Children’s Aid Society of Toronto v. K.S., 2020 ONCJ 268, Sherr J. (June 3, 2020) The Motion to Change was scheduled for April 16, 2020 but adjourned due to COVID-19. The matter was scheduled to be spoke to on August 7, 2020 and was now stayed per s. 103 of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 because of the child protection application.

Khanum v. Qureshi, 2020 ONSC 3451, Bondy J. (June 2, 2020) In a 2017 undefended hearing, the Court made:

- an order granting custody of the four children to the mother; - a restraining order against the father in favour of the mother and four children; - an order for a monthly payment equal to the ongoing household expenses to be credited

against child and spousal support after the determination of the father’s income. -

In 2018, the Court ordered child support based on the father’s actual income of $46,300 per year. During the pandemic, the father then brought an urgent motion to Court seeking:


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- an order setting aside the custody and restraining order with respect to the three oldest children since they were over 18; and

- a variation of child support since he was paying based on a higher income than he earned; three of the older children finished school and worked full time; and the father earned less than minimum wage.

This matter met the definition of urgency because “it involves a restraining order, and potentially dire financial circumstances for the respondent, both of which are circumstances directly referred to in the Chief Justice’s notice.” The father’s motion would be “limited to the issue of the restraining order as it affects the three oldest children, the issue of ongoing child support, and the issue of arrears of child support”.

Derkach v. Soldatova, 2020 ONSC 3438, Ramsay J. (June 2, 2020) The Court heard a matter related to the mother denying access visits to the father for unknown reasons. The matter did not relate to COVID-19. Peters v. Peters, 2020 ONSC 3431, Bondy J. (June 2, 2020) The mother sought an order that the father return the children to her and that the matter be transferred to Kingston where she previously lived with the children. The father, a resident of St. Thomas, Ontario, only recently began to exercise unsupervised access. He refused to return the children after a March 13, 2020 visit. CAS was involved with the family. The material filed by the mother demonstrated that, on a preliminary basis, this was a case of wrongful retention of the child and the Court granted her leave to proceed with her motion on that issue.

Campagna v. Campagna, 2020 ONSC 3429, Bondy J. (June 2, 2020) This was a reconsideration of a determination of urgency. On May 29th, 2020 the Respondent father sought leave to bring an urgent motion as it related to:

- Access time with the parties’ daughter; and - Confirmation that the children’s school would remain the same even though the mother intended to move to a new town.

The Court deemed neither issue urgent and granted the father’s request for a second Case Conference. During the second Case Conference the Court found the decision concerning the urgency of the Respondent’s parenting time with the daughter “was based upon a mistake”.




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From the father’s materials, the Court initially understood that the father missed five parenting exchanges between March and May 2020. This was not urgent. However, counsel clarified that there were five missed parenting days between March 2019 and March 2020. The child then missed 24.5 days with the father between March 16, 2020 and May 29, 2020. The Court deemed this a “significant loss of parenting time” potentially amounting to the wrongful retention of the child.” The motion would proceed on an urgent basis on the narrow issue of the daughter’s parenting time with the father.

Chambers v. Klapacz, 2020 ONSC 3419, Bloom J. (June 2, 2020) The Court awarded the Applicant costs on a partial indemnity basis based on a successful motion for authorization to have the parties’ son vaccinated during the COVID-19 pandemic.

Hewitt v. Doyle, 2020 ONSC 3416, Doyle J. (June 2, 2020) The Court was asked to decide:

- where the children should live pending the hearing of the Application; and - whether or not the father’s access should be supervised.

COVID-19 was not a major factor in the decision however, the mother had concerns about the father’s mental health. He missed video chats set up by the mother and she was worried that he failed to comply with COVID-19 government directives. The Court order that “[t]he parties will continue to comply with the COVID-19 or other health-related directives necessary to protect the well-being of the parties and the children.”

Baron v. Baron, 2020 ONSC 3624, Master Kauffman (June 1, 2020) The Applicant mother brought an urgent motion that the parties resume the parenting schedule set out in their separation agreement. The Applicant had not seen the children since May 8, 2020 and claimed the Respondent mother withheld the children and alienated them from her. One of the key issues was how the Applicant mother introduced her new partner to the children. The local child protection agency had investigated and the children refused to go back to the Applicant’s home. The Applicant refused mediation and also refused to engage with the Respondent or the children until the children were returned to her. Missed Access Not Urgent; Cannot Make Own Emergency Master Kauffman declined to find the matter urgent despite the fact that normally, a sudden unilateral interruption of a generous long-standing time-sharing arrangement is potentially urgent. The Court said that the Applicant should have “exhausted the reasonable avenues proposed to her” including meeting with the children, meeting with the mediator and the children, and mediation with the Respondent, before bringing an urgent motion. The matter “can and should be resolved between the parties before resorting to Court.”


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The Respondent “cannot create her own emergency by refusing to engage in conversation.” Morley v. Doucette, 2020 ONSC 3402, Mitrow J. (June 1, 2020) The paternal grandmother brought an urgent motion reported as Morley v. Doucette, 2020 ONSC 3180. The Court deemed the matter urgent because the mother resorted to self-help and took the child to PEI. The mother subsequently returned the child and the Court made an interim parenting order. The Court did not discuss COVID-19 other than ordering all parties comply with government directives.

A.M. v. A.K., 2020 ONSC 3422, Shore J. (June 1, 2020) The Court heard an Application under the Hague Convention related to custody and access of four children. The Application was dismissed and the Court did not consider COVID-19.

Milnes v. Peltonen, 2020 ONSC 3400, Shore J. (June 1, 2020) The Court heard a motion to vary an ex parte no contact, no communication order. The matter did not relate to COVID-19.

Rothschild v. Rothschild, 2020 ONSC 3390, Kiteley J. (June 1,2020) An endorsement was rendered on April 6, 2020, in which the Court extended the listing of the Toronto matrimonial home to April 15, 2020, due to COVID-19 restrictions. The Court also stated that if possible, “the parties shall re-evaluate at two week intervals thereafter until listed.” Applicant Argued in Favor of Virtual Listings The Applicant now argued that “[…] the court should order virtual listings without the need for an in-person open house.” He also stated that:

- the Government of Ontario has identified real estate services as “essential”; - the real estate firm has put measures in place to allow a videographer to enter a home to

obtain the necessary footage; - the videographer “is required to sign, confirming that they are not sick and have not

traveled outside the country”; and - these measures “… comply with the government restrictions and protocols and

specifically, the current protocols set out by the OREA and the RECO.” Respondent Argued that Virtual Listings Are Unnecessarily Risky The Respondent argued that the Applicant’s proposal was unnecessarily risky for her and the children as it was offside public health directions. She also stated that, as of May 24th, 2020, the RECO website prohibited open house events. She offered to provide pictures and videos of the home that she would prepare. Ordered to Virtually List the House The Court found that the Applicant’s plan was reasonable and the Respondent was “… resistant to listing the house for sale, to the court ordered listing agent and to the videographer.” As part





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of the order, the Court ruled that only the videographer could enter the house and no open houses would occur but instead the home would be shown virtually.

N. S. v R. M., 2020 ONSC 3359, Doyle J. (June 1, 2020) The Court heard written submissions related to setting the terms of a Final Order resulting from a 2019 Trial. The mother alleged that the decision omitted the consents of both parties, put on the record, to change the children’s surnames. COVID-19 was not a factor in the decision.

Alleyne v. Ennis, 2020 ONSC 3406, Price J. (June 1, 2020) The Applicant father sought leave to bring an urgent motion for sole custody of the parties’ three year old child with specified parenting time, police enforcement, and access to the Respondent mother on terms that required her to observe COVID-19 health and safety measures. The parents engaged in an ongoing dispute about COVID-19. The mother denied the father access after the family doctor advised her to self-isolate with the sick child for 14 days. The child’s asthma made her especially vulnerable to COVID-19. The father was an essential worker. He performed repairs for the TTC as a Rail Vehicle Analyzer and also delivered for Uber Eats one night a week. Withholding Urgent The Court found this matter urgent because the child was deprived of access to her father for two months. Only 14 days of those two months were justified based on medical advice. Self-Represented Party’s Failure to Bring Cross Motion; Child Support Also Urgent Taking into account the high volume of “urgent” matters coming to Court, Price J. also gave directions for the resolution of the child support issue. This issue was independent from the access issue but there was no reason it should not be afforded the same urgency as per Saperia v. Vlasiu, 2020 ONSC 2301, Diamond J. (April 16, 2020). The self-represented mother failed to bring a cross motion but probably would have had she been represented by a lawyer. Access to Resume; Leave to Bring Child Support Motion Granted The court found it was in the child’s best interests to resume access, the Court made a detailed order stating, among other things:

- access would resume according to the outlined provisions; - the mother had leave to bring an urgent motion for an order requiring the father to pay

child support; the Court provided a timetable for disclosure and service; and - “[f]or as long as any Government imposed safety precautions prevail”, the father needed

to wear a mask and gloves and keep a minimum six foot distance from other people at work; the mother had leave to bring an urgent motion if he failed to do this.

Gerges v. Ayad, 2020 ONSC 3375, Lemay J. (June 1, 2020)


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In this longstanding dispute, the Court granted the father’s urgent motion to restore his access after the mother prevented access from mid-March claiming the pandemic as justification. The Court in turn dismissed the mother’s cross motion to limit the father’s access to video conference until the conclusion of the health emergency. Procedural History The mother had a history of denying access and was ordered in January 2018 to stop denying access, contacting the child during the father’s access time, and scheduling events for the child during the father’s access time. The father was awarded substantial make up time and overnight visits which never came to fruition. The father then brought a motion for expanded access in October 2019 which was denied on procedural grounds and never heard on its merits. A conference was held in January 2020, and the matter was placed on the trial list for November 2020. Urgency: Video Conferencing not a Substitute for In Person Access; Lack of In-Person Access Detrimental This matter was urgent based on the large body of case law supporting the view that a party’s purposeful obstruction of access and failure to support the ongoing parent-child relationship meets the pandemic urgency requirement set out in the Notices to the Profession. Additionally,

- video conferences were a poor substitute for in person contact and would let the mother eavesdrop on the father’s access time;

- a potentially indefinite lack of in person access would be detrimental to the 11 year old child at a critical stage of development.

- The Court also stated that the list of urgent matters outlined in the Practice Directions is not exhaustive. With respect to the existing case law, Lemay J. noted: “In addition, counsel argues that I should apply the holding in Douglas v. Douglas, an unreported decision. In the Kostyrko decision, I spent some time explaining why I preferred the reasoning of Diamond J. in Jackman v. Doyle (2020 ONSC 1875), a case decided before Douglas. The trend in the case law as summarized by Bale J. in Brazeau fortifies me in my conclusion that the approach adopted by Diamond J. is the correct one.” Cross Motions Need to Be Deemed Urgent; Delay Undermined Urgency The Court stated that the Notice of Cross Motion should not have been served or filed until leave was granted by a Triage Judge in the same manner the original motion was listed for hearing. The urgency in the mother’s cross motion was undermined by her unilateral action. If she truly thought her relief was urgent she should have brought a motion two months ago when she denied access.



Access Restored The Court ordered that the father’s access should be restored for the following reasons.

- 1) The mother argued that she lived with her elderly and vulnerable parents but without more information this did not justify canceling in person access. She should have raised this concern with the father and “discussed his approach to social distancing.” The father’s evidence regarding social distancing revealed minimal risk.

- 2) The mother argued that the child was at an additional risk due to his immunocompromised state caused by Epstein-Barr syndrome however, nothing in the evidence supported this claim.

- 3) The Court cannot support self-help remedies

Make Up Time The Court awarded make up time to be agreed upon by the parties. If they could not agree, they could come back to Court. Police Enforcement Echoing Bale J. in Brazeau v. Lejambe, the Court declined to make a police enforcement clause but warned the mother that if the father was required to return to Court related to missed access (other than make up time), more drastic remedial measures would likely be ordered. Mascarenhas v. Budhai, 2020 ONSC 3365, Van Melle J. (May 29th, 2020) Justice Van Melle made a costs decision related to the father’s access motion. The Court previously ruled that the mother was entirely successful on the motion as the father’s matter was not urgent. “He had regular ongoing access. The fact that the access was not what he wanted did not make the motion urgent. The fact that he believed that the mother would use the COVID-19 situation to limit his access was not urgent.” In awarding the mother close to substantial indemnity costs, the Court also took into account the father’s lengthy materials and the fact that an additional affidavit was required to explain who was living in the matrimonial home. This information was necessary given the current pandemic and the fact the father wanted to exercise access in the home. Thomson v. Fleming, 2020 ONSC 3357, Baltman J. (May 29th, 2020) This was the return of an urgent access motion initially heard on April 2, 2020. The Court chastised the mother for failing to pay the costs award against her. Baltman J. stated: “… I have little sympathy for her claimed impoverishment. She is a kindergarten teacher who earns over $96,000 annually in a highly secure position. Unlike millions of citizens whose employment has been eliminated or reduced in the COVID-19 world, her job, income and benefits are protected.” Giesbrecht v. Lo, 2020 ONSC 3285, Tobin J. (May 29th, 2020)





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The Court ruled on evidentiary deficiencies related to an Application for Divorce. COVID-19 was not discussed. Berge v. Soerensen, 2020 ONCJ 265, Zisman J. (May 29th, 2020) The Court made a costs award related to a matter heard before the pandemic. The Court was not aware of COVID-19’s impact on the mother’s income or ability to pay costs. However, the Court deferred the payment by several months anyway. Earnest v. Pichette, 2020 ONSC 3326, Mitrow J. (May 28th, 2020) The Court affirmed the preliminary determination of urgency. The father would not allow the mother to exercise alternate weekend access with their eleven year old child per the status quo. The 2015 final order provided the parents with joint custody but the child’s primary residence was with the father. Urgent; No-Self Help The Court stated: “[a] parent cannot use the COVID-19 pandemic as an excuse to ignore an existing order. There should be no presumption in the COVID-19 world that in-person access will be suspended”. The Court further stated that the father had an obligation to ensure that access occurred despite the views and preferences of the child (which were somewhat suspect). The Court chastised the father for engaging in self-help. Among other things, the Court awarded the mother three make up weekends and ordered the matter would return on June 2, 2020 to ensure access was occurring and to make any necessary enforcement orders. The Court declined to make a police enforcement order. 14B Form Considered Motion to Change The mother filed a Form 14B instead of a Motion to Change. The Court found that it was appropriate and fair to deem the Form 14B as a Motion to Change. The Court considered the fact that both parties were able to file the necessary affidavit evidence and the Court’s primary objective was to deal with cases justly.

Campagna v. Campagna, 2020 ONSC 3379, Bondy J. (May 29, 2020) The Respondent father sought leave to bring an urgent motion as it related to:

- access time with the parties’ daughter; and - confirmation that the children’s school would remain the same even though the mother

intended to move to a new town.

The Court deemed neither issue urgent for the following reasons:


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- School: This issue fit best within the father’s upcoming motion for expanded parenting time. School would not start for at least three months (if it did indeed resume). The Court may be open for the hearing of regular motions by that time.

- Access time with the daughter: The father argued that the mother was deliberately frustrating his access time with the daughter. The Court found that missing one visit every three months did not qualify as urgent. As with many high conflict cases, it was not possible to make the necessary findings of fact without cross examination. The Court would be able to assess parenting time once the s.30 assessment was completed. The parties should do everything necessary to expedite that process.

The Court did grant the father’s request for a second case conference.

Cromwell v. Lucier, 2020 ONCJ 264, Sirivar J. (May 29, 2020) This was a continuation of the Applicant father’s motion for the resumption of access after the mother withheld the child. Parties’ Positions

The mother argued access, including telephone and video access, should be suspended for the duration of the pandemic because the child traveling between households put the parties at risk of COVID-19. The father argued that the mother had withheld the child since January 6, 2020 for reasons unrelated to COVID-19 and was now using the pandemic as an excuse. He filed a detailed affidavit outlining his compliance with COVID-19 public health directives.

Status Quo Enforced

The Court found that the mother did not establish grounds to suspend the status quo due to COVID-19. However, the father’s proposal to:

- have a third party facilitate access exchanges; and - for the daughter to visit with her half-sisters and their mother (who lived in a different

household)

did not conform to public health directives and was denied.

Behaviour Standards for Counsel and Parties

The Court found that the mother weaponized COVID-19 in her battle against the father. However, the father had been “aggressive and almost belligerent” in his demand for shared parenting. He “disregarded court processes and instructions, ignored court orders and mischaracterized findings of the Court”.

Justice Sirivar stated: “[t]he Court is operating with limited resources due to the Covid-19 pandemic. It is expected, at minimum, that counsel and parties will read and follow practice directions, abide by court orders, follow court process and not bombard court staff with questions whose answers can be found in directives and on the court website. Doing so will enable the Court to optimize its ability to address urgent matters.”


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Surdyka v. Surdyka, 2020 ONSC 3366, Jarvis J. (May 29, 2020) The husband started a motion in April 2019 “asking that his obligation to pay spousal support be terminated based on a material change in circumstances.” The husband retired in February 2020 and his income reduced by approximately $2,000.00 per month. His retirement at age 57 was supported by his doctor’s opinion.

The May 2020 Trial was postponed due to the pandemic.

Deemed a Pressing Matter

Jarvis J. found that “the husband in this matter has met the “pressing” test for his motion given the unchallenged evidence before the court about the change in his income, his health and concerns about the wife’s disclosure efforts but he is only entitled to an Order suspending the support Order at this time. I am making no determination about the ultimate merits of the husband’s motion.”

Walton v. Walton, 2020 ONSC 3364, Bondy J. (May 29, 2020) The Court heard duelling motions respecting custody of the parties’ children. COVID-19 and urgency was not an issue but each parent made allegations of child abuse against the other. The Court made a temporary order respecting CAS involvement and access. The Court then adjourned the matter to a date to be determined by the trial coordinator.

Desimone v. Desimone, 2020 ONSC 3361, Jarvis J. (May 29, 2020) The father sought leave for an urgent Case Conference respecting parenting of the parties’ seven-year-old daughter in the context of the mother’s existing Application.

Using the test from Clemente v O’Brien, the Court deemed this a “pressing” matter per the Notice to the Profession – Protocol for Family Matters in the Superior Court of Justice, Central East Region (Effective May 19, 2020):

“[8] Unlike Clemente there is evidence in this matter, although contradictory, of efforts to resolve what appears to be a fluctuating and informal parenting plan. These efforts have been compromised by the pandemic and there is no certainty as to when the courts will reopen or, if reopened, the range of matters that will be allowed to be heard. Between now and then, it is clear that there will be ongoing parenting conflict that will not be in the child’s best interests. The mother’s assertion that she supports the child’s relationship with her father is inconsistent with the parties’ evidence, particularly her own evidence.

[9] In Matus v. Gruszczynska… McGee J. observed that “[p]arenting is an essential service” and in Di Vetta v Di Vetta… I commented that “[u]nreasonable failure to support a child’s relationship with the other parent is a failure of parenting”. In my view, the father’s request is pressing and a case conference must be held.”





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El Mor v. Dief, 2020 ONSC 3354, Diamond J. (May 29, 2020) “Justice Hood [previously] reviewed the applicant’s motion materials and found that the specific relief relating to the alleged breach of the preservation order presumptively fit the “urgency requirement” as set out in the Notice. Justice Hood then set a timetable for the service of the applicant’s motion materials, and the exchange and filing of any responding and reply motion materials.”

The Respondent served a cross motion “seeking an order clarifying that the preservation order permits him to sell any real property owned by him and/or any company controlled by him, provided the proceeds are preserved in trust by the respondent’s lawyer.”

The Court heard the motions.

Williams v. Williams, 2020 ONSC 3341, Gareau J. (May 29, 2020) “The court heard motions for interim relief pertaining to custody, access and exclusive possession of the matrimonial home. The motions brought by the applicant for interim child support and a restraining order were withdrawn by the applicant at the commencement of the motion being heard.” COVID-19 was not an issue in the proceeding except for the fact the father ran his business from the matrimonial home and the business was closed because of the pandemic.

N. S. v R. M., 2020 ONSC 3359, Doyle J. (May 28, 2020) The parties attended a teleconference to set the terms of a final Order arising from a 2019 trial.

Clemente v. O’Brien, 2020 ONSC 3287, McGee J. (May 28, 2020) The father brought a 14B Motion for leave for an urgent Case Conference on access issues unrelated to COVID-19. There were numerous allegations of domestic violence against the father.

The Court found this matter was not urgent and not “pressing” per Notice to the Profession – Protocol for Family Matters in the Superior Court of Justice, Central East Region (Effective May 19, 2020).

Not Urgent

The Court agreed that parenting time is an urgent issue, especially for young children in the attachment phase of development, however, the parties’ young child did not have a healthy attachment to his father and had been exposed to the trauma of domestic violence. The Court stated: “[t]he materials shape a view that Mr. Clemente seeks to obtain through the court process that which has been unavailable to him through his personal efforts: enforced contact and control of events on his terms, not terms sensitive to his son’s best interests.”









The Court concluded that this matter was not urgent. Echoing Justice McSweeney in Ramdass v. Ramdass, 2020 ONSC 1983, the Court found the standard of pandemic urgency was higher than Rosen v Rosen. The threshold for pandemic urgency was: “does the motion bring forward issues of “essential medical decisions” or “wrongful removal and retention” of a child?”

Threshold for Pressing Matters

The Notice to the Profession – Protocol for Family Matters in the Superior Court of Justice, Central East Region (Effective May 19, 2020) “further expanded the matters that can be heard from strictly urgent, to urgent or pressing, on leave. Examples include COVID-19 concerns, child protection concerns, summer or other access issues.”

The Court stated:

“[32] Urgency as set out in the original Notice to the Profession was a higher standard than in Rosen. With the May 19, 2020 expansion has come a relaxing of that initial standard; but to now set it below that of Rosen would in my view undercut a vision for the Family Court that we must not leave behind as we transition to a new normal. This is a full circle worth travelling whether the test for urgency be for a motion, as it was in Rosen v. Rosen or for a Case Conference during a period of suspension.

[33] I therefore characterize a pressing issue as set out in the May 19, 2020 Central East Notice to the Profession as a standard no less than that required for an urgent motion during regular court operations pursuant to Rosen v. Rosen, 2005 CanLII 480, and that as a precondition to granting leave, the court must be satisfied that the moving party has engaged in genuine, broadly optioned and diligent settlement discussions.”

Here, the father failed the “pressing” test because he made no genuine efforts to settle or compromise.

Burke v. Bouzanne, 2020 ONSC 3336, Doyle J. (May 28, 2020) This matter was rendered urgent by Justice Roger on May 6, 2020. The issue was what school should the parties’ two children attend in September 2020. The Court ruled on the issue. COVID-19 was not a factor.

Daniel v. Henlon, 2020 ONCJ 259, O’Connell J. (May 27, 2020) The Court considered the impact of COVID-19 on the parties’ financial circumstances in making a costs award related to a January 23, 2020 summary judgement motion.

Panaia v. Alves, 2020 ONCJ 255, O’Connell J. (May 27, 2020) The father, who lived in Woodbridge, sought leave to bring an urgent motion for an order that the parties’ five-month-old child be immediately returned to his primary residence in Woodbridge, or, alternatively, an order for equal parenting time.




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The mother brought her own motion seeking to “traverse this matter to the Ontario Court of Justice at 47 Sheppard Avenue, Toronto, an order that the child’s primary residence remain with her in Toronto, and an order for specified access to the father.”

The ONCJ deemed this matter urgent and made a temporary Order on the merits of the motion. The Court found urgency because:

- the child was living with the parties in Woodbridge before separation; - “[t]he father stated that the mother “absconded” with the child and [was] “unlawfully

retaining” the child”; - the father claimed the mother denied him access to the child; - when some access occurred at the mother’s new residence, the mother’s sister called

the police on the father and the mother claimed the father tried to take the child; and - there was no order or agreement in place.

The matter would return after July 18, 2020 to review the new parenting order.

Mauro v. Mauro, 2020 ONSC 3318, Bloom J. (May 27, 2020) The Court made a Consent Order that ongoing child support be terminated as the child was no longer a “child of marriage”. The Court dismissed the Motion to Vary with respect to ongoing and arrears of spousal support. The parties agreed that more medical evidence was required and further disclosure was ordered.

Triestino v. Triestino, 2020 ONSC 3311, Jarvis J. (May 27, 2020) The mother brought an ex parte urgent motion to “vary the part of the September 2019 temporary Order dealing with the father’s in person access to the parties’ two children.” The father’s pleadings had been struck and he failed to comply with the costs Order against him. The April 2, 2020 hearing was adjourned because of COVID-19.

The mother argued that she was “concerned about the irrational, erratic and Order non-compliant behaviour of the father and that notice of this motion may only escalate behaviour harmful to the children (and possibly her).” The Court found that she had a prima facie case to be concerned based on the evidence, the costs Order and the father’s recent criminal charges.

The Court was persuaded that the mother’s motion met the urgency test and suspended the father’s in person access. However, the Court found the father should have the opportunity to respond.

Spadacini-Kelava v Kelava, 2020 ONSC 3277, Kurz J. (May 26, 2020) Both the parties appealed the 2019 arbitration award and moved for relief prior to the determination of the appeal.







The parties’ daughter had autism. While married, the mother moved to Indianapolis with the children so the daughter could attend a special school while the father remained in the GTA and enjoyed regular visits with the children in Toronto. This arrangement continued post-separation.

The arbitrator made a multidirectional parenting award that required the two children be returned to Ontario by May 31, 2020 at the latest. Part of the reason for this award was that there was a Toronto school that could provide equivalent treatment to the daughter.

The mother then sought to stay the parenting provisions of the award and in particular the moving deadline. She also sought to include fresh evidence. The father opposed this motion.

Following the children’s best interests, the Court granted a stay of the parenting provisions of the Arbitration award until the completion of the appeal. One of the many reasons behind this decision was that the transition planning between the schools was not finished and it was not clear when it would resume given the school closures. The daughter’s new school was unable to receive her while closed for COVID-19 however, her old school could continue her therapeutic services.

The Court also noted that if the children moved back to Ontario but the award was reversed on appeal, the children would have to quarantine for two weeks upon their arrival to Canada and then for another two weeks upon their return to the United States. The four weeks of isolation would impact the daughter’s ability to receive treatment.

Burrell v. Burrell, 2020 ONSC 3269, Bondy J. (May 26, 2020) The wife sought an urgent order for the sale of the matrimonial home, an order allowing her to sign any necessary documents on behalf of the husband, an order the husband vacate the matrimonial home, and an order that she could retrieve her personal possessions from the home before closing.

On January 10, 2020, Hebner J. ordered that the parties’ home be sold. The parties signed the agreement of purchase and sale on February 10, 2020. The husband extended the original closing date to May 29, 2020 and was now refusing to sign the closing documents.

The husband argued that the matter was not urgent, and the sale should not proceed until after the pandemic. He complained that the wife would not settle with him respecting parenting issues.

Urgent Because Under Legal Obligation to Close Sale

The Court affirmed this matter’s urgency because the parties were under a legal obligation to close the transaction. If they failed to close the transaction, a cause of action would arise and expose both parties to “needless and expensive litigation.”

Husband Must Close the Sale

The Court granted the wife’s requested Orders. The husband’s unilateral decision to refuse to sell the property was problematic for the following reasons.




- 1) He signed the agreement voluntarily and was bound by that decision. - 2) None of the other parties to the sale agreed to amend the closing date again. - 3) The husband’s refusal to sell the house would leave the purchasers without a house

to live in. - 4) The husband failed to consider that the wife may require her share of the sale

proceeds; the children lived with the wife and they would suffer from her financial hardship.

- 5) No evidence indicated the move could not be carried out according to current government COVID-19 guidelines.

- 6) The husband argued that the sale of the matrimonial home would put the children at risk but that did not make sense since the children did not live there.

- 7) The husband’s Facebook posts demonstrated he thought COVID-19 was a hoax which was inconsistent with his position that COVID-19 made it dangerous to sell the house; the husband misrepresented his belief to achieve his goals in the litigation. There were numerous other inconsistencies with his evidence.

- 8) The husband was clearly using his refusal to close the transaction as leverage in negotiating a different access regime or to punish the wife for failing to give into his demands.

- 9) The sale was scheduled to close in a few days and the husband created an artificial emergency.

- 10) It was not practical to suggest the matrimonial home would not be sold until after the pandemic; the end of the pandemic was unknown and it was unfair to tie up the wife’s equity indefinitely.

- 11) The parties would have little chance of success in litigation if the sale failed to close and a resulting damages award would impact the wife’s ability to provide for the children.

Leitch v. Novac, 2020 ONSC 3215, Faieta J. (May 26, 2020) The husband and wife separated in 2012 after 15 years of marriage. The issues of support and equalization remained outstanding because, from the outset of the application, the wife took the position that the husband failed to disclose his interest in and income derived from his father’s business. The husband contested this position. The father’s company was added as a respondent and there was extensive litigation.

The wife now asked the Court to permit her to:

- immediately list and sell, without the husband’s consent or involvement, a property known as “the Farm”; and

- retain the net sale proceeds.

The matter was deemed presumptively urgent.

The wife argued she could not afford to maintain the Farm but could not sell it alone as it was a “matrimonial home”. The property was scheduled to be sold at a tax sale on August 12, 2020 and the wife argued she could get a higher price for the property if it was sold immediately.




The Court found that the husband unreasonably withheld his consent to sell the property and granted the requested order subject to terms including the wife keeping the husband informed and the husband providing his views.

Hurst v. Hurst, 2020 ONSC 3258, Bondy J. (May 26, 2020) The father brought an urgent motion for the resumption of access in response to the mother’s withholding. He had not seen the children since March 2020. The Court already deemed this high conflict matter presumptively urgent.

The mother argued that she could not trust the father with the children because he “breached the public health safety protocols by bringing the children to a park and by bringing them grocery shopping.” The mother made the father aware of her concerns but he failed to take them seriously.

Lifestyle Creating Unnecessary Risk

Since there was a clear presumption exiting orders should be followed, the central issue in this case was whether the lifestyle of either partner created unnecessary risk for the children.

The Court found it was in the children’s best interests to follow the existing access order because it was impossible to know where they would be safer. The Court found that while the father may have initially underestimated the seriousness of COVID-19, he now understood the risk. There was apparently more risk of exposure at the mother’s home as she left her house to buy groceries and her live-in boyfriend maintained his job in the construction industry. The matter could come back to Court if the parties failed to follow safety measures.

Self Help

The Court agreed that the father’s behaviour may have justified the mother’s feeling that she could not trust him but she should not have resorted to self-help.

Costs

It was not appropriate to award costs because the mother had some basis for concern behind her unilateral action.

Children’s Aid Society of the Region of Peel v. G.P., 2020 ONCJ 256, Sullivan J. (May 25, 2020) With respect to COVID-19, access visits between the mother and child were ordered to occur in an outdoor location such as a park. These visits could be adjusted per the evolving Ministry of Health directive and the Government’s staged reopening of public spaces.

Jauhari v. Jauhari, 2020 ONSC 3227, Horkins J. (May 25, 2020) Over the pandemic period, this matter came before the Court several times. The matter involved an ex parte order that the Respondent husband, who maintained assets overseas, “shall be




restrained from transferring, assigning, pledging, disposing of, depleting, dissipating, or otherwise dealing with any assets under his control. The Respondent shall preserve such property until further Order of this Court”.

In this decision, the Court deal with the husband’s jurisdictional arguments and response to the wife’s motion.

Lokhandwala v. Khan et. al., 2020 ONSC 3209, Lemay J. (May 25, 2020) The Respondent sought an Order for the sale of the matrimonial home as the Applicant alleged the sale price was too low and would not consent to the sale. The property, with a value of over $2 million, had been listed for sale prior to the pandemic. The parties agreed that it needed to be sold; the issue was whether the offer was a reasonable one that should be accepted.

While the decision deals with many additional issues, the portion of the decision relevant to COVID-19 was whether or not the matter was urgent. The court held that the matter was urgent given that the property was vacant and there were significant expenses associated with the maintenance and upkeep of the property. The court held that the test for urgency set out in Thomas v. Wohleber was met.

St. Louis v. St. Louis, 2020 ONSC 3205, Mackinnon J. (May 25, 2020) The Respondent father brought the motion to resume access to the parties’ three children. He also sought makeup access.

The mother stopped access after statements made by the two older children following an access visit with the father. The access was stopped on the advice of CAS and OPS. An investigation was completed and the allegations were not verified.

The father was concerned with the manner in which the mother reinstated access, which was not an immediate resumption of the regular schedule. At the time of the motion, regular access had resumed.

The court, finding no bad faith on behalf of the mother, ordered limited makeup time as well as other provisions regarding the exchange of the children. The father, an orderly in a hospital, was to also advise the mother in writing of the precautions he was taking to protect himself and the children against infection of COVID-19.

McKeogh v. McKeogh, 2020 ONSC 3184, Bloom J. (May 25, 2020) The Applicant was granted leave to bring an urgent motion on May 5, 2020. The Applicant’s motion sought:

- an Order dispensing with the Case Conference; - return of the 11-year-old child within 24 hours of the Order; - a return to the pre-COVID parenting schedule or, in the alternative, a variation of the

schedule;



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- police enforcement; and - a requirement to comply with government directives regarding COVID-19.

Essential Workers

The Respondent mother kept the child with her own mother since the beginning of the pandemic. The Applicant was a police officer but his job involved no contact with the public and limited contact with co-workers. He remarried and lived with his spouse, her children and their shared child. His spouse worked as an administrative clerk in a hospital with no patient contact. Bloom J. found the Respondent and his spouse took appropriate precautions with respect to the virus.

Relief Granted

At the time of the motion, the Respondent consented to an order to return to a week about schedule and for police enforcement. The Respondent also brought a cross motion for a Voice of the Child Report, a s.30 assessment or a s.112 report, as well as an order for compliance with government directions on COVID-19 and non-disparagement by the Applicant of the Respondent to the child.

The judge did not order make up time between the Applicant and child, preferring a return to the week about schedule for stability for the child. Police enforcement was granted as well as the requirement to comply with COVID-19 directions and for neither party to make disparaging remarks about each other in front of the child.

The court dismissed, without prejudice, the request for a Voice of the Child Report, a s.30 assessment or s. 112 assessment. There was not sufficient time for the Applicant to respond to this relief sought by the Respondent and the parties could proceed to a Case Conference to deal with the issue.

E.M.B. v. M.F.B, 2020 ONSC 3171, Lemay J. (May 25, 2020) Justice Lemay placed this matter on the May 2020 trial blitz list after case managing it for over a year. As part of the Trial Scheduling Endorsement Form, Justice Lemay indicated that neither party could bring further motions without his approval. The trial was postponed until January 2021 as a result of COVID-19.

Despite this order, on May 1, 2020 the father’s lawyer sought an urgent motion claiming that the mother unilaterally suspended the father’s access time as of March 15, 2020. The father’s materials did not mention that the matter was case managed or that the Trial Scheduling Endorsement Form required him to seek leave before bringing a motion.

The mother brought a cross motion to suspend the father’s in person access because he failed to follow physical distancing protocols and one child had a medical condition making them vulnerable to COVID-19.

Must Still Seek Leave from the Case Management Judge to Bring Pandemic Motion




The motion came before Justice Fowler Byrne on May 25, 2020 and she advised the parties that Justice Lemay would join the conference call to consider the leave request because:

- “the Trial Scheduling Endorsement Form clearly stated that any motions in this matter were only to be brought with [Justice Lemay’s] leave”;

- the mother’s lawyer objected to the father’s motion given only Justice Lemay had jurisdiction to grant leave; and

- The mother initiated her own request for relief without leave.

The father’s counsel argued that he could bring the motion without leave because “the Trial Scheduling Endorsement Form did not take the urgent situation involving the pandemic into account.”

Justice Lemay rejected this explanation because “[c]ase management serves a number of important functions, particularly in high conflict cases such as these. One of those functions is to ensure that disputes are adjudicated in an orderly way. Another function is the supervision of the parties. This supervision is best exercised by the case management judge because he or she knows the parties, is familiar with their dispute, and is in the best position to determine, at least procedurally, what should be done, when and how it should be done.”

The onus was on the father to explain the case management situation and the substance of the Trial Scheduling Endorsement Form in his materials since only the moving party could correspond with the Court under the present pandemic protocol.

Urgency Granted

Justice Lemay ultimately ruled that the matter was prima facie urgent because the current access order was not being obeyed by the mother and the mother’s explanation for disobeying the order might allow the Court to grant her requested changes.

Justice Lemay found that:

- Justice Fowler Byrne would hear the matter given there was substantive relief relating to access being sought and it was inappropriate for Justice Lemay to hear the matter as case manager;

- Justice Fowler Byrne would make the ultimate determination of urgency; - any party wishing to raise further issues must briefly write to Justice Lemay’s assistant; - further cross motions would not be permitted outside of the procedure in the most recent

practice direction; - breach of these orders would result in a finding of contempt; and - costs would follow the cause.

Bedi v. Shafi, 2020 ONSC 3236, Bloom J. (May 25, 2020) The mother had brought an urgent motion requesting that the two children reside with her during the COVID-19 pandemic. An interim order dictated that the children’s primary residence would be with their paternal aunt and the mother would have supervised access. The paternal aunt successfully opposed the mother’s motion.






In this costs endorsement, the Court considered the mother’s limited means and awarded the aunt partial indemnity costs (to be paid to Legal Aid Ontario).

Collins v. Collins, 2020 ONSC 3206 , Jarvis J. (May 22, 2020) The parties, who shared a two-year-old daughter, separated on April 5, 2020. A Case Conference was held following the Court finding the father’s motion urgent. Recommendations regarding the issues were provided at the Case Conference on May 15th, 2020 but the parties were unable to reach a temporary resolution.

It was left to the conference judge to determine if a motion was needed. In keeping with the expanded range of the permissible matters to be heard by the court, the judge held that the issue of a parenting schedule during the pandemic is a pressing matter and allowed the father to proceed with his motion only on the issue of parenting arrangements.

Atkinson v. Wilton, 2020 ONSC 3212, Conlan J. (May 22, 2020) The Court granted the father’s motion to resume his access, pursuant to a Final Order dated June 21, 2019. The mother had unilaterally suspended access in March 2020, as a result of the COVID-19 pandemic.

The mother alleged that the 11-year-old child should not be travelling between houses because of the child’s asthma. She produced a letter from the child’s physician which set out the child’s conditions, medications and recommendations for precautions during the pandemic.

In making its decision, the Court set the principles that should apply in cases where a parent suspends another parent’s court-order access:

(i) there is a legal presumption that the Court-ordered access that was in place before the pandemic arose should continue/resume, with all of the necessary precautions in place as recommended by the health authorities;

(ii) the parent that suspended the access bears the onus of rebutting that legal presumption, even if the motion before the Court, as here, is brought by the parent whose access has been suspended; and

(iii) to rebut that legal presumption, cogent evidence, preferably from an independent medical source, must be presented to support the position of the parent who has suspended the access and permit the Court to conclude that the suspension of the access is more in the best interests of the child than continuing/resuming the access as previously ordered by the Court.

The Court found that the mother failed to meet the test on a balance of probabilities. The letter did not go so far as to say that the child could not travel between the homes of her parents, and if that was the intent, it was necessary for the mother and/or the physician to make it clear in the evidence. The father’s access was to resume.

Concerns regarding the father’s employment with Lyft and a scaffolding company, though legitimate, did not present an issue as the father no longer held that employment at the time of





the motion. The Court did order that the father shall not resume either of those jobs. The father was also order to follow all COVID-19 precautions posted on the Health Canada website.

Capone v Fotak, 2020 ONSC 3146, Diamond J. (May 22, 2020) On March 17, 2020, Justice Diamond was scheduled to hear two motions related to the parties’ lengthy and litigious separation:

- 1) The Respondent’s long motion setting aside ten separate orders made in the proceeding from 2013-2015 on the basis “that the Ontario Superior Court of Justice lacked jurisdiction by reason that the [R]espondent was never properly served with the [A]pplicant’s original materials in accordance with the provisions of the Hague Service Convention”; and

- 2) the Applicant’s cross motion that the Court refuse to give the Respondent an audience given that he was in breach of Court orders.

The date was postponed due to the COVID-19 pandemic and the Respondent then sought to have the long motion heard on an urgent basis.

Urgency Test Failed

The Respondent argued that his preexisting medical conditions (high blood pressure, heart disease, and a history of colon cancer) combined with his inability to get health insurance created a new “life and death urgency”.

The Respondent’s U.S. visa expired in 2014. While the Respondent’s residence was technically Bermuda, he claimed he had been stranded in the U.S. since the fall of 2016 when the Family Responsibility Office (FRO) seized his passport. Since that time, he had private insurance through is partner’s employer but that insurance would expire on July 31, 2020. He could not get new insurance without a passport or valid U.S. visa. He argued there would be a six month waiting period to qualify for OHIP if he returned to Canada.

The Court declined to hear the matter on an urgent basis and found the Respondent created his own misfortune. Specifically:

- The Respondent’s U.S. visa expired before FRO seized his passport; - He knew or ought to have been aware in January 2018 that his health insurance would

expire on July 31, 2020 but did not serve his long motion materials until November 2019 creating a gap between his private insurance expiring and OHIP coverage starting;

- The Respondent did not provide FRO with notice of the long motion or seek relief against FRO;

- The Respondent chose not to seek a stay of the ten orders he was in breach of despite ample opportunity;

- The ten orders were in force and effect and the Respondent remained in significant breach of them;

- The Respondent previously sought to schedule this long motion on an urgent basis and the Court dismissed the request using the test from Rosen v Rosen; the principles from





that test still remain instructive and relevant and the Respondent provided no new circumstances besides COVID-19;

- This was not the first time the Respondent sought to set aside court orders made in his absence;

- The fact that the Respondent “attorned” to the jurisdiction of Ontario may have rendered his overall argument moot.

The Court also ruled that Justice Shore’s presumptive finding of urgency was non-binding as “the designated judge still has jurisdiction to determine whether the matter is urgent and should proceed (or not) to be heard.”

Wilson v. Khasminsky, 2020 ONSC 3179, Kaufman J. (May 21, 2020) This endorsement followed a Case Conference on child support and disclosure issues.

Levesque v. Windsor, 2020 ONSC 3110, Mackinnon J. (May 21, 2020) The Applicant moved to stay the Final Order of Shelston J. dated January 17, 2020 pending his appeal from it. This order awarded the parties joint legal custody of their seven year old daughter and increased the Respondent’s parenting time. The previous order provided sole custody to the Applicant.

In her closing comments, Mackinnon J. stated that “the Final Order has undoubtedly been impacted by the all of the changes [the child] has experienced related to the COVID-19 public health emergency. These events and their consequences for her could not have been contemplated during the trial in 2019 nor in the Reasons for Judgment. I invite the parties to consider the merits of asking the trial judge to undertake post-trial management of the implementation of his Final Order so that he could monitor [the child’s] progress in adjusting to the new residential schedule in the context of the myriad other changes she has and will continue to experience in the coming months as our community continues to grapple with the “new normal” of COVID-19. “

Medu v. Medu, 2020 ONSC 3159, McSweeney J. (May 20, 2020) The father withheld the children during COVID-19 and took them to Northern Ontario. The mother successfully brought an urgent motion for their return.

In this costs decision, the Court ordered that the father pay full indemnity costs. Notably, and in addition to other things, the father withheld information from the mother which would have helped her assess the risk to the children’s safety posed by travel to a new region during the global pandemic.

Grover v. Batra, 2020 ONSC 3089, Bloom J. (May 20, 2020) The wife moved for an order that:







- the husband consent to an arrangement with the mortgagee on the matrimonial home to defer mortgage payments for six months;

- the property be listed for sale; and - the need for the husband’s signature on any sale documents be dispensed with.

Dire Financial Circumstances

Both parties had zero income from their usual employment because of the pandemic. They each relied on $2,000.00 per month in government assistance. The matter was urgent because the wife’s income was small and the mortgage on the home was large. She was entitled to seek an end to her “dire financial circumstances” by securing her equity and removing her obligation to pay carrying costs. The husband presented no basis to deny her the relief sought and was not in a position to buy out her interest.

Relief Granted Under Partition Act

The parties were already divorced so s. 23(b) of the Family Law Act could not apply. The Court relied on s. 3 of the Partition Act to grant the relief sought.

Brazeau v. Lejambe, 2020 ONSC 3117, Bale J. (May 19, 2020) The father brought an urgent motion seeking:

- an Order compelling the mother to comply with the custody and access provisions of the Final Order; and

- make up time

The mother wanted the Court to disregard her non-compliance with the governing order because she alleged the children did not want to attend the father’s home and it was unsafe for the children to attend the father’s home.

Obstruction of Access Met Urgency Test

This matter met the urgency requirement because “the purposeful obstruction of access and a failure to support the ongoing relationship between a child and parent, meets the urgency requirements as set out in the Notice to the Profession.”

Mother’s Arguments to Support her Unilateral Action Rejected

Finding it was in the children’s best interests to see their father, the Court rejected all of the mother’s arguments supporting her self-help remedy and found she was capitalizing on the pandemic. She should not have acted unilaterally and should have brought her own motion if she wanted to change the Final Order.

Views of the Children

The Court rejected the mother’s claim that the children feared access visits with their father due to COVID-19 because:




- in March, the mother “travelled internationally with the children in direct contravention of the Canadian government’s global travel advisory, warning Canadians to avoid all non-essential travel due to the COVID-19 outbreak”;

- emails between the parties showed the mother acting based on her own preferences; - the mother stated she would let the children decide if they wanted to go but the children

did not have authority to disregard a court ordered term; - the views and preferences of the child were only one factor in the best interests test; - the evidence of the children was not properly before the Court; and - the mother failed to compel the children to spend time with the father.

Essential Worker, Blended Family and Asthma

The mother argued it was unsafe for children to attend the father’s home because the father’s partner was employed at a long term care facility; the father lived in a blended family; and the children had asthma.

However,

- the partner’s detailed descriptions of safety measures used in her home and work showed the Court she was taking all necessary precautions;

- the partner’s children lived in different households but evidence from those households showed they were also social distancing and respecting public health protocols; and

- if the mother was truly concerned about the children’s asthma she would not have taken them to Mexico at the start of the pandemic.

Distinguished Blythe v Blythe

The Court distinguished this case from Blythe v Blythe because:

- that mother was acting out of concern for the children’s best interests and brought a motion;

- those children lived with their elderly maternal grandparents and could not return home if they spent time with their father;

- that mother provided alternate solutions for in person time sharing; - that status quo was based on a temporary order.

Make Up Time Awarded

The Court stated that there was no benefit to ordering that a party comply with an existing order. The Court instead used Rule 1(8) of the Family Law Rules “to achieve the goal of immediate compliance and to discourage future non-compliance.”

The Court awarded make up time to the father but reduced the number of access exchanges in the schedule to minimize exposure to COVID-19 and conflict. The Court declined to make a police enforcement order but warned the mother that stricter sanctions would follow if required.




Walia v. Walia, 2020 ONSC 3064, Kumaranayake J. (May 15, 2020) The Court heard the father’s urgent motion respecting access time. The mother only allowed him to see the children once a week following the parties’ failed reconciliation.

Stefanska v. Chyzynski, 2020 ONSC 3048, Horkins J. (May 15, 2020) The father brought an application for an order directing the return of his children to Poland under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (the "Hague Convention").

The Court ordered that the children be returned to Poland. The Hague Convention required that the return be “forthwith”. This was not possible due to COVID-19 and the parties agreed the children should not travel at the present time. The Court stated that the return “must not be unnecessarily delayed” and set a procedure to establish an appropriate date.

Silva v. Silva, 2020 ONSC 3073, Harper J. (May 15, 2020) History of Conflict

The father experienced mental health challenges resulting in admission to an inpatient facility from August to September 2019 shortly after the parties separated.

The father did not have access time with the children from his admission until Justice Nightingale’s Order of October 19, 2019 which provided for supervised access three times a week in the matrimonial home without the mother present.

The mother then withheld the children following an “incident” in February 2020. The mother called the police but they declined to lay charges.

Court Ordered Access Would Continue

The Court found that the “parental conflict [was] bordering on emotional abuse of these children and must stop”. There was no reason to deny the father access since he complied with his medication and maintained contact with his psychiatrist. The Court ordered that in person access would continue until June 15, 2020 per the existing order. It would now occur in the paternal grandmother’s home.

COVID-19 Precautions: Visitors to the Home

The Court found that the parties had extended family and persons who were important to them coming in and out of their respective homes which created a COVID complication that needed to be addressed.

The Court ruled that all heath protocols must be observed and it was “not possible to specify every condition that must be met”. The Court stated that protocols of handwashing and social distancing applied to both households. If anyone came into either household who was






potentially exposed then the parents, and anyone else who was present when the children were there, must wear a mask.

Medu v. Medu, 2020 ONSC 3055, McSweeney J. (May 15, 2020) The mother brought an urgent motion. On April 24, 2020 the Court heard the urgent issue of the father over holding the children and taking them to Northern Ontario. The other issues were adjourned and heard by teleconference on April 28, 2020. This relief included the suspension of the father’s access until make up access occurred; a mechanism for arranging alternate pickup times and locations; a police enforcement clause; and full recovery costs enforceable through FRO.

The Court heard from the parties on April 28, 2020. The matter would continue and conclude on May 21, 2020.

Temporary Changes to Final Order Do Not Require a Motion to Vary

With respect to COVID-19 variations to the schedule, the Court stated that: “Changes to a final order require a motion to vary… Temporary changes required during the COVID-19 pandemic, which are required to enable parties to comply with an access schedule in a final order, however, may be ordered by the court as a temporary variation. For example, where children are not attending school, which is the transfer location in the final order, an interim variation order may specify an alternate transfer location during school and daycare closure.”

Ade-Ajayi v. Ngure, 2020 ONSC 3095, Wildman J. (May 15, 2020) The urgent issue at hand was the ongoing child support and arrears being collected by FRO from the father. In 2013, the father was ordered to pay the mother “approximately $20,000 in arrears of support for 2008-12, and ongoing support of $524 per month.” This order arose from an uncontested trial in which the father did not participate. He claimed the support order was based on an unrealistic imputed income.

The Court said it was clear that the mother should not be receiving child support since the children lived primarily with the father. The Court also stated that: “[s]he should also not be receiving any emergency benefits that are being provided by the government for the children’s needs during this pandemic. The priority is the children’s immediate needs, not repayment of arrears that are under dispute or ongoing support for children who are not living with her.”

The Court stayed the support order being enforced by FRO.

Cicci v. Cicci, 2020 ONSC 3069, Jarvis J. (May 15, 2020) This was an endorsement following a Case Conference. The parties were informed at the start of the Conference and when it ended that the Court intended to “defer making any endorsement so as to give them an opportunity to discuss with their lawyers the court’s recommendations and to ascertain the likelihood of a temporary, without prejudice agreement. The parties agreed with this approach.”







The parties were unable to agree on the details of a parenting plan for the pandemic and the father wanted to move forward with his urgent motion. The Court made procedural orders for the service and filing of motion materials.

Murphy v. Connolly, 2020 ONSC 3047, Jarvis J. (May 14, 2020) The Final Order of March 2019 provided for joint custody and a 2-2-3 timesharing schedule. The mother started a Motion to Change on May 12, 2020 and brought an urgent motion to change the Final Order so that she could move an hour away. The father opposed the move.

“Pressing” Issues; Thomas v. Wohleber “Modestly Relaxed”

The Court found that the Central East Region (“CER”) Notice to the Profession effective May 19, 2020 expanded the range of matters permitted under the March 15 Notice, as updated on May 13, 2020, to include matters qualifying as “pressing”. Although decided under a previous iteration of this Notice, the Court found that “Kurz J. in Thomas v. Wohleber framed the general outline for the requisite test which, in my view, should be only modestly relaxed.”

The mother’s motion was not urgent but needed to be addressed as a pressing matter. The father needed to be served with her materials and a Case Conference must proceed on or after May 22, 2020.

Snively v. Gaudette, 2020 ONSC 3042, Bondy J. (May 14, 2020) This was an endorsement as to sanction for content and costs for a contempt hearing.

The Court found that the father materially misrepresented facts relating to his decision to breach the existing access order by withholding the children. The father claimed that he withheld the children because there were potential cases of COVID-19 at the mother’s place of employment (Southwest Detention Centre) however, the Court ultimately found his motives were not related to the children’s safety.

The father purged his contempt by returning the children to the mother. The Court found that the appropriate sanction would be for the father to pay a penalty to the mother. Imprisonment was not appropriate at this point in time because of the unusual risk posed by COVID-19.

The father lived on a disability pension however, he had no reasonable excuse for the conduct that gave rise to the litigation and any costs incurred by the mother as a result would come directly “out of the mouths of the children” as he did not pay support. The mother sought $252.00 and the Court awarded her this penalty.

For similar reasons, including the father’s bad faith actions, the Court also awarded the mother full indemnity costs of $3,932.40 plus disbursements of $32.22 and HST.

Gagnon v. Skaade, 2020 ONSC 3034, Jarvis J. (May 14, 2020) Further to the endorsement of May 6, 2020, the Court reviewed the further evidence of the




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parties and the Children’s Aid Society. The Court affirmed the matter’s urgency because, even though the concerns raised by the mother were not related to the COVID-19 pandemic, they impacted the current parenting arrangement and “something must be done now to deal with what is clearly and unacceptable situation.”

C.A.S. v. J.N., 2020 ONSC 2999, Piccoli J. (May 13, 2020) The mother sought to resume access time with her children. The Society supported the mother’s position; access could safely resume to that in place prior to the COVID-19 blanket suspension of in person access. The children’s respective fathers’ did not support the reinstatement of access.

With respect to COVID-19, the Court:

- Accepted the submissions of the mother and the Society that it would be in the children’s best interest to return to face to face contact with their mother as she was “having face-to-face contact before the pandemic and the only reason her face-to-face visits were suspended was due to the Society’s policy, not due to anything she did or did not do to put the children at risk.”

- Found that the fathers’ did not provide evidence to support the proposition the mother would put the children at risk and, in any event, the parents agreed to terms that mitigated potential risk.

The Court ordered that face to face access would resume at the discretion of the Society which at that time involved overnight access for a few days at a time.

Dehaan v. Billings-Turner, 2020 ONSC 3002, Ryan Bell J. (May 13, 2020) The father brought an urgent motion claiming that the mother denied him access to the parties’ children since September 2019. The mother said that she was not denying access but instead seeking supervised access as a result of the events of a heated access exchange.

During the hearing, the mother argued that supervised access should not take place until after the COVID-19 pandemic. The Court rejected this submission because she did not provide specific examples of the father’s behaviours which were inconsistent with COVID-19 protocols.

Valentini v. Sweet, 2020 ONSC 3004, Pazaratz J. (May 13, 2020) The Triage Court deemed the maternal grandmother’s motion for sole custody of her grandson non-urgent and indicated a Case Conference should be scheduled. The Court cited the following factors:

- the mother was served the same day as the hearing and did not have the opportunity to respond;

- the grandmother did not name the child’s biological father as a party; - it was not clear if this was a Motion to Change or a fresh Application;


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- the 15 year old grandson stayed with the grandmother for the last seven weeks and nothing in the materials showed he would be brought back to the mother against his will; there was no order for the police to enforce and CAS would not become involved because there were no protection issues.

Burshaw v. Penney, 2020 ONSC 2980, Pazaratz J. (May 12, 2020) The father brought an urgent motion that the parties’ eight year old son reside with him because the son expressed suicidal thoughts to three different people. Justice Pazaratz, as Triage Judge, said that this allegation was urgent but the other issues were not. These issues included:

- the mother communicated ineffectively with the father; - the mother was secretive about her text communications with the son; and - the mother arranged for alternative child care when the father had the right of first

refusal.

The father claimed that he told the mother about the son’s suicidal statements but the mother’s lawyer responded that the child was a “normal happy boy”.

The Court found that: “In any situation in which one parent says “there is a terrible problem here” and the other parent says “I don’t see any sign of any problem” – the immediate priority should not be to win the debate… The immediate priority should be to double check and further investigate the matter, just in case.” The Court found it odd that the mother did not take the allegation more seriously

The Court was unable to accept the mother’s characterization of the situation given that the family had been in court for more than a year and the current temporary order dictated that the daughter required counselling before resuming access time with her father.

The hearing was scheduled for three days later due to the important issue at stake.

Noriega v. Litke, 2020 ONSC 2970, Price J. (May 12, 2020) By teleconference, the Court heard and dismissed the Applicant’s urgent motion for restraining order against the Respondent.

McMurray v. McMurray, 2020 ONSC 2949, Sproat J. (May 12, 2020) The mother withheld the children as of March 16, 2020 because the father lived in a house with his parents and his brother. The brother was a long distance truck driver making regular runs to the United States and the mother argued that the father’s family should be self-isolating. The Court ultimately ruled that the father’s access should continue.

Essential Cross Border Workers

The father’s brother filed an affidavit outlining his company’s COVID-19 safety protocols. The Court found that the Public Health Agency of Canada news release of March 25, 2020 made it






clear that the brother was not required to self-isolate each time he returned to Canada. There was no evidence that the other family members were required to self-isolate.

The Court found that some front line workers isolated themselves from family and others had not. “Reasonable people can differ as to the precautions to be taken.” In this case, the Court found that the brother’s risk of contracting COVID-19 was “probably less than many members of the community such as retail employees” who were in the same space as thousands of people on a daily basis.

Estrangement Negatively Impacted Children

The children’s wellbeing was negatively impacted by not seeing their father for two months. Since there was no “immediate prospect of a change in travel restrictions to the United States this estrangement would likely continue for many more months.” There was no suggestion that the children or their mother had a particular vulnerability and the father’s household followed public health guidelines.

Thornhill v. Schmidt, 2020 ONSC 2959, Masden J. (May 11, 2020) The father brought an urgent motion requesting that:

- the parties’ two teenage daughters reside with him and have daytime access with their mother; or

- the mother’s access be limited to alternate weekends and two evenings per week per the recommendations of the Office of the Children’s Lawyer.

The Court found this matter urgent and ordered the mother be served and be given an opportunity to file materials. The Court further ordered that the matter proceed to a Settlement Conference before the motion was heard.

The father was essentially seeking the interim implementation of the OCL’s recommendations. This was a default test to meet even in ordinary circumstances. Ultimately, the Court let the matter proceed because the father raised live safety concerns. The mother allegedly let a third party move into her home with little information provided to the father about how public health recommendations were followed. One of the daughters had cancer and, while the father failed to demonstrate how this made her more vulnerable to COVID-19, it explained his added apprehension.

DePotter v. Smith, 2020 ONSC 2967, Masden J. (May 11, 2020) The husband brought an urgent motion for, among other things, an order to set aside the final order of April 20, 2020, which was made following an uncontested trial, as well as an order non-depletion of family assets.

The Court found the matter urgent if it was true that:

- the wife obtained the final order without notice to the husband’s counsel; and - The wife failed to promptly serve the husband with the final order.





The Court emphasized that “counsel need to work together to assist litigants in reaching resolution” during the COVID-19 period.

The Court ordered that the matter proceed to a Case Conference before the motion could be heard. The Court also made an order on a temporary temporary without prejudice basis that the wife take no further steps to sell or remove the husband’s belongings so that, if the allegations were true, the matter would not be moot before returning. The Court noted that matter should proceed promptly to avoid prejudicing the husband.

Allman v. Allman, 2020 ONSC 2964, McSweeney J. (May 11, 2020) The Court made a consent order for the temporary variation of a final order as it pertained to access during the COVID-19 period. The temporary order would expire at noon on the first day the children resume attendance at daycare.

Williams v. Mayen, 2020 ONSC 2928, 2020 CarswellOnt 7028, Lafreniere J. (May 8, 2020) The mother sought an order that the parties’ two children be placed in her care per the longstanding status quo. The father opposed the motion. COVID-19 was not a factor in the access dispute. The Court affirmed the Triage Judge’s finding of urgency and cancelled the in person hearing of May 11, 2020 finding it could justly deal with the matter based on the written record.

Roberts v. Roberts, 2020 ONSC 2935, Hebner J. (May 8, 2020) The husband’s request for an urgent hearing to reduce his spousal support obligation was deemed presumptively urgent in Roberts v Roberts, 2020 ONSC 2354 (CanLII).

At the hearing, the Court affirmed the matter’s urgency. The wife argued that the matter was not urgent from a COVID-19 perspective because many other payors would suffer a reduction in income as a result of the pandemic and by allowing this motion the Court would open the floodgates. The Court rejected this argument because the husband’s reduction in income was not entirely related to COVID-19, began before the pandemic and would continue after. It was not “just a temporary pandemic related reduction”.

In the context of the test for a temporary variation of support, there would likely be significant overpayments if the Court failed to act. This would be unjust both for the payor husband and the recipient wife who would later have to make significant repayments.

Fernandez v. Goicochea, 2020 ONSC 2910, Pazaratz J. (May 8, 2020) The father withheld the children because they allegedly told him that the mother’s partner bit them. The mother sought an emergency order that the children be returned to her immediately per the longstanding status quo. The Court deemed the matter potentially urgent.







Alsawwah v. Afifi, 2020 ONSC 2883, Kurz J. (May 8, 2020) The father brought a motion for exclusive possession of the matrimonial home. The parents had had a high conflict relationship and the four children all lived with the father at the time of the motion.

At the hearing, the Court affirmed the urgency of this matter per the test in Thomas v. Wohleber. Specifically:

- All four children now lived with the father in his one bedroom apartment leaving two of the children bunking on the floor;

- The children were confined to the apartment due to the rules of social distancing; - One of the children was still dealing the aftereffects of an altercation with her mother and

a suicide attempt; - The children required as much stability as possible given the family’s conflicted history;

and - The father paid much of his salary toward the matrimonial home which was why he

rented a one bedroom apartment after he was arrested.

The Court ultimately granted the order but cautioned counsel against relying on evidence of moral failings, exaggeration, argumentative affidavits, hearsay allegations, and irrelevant evidence. Parties should take the moral high ground in their actions and should not engage in ““me-too” ism”.

Juergens v. Tackabury, 2020 ONSC 2852, Mitrow J. (May 8, 2020) The father brought an urgent motion claiming that the mother denied him access to the parties’ five-year-old child contrary to the final order of March 7, 2018. At the hearing, Mitrow J. affirmed the matter’s urgency and declared the final order to be in full force and effect. The request for interim police assistance was dismissed.

The Court stated that COVID-19 does not “trump” an existing court order and affirmed McGee J.’s comments in Matus v. Gruszczynska: “[p]arenting is an essential service”.

Both parents provided evidence that they were taking appropriate measures to deal with COVID-19. The Court stated that the motion was not a contest to decide which COVID-19 precautions were better. There was no evidence to show that the child would be at risk if the father had regular in person parenting time.

The mother’s proposal also fell short of the equal time sharing status quo. Specifically, “[s]peaking to a child through a window, or via walkie-talkies, or being able to spend in-person parenting time for two hours or so in the other parent’s backyard, represents a significant reduction of equal parenting time and represents a serious disruption of the parent-child relationship.”







Masse v. Phillip; 2020 ONSC 2906, 2020 CarswellOnt 6417, Mitrow J. (May 8 2020) The Court heard the mother’s urgent motion for access. The father brought his own motion asking that her access be supervised. Both parties conceded urgency and the Court agreed.

On hearing the motion, the Court acknowledged that the pandemic might make it more difficult for the mother to get credible third party information related to her mental health issues but she could use telephone or virtual consultations.

Snively v. Gaudette, 2020 ONSC 2895, 2020 CarswellOnt 6838, Bondy J. (May 7, 2020) The Court found the father in contempt of a Final Order by failing to return the children to their mother after an access visit.

The father withheld the children citing COVID-19 concerns and specifically the fact that the mother and her partner worked in administration at the Southwest Detention Centre. One contractor, but no employees or inmates, tested positive for the virus. In fact, when the mother suspected there might be COVID-19 at her place of employment, she took steps to ensure she did not have contact with the children by leaving them with the father. The father then took advantage of the situation and failed to return the children after the danger passed. He may have been motivated by financial issues and acted offside the children’s best interests.

The evidence demonstrated that the father took the children on outings and to visit family. The father also had a history of physical abuse with the children which required historical CAS intervention.

Robinson v. Darrah; 2020 ONSC 2840; 2020 CarswellOnt 6616. Tobin J. (May 7, 2020) The father sought an order requiring the mother resume his access to their five year old daughter according to the order of February 2020.

The mother unilaterally withheld the child because the mother had severe insulin-dependent diabetes and a lung condition that was being investigated as possible COPD. The child, who was born prematurely, was susceptible to pneumonia and had it twice in 2019.

The Court upheld the existing access schedule but made modifications to the exchange mechanism to account for COVID-19.

Self Help

The Court affirmed that the mother should not have engaged in self-help but should have brought a motion before the Court.

Threshold Issue: Material Change in Circumstances

The Court found a material change in circumstances because:

- the COVID-19 pandemic and necessary health protocols were not contemplated at the time of the initial order;




- “the pre-existing conditions of the mother, father, and child put all at an increased risk should they be infected with the virus”; and

- the mother suspended an access schedule that was presumably in the child’s best interests.

Medical Evidence to Suspend Access

Per C.L.B. v. A.J.N., 2020 ONCJ 213, the Court stated: “[w]hen a court is asked to suspend in-person access, an assessment must be made of the medical vulnerability of the child and parents, the willingness and ability of the parents to follow COVID-19 health protocols, and the risks to the child in restricting their relationship with one parent… When medical evidence is provided in support of a suspension of in-person access, it is expected to include details of the child’s medical condition, the basis for any increased vulnerability to COVID-19, and specific recommendations about any required additional precautions.”

In this case, the mother’s medical evidence demonstrated that her condition put “her at life-threatening risk if exposed to COVID-19” and that the child was “susceptible to pneumonia.” However, the doctor did not explain what steps might be taken to mitigate the risk. The doctor was merely providing support for the mother’s position.

The Court was satisfied that “both the mother and the father can and will be assiduous in complying with steps to mitigate risk to the child and themselves due to COVID-19.” The precautions were sufficient to continue access.

J.T.K. v. A.E.M., 2020 ONCJ 244, Baker J. (May 7, 2020) The parties’ resolved the urgent time sharing issue before the 14B motion proceeded to a hearing. However, the issues of make-up time and costs remained. The Applicant sought to resolve the issues by written submissions while the Respondent argued the matter was no longer “urgent” and should be put over to the presumptive adjournment date and heard by oral hearing.

Heard in Writing

The Court found that, in accordance with the newest guidelines on family matters, “the issues were discrete, uncomplicated and amenable to resolution by way of affidavit evidence only.” This fulfilled the Court’s Duty to Promote Primary Objective and Duty to Manage Cases found in the Rules of the Family Court.

Impending Backlog

The Court noted the impending backlog of family matters looming once the emergency period was over and stated that there was systemic benefit to resolving matters immediately to help reduce the backlog. There was also a benefit to the parties as they would not be left in limbo and they would not bear the cost of having to “regularize” their pleadings when the matter came back before the Court after the emergency period.



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CCAS of Hamilton v. O.O.; 2020 ONSC 2882; 2020 CarswellOnt 6499, Bale J. (May 7, 2020) The Court heard this joint request for an order placing the child in secure treatment for 180 days.

Sneyd v. Runco, 2020 ONSC 2877, Pazaratz J. (May 7, 2020) The father brought an urgent motion in relation to a long standing custody/ access dispute of which Justice Pazaratz had considerable familiarity.

On April 6, 2020, a lengthy Triage endorsement dismissed the father’s urgent self-represented motion on a without prejudice basis because it was inappropriate for the father to proceed on an ex-parte basis; and his materials were too long and unfocused. The father since retained counsel and brought a motion for expanded access and specific access, not involving CAS.

The matter was deemed potentially urgent because the father was unable to exercise access. Prior to the COVID-19 crisis, CAS advised the parties it no longer felt it was necessary for the visits to be fully supervised and the Society no longer want to be involved. Additionally, COVID-19 resulted in reduced operations and the Society could no longer provide supervision.

Johnson v. Johnson, 2020 ONSC 2896, Pazaratz J. (May 7, 2020) The mother brought an urgent motion to suspend the father’s in person parenting time with the child and suggested that he have hour long video contact three times per week. The mother was concerned that the father was not taking appropriate COVID-19 safety precautions based on two incidents where the father allegedly took the children to visit extended family and disobeyed social distancing protocols.

Inappropriate Escalation

Justice Pazaratz deemed this matter non-urgent and discussed how the mother inappropriately escalated the situation by asking to suspend the father’s access. It would have been more appropriate for the mother to seek:

- a less restrictive version of the original order; - safety terms that promoted meaningful timesharing (i.e. no hugs with extended family);

and - specific solutions to specific concerns.

The mother’s materials did not suggest the father was less than “a loving, caring, responsible, law-abiding person” and the Court stated that “…once parental insight, trustworthiness and devotion have been firmly established, we need to step back a bit and let parents make some of the tough day-to-day decisions on their own.”

Aggressive Litigation is Unacceptable in Covid-19

The Court commented that “both of these parents have an obligation to communicate and to respond in good faith to one another’s inquiries and concerns” instead of sending provocative





emails, texts and court proceedings. “Needlessly aggressive or opportunistic litigation has never been an impressive strategy in family court. And in COVID-19 times it is simply unacceptable.”

Justice Pazaraztz further stated “… sometimes we have to tell both parties: Go home and be more sensible.”

O'Connor v. Merlo, 2020 ONSC 2531, 2020 CarswellOnt 6274, Summers J. (May 6, 2020) The matter was heard in October 2019 and Justice Summers released her decision on May 6, 2020. In the decision, Justice Summers noted that the timesharing schedule would not take effect until May 24, 2020 to account for the COVID-19 pandemic. Each party would also provide the other with reasonable assurances that their household was following all COVID-19 public health directives and guidelines by May 22, 2020.

Bevan v. Varcoe, 2020 ONSC 2844, 2020 CarswellOnt 6193, Corbett J. (May 6, 2020) This endorsement outlined decisions taken at a Case Management Conference of May 4, 2020. The matter related to the mother’s “motion for leave to appeal from the interlocutory triage decision of Bennett J. dated April 30, 2020 (unreported), refusing to schedule a recusal motion pending the COVID-19 crisis.” The motion would “proceed in writing before a panel of three judges of the Divisional Court during the week of May 19, 2020.”

The Court made orders relating to electronic service, and how materials should be electronically formatted.

Winiarz v. Anderson, 2020 ONCJ 238, Sherr J. (May 6, 2020) This was the costs decision on motions brought by the parties regarding their four-year-old daughter. The motions arose from the father’s fear of returning the child to the mother during the pandemic. The mother was successful on the dominant custody issue.

Of note, the Court found that COVID-19 added an additional layer of complexity to the proceeding. Counsel experienced greater difficulty in gathering evidence and presenting it to the Court. Specifically, it took more time to obtain affidavits from the mother’s two witnesses.

The Court also found that “the parties acted reasonably.” The Court stated that “[t]he pandemic has created many challenges for parents who worry about the safety of their families. In this case, the parties had orally agreed that the child would stay with the father during the pandemic. The parties then disagreed about whether this should continue. The mother was concerned that the father’s home was no longer safe. The father was concerned that the mother’s home was not safe and denied her face-to-face contact with the child. The father applied for legal aid to come to court to change the existing order, but the mother brought her motion first… Just because a party is unsuccessful doesn’t mean they are unreasonable.”

Blythe v. Blythe, 2020 ONSC 2871, Chappel J. (May 6, 2020) The father brought an urgent motion because the mother withheld the parties’ children due to





COVID-19. Specifically, she cited the risk of exposure to the children, herself and her elderly parents (with whom she lived) as a result of the father’s full time employment as a city bus driver.

Per two temporary orders, the father usually exercised access on two weeknights and alternating weekends.

Urgency Confirmed

The Court affirmed the urgency of this motion because:

- the children had not seen their father for seven weeks and were being negatively affected by the lack of contact; and

- The mother’s legitimate concerns needed to be addressed.

Best Interests of Child: Essential Worker’s Access Time Limited because of COVID-19

The Court found that maximizing contact was not in the children’s best interests and varied the exiting temporary order to reduce the father’s access time due to COVID-19. Visits would occur for limited periods in an outdoor setting with safety precautions.

The Court called essential workers like the father “heroes of this tragic pandemic.” However, the best interests of the child reminded the primary consideration. The Court noted the following factors.

- The father’s work as a bus driver put him in daily contact with members of the public. The Court was not convinced his employer’s safety measures mitigated the exposure risk.

- The father did not exhibit COVID-19 symptoms but it was “widely known” that many carriers did not exhibit symptoms.

- The father was re-exposed every time he went to work. - There was no dispute that COVID-19 was a dangerous illness and particularly affected

elderly people. The mother or grandparents catching the COVID-19 was not in the best interests of the children

- The mother’s parents advised that if the children spent extended time with their father they would have to quarantine with their mother for two weeks outside the home and the mother did not have alternative accommodation. This meant that, if the children went to the father’s home overnight, they would not be able to return to their mother who was the primary caregiver.

- The children had special needs and the father’s involvement in their management was negative and limited.

- The Office of the Children’s Lawyer previously recommended that the father’s access be limited.

Self-Isolate Before Seeing Children

The father offered to take two weeks off work to be with the children however, this did not address the concern that he was already exposed and remained untested. The Court ruled that



in these circumstances the father should isolate for a period of time, without symptoms of COVID-19, before resuming his regular access with the children.

New Status Quo Not Established

The Court affirmed that “solutions that are implemented during this period will in many cases be intended as short-term measures to address unique challenges that none of us have had to confront during our lifetimes. The courts must not to view such temporary solutions as creating new “status quos” as we emerge on the other side of COVID-19.”

Gagnon v. Skaade, 2020 ONSC 2854, Jarvis J. (May 6, 2020) The mother brought an urgent motion asking for the following relief:

- the appointment of the OCL; - an urgent case conference; - an order restraining the respondent (“the father”) from communicating with the mother

except through her lawyer and then only for child exchange purposes and for bona fide urgent issues involving the children; and

- an order that the father not film or video-record the mother or the children at exchanges.

The Court found that the matter was urgent because “the children had been negatively impacted by the escalating nature of the parent’s dispute” and the conflict was “spiralling out of control.”

The Court ordered that, among other things, the Children’s Aid Society be served; the Society file a report; and the parties provide further evidence. The Court would revisit the matter on May 12, 2020.

Maguire v. Stephenson, 2020 ONSC 2850, Pazaratz J. (May 6, 2020) The matter had a long and complex procedural history where the father took a disinterested approach to the litigation. The Triage Judge dismissed the self-represented mother’s ex-parte motion. In hundreds of pages of materials, the mother sought final relief such as “reversing” Justice Lococo’s December 19, 2019 order; allowing unspecified mobility with respect to the children’s residence; tens of thousands of dollars of section 7 expenses; transferring title with respect to two jointly owned properties; reimbursement of a $165,000.00 down payment separate and apart from any equalization payment; very significant spousal and child support orders; etc.”

Duffitt v. Graham, 2020 ONSC 2845, Pazaratz J. (May 6, 2020) At the triage stage, the Court found it appeared the father was unilaterally withholding the child because the mother would not agree to his time sharing proposal. Justice Pazaratz stated that he was “not prepared to deal with the father’s motion until [he] receive[d] some better explanation as to [the father’s] behaviour” and further stated “I cannot emphasize strongly






enough how much the courts disapprove of self-help in parenting disputes – especially during this period when access to the courts is limited as a result of the COVID-19 crisis.”

Brazeau v. Lejambe, 2020 ONSC 2843, Pazaratz J. (May 6, 2020) The father brought a motion to reinstate his involvement with the parties’ two children (ages 11 and 9 years old). The parties shared joint custody and the father exercised regular access. The mother took the children to Mexico for March Break and refused to allow access after the 14 day required self-isolation period. The mother had a history of interfering with access and calling CAS with unverified claims about the father.

The Court allowed the father’s motion to proceed because “[a]ny sudden, unilateral interruption of a generous, long-standing timesharing arrangement is potentially urgent.”

Justice Pazaratz added: “I would like to take one more opportunity to encourage the parties to regain control of their lives and avoid a hearing:

a. As stated, so far I have only seen the father’s side of the story (although I have some sense of the mother’s side of the story, since it is set out in her lawyer’s letter.) b. While COVID-19 is a relatively new and unheard of issue in our lives, during the past weeks our court system has devoted a lot of attention to parenting arrangements during these difficult times. The caselaw is overwhelmingly clear in saying that there is a presumption that parenting and timesharing arrangements will continue – to be modified only as may be required to address health or safety issues in relation to the children and their households. A complete suspension of timesharing is not the starting point – it is the last resort, to be considered only after every possible option has been thoroughly considered. c. Every case that I’ve seen says that the objecting parent has to do a lot more than just say “I’m afraid of COVID-19” or “my child is afraid of COVID-19”. We’re all afraid. Fear is no excuse to abdicate parental responsibility. d. Parents have an obligation to not only obey court orders but to facilitate and encourage children to accept and comply with arrangements which adults have determined to be appropriate. e. This is especially true in cases like this where the parties have joint custody. That’s not an empty label. It means both parents have been entrusted with an equal responsibility to work together in a mature, creative and child-focussed manner. f. Particularly in the context of the CAS letter which concluded that serious allegations against the father are not verified, this would be a very good time for the parties to stop looking for trouble and start looking for solutions.”

Kane v. Kane, 2020 ONSC 2842, McDermot J. (May 6, 2020) The mother brought a 14B urgent motion for child support and sale of the matrimonial home. The mother claimed that she was paying half of the carrying costs of the home and the father failed to pay child support. The Court dismissed the motion.





Definition of Urgency: Financial Issues

The Court indicated that, per the March 15 Notice, only motions concerning “dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order” can be heard since the closure of the courts. “The word “dire” goes beyond urgency. The Oxford English Dictionary defines “dire” as “extremely serious or urgent” circumstances or a threat “presaging disaster” (https://www.lexico.com/en/definition/dire). The financial circumstances surrounding the proposed motion must be extremely serious or threatening to come within the financial circumstances warranting a motion during the closure of the courts during the Covid-19 pandemic.”

The Court distinguished this case from Thomas v. Wohleber where the father withdrew $700,000.00 from a line of credit.

Duty to Negotiate

The Court reminder counsel of “their increased duty to negotiate and make all efforts to resolve litigation rather than resort to the very limited resources of the courts during closure.” This was not observed here where the disclosure did not justify the mother’s requested relief. Specifically, the 2019 Minutes of Settlement already addressed the sale of the home and the mother’s financial statement did not support her claim of carrying costs.

Perreault v. Marleau, 2020 ONSC 2828, Mackinnon J. (May 6, 2020) The father sought immediate return to Ottawa of the parties’ nine year old daughter so he could resume in person access. The motion proceeded pursuant to a determination of urgency after a Case Conference did not result in a resolution. The only issue was whether the mother should return to Ottawa now, or at some other date.

The mother had unilaterally moved to Tiny Township on the Georgian Bay and enrolled the child in school there. The father brought an urgent motion in January 2020 and the matter was now complicated by the logistics of the COVID-19 pandemic. The mother claimed that the pandemic would make exercising access in Ottawa difficult for her to arrange (i.e. she had no accommodation) but the Court found the mother’s reasons ringed of a “self-serving excuse”. The Court granted the father’s motion and affirmed that orders must be followed even when inconvenient.

Burkitt v. Patterson, 2020 ONSC 2822, Pazaratz J. (May 6, 2020) The mother urgently sought child support for two teenagers based on dire financial circumstances. The Court deemed this matter non-urgent because it was not convinced proper service occurred nor that the mother’s request met the test for urgency.

The Court clarified that not all “important” issues are “urgent.” The Court stated: “if the support issue has required determination for more than two years now, it is difficult to characterize it as suddenly being so urgent that the court’s ordinary case management process should not apply.”







The mother should have filed a Financial Statement. The parties would proceed to a case conference and, in the meantime, the father should pay some child support since he agreed the mother was entitled.

Jordan v. Steele, 2020 ONSC 2834, 2020 CarswellOnt 6203, Pazaratz J. (May 5, 2020) The parents had a tumultuous history together resulting in high conflict and ongoing litigation. The Children’s Aid Society was involved. The mother brought an urgent motion requesting that the child be placed with her and access granted to the father.

The Triage Court deemed this matter potentially urgent because arrangements for the “young, vulnerable child” needed to me made. Specifically, and among other things:

- the parents had “lifestyle and behaviour problems which would justify significant concern and scrutiny by the court”;

- there was a delay in CAS involvement due to the mother’s lack of cooperation which lead to a status quo of the child living with the father;

- in February 2020, the father assured the Court that an expansion of access would happen but it did not and instead the Court was confronted with the allegation that the father in fact reduced the child’s access with the mother;

- the Court’s intention that the matter be quickly placed on the trial list was frustrated by COVID-19;

- the father raised new COVID-19 issues but there was concern he was taking advantage of a favourable status quo;

- the mother made allegations that the father was abusing the child; and - the parties’ conduct caused the Court to question whether the child should be with either

of them.

Edwards v. Robinson, 2020 ONSC 2826, Jarvis J. (May 5, 2020) The mother brought an urgent ex parte motion for the return of the parties’ children to her care. The mother cited a history of domestic abuse and she claimed the father refused to accept the parties’ separation of March 2020. The father withheld the children since that time.

The Court order that the mother must, among other things, start a Motion to Change or Application and the father must be served given that no evidence was provided to justify an ex parte order. The matter would proceed on the narrow issue of the parenting arrangement.

Wilson v. Martincek, 2020 ONSC 2820, Jarvis J. (May 5, 2020) The mother brought a motion for the return of the parties’ two children (ages 3 and 5 years old). The father advised the mother that he experienced COVID-19 symptoms and had to quarantine for two weeks.

The Court called this situation “senseless”. Specifically, the father’s COVID-19 test came back negative the same day the mother started the motion but “his lawyer advised that the parenting





schedule would revert but that the children would not be returned to their mother’s care until May 11, 2020 because they still needed to quarantine - even though the father had tested negative. The mother was asked, but declined, to withdraw this motion. The father added that the mother was two months in arrears of the $310 monthly child support for the children’s s. 9 expenses - even though the children’s daycare was closed for those two months.”

The Court did award the mother make up time for the overholding.

White v. Best, 2020 ONSC 2816, Pazaratz J. (May 5, 2020) The mother withheld the four year old child from August 1, 2019 onward. On September 7, 2019, the father found out the mother passed away on August 29, 2019. The child came into the father’s care at the time. CAS since sent the father a letter notifying him that the Society had no safety concerns and was closing its file.

The father sought an immediate custody order so he could arrange medical appointments and obtain government documents. However, there were evidentiary deficiencies in the materials. The Court made a temporary order to give the father the power he needed while allowing the Court one final update on the child’s situation with proper evidence.

Cossu v. Simkins, 2020 ONSC 2801, McGee J. (May 5, 2020) By final order, the mother’s aunt had custody of the mother’s two children and access occurred at the aunt’s discretion. The mother brought a Motion to Change and now sought an urgent Case Conference to canvas an order for scheduled access to be supervised by someone of her choosing or a registered mental health professional and without her aunt’s approval.

The test for an urgent Case Conference is the same as the test for an urgent motion. The Court dismissed the mother’s request because:

- The mother had no contact with the children for over a year because she rejected the aunt’s discretion as to supervision.

- The Case Conference was a stepping stone to a motion on non-urgent and broadly defined issues.

- “When the proposed action cannot practically proceed, the matter ought not be dealt with as urgent” (see Onuoha v. Onuaha). No supervised access and assessment services were known to be open.

L.M.B. v. F.J.D., 2020 ONCJ 239, Cheung J. (May 4, 2020) This case respecting parenting issues was not triggered by COVID-19. However, the mother’s plan to have the children accompany her to her workplace raised cause for concern. The Court indicated that it expected all parties to “do whatever they can to ensure that neither of them, nor the children, contracts COVID-19.”





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Simons v. Comrie, 2020 ONCJ 232; 2020 CarswellOnt 6162, Robert J. Spence J. (May 04, 2020) The Court heard the father’s Motion to Change seeking to reduce his child support obligation imposed by a final order of October 27, 2008.

In determining the appropriate amount of time to transition the father into an imputed income at minimum wage, the Court took into account the COVID-19 pandemic which left many people unemployed or with reduced employment.

The Court stated that it was impossible to predict how long it would take for employment levels to normalize but, because it needed to make an order, the Court exercised its discretion and found it was reasonable “to give the father 12 months to move from a 20-hour-a-week job to employment where he can work 30 hours per week… And thereafter it is reasonable to give the father a further 6 months to acquire fulltime employment at a 40 hour per week level.”

VanDyken v. VanDyken, 2020 ONSC 2803, Pazaratz J. (May 4, 2020) The father brought a motion to increase his access time with the parties’ four year old daughter.

There was an outstanding Motion to Change respecting a February 2019 order. The First Court date was supposed to be in April 2020 but was delayed because of COVID-19. The existing order provided, among other things, that the father could have overnight access once approved by his psychiatrist. His psychiatrist reported the father was ready for overnight visits but the father claimed the mother unreasonably challenged his readiness.

At the triage stage, Justice Pazaratz ruled that the father’s motion would not proceed at this time. The liberalization of access contemplated in the existing order was important but there would be no significant prejudice to the parties if the issues were dealt with in a less urgent matter. However, once the mother filed materials, any proposal that resulted in less father-child contact would give rise to a presumptively urgent motion.

Wilson v. Wilson, 2020 ONSC 2786, Pazaratz, J. (May 4, 2020) As Triage Judge, Justice Pazaratz deemed this access issue “potentially urgent.” Notably, he took “a somewhat flexible approach with respect to procedures, to try to help” because he had a history with the parties. He remembered the often self-represented parents from a December 2018 appearance and was able to piece together what happened in the file given his prior knowledge even though the materials were not “the best”.

Zeitoun v. Abdallah, 2020 ONSC 2770, Mackinnon, J. (May 4,2020) This motion comes to the court following a case conference conducted by MacEachern J. and the order she made on April 21, 2020 determining the motion urgent under the court’s COVID-19 scheduling protocol. The parties made competing claims for access.



















Notably, the father proposed the children spend more time with him while he was off work due to COVID-19. However, the Court found that “[g]iven the “tug of war” [the children] have been through they will benefit from a consistent, stable schedule that continues beyond the current restrictions affecting their father’s employment.”

Winiarz v. Anderson, 2020 ONCJ 238, Sherr J. (May 1, 2020) The mother won her motion to enforce the consent final custody order in the face of the father withholding the child citing COVID-19 fears. The Court ordered that the father pay costs.

Allman v. Allman, 2020 ONSC 2779, 2020 CarswellOnt 6126, McSweeney J. (May 1, 2020) The matter was previously deemed urgent (see Allman v. Allman, 2020 ONSC 2634). A Case Conference occurred on the sole issue of the parenting time schedule and exchanges. The parties agreed to a consent order. The matter would continue via another Case Conference on May 6, 2020.

Thibodeau v. Moulder, 2020 ONSC 2745, 2020 CarswellOnt6124, Howard J. (May 1, 2020) The mother brought an urgent motion for immediate return and interim custody of the parties’ two children who were being overheld by their father.

Urgency

After the matter was deemed presumptively urgent at the triage stage, the father failed to participate in the Court process. The Court dealt with the issues without the father’s input given their urgent and “troubling” nature.

Mother’s Evidence

The mother provided evidence that the father was abusive to her and had a drug problem that interfered with his care of the young children. The mother claimed the father choked her when she tried to retrieve the children after their last scheduled access visit. The mother was willing to facilitate appropriate access while the father evidently was not.

No Piggybacking

The Court affirmed that non-urgent issues cannot be “piggybacked” onto truly urgent issues. Of the variety of relief claimed by the mother, the Court granted the mother interim sole custody of the children and ordered that they be immediately returned to their care. Non-urgent issues included drug testing requirements, a declaration of parentage, and full recovery costs.

Children’s Aid Society of Toronto v. M.M., 2020 ONCJ 226, Zisman J. (April 30, 2020)

The Court ordered that the three year old child be placed in the temporary care and custody of the Society. Due to the ongoing COVID-19 pandemic, access would occur virtually and face to face visits would commence when deemed safe by the Society in accordance with the directives of the government and public health organizations.






Chambers v. Klapacz, 2020 ONSC 2717, Bloom, J. (May 1, 2020) The Court ordered that the child receive his regularly scheduled vaccinations at an urgent care centre since his pediatricians office was closed due to COVID-19.

Nhau v. Obahiagbon, 2020 ONSC 2765, Timms, J. (May 1, 2020) The father brought a 14B motion to urgently expand his access to the parties’ young daughter.

Delay and Young Children

In granting the father expanded access, the Court considered the impact of the COVID-19 delay along with the child’s age. The interim order was made seven months ago when the child was 1 years old. “In the ordinary course of events, the parties would have proceeded with their trial management conference on April 20, 2020, and if the matter had not settled, then there would likely have been a trial set in May 2020.” Due to the pandemic, the trial would not proceed until at least the fall when the child would be two years old. The Court took judicial notice of the fact that “differences between a one-year old child and a two-year old child are very significant”.

Healthcare Workers

The father was a nurse. The mother expressed concern that the father worked in two health care facilities. The Court ruled that “[i]f the respondent is working in more than one facility, then he would be breaching the Ontario regulation issued some weeks ago that prohibited that. As part of my order today, I am ordering that the respondent comply with any regulations issued by the Government of Ontario or any Regional or Municipal Health Authority relating to his employment or that in any way are designed to prevent the spread of the virus.”

Williams v. Mayen, 2020 ONSC 2772, Pazaratz, J. (May 1, 2020) The Triage Judge deemed this matter potentially urgent because there was an allegation that the father disrupted the long standing status quo by refusing to return the children to their mother after an access visit.

The matter was complex and the Court grated the mother leave rely on her 35 paragraph affidavit, and all of the attachments.

A.P. v. L.K., 2020 ONSC 2520, 2020 CarswellOnt 7026, Akbarali J. (April 30, 2020) The Appellant appealed the decision of an arbitrator in which the arbitrator declined to order the vaccination of the parties’ two children. The Appellant wanted the children to become vaccinated but the Respondent did not.

In this motion, the Medical Officer of Health (City of Toronto) ("MOH") sought leave to intervene in the appeal. The Court agreed to hear the intervention motion in writing because intervention motions are often heard in writing; the materials showed the arguments were made ably and it






was not necessary for oral argument to “illuminate” the issues; and there were limited court resources available for a video hearing.

The Court ultimately granted the MOH leave to intervene in the appeal.

Lawson v. Wycott, 2020 ONSC 2730, 2020 CarswellOnt 5871, Trousdale J. (April 30, 2020) The Applicant filed an urgent motion with no underlying process. With her materials, she included an Application with no return date, which had not been issued by the court due to Covid-19 protocols, a motion by the Applicant requesting a temporary restraining order against the Respondent, and the Affidavit of the Applicant in support of the two motions. The materials were served on the Respondent by email

Family Law Service Rules Must Be Obeyed

A motion for a temporary restraining order requires an underlying originating process.

The April 2 Notice, stated that “the emergency created by Covid-19 may in some circumstances render strict compliance with the rules of the court impossible or impractical.” However, relieving compliance should be used “sparingly and with caution.” “Rule 6 of the Family Law Rules, provides that service of an Application shall be by special service by a person other than the Applicant, unless the court orders otherwise. What constitutes special service is set out in Subrule 6(3). Service by email is not one of the methods set out in that Subrule.”

Applicant must Remedy Service Defects

The Court needed to ensure the Respondent was properly served with the Application given the serious consequences of this quasi-criminal proceeding.

The Court ordered, among other things;

- The Applicant, or someone on her behalf, could attend the Court and request the Application be issued.

- The Applicant must then have someone else serve the Respondent with the Application and a copy of the Endorsement by special service by one of the methods set out in Subrule 6(3).

- An Affidavit of Service should then be filed by email.

Once these steps were completed (or the Respondent filed materials) the Court would review the matter again to determine if it should proceed to a hearing. The Court noted the matter seemed urgent given the “[t]he Applicant alleges that she has concerns for her safety and well-being due to past and present conduct of the Respondent towards her.”

Grossman v. Kline, 2020 ONSC 2714, 2020 CarswellOnt 6001, Akbarali, J (April 30, 2020) The mother sought a temporary order for sole custody and primary residence of the child with the father’s parenting time limited to video calls. In the alternative, the mother sought an order that the father adhere to strict COVID-19 protocols.




The mother was at high risk of experiencing complications and serious illness if she to contracted COVID-19 because she suffered with stage 3 breast cancer.

The mother objected to the father self-isolating with his new partner, the partner’s three year old (who traveled between her own parents), and the partner’s parents at their Thornbury cottage. The mother argued that the father was offside public health guidelines because

1) he was in a group of more than 5 people who were not of the same household; and 2) he was not staying at his primary residence but at a cottage which was far from the

mother and appropriate medical care should the child contract COVID-19.

Outcome

The Court dismissed the mother’s motion and found it was in the child’s best interests to continue the existing parenting arrangement.

Urgency

The Court affirmed the preliminary determination of urgency not because of the mother’s alleged health risk but due to the fact that the parties’ ongoing conflict and failure to communicate could damage the child. The Court heard this motion in writing.

A Single Household: “In these uncertain times, everybody needs to get by somehow”

With reference to O. Reg. 99/20 under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, the Court found that while the father, his partner and her parents may not have ordinarily been part of the same household before the pandemic, there was nothing in the order preventing them from choosing to form a single household for the duration of the pandemic.

The Court accepted that it was reasonable to combine households so the grandparents could provide childcare while the parents worked and the parents could run errands for the grandparents. In any event, it ensured the children remained in contact with the important people in their lives during a period of uncertainty.

The Court distinguished this case from Guerin v. Guerin, 2020 ONSC 2016 because father had formed a “bubble” and none of the people in his household had direct contact with anyone else. He did not expose the mother to additional risk.

Self-Isolating at the Cottage

The Court found that the risk to the child by spending time at the cottage was only theoretical.

Try Harder: Communication Must Improve

The Court found that the parties needed to learn to communicate with each other. The Father should have been more open and transparent about the steps he was taking to protect the child from the virus (especially since he knew the mother had cancer). At the same time, the mother should not have involved the police. In the “words of Pazaratz J. in Ribeiro, at para. 29: "None



of us have ever experienced anything like this. We are all going to have to try a bit harder — for the sake of our children."

Kawartha-Haliburton Children's Aid Society v. A.R. and D.F, 2020 CarswellOnt 6017, S. McLeod J. (April 30, 2020) The mother brought a motion seeking that the child be returned to her temporary care and custody. Alternatively, she requested that the Society comply with the access provisions of the precious temporary Order of October 2019 and that those provisions be expanded.

The Society opposed the motion because, as a result of COVID-19, all face to face access was suspended.

The Court found that access would occur virtually for the “present time” for a “minimum of four times per week for a minimum of one hour per visit.” The Court chastised the Society’s slow provision of reintegration services for the child and ordered that the child would return to his mother’s full time care by July 31, 2020. The child “need[ed] to understand that there is light at the end of the tunnel. He will hug his mother again”

Natale v. Crupi, 2020 ONSC 2735, Jarvis, J (April 30, 2020)

The Court dismissed the father’s urgent motion requesting a Case Conference on April 24, 2020. Immediately afterward, the father brought another urgent motion for relief not previously mentioned. Specifically, his sister was named as an alternate to facilitate access exchanges however, she was a nurse working in a COVID-19 positive environment and needed to quarantine for 14 days. Without a facilitator the father would not be able to physically exercise access the almost three year old child. The mother disputed the urgency of the issue as it was the father’s third urgent motion in rapid succession and he did not make an effort to discuss it outside of Court.

Relying on Balbontin v. Luwawa, the Court ruled that, though it agreed the father acted hastily, the matter should move on to a Case Conference. The court stated: “I disagree that nothing can, or should be, done as soon as possible with respect to facilitating access.”

Pollard v. Joshi, 2020 ONSC 2701, McGee, J. (April 30, 2020) The father brought an urgent motion to address the mother withholding the four year old child in contravention of a final order providing for joint custody. The Court noted the history of “maternal gatekeeping” explored through a 2017 OCL report and noted that those dynamics might still be in place given subsequent history of court attendances occasioned by parenting interruptions.

The Court found that this matter met the definition of urgency in the March 15 Notice and April 2 Notice and the matter should proceed to a motion in writing. Parties should respect existing orders.


https://www.canlii.org/en/on/onsc/doc/2020/2020onsc2735/2020onsc2735.html#_ftn1




Browning v. Browning, 2020 ONSC 2697, Tobin, J. (April 30, 2020) The Triage Judge deemed the mother’s request for child support presumptively urgent. At the hearing of the matter, the father conceded that the issue was indeed urgent. The mother provided evidence that:

- she struggling financially because she was laid off due to COVID-19; - she relied on the CERB, - she had not received the CCB tax benefit; - the father had not paid child support since their January 2020 separation.

The Court awarded the mother child support.

With respect to COVID-19 concerns, the Court considered the impact of the pandemic on the father’s income. Specifically, the Court found it was not appropriate to use his 2018 or 2019 incomes as a baseline for support because the pandemic caused a reduction in his income. The Court considered the amount of money the father earned in the two month before the decision along with the fact that COVID-19 caused him to give up one of his two jobs.

Fluet v. Arbarbanel, 2020 ONSC 2705, Master Kauffman (April 29, 2020) The wife sought an order that child support payments, suspended since January 2020, resume retroactively and that the husband be prohibited from drawing on the parties’ joint line of credit. The wife claimed she could not pay the mortgage and “keep a roof over the [four] children’s head without child support.” The wife also claimed that she did not qualify for temporary COVID mortgage relief because the mortgage was tied to the line of credit and the husband drew at least $20,000.00 from it since separation.

Master Kauffman made a preliminary determination that this matter was not urgent because:

- the husband agreed to pay child support of $1,100.00 per month and stop using the joint line of credit which addressed the remedies sought in the motion;

- there was no evidence that the wife could not pay the mortgage based on these circumstances- the wife bore the onus of proving dire financial circumstances;

- The wife’s Financial Statement, sworn April 23, 2020, contained expenses such as babysitting and daycare (the parties’ youngest child was 14 years old) and many of the expenses listed were likely not being incurred during the COVID emergency (such as vacation, restaurants, summer camps, children’s activities).

Cooperation During a Pandemic

The husband withheld child support to try and force the wife to mediation. The wife refused to attend mediation until the husband was current with his child support payments. Master Kauffman advised the parties to “heed the Chief Justice’s call to cooperate and engage in every effort to resolve matters, without preconditions.”





Lakhtakia v. Mehra, 2020 ONSC 2670, Horkins, J. (April 29, 2020) The father brought an urgent motion to reduce his child support obligation and reduce or terminate his spousal support payments. The father claimed the relief was necessary because he suffered a 42% income reduction as a result of COVID-19.

At the hearing of the matter, the Court found the motion non-urgent because it did not meet the definition of dire financial circumstances.

- The father relied on a letter from the Chief Financial Officer of DOT Global Mobility Solutions stating that “due to the COVID-19 Pandemic we are reducing your salary by 42% and canceling all benefits effective April 1 2020”. However, the mother argued that the father was the controlling shareholder of the company and set his own income.

- The father also claimed he lost rental income as a result of the pandemic but provided no proof.

- Despite these alleged hardships, the father made all support payments. - The father’s second affidavit revealed the motion was a pre-emptive attempt to prevent

consequences of not paying support (i.e. suspension of his passport). - The father’s Financial Statement showed he had savings he could access if required.

Temporary Orders

It would have been inappropriate to end spousal support on a motion for temporary relief because this was an issue for trial. “Temporary orders are meant to provide “a reasonably acceptable solution to a difficult problem until trial… Variations of temporary orders are not encouraged and should not become the focus of the parties’ litigation. Parties must devote their attention and resources to achieving a final resolution… “

Carter v. Carter, 2020 ONSC 2683, Jarvis, J. (April 29, 2020) The wife brought an urgent motion to annul the husband’s bankruptcy. The evidence in the wife’s affidavit met the urgency requirement as it dealt with non-depletion relief and the Court ordered that the Trustee, among other things, not distribute any of the bankrupt’s assets until further Order of the Court.

Malinowski v. Malinowska, 2020 ONSC 2644, McSweeney, J. (April 29, 2020) The father sought to bring an urgent motion on his counsel’s undertaking to serve and file an Application forthwith. The issue which the father asked to be heard urgently was whether he must self-isolate for 14 days before the resumption of scheduled in-person parenting time. The father maintained such isolation was not necessary.

The mother was tentatively prepared to resume the access schedule on April 29, 2020 after the 14-day period. Since this was the same day the matter was heard, the issue was non-urgent. A draft Application should be served on the mother before further requests for urgent relief.






Chen v. Jin, 2020 ONSC 2664, Jarvis, J. (April 28, 2020) The Court heard the husband’s urgent motion respecting the forthcoming sale of the parties’ matrimonial home. Contrary to the Court’s directions, the wife then brought a motion for leave that dealt with the same subject matter as the husband had requested and added requests for relief involving her financial security. The Court dealt with both motions as the issues overlapped.

Venditti v. Adorno, 2020 ONCJ 216, Sullivan, J. (April 28, 2020) The Court reviewed its emergency order of April 2, 2020. In this order, the Court granted the mother a temporary without prejudice restraining order against the father. The father now had a chance to provide his own evidence. In response to the mother’s allegations of violence, the father argued the mother was “mentally unstable”.

Upon hearing the evidence, the Court maintained the restraining order. Access would occur with third party assistance with minimal “back and forth”, in part to minimize COVID-19 exposure.

Impact of Pandemic on Domestic Violence

The Court took judicial notice that “the current COVID-19 health crisis with the Provincial directives to remain isolated as best as possible creates a particularly vulnerable situation for families experiencing domestic difficulties.”

The Court stated that the usual community supports are not available to women and children who are in difficult relationships. “This is significant as, more often than not, the difficulties that vulnerable people experience in our communities are often seen/observed by others through that person’s presentation, expressions, and demeanour rather than spoken about initially.”

The Court further stated: “I do not shy away from stating that this current climate is more problematic to women and children within a hurtful relationship, be it physical, emotional or financial harm they are experiencing. I also accept as fact that relationship violence is more likely to occur within the immediate period of post-separation”

Ahmadi v. Kalashi, 2020 ONSC 2666, Jarvis, J. (April 28, 2020) The Court made an Endorsement and Consent Order resulting from the parties’ urgent case conference. The terms of the order were not disclosed.

Wallegham v. Spigelski, 2020 ONSC 2663, Pazaratz, J. (April 28, 2020) The parties shared custody of a five year old. The mother refused to allow face to face contact between the father and child as a result of COVID-19 issues. The Court deemed this matter “potentially urgent” because of “the mere fact a long standing time sharing arrangement had been suspended by one of the parties. “ However Justice Pazaratz also stated: “So, before anyone files any more materials. Before the father proceeds with his threatened motion to change custody and primary residence. Before we further inflame matters with claims for things







like costs and make-up time. This would be a really good time for everyone to sit down and talk.”

Bartolini v. Hill, 2020 ONSC 2657, Ramsay, J. (April 28, 2020) The child had lived with the paternal grandmother since 2013 and the mother exercised weekend access at her own residence. The grandmother denied the mother access because of the pandemic. The mother had virtual access but brought a motion seeking face to face access saying she would take reasonable precautions to protect the child’s health.

No Application

The Court granted leave for the motion for interim relief to proceed before any Case Conference based on the mother’s counsel’s undertaking to file an Application for custody of her son.

The Court ordered that the usual time sharing schedule should resume until the trial. The court noted that there was no evidence to suggest children were particularly vulnerable to COVID-19. There was no advantage to the child in awarding make up time.

Judicial Notice of Pandemic

The Court had no medical evidence before it. The Court had to be cautious about judicial notice because the science on the new virus was not settled. Justice Ramsay said however, that he could be guided by provincial emergency orders.

No Costs

The Court did not order costs because the grandmother was “doing [the mother] the great favour of raising her child.”

Haaksma v. Taylor, 2020 ONSC 2656, Kurz, J. (April 28, 2020) This case was governed by the April 2, 2020 Notice to the Profession- Central West Region. As provided for in this Notice, the father’s counsel wrote to the Court and sought leave to bring an urgent motion in a proceeding his client had yet to commence. The mother’s counsel proceeded to respond to the father’s letter. The father’s counsel then replied.

This case is notable because the Court took issue with the conduct of both parties and counsel.

- It was inappropriate for the mother’s counsel to write to the Court as it violated the terms of the Notice. “Submissions on the merits and emails arguing back and forth among counsel about urgency should not be sent to the court unless invited…”

- The mother’s counsel should have known better than to include in correspondence with the Court privileged settlement correspondence.

- “It is not the intention of the Notice to the Profession that hearings will become bogged down by arguments over the applicability of its terms. It is not a new front for parties to battle.”




https://www.ontariocourts.ca/scj/notice-to-the-profession-cw/


- The father’s initial letter contained misleading and inaccurate information. The only reason the Court entertained the mother’s letter was that it shed light on these problems.

The Court sent the parties to a Case Conference.

Duty of Candour in Ex Parte Proceedings

The Court reminded parties that the Duty of Candour, as described by the Law Society of Ontario, attached to all communications with the court during the COVID-19 period. Counsel will be held to this standard even in “urgent” letters to the Court. Counsel have an important role in helping the Court effectively triage cases

Allman v. Allman, 2020 ONSC 2634, McSweeney, J. (April 28, 2020) The mother sought an urgent motion to suspend the father’s regular parenting time with their two daughters (ages 3 and 4) because she wanted to “self-isolate” with the girls. The mother had sole custody but the parties operated on a 2-2-3 parenting schedule per the final decision of Justice Bielby.

These parents had a history of dysfunctional communication which negatively impacted their children- the parents could not get along in each other’s presence making access exchanges very stressful. COVID-19 exacerbated this problem and the matter required judicial involvement as a matter of urgency in the best interests of the children.

The Court declined to change the existing order per the mother’s request because she failed to bring a Motion to Change and there had not yet been a Case Conference. The Court directed the parties to a Case Conference where the sole issue would be “how to achieve compliance with equal parenting time in the current environment of COVID-19 restrictions.”

West v. West, 2020 ONSC 2630, Diamond, J. (April 28, 2020) An April 20, 2020 Endorsement deemed this access matter urgent. The Court heard the motion on April 24, 2020 and notably included police enforcement terms in the resulting Order.

Sereacki v. Berdichevsky, 2020 ONSC 2623, 2020 CarswellOnt 5789, Faieta J. (April 27, 2020) The father brought a motion for an order to enforce the 2-2-3 access schedule set out in the Separation Agreement, or alternatively that an order be granted during the COVID-19 pandemic for access on a week on, week off basis.

The mother refused to allow her children to have physical contact with the father over the last five weeks because she claimed she had a compromised immune system and she did not trust the father to protect her or the children (ages 10 and 7).

The Court granted the father week about access with police enforcement. The Court further ordered that all parties must comply with specific COVID-19 precautions beyond the government recommended practices.





Insufficient Evidence

The mother failed to provide evidence that the father’s behaviour was inconsistent with COVID-19 protocols. This behaviour included taking the children on an early March ski-trip, going to dinner at his parents’ house in mid-March and walking daily.

The mother also provided insufficient evidence of her medical condition. The three doctor’s letters were deficient because they:

- did not support that the mother would be at risk if the children moved between households;

- assumed the father would not follow COVID-19 protocols; - assumed that compliance with COVID-19 protocols would be insufficient to protect the

mother from contracting COVID-19 but do not provide guidance about what additional requirements were needed;

- considered the impact of the children traveling between households on the mother’s mental health but did not reflect consideration for the children's needs and mental health as a result of being removed indefinitely from their father;

- provided contradictory evidence about the level of precaution required.

Evidence that COVID-19 Precautions Followed

The father provided assurances that he would follow COVID-19 safety measures that went far beyond the usual protocols in order to satisfy the mother’s demands.

Mother Acting Offside Best Interests of Children

The Court found the mother actively undermined the children’s best interests by making them feel like they were putting her at risk by spending time with their father. The Court echoed Justice Pazaratz’s warning for high conflict parents outlined in McNeil v. McGuinness, 2020 ONSC 1918 (summarized below).

Scheulderman v. Kingston, 2020 ONSC 2615, 2020 CarswellOnt 5761, Trousdale J. (April 27, 2020) The parents brought competing motions for the child to be placed in their respective care for the pandemic period. The mother acted reasonably by placing the parties’ child with the father when she started to experience cold like symptoms but the father refused to return the child after the mother tested negative for COVID-19.

The Court ordered that the parties needed to follow the existing order and warned the parties they needed to follow COVID-19 protocols.

Jeyarajah v. Jeyamathan, 2020 ONSC 2636, Kumaranayake J. (April 27, 2020) The mother sought to suspend the father’s in person parenting time due to COVID-19 and replace it by Skype access. The Court dismissed the motion and was not satisfied, based on the evidentiary record, that the safety or wellbeing of either child (ages 5 and 6) would be




compromised if the father exercised in-person parenting time. This included the child with asthma.

Girard v. Laufman, 2020 ONSC 2619, Pazaratz, J. (April 27, 2020) The Court did not allow the father’s urgent motion to proceed. The mother had custody and the father had significant access time. The father expressed concern about whether the mother was adhering to appropriate COVID-19 precautions. The father said that the mother subsequently expressed the same concerns about him and denied access. There was also a jurisdictional issue.

The Court stated that the father should at very least serve the mother any materials he wished to present to the Court and also read Ribeiro v Wright.

Garrison v. Cordukes, 2020 ONSC 2635, MacEachern, J. (April 27, 2020) At the triage stage, Justice MacEachern dismissed the father’s urgent motion for interim access to the parties’ two year old child. This was a high conflict matter with a history of litigation. Justice MacEachern made the following findings.

- The father did not take steps to have this matter heard on an urgent basis before the emergency period even though the parties’ separated on November 11, 2019 and the father only saw the child one time since then.

- The Court did not accept the father’s testimony that he was an equal parent before separation. Notably, the father was incarcerated from March 4 to June 4, 2019. There were also allegations of domestic violence.

- A Case Conference had not yet occurred; there was no basis to set aside the need for a Case Conference since the East Region was now offering Case Conferences.

- The father argued that the court suspension created urgency because it delayed his ability to bring a motion on interim access for several months. However, the matter was originally scheduled for a first appearance in April, 2020 meaning it would not have reached a Case Conference until at least May or June. An interim motion would have followed by two to four weeks at best. There was no evidence that similar reasonable timeframe was not possible by requesting a Case Conference under the expansion of court services announced on April 2, 2020.

The Court also commented on the 142 pages of material filed. Requests for urgent motions are administrative in nature and Ottawa parties should follow the direction of the Ottawa Family Local Administrative Judge, issued on April 15, 2020. The Court might reject non-compliant material in the future.

C.L.B. v. A.J.N., 2020 ONCJ 213, Sherr, J. (April 27, 2020) The custodial father brought a motion to suspend the mother’s access for 30 days because he felt their twelve year old child was medically vulnerable and the mother would not follow COVID-19 protocols. The father had been withholding the child since March 13, 2020. The mother





https://cdn.ymaws.com/www.ccla-abcc.ca/resource/resmgr/news/apr20familynotice.pdf



normally enjoyed overnight access on most weekends. This was a longstanding and high conflict matter.

Material Change in Circumstances

The Court found that there was a material change in circumstances because:

- The pandemic created a need for additional safety measures to protect the child and community.

- “The mother’s history of not cooperating with the child’s service providers or properly addressing the child’s medical and academic needs (as set out in the July 24, 2015 decision), creating a heightened need to assess the mother’s present ability to comply with health protocols.”

- The mother failed to practice safe social distancing with her sister and niece during a shopping trip.

- The child and father had to self-isolate after being sick on March 18, 2020.

Best Interests of Child; No Evidence to Suspend Access

The Court found that despite the material change, it was not in the child’s best interests to suspend access. The father claimed that the child had a heart condition but the child actually had a genetic predisposition to a heart condition which was insufficient to suspend face to face contact.

Moreover, the father failed to establish that the mother would not properly follow COVID-19 health protocols. The Court found:

- The mother demonstrated an appropriate understanding of these health protocols and, aside from a one time lapse, she followed safe physical distancing and other health protocols.

- The mother lived on her own and worked from home reducing the child’s risk of contracting the virus.

- The mother had a car and could transport the child for exchanges, reducing the child’s exposure to the virus.

- The mother was more involved in the child’s medical care and schooling since the time of previous decision deeming her irresponsible.

- There was no evidence that she would not follow the child’s fever management protocol.

Public Health Directives

The Court stated that it “is aware that public health directives are frequently changing. The court will adopt the approach taken by Justice Kiteley in McArdle v. Budden, 2020 ONSC 2146. Instead of setting out specific health terms that the parties must follow, the parties will be required to follow public health directives issued by the governments of Canada, Ontario and the City of Toronto.”

Make Up Time



The Court awarded make up time for only the time lost for non-health reasons. The Court did not award make up time for periods of self-isolating.

Lovric v. Olson, 2020 ONSC 2563, Braid J. (April 27, 2020) The Triage Judge deemed the mother’s emergency motion presumptively urgent in Lovric v. Olson, 2020 ONSC 2269, Madsen J. (April 14, 2020) summarized below.

The Mother’s Position: Respiratory Issues in a Blended Family Created Danger for Child

At the hearing, the mother sought to suspend the father’s in person access time with two of the parties’ children. The mother withheld the children claiming that:

- their nine year old son had serious respiratory problems making him more vulnerable to COVID-19; and

- the father’s blended family structure exposed the children to four households putting the son at greater risk.

Specifically, father lived separately from his partner but he and his children spent a significant amount of time with her. At the same time, the partner’s children travelled between their mother’s house and their own father’s house during COVID-19.

The Court Dismissed the Mother’s Motion; Failed Ribeiro v Wright Test

The Court dismissed the mother’s motion based on the Ribeiro v Wright framework:

1) The mother provided insufficient evidence of her position.

The evidence did not show that the child in question had serious respiratory issues. In fact, the family doctor was not even sure the child had asthma.

Furthermore, the Court did not accept the evidence demonstrated that the father acted inconsistently with COVID-19 protocols. Justice Braid noted that there are lots of blended families in Canada and stated: “I accept that exposure to more households can potentially increase the chance of contracting COVID-19. This does not necessarily mean that this risk cannot be managed with appropriate safety precautions.”

2) The father provided evidence that he followed COVID-19 protocols

The father provided affidavit’s from both his partner and his partner’s children’s father about their adherence to COVID-19 protocols. This evidence “demonstrated that there has been and will continue to be fastidious compliance with COVID-19 protocols in all the households that the children are exposed to. Although the father’s living arrangements may not technically comply with restrictions requiring social isolating with people under the same roof, any risk is being managed by careful compliance with COVID-19 protocols.”

The Court found that it was in the children’s best interests to continue with the status quo and have meaningful contact with both parents. Living in a blended family did not necessitate restrictions on the father’s time with the children.





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No Self Help

The Court chastised the mother for her “completely inappropriate” withholding and awarded make up time to the father.

Gillespie v. Jones, 2020 ONSC 2558, Diamond, J. (April 27, 2020) The main issue was that the father took the parties’ son to his Whistler, B.C. home on April 8, 2020 for an annual trip. The child resided with his mother in Toronto and the father often exercised access in Toronto. The Court ordered that:

- the father’s future access would take place in the GTA; - the father could not take the child on any form of public transportation (including, for

example, planes); and - the father must adhere to COVID-19 protocols and directives both on his own and when

the child was in his care.

Cannot Rely on Technicalities; Unnecessary Travel Increased Risk of Exposure

Among other things, the Court found that while the father was technically correct about not having breached interprovincial travel protocols his “decision to travel with the parties’ son was simply unnecessary in the circumstances” and increased the child’s risk of COVID-19. The Court stated: “the need to follow reasonable health precautions and comply with social distancing measures should be increased and subject to stricter judicial scrutiny when dealing with the safety of a child.”

Behaviour Put the Child and his Blended Family at Risk

The Court also stated that the child lived in a blended family with his mother, her new partner and their two children. The father knew he would be returning the child back to the mother’s home after “[t]wo long flights, four trips to and from two airports, and time spent outside the [father’s] Whistler home, all in the face of the COVID-19 pandemic”. This “place[d] the [father’s] parental judgment squarely into issue” because the father increased the exposure risk to the child as well as the mother’s entire family.

The Court echoed Justice Pazaratz comments in Ribeiro v Wright: “there should be zero tolerance for any parent who recklessly exposes a child to any COVID-19 risk.” The Court found that the father acted in his own best interest and not the son’s best interests.

Brown v. Kirwan, 2020 ONSC 2588, Hebner J. (April 24, 2020) The father sought leave to bring an urgent motion for an order that the children reside with each parent on a shared, week about basis.

The Triage Judge deemed this matter urgent because it related to the wellbeing of children and the retention of a child in defiance of a Court order. Notably, the father alleged that:

- there had been police and CAS involvement;



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- the mother had mental health issues and was unable to cope with caring for the children; - the mother refused to care for one of the two children; and - the mother withheld the other child.

Medu v. Medu, 2020 ONSC 2582, McSweeney J. (April 24, 2020) The mother moved to enforce the 2019 Final Order providing her with sole custody and primary residence of the parties’ three children. The father failed to return the children after his March Break access. On March 28, 2020 he took them from Peel Region to Sioux Lookout without the mother’s knowledge or agreement. The father refused to return the children claiming entitlement to make up time and half of the “COVID vacation time”.

Return of Children Deemed Urgent

The Triage Judge deemed this matter presumptively urgent on April 21, 2020. On April 24, 2020 the Court heard the most urgent issue: the return of the children. The Court affirmed this was an urgent issue based on the father overholding the children, in breach of a court order, in an undisclosed location. The father indicated he would return the children several times but failed to do so.

Police Enforcement Increases COVID-19 Exposure Risk

The father committed to returning the children on April 27, 2020 and the Court made an order providing for the logistics of the return. Notably, the Court declined to order a police enforcement clause because “recent COVID case law has only served to underscore the reluctance of judges to routinely include police enforcement clauses in child custody and access orders. Police involvement, except as a last resort, is to be avoided as it can be psychologically harmful to children and to their family relationships. In the COVID pandemic, it can potentially increase the risk of the children and their family to exposure to the COVID-19 virus.”

Golevski v. Golevski, 2020 ONSC 2553, Hebner J. (April 24, 2020) The father sought an urgent motion. He claimed that the mother denied him access with the children since March 23, 2020 due to COVID-19.

The Court deemed the matter presumptively urgent as it involved the alleged wrongful retention of children contrary to a Final Order. The Court allowed the father to proceed on the issue of access to the two younger children (ages ten and eight) only. The father’s materials indicated that the two older children (ages 17 and 15) could make their own decisions respecting access.

Gosnell v. Miinch, 2020 ONSC 2546, Hebner, J. (April 24, 2020) The parties exercised shared parenting per a July 2019 Consent Order. The father brought an urgent motion stating that he had not seen the parties’ daughter in over one month. The mother argued the father failed to exercise his access time and that he had cancelled scheduled visits.







The Court declined to rule on the issue of urgency and directed that the matter be scheduled for a Case Conference. The matter could then proceed to an urgent motion if it remained unresolved.

McKee v. Hebert, 2020 ONSC 2545, Hebner J. (April 24, 2020) The father brought an urgent motion claiming the mother withheld their six year old son based on COVID-19 concerns. The Court deemed this matter urgent on a preliminary basis because it involved both the well-being of a child and the alleged wrongful retention of a child. The motion could proceed on the limited issue of the child’s residence.

Berube v. Berube, 2020 ONSC 2591, Howard, J (April 24, 2020) The mother brought an urgent motion because the father withheld the parties’ ten year old child because of COVID-19. This was a long standing and high conflict separation where the parties’ other three children (ages 16 to 20) took sides.

Ultimately, the Court made an order codifying the status quo access arrangement and found that there was no valid reason for the father to have withheld the child. The case law was clear: parties should follow the regular parenting schedule. The Court reminded the father of his legal duty to promote the child’s access with the mother and awarded make up time.

Paper Hearing

The Court was satisfied that a paper hearing on the basis of the material filed would secure the just, most expeditious, and least expensive determination of the narrow issues in question.

No Piggy Backing

In analyzing the case law, the Court found that urgency should be considered for each issue individually. Non-urgent issues cannot “piggy back” onto urgent issues to be heard at the same time.

Castor v. Hazell, 2020 ONSC 2590, Pazaratz, J. (April 24, 2020) The Court deemed the mother’s motion for access presumptively urgent. The father withheld the child alleging that the mother allowed her partner to spend time with the child. The family had a history of CAS involvement and a September 2019 order provided the mother with non-overnight access on the condition that her partner not be present or have any contact with the child.

Smith v. Bowen, 2020 ONCJ 212, O’Connell, J. (April 24, 2020) The grandmother had custody of the child per a 2018 Final Order. The father recently began exercising access with the child but ultimately overheld him citing COVID-19 concerns. The Court deemed the matter urgent but the parties reached a resolution of the matter and the father returned the child to the grandmother.







On the issue of costs, the Court stated: “The father appeared to express sincere concern about Olyver’s exposure to the Covid virus in the grandmother’s household. Having said that, the father should have then brought an urgent motion seeking a temporary change in custody citing specific evidence and concerns. He failed to do so, and instead, engaged in what can only be described as self-help without consulting his lawyer…. During this time of Covid-19, and on this occasion only, I am prepared to give the father the benefit of the doubt. I will not order costs against him for his unreasonable behaviour.”

T.P. v. C.S., 2020 ONCJ 210, Paull, J. (April 24, 2020) The Court heard this urgent motion related to parenting issues.

COVID-19 Does Not Create Urgency by Itself

The Court took judicial notice “of the fact that at the present time social distancing and Covid-19 awareness and safety precautions are both commonplace and critically necessary to ensure our individual and collective safety.” However, the Court did not accept that COVID-19 created the presumption of urgency. “Specific evidence or examples of behaviour by the other parent are required which are inconsistent Covid-19 safety protocols.”

Third Party Caregivers

The Court found that the use of a third party caregiver “does not in itself create Covid-19 safety concerns that establish urgency unless there is specific evidence that appropriate precautions have not been taken. Good parents will be expected to comply with Public Health guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Balbontin v. Luwana, 2020 ONSC 1996. This applies equally to any third-party caregiver the parents may be required to use whether a family member or otherwise.”

Yeates v. Yeates, 2020 ONSC 2548, Jarvis, J (April 23, 2020) The children primary resided with their mother but the parents shared custody. “The father… brought an urgent motion requesting leave for a motion dealing with a broad range of relief arising from an alleged assault by the mother involving one of the parties’ children.”

The father requested “sole custody, a restraining and no-contact Order.” The mother was charged and “subject to an Undertaking not to have any contact with several individuals, including the children, unless arranged through lawyers or the local child protection agency.” The Court agreed with the mother that the terms of her release in combination with the Undertaking make the father’s motion non-urgent. The children now resided with the father, they were safe, and there was a no contact order in place.

Booth v. Bilek, 2020 ONSC 2523, Baltman, J (April 23, 2020) With respect to costs submissions during COVID-19, the Court stated: “Counsel must know that in the wake of the Covid-19 epidemic, court resources are severely strained. That is why, more






than ever, we expect counsel to resolve as many issues as reasonably possible, including costs. Outrageous cost demands which predictably will require further adjudication by the court completely frustrate that objective, and must be discouraged.” [emphasis in original]

In this case, the wife lost her urgent motion and made a reasonable offer to pay $3,000.00 of the husband’s costs. The husband sought $8,615.60. The Court fixed the husband’s costs at $3,000.00 after considering his insincere attempts to settle; the disproportionate amount of costs claimed; and the fact the wife did not act in bad faith.

Smith v. Smith, 2020 ONCJ 219, Caspers, J. (April 23, 2020) The Court awarded the father costs resulting from an April 9, 2020 decision respecting the parties’ dueling urgent motions. Through her motion, the mother sought to terminate the father’s access with the parties’ twin sons for COVID-19 reasons.

In making the costs award, the Court considered the following COVID-19 related factors, among other things:

- The father’s motion materials detailed his efforts to ensure compliance with COVID-19 public health directives while the mother’s cross-motion materials were speculative and provided no tangible evidence that the father acted to put the children’s health at risk.

- The mother acted unreasonably by engaging in self-help remedies backed by no evidence.

- The mother used COVID-19 as an excuse for denying access. For example, the mother required that the father self-isolate for 14 days despite the fact he only spent time at home and at work.

- COVID-19 exacerbated the mother’s anxiety.

The Court found that the mother came precariously close to crossing the line into bad faith behaviour.

Paolatto v. Paolatto, 2020 ONSC 2544, Hebner, J. (April 23, 2020) The husband brought an urgent motion for exclusive possession of the matrimonial home. The husband was 65 year old with cardiac issues while the wife was a 51 year old personal support worker employed at one or more long term care facilities. The separated couple resided together in the matrimonial home.

The Court deemed the matter urgent on a preliminary basis because it involved the safety of a party. The Court based this decision on a letter from the husband’s lawyer; the letter stated that:

- the situation in the home was untenable; - there had been allegations of violence; - the wife purposefully coughed on the husband; - the husband had no other place to go; - the husband’s only source of income was his pension;





- the husband owned the matrimonial home; and - the wife had another place to live.

Snively v. Gaudette, 2020 ONSC 2543, Hebner J. (April 23, 2020) The parties shared custody of the children. The father withheld the children after his March Breach access because of the mother and step-father’s employment. Both worked at the Southwest Detention Centre. The mother brought a motion for contempt and requested a police enforcement clause.

The Court ruled that the matter met the definition of urgency as it involved the alleged wrongful retention of a child.

Manning v. Ross, 2020 ONSC 2529, Lemon J. (April 23, 2020) The Court heard a motion addressing the parenting plan for a junior kindergarten student during the COVID-19 pandemic. Since October 2019 and based on an Order made on consent the child resided primarily with the mother while the child was in school but the remaining time was shared almost equally. The order provided that the parties were to remain flexible when scheduling periods of care with the child.

The mother sought to follow same schedule as when the child was in school, which provided the father with access on alternating weekends, while the father sought more parenting time.

Among other things, the Court found that:

- the regular schedule unduly restricted the child from having time with her father since she was not in school;

- the alternating week about schedule used over the previous three weeks was not in the child’s best interest- visits should be shorter but more frequent;

- “[t]here is no reason that the present situation cannot be used to share the time the child spends with each parent”; and

- neither parent was working so the Court did not need to worry about the distinction between weekdays or weekends.

Batchelor v. Batchelor, 2020 ONSC 2522, Pazaratz, J. (April 23, 2020) On April 17, 2020, the Triage Judge issued an endorsement deeming the father’s request for access time urgent. Since then, the mother filed a cross motion requesting:

- custody; - sale of a house; - reimbursement of money taken from her bank account; and - the removal of the father’s name from the mother’s car loan.

The Court deemed all of the mother’s requested relief non-urgent. However, the mother’s materials provided a vital piece of information missing from the father’s submissions: the mother







brought an urgent motion in February 2020 that resulted in a temporary court order pursuant to minutes of settlement. This temporary-temporary without prejudice order required the father refrain from attending the child’s daycare and/or educational facilities.

Justice Pazaratz set aside the Endorsement of April 17, 2020 and found the matter non-urgent. He stated ...”if I had known that there had already been an “urgent” motion, and that the parties had already consented to a temporary-temporary without prejudice order restricting the father’s contact with the child, I would not have concluded that the father’s current motion was now “urgent” within the context of the COVID-19 protocols.”

Parties must note that Judges do not have the complete court file available. Justice Pazaratz further stated that “[a]s a court system, we are absolutely trying our best to help families during extremely difficult times, with very limited resources… But we can’t allow people to jump the queue by presenting incomplete or misleading information to a Triage judge, to obtain an accelerated “urgent” hearing.”

Bedi v. Shafi, 2020 ONSC 2461, Bloom J. (April 23, 2020) The children lived with their paternal aunt per two 2019 court orders. The mother brought a motion to vary these orders because the mother was concerned that the aunt did not comply with COVID-19 protocols. The aunt opposed the motion but was noted in default and did not participate.

The mother needed to prove a material change in circumstances. The mother’s evidence included only hearsay evidence from the children. Both parties agreed that the aunt’s brother in law, who was not a member of her household, attended access exchanges.

In dismissing the motion on the grounds that the mother provided insufficient evidence, the Court nonetheless ordered:

- both households must comply with COVID-19 precautions; - the children may not visit third party households; and - only the paternal grandparents, who lived with the aunt, could attend access exchanges

with her.

Zychla v. Zychla, 2020 ONSC 2484, Ryan Bell, J (April 22, 2020) Lesley, her daughter, and her son-in-law live together in a home which they all co-owned. The daughter and son-in-law separated in March 2020. As a result, the daughter, her children and Lesley fled to a women’s shelter on the advice of a crisis counsellor at the Children’s Aid Society. After entering the women’s shelter, Lesley was hospitalized with aphasia caused by stress and improper eating. Lesley blamed the condition on her living situation. Lesley further alleged that her son in law refused to abide by COVID-19 protocols and take Lesley’s questions about COVID-19 safety seriously.

The Court granted Leslie exclusive possession of the home in the context of her application for partition and sale. In making its decision, the Court considered, among other things, the fact that





Lesley was 71 years old and at high risk of COVID-19 because of her age. The son-in-law’s failure to communicate with Lesley about her COVID-19 concerns indicated that he did not take Lesley’s high risk status seriously. Leslie also put herself at risk by staying at the women’s shelter which demonstrated her genuine fear of living with the son-in-law. The serious health risk to Leslie constituted irreparable harm and while Leslie did not have alterative accommodation, the son-in-law had another place to stay.

Lam v. Chuang, 2020 ONSC 2479, Faieta J. (April 22, 2020) Further to, Lam v. Chuang, 2020 ONSC 1888, Faieta J. (April 17, 2020), summarized below, the Court granted the deceased mother’s friend decision making power and primary residence of the child until her grandparents could come from Vietnam to collect her. The Court made this decision without prejudice to the respondent father’s opposing position.

Purdy v. Purdy, 2020 ONSC 22440, Sproat, J. (April 21, 2020) In a teleconference hearing, the Court granted the wife’s motion for summary judgement, which was originally scheduled for March 13, 2020. The wife sought to enforce an order about property issues made on August 9, 2019.

Medu v. Medu, 2020 ONSC 2465, McSweeny J. (April 21, 2020) The father overheld the children for over a month to allegedly make up for missed access. The mother sought an urgent motion to enforce the final order granting her sole custody and primary residence of the parties’ three children.

The Court deemed the matter presumptively urgent based on the “best interests of the child” as outlined in the April 2 Notice. Specifically, the overholding by the father was a significant departure from the status quo.

Banner v. Chicoski, 2020 ONSC 2457, Maddalena, J. (April 21, 2020) The father brought an urgent contempt motion claiming that the mother denied him access to the child for four days due to COVID-19. The parties shared custody and the father usually exercised liberal and generous access. The Triage Judge deemed this matter non-urgent because the child was safe. The Court adjourned the matter to be spoken to on June 10, 2020.

Grant v. Grant, 2020 ONSC 2455, Madsen, J. (April 21 2020) By an urgent ex-parte motion, the wife sought an order providing for: exclusive possession of the home and contents; sole authority to sign the Agreement of Purchase and Sale; that the husband would be responsible for half the carrying costs of the home until the completion of the sale; that the net sale proceeds be held in trust until equalization was completed; and costs.










The Triage Judge deemed this matter urgent on a temporary temporary without prejudice basis and additionally granted an unrequested temporary temporary restraining order. The matter would proceed on notice to the husband who would be given the chance to respond.

The Court found that there could be immediate and serious harm to the wife and made its decision based on Thomas v. Wohleber, and Baijnauth v. Baijnauth. The wife alleged that:

- she had been paying all of the household expenses without the husband’s help; - she had been laid off from her two part-time jobs because of the COVID-19 crisis; - the husband was addicted to drugs and alcohol and had not worked since the summer of

2019; - the husband agreed to sell the home three times but rejected all reasonable offers; - the husband was arrested for assaulting her and subsequently breached his bail

conditions twice by entering the home and vandalizing it (leading to two further arrests); and

- the prospective purchaser was prepared to renew its offer to purchase if the wife was authorized to complete the transaction alone.

Simpson v Freeman, 2020 CanLII 28954, Hebner, J. (April 20, 2020) The father sought leave to bring an urgent motion to see the parties’ two children. The father claimed he had not seen the children since October 2019. The Court declined to rule on the urgency of this matter and sent the parties to a Case Conference before the hearing of any motion. Notably, there was no outstanding Court proceeding but the father intended to bring a Motion to Change the final order.

Light-Morrow v. Chaves, 2020 ONSC 2434, Minnema, J. (April 20, 2020) The Triage Judge accepted the mother’s request for an urgent hearing based on COVID-19 concerns but emphasized that the father needed to properly be served with her materials.

The March 15 Notice stated that “parties must still comply with orders/rules requiring the service or delivery of documents between the parties.” An interim order requires an underlying originating process. The self-represented mother purported to serve her Motion to Change by email. However, the April 2 Notice said that “it is not necessary to obtain consent or a court order to serve documents by e-mail where email service is permitted” [emphasis added]. The Family Court Rules require a Motion to Change to be served personally, with limited exceptions that do not include by email. Further, the mother purported to serve the respondent father herself, which is not permitted (Rule 6(4.1)).

The Court ruled that the mother may file an email from the father referencing the court materials (if she had it) to validate service. Otherwise, she needed to make arrangements to effect special service. After proper service occurred, the Court would set a timeline for a hearing.









Warry-Poljanski v. Poljanski, 2020 ONSC 2431, McLaren J. (April 20, 2020) After being served with the father’s urgent motion outlined in S.W-P v. S.P. 2020, ONSC 1913 (March 27, 2020) below, the mother filed a cross motion. At the hearing, the Court decided both matters were non-urgent. The child “ran away” from the mother’s home after a dispute with her about the dinner menu. The child was not at risk when the motion began. He returned to the mother’s care and normal time sharing resumed.

The Court justified the father’s concern that the child ran away from home but also noted the mother provided a valid explanation. The Court could not test credibility based on affidavit evidence- especially given the mother’s claims of parental alienation.

The Court also provided guidance on how to determine the child’s views and preferences. If required, the parties could bring a consent motion in writing on the issue of professional assistance.

Tomkins v. Che, 2020 ONSC 2424, Madsen, J. (April 20, 2020) The mother sought a range of relief including return of the children, primary residency, and police enforcement. In the alternative, she sought liberal and generous access.

The father withheld the children since the mother suffered a relapse in her alcohol addiction on March 11, 2020. The father last texted the mother on March 17, 2020 advising her that he was self-isolating with the children in a local but undisclosed location. She received no information from the father since that time.

The Triage Judge deemed this matter urgent because:

- the children were removed from the mother’s care; - she did not knew where they were; - the father did not responded to the mothers’ texts requesting information.

The father’s concerns about the mother’s alcohol use did not give him licence to unilaterally withhold the children with no information about their whereabouts. The Court dictated that the mother must serve the father by email and text upon which time the matter would proceed.

Tessier v. Rick, 2020 ONSC 2391, MacEachren J, (April 20, 2020) Justice MacEachren deemed this matter presumptively urgent in Tessier v. Rick, 2020 ONSC 1886 below. At the hearing, the Court ruled that the mother’s COVID-19 concerns, including the father’s lack of communication, the unaddressed pandemic risks in his household and his use of public transport with the child, amounted to a material change in circumstances warranting a change in the father’s access.

The Court accepted that the father was simply uninformed at the time of his initial communications that minimized the risks of the virus, and that he had adopted practices that rectify these concerns.






The Court emphasized that adjusting the access schedule meant “consideration of all of the factors that go into the child's best interests, given the change in circumstances due to the COVID-19 situation. These factors include a focus on the quality of time, maintaining the child's connection to both parents, in a manner that also provides a safe, secure, and stable environment. It is not simply a mathematical question of adding up access time.”

The Court accepted the limitations of video access for a three and a half year old child and the mental health issues that made video access difficult for the father. However, if the child wanted to communicate with the father via phone or video call, the mother should facilitate this request.

The Court asked both parties to provide their proposals and ultimately accepted the mother’s because it “provides a creative solution to the current situation, addresses the concerns with using public transport, and is in the child's best interests.”

Colasuonno v. Colasuonno, 2020 ONSC 2061, Charney J. (April 20, 2020) The mother brought this urgent motion seeking various orders relating to the exclusive possession of the matrimonial home. The mother lived with her parents and was concerned that the children would expose them to COVID-19 by coming in and out of the house. The mother essentially wanted a “nesting” arrangement in the matrimonial home and proposed the father could live with his parents during her parenting time. The father did not want to live with his parents as they were old and at risk of COVID-19.

Exclusive Possession Urgent Before Case Conference Held

On April 8, 2020 the Court determined that the exclusive possession issue met the prima facie test for urgency per the March 15 Notice. The parenting issues were deemed non-urgent but the Court was clear that this was not an invitation to deny or suspend the father’s time with the children.

This matter could proceed to an urgent hearing despite the lack of Case Conference. The parties already tried to resolve the issue at a half day private mediation so a 30 minute Case Conference would not likely solve the issues. Longer Case Conferences were not being offered.

Ruling- No Nesting Because No Alternative Accommodations

The Court accepted that the father could not live with his parents because of the pandemic. Equally, he could not afford an apartment because his business was forced to close due to COVID-19. The mother had money in savings and was better able to reside elsewhere during the emergency period. She could either live with her parents and permit the children to have parenting time with the father in the matrimonial home or she could accept the father’s proposal to live separate and apart in the matrimonial home.

However, this was not a permanent solution. After the pandemic, the availability of affordable accommodation may change, making nesting more suitable, or the parties may come to an agreement about selling the home.





Matus v. Gruszczynska, 2020 ONSC 2353, McGee J. (April 17, 2020) The father requested leave for an urgent motion because the mother withheld the child from the father. The father was “a chef who was an essential worker in a facility that observed comprehensive COVID-19 protocols.” In response, the mother requested leave for an urgent motion to suspend access because she claimed the daughter was particularly vulnerable.

The Court found this matter urgent at the triage stage. The Court made the following comments:

Parenting

- “Parenting is an essential service”. - “Children in the attachment phase of development are particularly vulnerable to the

harmful effects of removing a caregiving parent. Young children who already experienced disruptions in their parenting are even more vulnerable”.


- COVID-19 restrictions do not constitute a material change in circumstances because they are temporary. “When public health restrictions are lifted there will be no new advantage held by a withholding parent, whether or not the withholding was justified. The test will remain the best interests of the child”.

Determinations of Urgency

- “Limiting the cases that can be heard not only manages workload; it recognizes that only the most urgent decisions should be made without the benefit of a full court file, and more importantly, without full access to the many resources that are inextricably intertwined with good outcomes: parenting education, mediation, clinical assessment and assistance, mental health and counselling supports”.

- Practicality of requests was important. In this case a request for police enforcement was impractical because it put the child at risk of exposure.

Specific Facts of this Case

- Here, the parties had a complex history and the mother had been found in contempt for breaching court ordered parenting terms in September 2019. She engaged in “transparent gatekeeping behaviours” to eliminate the father from the child’s life. The disposition hearing was scheduled for June 11, 2020.

Batchelor v. Batchelor, 2020 ONSC 1921, Pazaratz J. (April 17, 2020)

The father brought an urgent motion for equal time sharing with the parties’ three year old daughter. The father had not seen the child since separation in February 2020. He faced criminal charges for assaulting the mother and she made allegations respecting his mental health.

Nuance Difficult in COVID-19 but Must Do Something





Justice Pazaratz commented that “[c]ases like this involving young children and families in crisis require a level of sensitivity and cautious creativity which is difficult to achieve within the constraints imposed on the court by COVID-19. We are limited in how much we can accomplish. But doing nothing is not an option, when it comes to protecting all of a child’s physical and emotional needs.”

Some Level of Access was Urgent

The Court found this case struck a middle ground of urgency. The father’s request for equal time sharing was not urgent. The issues needed to be addressed cautiously and specifically to ensure the child’s wellbeing. At the same time, the father’s request for some time sharing was urgent as there was no reason to delay the inevitable contact between parent and child.

Case Conference Ordered

The Court ordered that the matter would proceed to an expedited Case Conference. If the issues were not resolved at the Case Conference, the matter would move on to a hearing.

Poyton v. Blake, 2020 ONSC 1920, Pazaratz, J. (April 17, 2020)

The respondent brought an urgent motion to set aside two 2019 final Orders and requested leave to file an Answer.

Parties Who Cause Their Own Delay Can Wait

Justice Pazaratz stated “The bottom line: If you are served with an Application in April 2018; if you don’t even try to file an Answer until October 2018; and if you then pay very little attention to your file for the next year and a half – then you can’t come to court in the middle of the COVID-19 crisis, and claim that your matter is urgent. Your requests can be dealt with when things get back to normal.”

10 MB Means Short Submissions

Justice Pazaratz also stated that 10MB can be hundreds of pages depending on the formatting but materials should in fact be “…brief and efficient.” This means urgent motions should be five to six pages at most (including attachments). Documents should be typed, double spaced, with a 12 point font.

Roberts v Roberts, 2020 CanLII 28298 (April 17, 2020)

The respondent brought a motion to reduce his monthly spousal support payments of $17, 224.00 and argued that this matter involved a “dire issue regarding the parties’ financial circumstances.”





The respondent was an anesthesiologist earning $634,747.00 per year but heath problems forced him to stop working in the summer of 2019. As a result, his income dropped to $104,400 per year. The Court deemed this matter urgent given the extent of the reduction in income.

Lam v. Chuang, 2020 ONSC 1888 (April 17, 2020)

The custodial mother passed away in March 2020. A family friend cared for the child until the maternal grandparents could travel from Vietnam after the COVID-19 pandemic. The Court deemed the parties’ joint motion urgent because “someone needs to have authority to make decisions for the child on a temporary basis.”

Chatelain v. Eeuwes, 2020 ONCJ 191 (April 16, 2020)

The Court did not specifically discuss COVID-19 issues but decided this access dispute during the emergency period. There were outstanding criminal charges against the father in relation to the mother.

Jefic v. Grujicic, 2020 ONSC 2340 (April 16, 2020)

The self-represented wife sought an urgent hearing for retroactive child and spousal support claiming she would need to sell the family home.

The Court confirmed that the wife’s deadline to respond to the husband’s existing Motion to Change was suspended under the Civil Management and Emergency Protection Act. The Government of Ontario continued the state of emergency for four more weeks as of Tuesday, April 14, 2020. This meant that the wife had until May 12, 2020 to serve and file her responding materials and the matter was therefore not urgent.

Stapley v. Stapley, 2020 ONSC 2337 (April 16, 2020)

The mother sought an ex parte order for a restraining order against the father, interim sole custody, access at her discretion and permission to serve the father by email. The mother submitted, among other things, that:

• The father sexually abused the child; • The father physically and verbally abused the mother and child; and • The father continued to make threats, including that he would harm himself and others.

The Triage Judge found the restraining order, residency of the child, and the father’s current access to be urgent issues. The Court deemed custody and child support as non-urgent. The Court granted the restraining order on a “temporary temporary without prejudice basis” and ordered that the child would continue to reside with the mother who could supervise access with the father at her discretion.







Heywood v. Jallad, 2020 ONSC 2336 (April 16, 2020)

The father brought a contempt motion against the mother who refused to allow his March Breach access to proceed as scheduled. The Triage Judge deemed this matter urgent.

At the hearing, the Court dismissed the father’s motion. The best interests of the child are paramount when considering contempt and it was in the child’s best interests to suspend access for four weeks.

The Court based this decision on two considerations:

• It was unreasonable to require the mother to drive from Windsor to London for access exchanged during a pandemic. The parties would reasonably need to stop for bathroom breaks. This put the mother’s family, including the child, at increased risk of exposure.

• The father and the paternal grandfather continued to work on renovating the father’s girlfriend’s house together. The Court noted this was not self-isolating behavior and did not accept that there was zero contact between the two men and others while working.

The Court balanced the need for continued parental relationships with the risk of COVID-19 exposure. The Court noted that the consideration included an increased risk to family members and not just the child in question. The Court took into account that the mother made significant, voluntary arrangements for the child to have daily remote contact with the father via FaceTime, telephone and an on-line game.

Furthermore, the Court noted that it was reasonable to assume the twelve year old child expressed her views and preferences about access to her mother. The Court did not have independent information about these views and preferences at the time.

Oliver v. Oliver, 2020 ONSC 2321 (April 16, 2020)

The Court heard this Motion to Change on March 11, 2020, before the COVID-19 pandemic. The parties disputed the terms of a final order related to spousal support and the joint line of credit.

In the decision, the Court acknowledged the pandemic and stated: “[s]ince the hearing, I appreciate the parties may already be feeling or anticipating the economic impact resulting from the emergency measures imposed on all residents of the province in the effort to contain the pandemic. This may well bring additional uncertainty to the financial obligations under the Final Order. In any event, I recognize the limited court operations at this time make it difficult for the parties to address their responsibilities under the Final Order, including through the annual review process provided for in the terms of that order. I encourage them to attempt to resolve the issues and bring some certainty between them where possible.”





Hermanus v. Laurin, 2020 ONCJ 190 (April 16, 2020)

The parties had two teenagers with special needs. One child experienced high functioning autism. The other child had ADHD and anxiety. The mother believed the father, who had sole custody, withheld the children from her over March Break.

After reviewing the evidence, the Court determined the real issue was the children worried that visiting their mother would increase their risk of getting COVID-19. They took the Prime Minister’s direction to “stay home” very seriously. The mother also worried that the father may have unduly influenced the children.

The parties consented to a temporary without prejudice order that access would resume and:

• both parties would encourage the children to attend access visits; • the parents would encourage the children to communicate with the mother face-to-face

by electronic means at least 3 times a week; • the parties could tell the children that access could resume because there was no

evidence that either household was a health risk to them due to COVID-19; • both parties would follow government orders and requirements as set out on the public

health services website for COVID-19.

Jumale v. Mahamed, 2020 ONSC 2316 (April 16, 2020)

The mother argued, and the Court agreed, that the father’s Motion to Change was not urgent and should not proceed during the COVID-19 crisis. Justice Mackinnon awarded the mother costs because, among other things, “[t]he determination of urgency according to the Chief Justice’s directive was and is intended to be a summary exercise.”

Trudeau v. Auger, 2020 ONCJ 197, Kwolek, J. (April 15, 2020)

The mother brought a motion to suspend the father’s in person access until after the COVID-19 pandemic. The child had a genetic condition called hypotonia which caused, among other things, respiratory issues. The child was at high risk if he contracted COVID-19. The Court deemed the matter urgent at the triage stage and at the hearing itself.


The Court made detailed observations about the effect of COVID-19 on society and found that the onset of the pandemic was a material change in circumstances which could potentially justify a change in the existing Court order.

Access for at Risk Child to Resume with Conditions

The Court declined to suspend the father’s in person access. No medical evidence demonstrated the child would be at risk spending a few hours per week at his father’s house






with appropriate precautions. No evidence showed the father failed to comply with public health directives and, in the past, the father voluntarily missed access because he was sick.

Access would resume on April 24, 2020 after the child finished his course of antibiotics. The Court ordered that the father must:

• comply with any future public health directives relating to Covid-19; • wear a mask when he was within two meters of the child; and • forgo in person access if he had any symptoms of illness.

What Would Justify Suspension of Access?

The Court listed the following circumstances which might justify a suspension of access in the future:

“1) evidence of a disregard for the safety and well-being of the child by the father by disregarding the directions relating to Covid-19;

2) specific medical evidence relating to this child that access to the father would place the child at significant risk;

3) increased and better general information about Covid-19 relating to the risk of taking a child with [the child’s] medical conditions for access visits out of his home even with safeguards and precautions in place;

4) Specific evidence relating to the increased risk within the child’s community of Sault Ste. Marie and the risk of the child travelling from his home to the father’s residence.

5) The child or the parents becoming ill in circumstances that a visit or visits would place the child at significant risk. Should the child become ill, he should reside with his primary parent, namely his mother, with access temporarily suspended to the father. Should the father exhibit Covid-19 symptoms, his access shall be suspended.

6) A more restrictive order being made by the authorities to quarantine or restrict public movement in the community. In the event of such a restriction, the child would remain with his mother as primary caregiver.”

Native Child and Family Services v. S.D., 2020 ONCJ 186 (April 15, 2020)

The child was removed from her mother’s care following her birth and brought to a place of safety. The mother admitted to using fentanyl during the pregnancy and the child was experiencing symptoms of withdrawal.

The matter was “clearly urgent” per the Ontario Court of Justice directive.



https://www.ontariocourts.ca/ocj/covid-19/definitions-urgent-matters/#Urgent_Family_Matters


The matter proceeded on an expedited basis. With respect to COVID-19, the mother could not see the child in person because the Society suspended face to face access during the pandemic. The mother’s case manager at her shelter would help facilitate video access.

Fowkes v Anderson, 2020 CanLII 28299 (April 15, 2020)

The child resided with both parties equally. The father withheld the child. The mother brought an ex parte urgent motion for an order for police assistance, makeup access, and an order that the parties return to the week about parenting regime.

The Court found this matter met the definition of urgency on a without prejudice basis because it involved the wellbeing of a child and alleged wrongful retention of the child. The father must be given notice and email service would be acceptable given the pandemic.

Sezin v. Sheikh, 2020 ONCJ 187 (April 15, 2020)

The father brought a 14B motion for leave to proceed with an urgent motion for access with his newborn son. The mother filed a cross motion for, among other things, child support, and an order that the father comply with the terms of his criminal recognizance by refraining from direct or indirect contact with her and remaining 100 meters away.

The mother lived with the father and his family after immigrating to Canada in 2018. The mother claimed they abused her and the father was arrested for assaulting the mother in July 2019. The parties engaged in ongoing Court proceedings around the issue of support. The mother could not access public financial assistance due to her immigration status. The child was born in 2020 with some health problems and remained in hospital. The parties could not agree to access arrangements that fit in with the father’s bail conditions, the mother’s insistence that access be supervised, and the hospital’s own rules.

At this time, the ONCJ was scheduling urgent case conferences. The issues in this matter did not meet the standard for an urgent motion because they did not affect “the safety or well-being of a child.” However, the Court stated that the matter should proceed to a case conference where the parties could address the immediate need for child support, access issues and any COVID-19 concerns.

Ross v. Kenyon, 2020 ONSC 2283 (April 15, 2020)

The father requested a police enforcement clause be urgently added to the Consent Order for custody and access because of the mother’s alleged violations of that Order.

The Court deemed the matter non-urgent because:

• There was an existing Order in place; • No one alleged the children were in danger; • The current temporary situation could be promptly dealt with once the Court resumed full

function.






No Self Help

The Court warned the mother that COVID-19 does not provide an excuse for violating Orders. The father could seek make up time and costs as a remedy.

Not a Lawless Society

The Court also remarked that the definition of urgency cannot be so narrow that “avenues of relief are effectively foreclosed, and lawlessness is encouraged.” There must be a “rudimentary level of court oversight.”

Tudor Price v. Salhia, 2020 ONSC 2271 (April 15, 2019)

The results of a January 2020 trial dictated the parties’ parenting schedule. Beginning in March 2020, the mother withheld the child for a variety of reasons including COVID-19 and her general distrust of the father. The Court previously deemed the matter urgent per the March 15 Notice and the April 2 Notice. By using the framework in Ribeiro v Wright, the Court ordered that the mother follow the parenting schedule and that the father receive make up time.

No Self Help

The Court could not condone the mother’s unilateral actions. The mother did not include any specific evidence of the father’s failure to comply with covid-19 protocols. Parties cannot use COVID-19 to revisit trial results. If the mother wanted to change the parenting regime because of COVID-19 she needed to bring her own motion.

Burns v Burns, 2020 CanLII 27955 (April 15, 2020)

The mother withheld the children from the father. The father was a nurse practitioner at Windsor Regional Hospital. The Court deemed the matter urgent because “it relates to the well-being of these two children and the alleged wrongful retention of the children from their father.” The motion would return by teleconference on April 22, 2020.

Lyons v. Lawlor, 2020 ONCJ 184 (April 14, 2020)

The paternal grandparents had custody of the child. They wanted to suspend the mother’s access due to COVID-19 concerns. The Court found that the grandparents failed to provide evidence supporting the matter’s urgency. Specifically:

• they did not provide a medical note indicating the child’s asthma required special precautions;

• they only presented hearsay evidence that the mother took her other two children to Wal-Mart; and

• The fact another child in the mother’s home previously had pneumonia was not grounds to suspend access- particularly since the mother voluntarily missed access while that child was ill.









Burton v Burton, 2020 CanLII 27532 (April 14, 2020)

The matter was presumptively urgent because it dealt with the wellbeing and potential wrongful removal of a 4-year-old child.

Potter v. Gibson, 2020 ONSC 2268 (April 14, 2020)

The mother and the maternal grandparents allegedly withheld the 14 year old child. The father had sole custody per the final order of May 16, 2018.

The child and the mother quarantined for 14 days upon their return home from Cuba. The quarantine ended on April 3, 2020 and the father demanded the return of the child by April 5, 2020. The mother then claimed the family was exposed to COVID-19 again and needed to self-isolate until April 17, 2020. The father then brought this motion.

The Court found the father presented no evidence challenging the veracity of the mother’s explanation as to the necessity of the second quarantine period. The mother’s emails made it clear the child would be returned by April 17, 2020. The motion was not urgent but, due to the high conflict nature of the matter, the Court ordered the matter come back on April 21, 2020 to ensure the child was returned. The Court dismissed the father’s request for police enforcement.

Jennings v. Thompson, 2020 ONSC 2236 (April 14 2020)

The Triage Judge deemed the matter urgent because “[t]he father raises issues relating to the safety of the very young female children (ages 1 and 3) relating to the mother Ms. Thompson’s access in view of her physical and mental health and her choice of partner. Further, the existing interim order was entered into on consent on a without prejudice basis, and the circumstances existing at that time have substantially changed.”

Bartlett v. Loewen, 2020 ONSC 2230 (April 14, 2020)

The mother sought an order to suspend the father’s access visits with their seven year old son “until social distancing and other measures related to the safety risks of COVID-19 are eased”. The mother opposed the fact that the father took the son for a walk in the park with his other son and a friend during the pandemic.

The Court deemed this matter non-urgent. The walkers obeyed government directions at the time of their outing by staying six feet apart. The walk did not raise concerns about the father’s judgement and the existing Order should be followed.

Tigert v. Smith, 2020 ONSC 2220 (April 14, 2020)

This matter was deemed urgent because the Court needed to address how contact between the child and the father would take place during COVID-19.








After the father’s last access visit, the child told the mother that they engaged in activities over March Break such as visiting friends and having sleepovers. Concerned about COVID-19, the mother emailed the father but received no response. The mother withheld the child but facilitated virtual access with the father three times a day.

The father argued that he followed all safety measures and the activities described by the child occurred before the state of emergency.

The Court found the mother withheld the child based on reasonable concerns for safety but ordered that access should resume. The Court also ordered that the father:

a) “meticulously adhere to COVID-19 safety measures – including social distancing; use of disinfectants; compliance with public safety directives; and

b) within two hours after the end of each occasion the child is in his care, inform the mother in writing, by text or email, of the child’s activities engaged in while with him and the steps he took to keep her safe and promptly respond to any questions she may have about the child’s time with him.”

Ramirez-Scrimshawn v. Ingram, 2020 ONSC 2278 (April 14, 2020)

The Applicant father brought an urgent motion seeking access to his children. The Respondent mother brought a cross motion for supervised, graduated access, and child support. The Court determined this matter was not urgent and cited the following reasons:

• No parenting order or agreement has been made since the parties’ separation. There is no status quo the court can reasonably rely on, especially given the fact that the father has not independently exercised his parental duties since the separation in November 2019.

• According to the evidence, there is no issue related to the safety or the well-being of the children.

• Given the limited independent parenting exercised by the father, the request for immediate overnight access every weekend was deemed to be unreasonable.

• The mother had previously offered the father supervised access, but this offer, which the Court agreed was quite sensible, was never accepted.

• The mother alleges that the father was violent with her during their relationship. She further alleges that the father has been violent against the children on several occasions. Given the severity of these allegations, further evidence needs to be gathered before a determination can be made on any parenting arrangement.

• The father failed to present a realistic proposal on the precautions he intends to take to keep his children safe during the current situation with COVID-19.

The Court indicated that on consent of both parties, they may proceed with the motion in writing in respect to parenting schedule and child support as provided by the Regional Protocol dated April 7, 2020.




Lovric v. Olson, 2020 ONSC 2269 (April 14, 2020)

The Applicant mother brought an urgent motion seeking an order suspending access by the Respondent father to the parties’ child. The Trial Judge granted the mother’s motion and deemed the matter to be of immediate and serious concern directly related to the child’s safety and well-being.

The parties’ child is a nine year old boy diagnosed with breathing issues. The parties disagreed as to the severity of the child’s medical condition. While the father claims that the child has outgrown the need for his current medication, the mother insists that the condition remains a serious health concern. The mother alleges that the father’s new partner works as a dog-walker and house sitter, which increases her potential exposure to COVID-19. In light of her son’s condition, the mother believes the circle surrounding her son needs to be as small as possible.

The Court, citing the principles in Ribeiro v. Wright, 2020 ONSC 1829, reminded the parties that parenting schedules may be altered where “risk factors related to the health or other circumstances of a child or other members of a household” may exist. The Court stated that if the child’s respiratory issues are as serious as alleged by the mother, suitable precautions need to be taken to insure the child’s health and safety.

The Court ordered that the motion should be heard when both parties have submitted proper affidavit materials with sufficient evidence of the child’s health condition, and proceeded to set timelines and schedule the teleconference.

Russell v. Daoust, 2020 ONCJ 188 (April 9, 2020)

The mother withheld the children because one of them was particularly vulnerable to COVID-19. The father rejected offers of video access because he faced criminal charges and the terms of his release order restricted contact with the mother and her parents. The father was unsatisfied with the medical advice provided by the mother and believed that she was overstating the risk. The mother provided a letter from the child’s doctor.

The father asked to transfer the matter to the Superior Court. The request was deemed non-urgent. However, the medical evidence showed the parties needed to exercise caution around their daughter’s health. In this case, “[p]rudence requires that an alternative to face to face visits take place for the time being. At this stage there is no knowing whether this will be a few more weeks or many, but it will end. There will be lots of time to re-establish regular in person visits, soon.”

The Court held that [hone and video visits should be arranged through family counsel and criminal counsel should be consulted to see if the terms of the release order could be varied to accommodate virtual access.





Courchesne v Goodwin, 2020 ONSC 26893 (April 9, 2020)

This matter was before the court by way of Motion to Change a final Order which gave the father custody, but did not provide access to the mother. An Order was made on February 21, 2020, which granted the mother access on alternating weekends and every Tuesday. On March 21, 2020, the father told the mother access would be cancelled due to COVID-19.

The mother brought an urgent motion in this case arguing that the parties’ 8 year old daughter was being wrongfully withheld from her during her access times.

Given COVID-19 and what the court said was clearly the “wrongful removal or retention of the child”, the court found urgency in this matter. The Court was clear, however, that this did not preclude the applicant father from arguing that the test for urgency was not met at the motion. The Court relied on the March 15 Notice in making its decision.

Smith v. Smith, 2020 ONCJ 180 (April 9, 2020)

The mother withheld the children citing unsubstantiated COVID-19 concerns. The Court deemed the high conflict matter urgent and reinstated access between the children and their father. The Court cited the mother’s history of withholding the children, the fact she failed to raise new issues before the Court and her history of anxiety impacting her parenting decisions.

The Court relied on Le v. Norris’s standard of “reasonable adherence to the existing court orders. The Court ruled that the parties should follow the existing access schedule except Wednesday access would now occur electronically to minimize the number of exchanges.

Since the mother’s withholding was unjustified and unilateral, make up time was appropriate.

Courchesne v Goodwin, 2020 CanLII 26893 (April 9, 2020)

The Court affirmed that withholding a child from the access parent meets the definition of urgency in the March 15 Notice.

McNeil v. McGuinness, 2020 ONSC 1918, 2020 CarswellOnt 4833, Pazaratz, J (April 8, 2020) Justice Pazaratz issued the following warning to high conflict parents while deeming the father’s motion for access over Easter weekend not urgent:

“a. Just because a Triage judge decides an issue isn't urgent, it doesn't mean the issue isn't important. It simply means we have to prioritize which issues we currently have the resources to deal with. b. The suspension of most court activities during the COVID-19 crisis means that — temporarily -- separated parents are largely going to be on "the honour system."


http://canlii.ca/t/j6djn







c. We're counting on parents to be fair and helpful with one another. To rise to the challenge and act in good faith. d. Because now more than ever, children need parents to be mature, cooperative, and mutually respectful. In these times of unspeakable stress and anxiety, children need emotional reassurance from both parents that everything is going to be okay. e. How parents conduct themselves during this time of crisis will speak volumes about parental insight and trustworthiness. f. Your reputation will outlast COVID-19. g. So please don't try to take advantage of the current situation. h. In the long run, self-help will turn out to be a big mistake.”

Leach v. MacDonald, 2020 ONSC 2178 (April 8, 2020)

In this high conflict matter, the mother made allegations of intimate partner violence against the father. The temporary order provided that access exchanges should happen at the police station. The father insisted that exchanges occur at his house citing concerns about exposure to COVID-19 at the police station and the general inappropriateness of a police station for access exchanges.

Citing the March 15 Notice, Thomas v Wohleber, and Ribeiro v Wright, the Triage Judge deemed this matter urgent because the parties risked escalating the narrow issue. The Court ruled that the existing order should be followed however, in the hopes of resolving the problem at hand, the Court also made a “temporary [sic] temporary without prejudice order” that access exchanges should continue at the police station but, to minimize exposure risk, the parties should not leave their cars, and the children should walk between cars to complete the exchange.

Thibert v Thibert, 2020 CanLII 26427 (April 8, 2020)

The facility where the father normally exercised supervised access closed because of COVID-19. The father sought, on an urgent basis, to vary the existing order so a family member could supervise his access with the child. There were outstanding criminal charges against the father and a non-association order prevented contact between the parents.

The Court deemed this matter urgent citing two concerns:

- it was important to facilitate an ongoing relationship between the father and his child; and

- it was important to ensure that any access arrangements reflect the need to protect the safety of all family members in light of the criminal charges and the non-association order.








Since the parents could not legally communicate, they would not be able to make COVID-19 arrangements without the Court’s help. Alternative access, such as videoconferencing, would also not be possible.

Land v. Tudor, 2020 ONSC 2163 (April 8, 2019)

The Triage Judge deemed the father’s ex-parte 14B motion non-urgent.

The father provided only an email to the Trial Coordinator indicating he needed urgent relief due to wage loss as a result of COVID-19. He could not afford his monthly child support payments to the mother and the son was not in the mother’s care anyway.

The Court required better evidence to make a determination of urgency and the mother must be served. The father, a self-represented litigant, should also provide a draft of his Motion to Change and Financial Statement if he brought the matter again.

Officer v. Sawyer, 2020 ONSC 2156 (April 8, 2020)

The mother brought an urgent motion requesting:

- the return of the parties’ son to her care;

- that the father be prevented from taking the son to the cottage;

- police enforcement; and

- that the current parenting schedule be suspended until a police enforcement schedule is added to the parties’ current final order.

Adjusting Court Orders

The Triage Judge found this matter non-urgent because the father correctly agreed to revert to the court ordered schedule until further agreement or order.

The Court noted that, even though the parties generated a motion, they had in fact been communicating about reasonable scheduling adjustments. It may make sense to adjust the schedule to account for “the current situation, each parent’s availability, on-line education through the school board, and other considerations.” The Court encouraged the parties to keep communicating.

Procedural Issues

For the purpose of the urgency determination, the fact that none of the documents were signed or commissioned was acceptable. However, at a motion, “both parties would have had to be sworn in by the judge hearing the motion and their respective statements in the written materials adopted under oath or affirmation.”





The parties could wait for the matter to be spoken to in June or schedule an earlier case conference per the Regional Protocol issued by RSJ Arrell on April 7, 2020.

Matijcio v. Killick, 2020 ONSC 2058 (April 8, 2020)

The respondent sought an urgent motion that the applicant post security for costs for their upcoming trial. The respondent cited “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.”

The respondent said this matter was urgent so he could recover the large sum of money the applicant owed to him plus costs. The applicant was selling her house with a closing scheduled for April 16, 2020. The respondent had two outstanding costs orders secured by writs of execution against the property. Additionally, the respondent claimed that the applicant failed to comply with almost every order in the proceeding (including serving updated Financial Statements) and unlawfully took $35,000.00 from him.

The Court deemed this matter non-urgent because

- Trials are suspended.

- The applicant’s inability to post security for costs could only work to the disadvantage of the applicant per Rules 24(15 and (16).

- An order for security for costs is not the same as a non-depletion order.

- It is not possible to get security for costs as “execution before judgement” or to obtain an updated Financial Statement (unless the failure to provide one indicates the case is a waste of time or a nuisance).

Stewart v Reid, 2020 ONSC 2262 (April 7, 2020)

This was a Motion being dealt with on an urgent basis. The parties’ four children (7, 9, 10, 11) were in the Respondent father’s care for March break. They were to be returned to the Applicant mother on March 29, 2020, but the father refused to do so, for several reasons relating to COVID-19. An urgent motion was brought on April 3 and a motion was granted.

Children returned, matter still deemed urgent

The children were returned to the mother on April 6, 2020. Father stated that because he returned the children, the matter was no longer urgent. However, Justice MacEachern deemed it still urgent as the father, who moved to Mississauga in September 2019 without notice, now moved back to the Ottawa area. This now created a dispute about the children’s time sharing arrangement.

Parties’ existing Final Order and parenting terms



http://canlii.ca/t/j6dq6


The parties already had a December 2018 final Order, which provided a two-week rotating schedule for the children, except for during the school year, where the children returned to the mother’s care every weekday for homeschooling.

The father’s position was that the parties should follow the December 2018 final Order, except with no weekday exchanges as schools are closed and this transporting every day is not in the children’s best interests.

The mother’s position was that the children had been with her primarily since September 2019, creating a new status quo, and there for this should continue. The mother also began a Motion to Change in February to address this and the father was in default of responding.

Temporary Orders Made

The Court found that despite COVID-19 disruptions, the schedule as provided in the December 2018 final Order and the interpretation of same did not change. The arrangements made for homeschooling could not be separated out from the overall schedule for the children. Further, with a status quo in place as of September and the father’s default in responding to motion materials, the Court would not allow a change in the existing parenting schedule. On a temporary basis, the children would remain primarily with their mother and would alternate weekends from Friday noon to Monday noon with their father.

White v. Tracey, 2020 ONSC 2154 (April 7, 2020)

The parents already engaged in two Case Conferences and were case managed. The Court adjourned the March 19, 2020 Settlement Conference because of the COVID-19 pandemic. The father brought a motion requesting a half hour Case Conference on the parenting issues.

The Court granted the motion and provided similar directions to those in Ghazanfari v. Pasalar below.

Ghazanfari v. Pasalar, 2020 ONSC 2145 (April 7, 2020)

The father brought a motion requesting an urgent Case Conference. He alleged that the mother denied him access to their two children.

Justice Jarvis granted the motion without further explanation. He provided, among other things, that:

“(a) The parties are to schedule the first available date for a Case Conference through the trial offices. Court administration shall fix a date in the event that the parties are unable to agree or a party fails or refuses to provide a timely date; …

(d) No more than two issues may be conferenced. The total time allotted will be ½ hour. If practical, the parties or their lawyers (if one or both of the parties are represented) are expected to discuss, and agree upon, the conference issues before the conference; …”






The Court also stated: “[t]he parties are to consider the observations of Pazaratz J. in Ribeiro v. Wright…They will be expected to have realistic solutions to the disputed issues which take into account the current COVID-19 crisis.”

McArdle v. Budden, 2020 ONSC 2146 (April 7, 2020)

The mother withheld the two teenage children and brought an urgent motion to deny the father’s parenting time arguing that he refused to abide by physical distancing protocols when he did not have the children. The Court found the matter urgent but denied the mother’s relief finding the parties should maintain their status quo arrangement.

Changing Standards of Behaviour- Self-Isolation vs Social Distancing

The mother relied on the fact the father refused to self-isolate after returning from the United States one day after the World Health Organization declared COVID-19 a pandemic and before the government mandated self-isolation after travel. The father did eventually self-isolate for 14 days.

The Court ruled that “[t]he preventative measures advocated by authorities and the differences between “self-isolation” and “physical distancing” continue to evolve. The Respondent’s initial resistance and then acquiescence combined with his failure to comply with rigorous self-isolation, given that evolution and his evidence as to his commitment to compliance does not raise the kind of concerns that require an interruption in the children continuing to see their father. If he were to now depart from the current self-isolation rigorous protocol, that could demonstrate recklessness. But not at the time and in the circumstances in this case.”

How to Know What the Covid-19 “Rules” Are

The Court denied the mother’s request to order “personalized ground rules” for the family but instead linked specific government websites where the parties could find the expected standard of behaviour.

Make Up Time and Parenting Plan

The Court ordered make up time for the 14 day period the father had to self-isolate.

Livingstone v. Cooper, 2020 ONCJ 174 (April 6, 2020)

The high conflict parents had a history of assault charges against each other. The mother withheld the children starting February 14, 2020 because she felt “disrespected” by the father. The parties had no contact conditions between them.

The Court deemed the matter urgent because of the mother’s withholding and the fact that the mother was living with and involved with a person who had a previous history of being charged and convicted of sexually assaulting and sexually interfering with a child.


https://www.canlii.org/en/on/onsc/doc/2020/2020canlii23204/2020canlii23204.html?autocompleteStr=ribeiro%20v%20wright&autocompletePos=1





Rothschild v. Rothschild, 2020 ONSC 2117 (April 6, 2020)

The high conflict parents signed Minutes of Settlement respecting property and financial issues in January 2020. The settlement provided that:

• the matrimonial home would be listed for sale by April 1, 2020; • the wife would have exclusive possession of the home until closing; • the parties would select a mutually agreeable and arms-length realtor by February 29,

2020; and • the parties would conduct certain revocations as recommended by the realtor.

Some of the terms of the settlement failed to be implemented and COVID-19 created barriers to implementation. The father requested, and was granted, an urgent Case Conference to discuss these issues.

At the Case Conference, the Court ruled, among other things, that:

• the father’s proposal with respect to listing the house was reasonable. The parties should re-evaluate the COVID-19 restrictions on listing by April 15, 2020 and then check in biweekly. Reassessing the situation every two weeks would help keep the matter out of Court.

• the wife’s position that she would cooperate with the attendance of the proposed real estate agent once the pandemic “ended” was unreasonable. The Court would not indefinitely extend the wife’s obligation to list and sell the home. The Court stated that the trigger for proceeding would be when real estate agents in Toronto resume open houses.

• it would be difficult to assess and conduct repairs to the home while also social distancing. However, the parties could send pictures of the house to the realtor, discuss the issues, and start lining up contractors for the post-pandemic period.

Booth v. Bilek, 2020 ONSC 2116 (April 6, 2020)

The wife sought an urgent order staying a portion of the March 10, 2020 final order. The provision in question directed the removal of a preservation order that prevented the husband from depleting his RRSPs. Justice Baltman heard the matter entirely in writing per the March 15 Notice.

Staying the Removal of a Preservation Order is Urgent

The Court deemed this matter urgent. As the March 15 Notice included the placement of a non-depletion order, it arguably also included a motion to stay the removal of a preservation order.

COVID-19 Shortens Analysis

The Court found that the wife’s appeal of the final order failed the first part of the cumulative test for a stay. As articulated in Zafar v. Saiyid, this step involved a preliminary assessment of the




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merits of the case to ensure there was a genuine issue to be tried. As COVID-19 seriously restricted judicial recourses, the Court concluded it was not necessary to consider the other two criterion.

Harrington v. Dennison, 2020 ONSC 2114 (April 6, 2020)

The Triage Judge granted the mother’s urgent motion on a temporary without prejudice basis. The mother sought a restraining order against the father, suspension of the father’s access, permission to serve the father by email, and a police enforcement clause.

The parties separated on February 5, 2020 after an incident which resulted in the father being charged with assault causing bodily harm, strangulation, assault, and historical assault against the mother. The father remained in custody but could be released at any time.

Matour v. Hashemian, 2020 ONSC 2112 (April 6, 2020)

The mother sought to return to the status quo parenting arrangement. The Triage Judge deemed the mother’s motion urgent per the March 15 Notice, Ribeiro v. Wright, and Thomas v Wohleber.

Father Refused to Take the Children

The parties shared the children equally per a long standing status quo. The father withheld the children citing COVID-19 concerns caused by the mother’s job as a hospital nurse. He eventually returned the children but then refused to take them back as scheduled forcing the mother to take unpaid time off work.

Risking Unemployment is Serious and Immediate Harm

The mother could not return to work without returning to the status quo parenting arrangement because she did not have other child care options. The Court determined that her resulting risk of job loss as potential serious and immediate harm.

Ahmadi v. Kalashi, 2020 ONSC 2047 (April 3 2020)

The mother withheld the parties’ 17 month old son. The father brought an urgent motion for:

• access according to the existing consent order; • expanded access; and • release of $35,000 to each of the parties from approximately $210,000 in net sale

proceeds of their jointly owned home.

The Court found the existing order still effective and held that the mother should resume the regular access schedule. The other issues lacked urgency as required by the March 15 Notice.

No Self Help











If the mother wanted to terminate face to face access between the father and son, then she needed to bring her own motion to vary the existing order. The mother was “not permitted to simply engage in self-help, or to interpret public health directives as a license to terminate parenting time.”

Need Specific Evidence

The Court found that if the mother did indeed bring a motion, it would be unsuccessful because her accusations lacked specificity and the father provided evidence of his efforts to protect their son during the pandemic.

Actions May be Judged Later

The Court, citing Justice MacPherson in Douglas v. Douglas (March 25, 2020 ONSC), reminded the parties that “actions taken in these unusual circumstances, may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.” The Court echoed Ribeiro v Wright and implored the parties to be reasonable.

Thomson v. Fleming, 2020 ONSC 2036 (April 3, 2020)

In the context of a high conflict parenting arrangement, the father sought to resume access with his seven year old daughter. The father had not seen or spoken to the daughter since June 24, 2019 when a physical altercation occurred between the parents during a drop off. The mother withheld the child since that time.

This matter was originally scheduled for March 2020 but adjourned due to COVID-19. The father then brought an urgent motion.

The Court deemed this matter urgent because of the “very negative effects of wrongful, prolonged parental estrangement on a young child.” The Court found the mother’s behaviour qualified as the “wrongful removal or retention of a child” per the March 15 Notice.

The Court found both parents at fault for the “incident” and ruled the mother was actively discouraging her daughter from having a relationship with the father. The Court granted the father’s request for a gradual return to access starting with FaceTime visits.

Hamad v. Al-Rewashdy, 2020 ONSC 2093 (April 3, 2020)

The husband requested leave to bring an ex parte motion for a Certificate of Pending Litigation (CPL) on the matrimonial home. The wife recently listed the property for sale. The husband argued that the home could not be listed or sold without his consent and sought a CPL to protect his interest, which was to an equalization of net family property

Justice Mackinnon dismissed the request for urgency because:







• The husband relied on spousal rights contained in s. 21 of the Family Law Act however, since the divorce was already granted, the husband was not a spouse and could not rely on the provisions; and

• The well-established law dictated that a claim for an equalization of net family property does not call into question an interest in land and accordingly does not entitle the claimant to a CPL.

Lee v. Lee, 2020 ONSC 2044 (April 3, 2020)

A previous Endorsement deemed the matter urgent. The parents disagreed over when the father’s parenting time should resume after potential exposure to COVID-19.

The father’s co-worker tested positive for COVID-19 but had not attended work since March 13, 2020. The father did not work near the affected co-worker. The father’s facility closed on March 23, 2020 and the father began self-isolating.

The father argued that his access should resume immediately as he had not been exposed to his co-worker for over three weeks. The mother argued that the father’s access should resume 14 days after the father (and his roommates) began social distancing and self-isolating, and on the condition that none of them showed signs or symptoms of COVID-19. The fourteen days would expire four days after the motion.

No evidence demonstrated the father disobeyed COVID-19 protocols. However, Justice Diamond stated that the father could have been exposed to colleagues after March 13, 2020 who picked up the virus from the ill co-worker. Even though there was only a small chance of transmission, Justice Diamond held that in “uncertain times, it is preferable to avail oneself of certainties when available.”

The Court granted the mother’s motion. The Court did not find the father did something wrong but rather, waiting four more days to resume access minimized risk for all.

Mohamed v. Osman, 2020 ONCJ 172 (April 3, 2020)

The mother, a Minnesota resident, brought an Application for child support from the father, a self-represented Ontario resident, under the Interjurisdictional Support Orders Act (ISOA). The parties had three children.

The mother brought her application for support in Minnesota on September 18, 2020. The Notice of Hearing was issued in the ONCJ on January 22, 2020. The father was served on January 29, 2020. The hearing was scheduled for March 31, 2020.

COVID-19 Barriers for Self-Represented Litigants

The Court stated that it would normally proceed with the mother’s application based on her written materials since the father did not file responding materials, request an oral hearing or attend Court on the date originally set out for a hearing. However, COVID-19 presented


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“considerable obstacles for a self-represented litigant who might wish to respond to the [mother’s] application.” These obstacles included restrictions on physical access to the courthouse as well as warnings from the government to say at home.

The father’s materials were due before any restrictions began, however, the Court also took notice that many self-represented litigants in ISOA cases do not file written material in advance of the hearing date.

Balancing Considerations

The Court balanced these considerations with the fact the mother supported three children on her own and made an order adjourning the hearing (to give the father a final opportunity to participate) while also granting the mother temporary support.

The support order accounted for the father’s potential decrease in income as a taxi driver during COVID-19.

Children’s Aid Society of Toronto v. S.S., 2020 ONCJ 170 (April 2, 2020)

The Society proposed that access be at its discretion. The Court agreed. The Society was unable to facilitate supervised access due to COVID-19. Barriers included the lack of drivers and the fact that foster parents are concerned about transmission. The Society provided electronic access.

The mother did not provide alternative solutions to manage the transmission of COVID-19 or the concerns about her parenting. Her historical lack of candour meant supervision was necessary.

The Court took judicial notice of the fact that the Society is providing reduced services in Toronto. The Society is not conducting home visits and is only checking on families by telephone or using technology. The Society is only responding in person to urgent and emergency calls. Additionally, community supports, schools and daycares are closed.

The Court agreed that the Society’s policy prevents meaningful contact between parents and young children however, “the lack of access is not a reason to return children to a parent or parents who by their conduct or circumstances are unable to provide a safe and risk-free home for their children.”

The Society would resume face to face access when safe. The parties would not need to return to Court.

Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169 (April 2, 2020)

The mother had spent increasing amounts of access time with the child. The Court rejected the Society’s blanket suspension of access due to COVID-19. The Society did not allege the mother failed to follow COVID-19 directives and provided no evidence of same. The Court cited Ribeiro v. Wright.


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Chin v. Omeally, 2020 ONSC 2029 (April 2, 2020)

The father brought an urgent motion to resume access with the parties’ two year old son. The mother withheld the child citing COVID-19 concerns. She claimed the father failed to demonstrate how he would keep the child safe.

Per the June 6, 2019 final order, the parties shared joint custody and the father exercised access on alternating weekends and scheduled mid-week visits. In December 2019, the mother brought a motion to change but the case conference was adjourned to be spoken to in June because of the pandemic.

The Court found this withholding matter urgent in reasons nearly identical to Elsaesser v. Rammeloo below and proceeded to set timelines and schedule the teleconference.

Elsaesser v. Rammeloo, 2020 ONSC 2025 (April 2, 2020)

The Triage Judge found the mother’s motion urgent. The father refused to return the children (ages seven years and six years) to the mother’s care as scheduled because she was a healthcare worker. The father usually exercised access on alternate weekends and Wednesdays per a Separation Agreement.

Determinations of Urgency Are Summary and Without Prejudice

The Court noted that determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.

Withholding is Urgent

The Triage Judge deemed the matter urgent based on the March 15 Notice, the developing case law on this issue, and the final court order. In addition to Ribeiro v. Wright, the Court relied on the following cases:

• Chrisjohn v. Hillier, London Court File No. F1098/18 “in which Mitrow J. held that parents must act responsibly in the face of the COVID-19 pandemic to ensure that children’s safety is protected, but that this should not result in a “widespread suspension of in-person parenting time” between a child and a parent.”

• Skuce v. Skuce in which “Doyle J., in the context of a COVID-19 access case, found the question of withholding parenting time in contravention of a court order to be an urgent issue within the meaning of the [March 15 Notice].”

The Court added that “there also may be risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments” to the parenting schedule.










In deeming withholding urgent, this case is distinguishable from Douglas v Douglas (March 25, 2020), ONSC, MacPherson J [unreported].

Bruni v. Daunheimer-Bruni, 2020 ONSC 2017 (April 2, 2020)

The mother brought a motion to change two final court orders, requesting:

• permission to travel with the children without the father’s consent; • an increase to child support by $34.00 per month; • enrollment in Our Family Wizard; and • application of RESP funds to post-secondary expenses.

The mother did not provide an affidavit supporting her position. Citing the March 15 Notice, the Court deemed the matter non-urgent, noting:

• the government restrictions on travel; • the nominal requested increase in child support; and • the fact that no children pursued post-secondary education at the time.

Francis v. Francis, 2020 ONCJ 171 (April 1, 2020)

The father sought an urgent motion or case conference as a result of the mother’s ongoing pattern of denying access. The mother previously brought an Application for custody and support of the parties’ eight year old son which remained ongoing.

Pre-Pandemic Withholding Not Urgent

The father claimed he last saw the child in January and he alleged the mother engaged in a pattern of denying access with her most recent reason being COVID-19.

The Court distinguished this case from Ribeiro v. Wright, Jackson [sic] v. Doyle, and Skuce v Skuce because:

• The denial of access began before COVID-19 for unrelated reasons; and • There was no pre-existing order.

The mother did not get a chance to respond to the father and the Court anticipated she would present a different version of events.

The Court denied the motion but emphasized that “children have a right to a meaningful relationship with both of their parents and in person access can occur if both parties follow the government health directives.”

Heightened Obligation to Negotiate in Good Faith










The Court found this matter should not stall given the pandemic and there is a heightened obligation to negotiate in good faith. The Court stated that:

• The parties have experienced counsel; • The mother brought the Application for custody and support; • The mother now has the father’s time sharing proposal and she must respond with a

proposal that’s in the child’s best interests with reasons; and • “… the steps taken or not taken between now and when the case conference is held will

be judged by the court.”

Mills v Mills, 2020 ONSC 2008 (April 1, 2020)

The Toronto Triage Judge declined to set a September trial date on consent based on the parties’ 14B motion because the matter was not urgent under the Notice from the Chief Justice of Ontario. The Court cited its authority under Family Law Rules 2(2) and (2)(3)(d).

The Court was still determining how they would give out trial dates and how they would assign priority to cases at the June rescheduling court. The Court would not schedule matters in advance of that time and these parties could not jump in line to get a September date (even by consent).

Theis v. Theis, 2020 ONSC 2001 (April 1, 2020)

The wife, citing dire financial circumstances, brought an urgent motion for her “share” of the net sale proceeds of the matrimonial home held in trust. The wife operated a small business which was forced to shut down during the pandemic. She applied for government relief but had not yet received funds.

Non-Urgent per Thomas v Wohleber

The Court found this matter non-urgent on a without prejudice basis per the Thomas v. Wohleber threshold: courts must strictly enforce the March 15 Notice’s test of urgency so that “limited resources” are available to deal with “the most serious and urgent of cases”.

What Evidence Is Needed for “Dire Financial Circumstances”?

The Court reminded parties that judges do not have full court files and found that it lacked evidence to make a determination of urgency in this case. Notably:

• the wife did not file a Financial Statement. A Financial Statement would be essential to determine “dire financial circumstances” and grant the relief requested;

• the wife should also file a Net Family Property statement because it was not clear to the Court how the parties’ outstanding equalization obligations could impact the distribution of net sale proceeds; and

• the wife should file the results of any application for government funds (or the timeline for determination).








The Court indicated the wife could bring the motion again with a more fulsome evidentiary record or the Court would also accept a 14B motion for consent order. The Court warned that costs could flow from unreasonable behaviour.

Phipps v. Petts, 2020 ONSC 1999 (March 31, 2020)

The mother brought an urgent motion for return of her nine year old child.

The mother and father shared custody. The child primary lived with the mother. The maternal grandmother refused to return the child to the mother because the child made physical abuse allegations against the mother’s live-in boyfriend. The father supported the grandmother’s position.

The Triage Judge previously found the matter presumptively urgent. The Court remained concerned about returning the child to the mother’s full time care without:

• further investigation by the Family and Children’s Services of Waterloo Region; • evidence of the child’s views and preferences; and • evidence of the mother’s mental health, drinking and her boyfriend’s behaviour.

The mother could not guarantee the boyfriend would not be alone with the child if returned full time.

The Court ordered, among other things, that the child should remain with the grandmother and continue to exercise access with the father on alternating weekends as per usual. The child would spend the other weekends with the mother and not be left alone with the boyfriend.

Guerin v. Guerin, 2020 ONSC 2092 (March 31, 2020)

The parties lived together in the matrimonial home. Justice Mackinnon previously deemed the mother’s motion urgent. The mother sought:

• exclusive possession of the matrimonial home; • contact between the children (ages 11, 13 and 17) and the father restricted to video chat

or telephone; and • the father to pay mortgage payments in lieu of child support.

Exclusive Possession and Parenting Urgent; Financial Issues Non-Urgent

The Court found the first two matters urgent and granted the relief sought. Justice Doyle would not deal with the financial aspects as the Court did not have Financial Statements or other financial information.

The Court based its reasons on: the mother’s health issues, the father’s failure to comply with COVID-19 protocol, and the children’s needs. The mother met the onus in Ribeiro v. Wright.






Notably the father had alternative accommodation with his girlfriend.

The Mother’s Health Issues

The mother has serious health concerns that put her at increased risk of COVID-19 including: lupus, heart issues, Sjorgren’s syndrome, fibromyalgia and asthma.

A doctor’s letter confirmed that the mother should self-isolate as much as possible, avoid contact with other people, and not leave her home unless absolutely necessary.

Father’s Non-Compliance and Poor Attitude

The father did not follow the COVID-19 protocol required by the mother’s health. The father frequently left the house and refused to confirm where he went. He sometimes went to see his girlfriend when he claimed he was just driving around. The father refused to wash his hands when returning to the home. The father’s attitude put the children and mother at risk.

Best Interests of Children

The Court found that

• it was in the best interests of the children to stay in the home with a parent; • a deterioration of the mother’s health would affect the children; and • two of the children had asthma;

The Court ordered that the father could bring the matter back after April 17, 2020 to provide the Court with the measures he took to minimize the risk to the family and specifically of how he avoided contact with others since the date of the Order. Costs could be heard via written submission.

Balbontin v. Luwawa, 2020 ONSC 1996 (March 31, 2020)

The mother wanted to suspend the father’s access to the parent’s three year old daughter until the father could provide evidence that he complied with recent COVID-19 protocols. A temporary Order provided the daughter primarily lived with the mother.

The Court found that the mother respectfully raised reasonable, child focused pandemic concerns to the father and tried to collaborate him on a COVID-19 approach. However, the father ignored those concerns. When the father finally did communicate with the mother he stated, among other things, that she had “nothing to teach [him] about Covid-19”.

Good Parents Communicate During Pandemics

The Court found that “[a] parent’s failure to communicate and meaningfully co-operate where a child’s safety and well-being are involved is a failure to parent, especially in the current environment.”




The Court further stated that “[g]good parents will be expected to comply with the [government] guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant.”

Access Suspended until Father Answered Mother’s Questions

While some of the mother’s requests were unsupported by the authorities (i.e. using face masks in public), the Court stated that the “father’s refusal to engage with her where the priority should be ensuring the safety and well-being of the child unacceptable.”

Per Ribeiro v. Wright, the Court gave the father the opportunity to, by affidavit, “specifically and absolutely assure the mother (and this Court) that current COVID-19 safety measures will be diligently followed”. The Court suspended the father’s access until he addressed the following:

(a) Where he is taking the child during access visits;

(b) That he will not take the child to a playground;

(c) That he practise social distancing;

(d) That he comply with public safety directives regarding COVID-19 and the use of disinfectants;

(e) Whether he or any of the roommates with whom he resides are still working, and whether he or any of his roommates are currently under self-isolation and/or quarantine;

(f) Whether his roommates are practising social distancing;

(g) Whether his roommates or any other individuals are present during his access visits with the child.

Scharafanowicz v. DeMerchant, 2020 ONSC 1916 (March 31, 2020)

The mother made an urgent motion for return of the children and a police enforcement clause. The father withheld the children (aged six and four) based on reports from the children that the mother’s alleged boyfriend (R.D) sexually abused them.

Court Cannot Generally Condone Unilateral Action

The matter met the threshold for “urgency”, because “the Court cannot permit or condone unilateral behaviour by parents, except perhaps briefly and in the most serious of circumstances.” However, the mother’s request for police enforcement was not urgent.

Matter Should Have Been Resolved Outside of Court




Citing Ribeiro v Wright’s call for parties to be mindful the Court’s practical limitations, the Court expressed confusion about why the parties brought this matter. Both parties agreed the children would have no access with R.D. so there was virtually no risk to the children.

When Should Access Resume?

The sticking point was the resumption of access. The mother wanted access to resume immediately while the father wanted to wait until the police interviewed the children Concerns of the mother influencing the children did not make sense since she exercised daily phone access.

The Court ordered, amongst other things, that:

• “…the existing equal timesharing regime in relation to both children shall be resumed effective Thursday April 2, 2020 at 5:00 p.m. The transition has been slightly delayed – out of an abundance of caution -- to ensure that it occurs after the police have had an opportunity to complete a scheduled interview. However, if the police interview is further delayed, the transition shall nonetheless occur.”

• The children should have no contact with R.D.

The issue of costs and make up time could be addressed after COVID-19.

Placha v. Bennett, 2020 ONCJ 164 (March 31, 2020)

The custodial mother brought an urgent motion to return the child from Newfoundland where the child had vacationed with the father. The father refused to return the child on the basis that it would be dangerous to travel from Newfoundland back to Ontario.

The Court found the motion to have the child returned was sufficiently urgent but the other relief sought by the mother (for example, a restraining order) was not.

The Court noted that the parties long ago agreed that the child would reside with the mother. The child never resided with the father for more than a few days at a time. Both parents lived in Ontario.

The Court found that even if the intentions of the father were to protect the child from exposure to the virus, such intentions could not be used to unilaterally change the custody arrangement, or to change the child’s province of residence.

Among other things, the court ordered that the father deliver custody of the child in Ontario within 4 days, failing which the father return the child at the Newfoundland border within 7 days . While the court allowed the parties to vary the deadlines by agreement, the child must be delivered into the custody of the mother within 8 days.





Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167 (March 30, 2020)

The Court commented that the removal of children still engages s. 7 of the Charter and must only be done in accordance with the principles of fundamental justice. Often parents in CAS litigation come from marginalized sectors, peoples and groups. Justice Sullivan stated: “I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.”

Children’s Aid Society of the Region of Peel (PCAS) continued to work with the mother via video conference while the children remained in her care. PCAS indicated that the type and level of continued supervision is assessed and based on each family and the children’s needs. In this case, the mother was working with the Society while the father, who the Court described as domineering, no longer lived in the home.

The Court took notice of the fact that school remained closed and this took away an important community support for the family.

Children’s Aid Society of the Region of Halton v. T.B, 2020 ONCJ 166 (March 30, 2020)

The mother made a request for an urgent ex parte motion regarding the father’s access. The Society took no position. The Court found the only potentially urgent issues were:

- if the father’s access with the children should be temporarily suspended;

- if so, for how long; and

- if so, what alternative electronic access would be appropriate?

Self-Represented Litigants

The Court took notice of the fact that:

- COVID-19 meant it was impossible for self-represented litigants, like the father, to speak with Legal Aid Ontario at the courthouse.

- However, COVID-19 Pandemic Planning – Scheduling of Family Matters in the Ontario Court of Justice COVID-19 and the Notice to the Bar and Public Regarding Family Matters at the Ontario Court of Justice in Milton (March 23, 2020) (both available online) provided information as to how individuals can receive advice from Legal Aid Ontario over the phone; about the Law Society of Ontario’s emergency family referral line during COVID; and about the Law Society of Ontario referral service.

- The father was an experienced litigant.

Matter Urgent; Access Suspended


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The Court deemed the matter urgent and ordered the matter move forward to a hearing. In the meantime, the Court suspended the father’s in person access and ruled that regular contact occur via videoconference, social media or telephone. The Court took the following into consideration:

- The mother and some of the children exhibited COVID-19 symptoms;

- One of the children experienced exacerbated anxiety because of COVID-19;

- The father failed to provide the mother with answers to reasonable questions about his plan to implement COVID-19 safety measures;

- The father’s parents participated in access exchanges and only recently returned from a cruise;

- The father lived with two roommates;

- The father may continue to work outside the home;

- There was no evidence as to contact the father may have with others and what workplace health and safety precautions are in place to protect him against the spread of COVID-19.

At paragraphs 28-30, the Court detailed a list of information about COVID-19 that the father should provide to the mother.

Little Risk of Harm in Making a Temporary Covid-19 Access Schedule

The Court also encouraged the parties to communicate amongst themselves. The Court noted that “if they agree, in writing, to suspend or vary access to ensure their children’s well-being during the COVID-19 pandemic (a) a variation order is not required; (b) a future finding of contempt (or a Rule 1(8) ruling) is extremely unlikely; and (c) the court will not automatically consider that a new status quo has been established.”

Reitzel v. Reitzel, 2020 ONSC 1977 (March 30, 2020)

The Triage Judge found the father’s motion for access non-urgent and the matter would return to be spoken to upon the resumption of regular court.

The two minor children (ages 12 years and 14.5 years) lived with the mother. The father exercised no parenting time except for attending the occasional sporting event. The mother made allegations of stalking, harassment and abuse. The Family and Children’s Services of Waterloo Region (“FACS”) did not support any unsupervised parenting time for the father.

In making its decision, the Court considered that:

• The father had not asked for more access since separation six months ago;




• There were no issues of safety and wellbeing; • Given the children’s ages, their views should be heard via a Voice of the Child Report

and the OCL is not conducting those reports at this time; and • FACS needed more evidence to make a determination about appropriate parenting.

Derkach v. Soldatova, 2020 ONSC 1992 (March 30, 2020)

This request for an urgent motion involved allegations that the children (ages 6 years old and 12 years old) did not wish to attend access with their father or that the mother was refusing to send them for access.

Citing the March 15 Notice, the Triage Judge deemed this matter non-urgent because:

• the children were safe, • there had been no case conference nor was there a Court order in place, • the matter required a case conference, • the access issues will be dealt with during the normal course of litigation, and • the matter may require the assistance of the OCL.

The Court emphasized that “these children need their parents to act reasonably and responsibly at this time”.

Eden v. Eden, 2020 ONSC 1991 (March 30, 2020)

The Triage Judge deemed the father’s motion non-urgent. The father sought to change the existing access order and implement a police enforcement clause. The current access order provided that both parents exercise access in the matrimonial home. The father sought access in his own home.

With reference to the March 15 Notice the Court determined this matter was not urgent because:

• The safety of a child or parent was not at risk; • This was not the time to request a police enforcement clause as it could increase the

children’s exposure to COVID-19; • The “dueling parents” needed to be reasonable, stop the litigation, and act in their

children’s best interests during this unprecedented time.

The Court stated that the father caused concern by bringing the children to a pet store and to visit elderly family. The Court emphasized “everyone MUST follow Health Canada safety protocols to keep these children safe and healthy” but declined to amend the existing order by suggesting the parties act reasonably instead.







Baijnauth v. Baijnauth, 2020 ONSC 1974 (March 30, 2020)

The wife brought an urgent motion for a “vesting order” and transfer of the husband’s interest in the matrimonial home to her so that she could obtain re-financing to pay off the high- interest mortgage before it became due on March 31, 2020.

Motion Deemed Urgent

The Court deemed the wife’s motion urgent per the March 15 Notice.

The mortgage would come due on March 31, 2020 and the bank would not grant an extension. Deferring the matter until after the pandemic could “could cause significant financial hardship to the moving party including her ability to afford to keep her home, despite being owed enough money to do so.” The wife had made efforts to resolve the issue directly.

Service Rules Must Be Respected

The Court emphasized that parties must file proof of service. The Court also took issue with the fact the wife served the husband with a Motion Record on March 26, 2020 indicating the motion would be heard on March 25, 2020. This impacted the husband’s ability to respond to the motion.

Thomas v. Wohleber, 2020 ONSC 1965 (March 30, 2020)

In Thomas v Wohleber, Justice Kurz set out the test for urgent motions during COVID-19. This case is also significant because it deals with financial circumstances (as opposed to custody and access issues).

Test for Urgent Motions in Normal Circumstances

Justice Kurz noted the Oxford Dictionary definition of urgent:

“1.demanding or requiring immediate action or attention; pressing (an urgent need for help). 2. expressing a need for prompt action or attention; insistent (an urgent call for help).”

Rosen v Rosen sets out the usual test to bring an urgent motion before a case conference. It defines “urgent” as contemplating “abduction, threats of harm, [or] dire financial circumstances” and mandates that, before bringing an urgent motion, parties and counsel must:

• Determine the availability of case conference dates; and • Confer with each other to try and arrive at a short term resolution before the matter goes

to court.

Four Factor Test for Urgent Motions in Covid-19







The March 15 Notice builds on the Rosen v Rosen definition so only the most serious cases are defined as urgent. It identifies the following urgent, non-child protection family law matters:

“a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);

1. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;

2. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.”

Justice Kurz identified the following factors which are “necessary in order to meet the Notice’s requirement of urgency:

1. The concern must be immediate; that is one that cannot await resolution at a later date; 2. The concern must be serious in the sense that it significantly affects the health or safety

or economic well-being of parties and/or their children; 3. The concern must be a definite and material rather than a speculative one. It must relate

to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;

4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.”

Urgency Standard Must be Rigorously Enforced

While Justice Kurz declined to rule on whether the current urgency standard is higher than Rosen v Rosen, the Court “emphasize[d] the scrupulousness with which the urgency standard must presently be enforced” and noted that some urgent matters in a non-pandemic situation do not meet the standard of urgency in a pandemic.

This strict standard protects the Court’s resources for the most serious of urgent of cases (i.e. protection of children, safety of vulnerable spouses, or extreme financial need) and guards against the considerable risk of harm by delay in those cases.

Justice Kurz cited both Ribeiro v Wright, and Onuoha v Onuoha. By post-script, Justice Kurz echoed Ribeiro’s comment that courts will look “to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”

Analysis: Determination of Urgency on Facts of Case

In this case, the wife brought an urgent motion without notice after her husband allegedly depleted their joint line of credit. The wife sought: the return funds, a subsequent freezing of the line of credit account, a non-dissipation order, and financial disclosure.








Justice Kurz granted the first three items stating the following factors “raise[d] concerns of dire circumstances” for the wife and children:

• the husband’s erratic behavior; • the husband’s admission through lawyer’s letters that he unilaterally depleted the joint

line of credit and held the funds in another account; • the lack of justification for his unilateral conduct; • the debt was over eleven times the wife’s annual income; • the line of credit represented liquid funds the wife could use to help herself and the

children in an emergency; • the wife was jointly and severally liable for the debt and could not repay it if the bank

called in the loan; • there was a risk the husband would deplete the funds since he removed them after

agreeing not to.

The disclosure issue could be dealt with through normal litigation and did not qualify as urgent. The matter would return by teleconference to allow the husband to respond to the issues.

Saperia v. Vlasiu, 2020 ONSC 1963 (March 30, 2020)

While the Respondent’s request for interim child support presumptively fit the urgency requirement identified in the March 15 Notice, Justice Diamond found that the Court did not have enough materials to determine the request for urgency or request for child support (which were both based on the same evidentiary record). The Court set out a timetable to file further materials and the matter would return in two weeks.

Saperia v. Vlasiu, 2020 ONSC 2301 (April 16, 2020)

The matter came back before the Court on April 15, 2020 where Justice Diamond affirmed that he Respondent’s motion was not urgent.

B-M. v M.M., 2020 ONSC 1958 (March 30, 2020)

Counsel agreed there was urgency but the Court still had to determine whether the matter was urgent per the March 15 Notice and the Family Law Rules. The parties had not attended a case conference.

Urgency Found on Parenting and Support

The Court found the parenting motion and the anticipated cross motion urgent since the children were separated and not routinely seeing each other or their other parent. The Court found the Applicant’s motion for temporary support urgent because she needed to show income to gain permanent accommodation. The Court needed evidence of the Respondent’s income.

Order for Section 30 Assessment








With respect to the s. 30 assessment, and despite the fact the parties consented to one, the Court declined to make an order subject to receiving more details, including:

• the date the assessment would begin and the expected completion date; • whether the assessor would use remote technology to conduct the assessment; • whether the assessor would conduct or arrange psychological testing of either parent or

either child; • whether the assessor would hold a disclosure meeting with the parties to be followed by

preparation of the assessment report, in which case, the expected date for completion of the assessment report;

• whether the parties agreed on the cost and the payment of the cost.

The Court encouraged the parties to return to “triage mediation” to make an interim agreement until the assessment was completed.

Procedural Issues

Justice Kiteley recorded the teleconference and encouraged “the parties to agree that the parenting aspects of these motions are heard in the context of the amendments to the Divorce Act effective July 1, 2020.”

B-M. v. M.M., 2020 ONSC 2238 (April 15, 2020)

The matter came back to Court on April 8, 2020. Justice Kiteley affirmed that the matter was indeed urgent. The Court noted the April 2 Notice lessened the standard of “urgency” from “dire financial circumstances” to “issues regarding the financial stability of the family unit, including for example support or the need for a non-depletion order.” This matter was heard when the April 2 Notice applied.

Scion v. White, 2020 ONSC 1915 (March 30, 2020)

Since March 24, 2020, the father brought three emergency motions on the same access and financial issues. The Court held that the issues were not urgent.

The Court deemed that the access issue could be urgent if there was a complete denial but, in this case, the mother agreed to comply with the existing order and continue the father’s two hour weekly supervised visits. The Court stated the parties could work out “common sense details”, like holding the visits in an open park, without involving a Judge.

The Court barred the father from brining further motions on financial or property issues.

The Court “urge[d] both parties to use some common sense and stop abusing extremely limited judicial resources.”








L-A.F. v. K.V.S., 2020 ONSC 1914 (March 30, 2020)

The Court deemed the father’s motion presumptively urgent because:

• He claimed the mother listed her house for sale and intended to move the child from Hamilton to Pembroke without his consent; and

• He did not want the child living in the house while it was being shown to the public due to COVID-19.

Temporary Order without Notice or Prejudice

Because the father raised concerns impacting the immediate safety, and wellbeing of the child, the Court made a short term, temporary, without prejudice, and without notice order providing that the mother:

• “…shall not relocate the ordinary residence of the child… outside of the City of Hamilton”; and

• “… shall not allow strangers into her residence for purposes of marketing the home for sale.”

Procedurally, the Court ordered the mother be served with the materials and given a chance to respond. The matter would return by teleconference. At that point, the presiding judge will make a formal determination of urgency.

Tessier v Rick, 2020 ONSC 1886 (March 30, 2020)

Justice MacEachern echoed Ribeiro v Wright, and provided both parties with a copy to review before they took further steps in this matter. MacEachern J specifically followed the evidentiary requirements identified in that case when making her order.

Presumption: Follow Existing Orders

Justice MacEachern held that the parties should presumptively follow the existing order which provided the father with access.

The mother denied access because of Covid-19 concerns including:

• The father’s failure to practice social isolation; • The father minimizing the risk of COVID-19; and • The father’s use of public transportation (including public transportation with the child).

As a result, MacEachern J indicated she would treat the father’s urgent motion as “the mother’s motion to suspend or vary the father’s access due to her allegations that the father is exposing the child to significant risk due to not complying with COVID-19 safety measures.”

Found Urgency Applying Both the Rosen and COVID-19 Tests






The Court deemed the access issue urgent.

Covid-19 Test: Per the March 15 Notice the Court granted urgency because the mother intended to withhold the child indefinitely; the child was only 3.5 years old; and the COVID-19 concerns engaged the apparent safety and wellbeing of the child.

The mother’s unsworn evidence met her burden under Ribeiro v Wright, to “provide specific evidence or examples of behavior or plans by the father that are inconsistent with COVID 19 protocols and expose the child to risk.”

Rosen Test: The suspension of the court and the mother’s attempts to negotiate met the Rosen v Rosen test.

Three Issues Found Non-Urgent by COVID-19 Test

The Court found the father’s following requests non urgent:

• make up access, • removal of the child’s social media accounts; and • removal of pictures of the child from the internet.

The father did not provide, as required by the March 15 Notice, an evidentiary basis for his allegations that these issues created an immediate state of urgency related to the child’s safety and well-being.

Police Enforcement Clause Denied

MacEachern J denied the police enforcement clause because of the state of emergency and the Court’s own tools to enforce compliance.

Dnaagdawenmag Binnoojiiyag Child and Family Services v. B.RP, 2020 ONSC 1988 (March 30, 2020)

(no link available as of April 1, 2020)

The mother made great progress and was about to resume overnight weekend access with the child who was placed with the maternal grandfather. Though difficult, the Court declined to expand the mother’s access given COVID-19 concerns.

Agency Resources and Obligations

The Agency did not have the resources to safely transport the child for access or to monitor the mother’s access and compliance with terms.

The Agency needed to protect the best interests of the children under their care and they needed to comply with all COVID-19 considerations and precautions.








Distinguished Ribeiro

The Court distinguished this case from Ribeiro v Wright, because there was no status quo of overnight access or order providing for same. The Court stated “[t]his is not the time to commence new routines and activities that increase community interactions and do not support social distancing.”

Risk of COVID-19 Spread

The mother provided sufficient evidence that she followed all recommended COVID-19 precautions. However she lived with a disabled child vulnerable to the virus. This created concern that visits would put both households at risk. The child going back and forth between households engaged the risk of community spread.

Purdy v. Purdy, 2020 ONSC 1950 (March 27, 2020)

This was a high conflict situation. Prior to the COVID-19 pandemic, Justice Audet identified a list of matters qualifying as “urgent” including support. The mother subsequently brought an urgent motion for support during the COVID-19 pandemic. Justice Shelston declared the matter non-urgent as “the circumstances have changed dramatically as a result of the pandemic” and “the court is not operating on its usual schedule.” Support orders could be made retroactively.

Justice Shelston reminded the parties that they should attempt to collaborate and avoid confrontation as their conduct could later be reviewed by the Court.

Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941 (March 27, 2020)

The mother requested face-to-face access with her 13-year-old daughter whom the Society apprehended from her on March 20, 2020. Due to COVID-19, the Society only offered “virtual” access 2-3 times per week according to the child’s wishes via Facetime, Zoom, telephone or text.

In this case, given the Society’s concerns, and the fact that the mother had not followed the current orders; and the fact there was no status quo for face to face contact; the Court found that virtual contact was in the best interests of the child and was enough to maintain meaningful personal contact between the child and the mother.

Distinguished Ribeiro

The Court distinguished this case from Ribeiro v Wright as there was no existing access order and there were concerns about the mother’s parenting skills outside of COVID-19.

Society’s Obligation

The Court noted the Society’s obligation to keep the child safe from COVID-19.








Baker v. Maloney, 2020 ONSC 1929 (March 27, 2020)

This case involved a husband who missed two court ordered March deadlines to pay spousal support arrears via bank draft. Taking notice of the COVID-19 situation, the Court gave the husband until April 7, 2020 to provide a replacement draft “as long as it was safe to do so” and expressed hope that circumstances may return to normal by that time. The Court also noted that while the husband’s advanced age might make it difficult for him to obtain the draft, he was still required to comply with court orders.

S.W-P. v. S.P., 2020 ONSC 1913 (March 27, 2020)

The father brought an urgent motion to change the 2-2-3 schedule. The father wanted the 12-year-old child’s primary residence to be with him, with the mother having parenting time as agreed between the mother and the child.

This would not normally qualify as “urgent”, but the father’s materials raised concerns about the immediate physical and emotional wellbeing of child. The child engaged in “self-help” by running away from home and involving the police. There were also concerns about the mother’s boyfriend.

Acknowledging the Court’s difficulty in managing parenting issues for soon-to-be teenagers, Justice Pazaratz encouraged the parties to pursue therapy and get professionals involved.

Zee v. Quon (March 27, 2020), ONSC, E.L. Nakonechny [unreported]


The Test for Urgent Motions Met

The Court granted the mother’s request for an urgent motion because it dealt with the suspension of her access rights to her eight-year-old daughter as well as a request that the father be restrained from contacting her place of work.

These circumstances met the test in Rosen v Rosen, because:

• Superior Court of Justice’s operations are suspended and case conferences cannot be scheduled; and

• The mother attempted directly and through counsel to reinstate the court ordered access.

Access Orders Should Be Followed for Children of Healthcare Workers

The mother worked at Sunnybrook Hospital. The father refused to give the child to the mother until after the COVID-19 pandemic concluded because of the mother’s occupation.






Citing Ribeiro v Wright, the Court found that “[i]t is in the child’s best interests to return to the equal time sharing schedule that has been in place for some time. The [father’s] proposal that the child remain with him for an indefinite period with only Facetime access to the mother was not in the child’s best interest. It disrupted the status quo and it signals to the child that the mother may not be capable of caring for her and keeping her safe.”

The Court also found that, as health care professionals, the mother and her employer “are well aware of the protocols to prevent transmission of infection” and necessary precautions would be taken if the mother returned to work.

Alienation

Even though the issue of alienation was not before the Court, Justice Nakonechny noted that the two older children refused meaningful contact with the mother and now the father wanted to keep the youngest child. The father also included a scathing letter written by the couple’s oldest child against the mother.

Le v. Norris, 2020 ONSC 1932 (March 26, 2020)

This case, much like Ribeiro v Wright, emphasizes that parties must follow existing court orders during COVID-19.

The father brought an urgent motion because the mother withheld the child. The mother indicated she was not complying with the existing access order because:

• the father allegedly harassed and stalked her; • she did not have the opportunity to have the order varied; • the ongoing COVID-19 crisis; and • her fragile mental health.

The Court accepted none of these reasons.

With respect to COVID-19, the Court expressed sympathy about the mother’s anxiety but said that her concerns could be addressed “through responsible adherence to the existing Court Order.” According to Justice Conlan this meant “being practical and having some basic common sense”. The parties needed to “respect physical distancing” and do everything they could to make sure neither of them, nor the child, contracted COVID-19. This included following all precautionary measures recommended by relevant governments and health authorities.

Douglas v Douglas (March 25, 2020), ONSC, MacPherson J [unreported]


In this case, the father brought an urgent motion for resumption of the usual access schedule prompted by the mother withholding the child because of COVID-19.






The Court stated that “the total removal of one parent from any child’s life must be exercised cautiously”, however, still found that this motion was not urgent.

Withholding Over the Other Parent’s Time During COVID-19 is Not Urgent

In making its decision, the Court relied on the Notice to Profession of the Chief Justice of Ontario dated March 18, 2020 (the “Chief’s Notice”) and the subsequent Notice dated March 24, 2020.

The Chief’s Notice defined urgent and emergency family law matters as those concerning “the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.” The Court stated that this language purposefully mirrors the Convention on Civil Aspects of International Child Abductions (the “Hague Convention”) and would not be applicable when the issue is parenting time. In other words, withholding over the other parent’s time during COVID-19 is not urgent.

The Court commented that, in the future, there may be urgent abduction cases under the Children’s Law Reform Act, but this was not such a case. Here the child’s safety was not at risk.

Parties Could be Judged for Inappropriate Withholding After Pandemic

Despite this ruling, the Court noted that termination of all contact between the child and the father cannot be in the child’s best interest and the Court could later determine that the withholding parent acted inappropriately.

The Court emphasized that parties and counsel need to meaningfully communicate.

Cooper v. Teneyck, 2020 CanLII 23789 (ON SC) (March 26, 2020)

The father brought an urgent motion for police enforcement of access. The mother withheld the children because of COVID-19 concerns around the father’s unspecified workplace. The Court found the matter non-urgent.

The Court cited Ribeiro v Wright and considered an additional factor: “there may be risks related to the health or other circumstances of a child or other members of a household that may necessitate adjustments,” i.e. a child living with an immunocompromised person.

Police enforcement was not the answer. The existing order governed and the parties needed to work together to craft adjustments for COVID-19. The Court encouraged parties to write down their adjustments and consult a mediator to help.

Skuce v .Skuce, 2020 ONSC 1881 (March 26, 2020)

By urgent motion, the father requested that supervised face to face contact with the children resume according to the Minutes of Settlement dated March 16, 2020. The history of litigation




https://www.canlii.org/en/on/onsc/nav/date/2020/


involved the father’s sobriety issues. He lived in a sober living facility but would be moving back to his parents’ house.

The mother argued that due to COVID-19, the father’s access should be restricted to two-hour video conferences three times per week. She argued the father was not respecting social distancing.

Deemed Urgent

The Court deemed this matter urgent because it was in the best interests of the children for the legal aspects of their time with their father to be solidified.

This case met the criteria identified in the Ribeiro v Wright because it involves:

• the safety of the child; • the restriction of contact; • issues relating to the retention of the children; and • upholding respect and compliance with existing Court orders.

The Court found this matter met the test in Rosen v Rosen and considered the following additional factors from Yelle v. Scorobruh:

“1. Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator’s office. If so, the dates available should be included in the materials before the court;

2. Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance. For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date and so this date must be taken into account in determining urgency;

3. Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;

4. Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;

5. Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, dire financial circumstances;

6. Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or

7. If there are other pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues, this may bring the matter out of the normal procedure as it may require immediate attention by the court.”

Self Help Discouraged






The Court deemed the father’s motion urgent and chastised the mother’s use of world events to try and usurp the consent order. The Court cannot be seen to condone this type of behavior. Parties must respect existing Court orders.

The Court granted the father face to face access with necessary supervision and modification for COVID-19 concerns

Davis v. Eby, 2020 ONSC 1876 (March 26, 2020)

A family member overdosed at the father’s house while the 18-month-old child was present. The mother brought an urgent motion that the father’s access be supervised or suspended. The parties also raised financial issues. The court only deemed the access issue urgent and made an order for supervised access.

Lyons v. Lyons, 2020 ONSC 1850 (March 26, 2020)

Justice Williams heard the motion before the COVID-19 pandemic. She stated: “I have made the decisions in the endorsement based on the written and oral submissions of the parties. Where the realities of the pandemic have affected a decision or my reasoning, I have said so.”

Ribeiro v Wright, 2020 ONSC 1829 (March 24, 2020)

Ribeiro v Wright outlined the considerations for COVID-19 urgent motions and how parties should arrange custody and access during this pandemic. It is one of the leading COVID-19 cases.

The Court denied the mother’s request for an urgent motion to suspend the father’s parenting time due to COVID-19. The mother was specifically concerned that the father would not enforce proper social distancing for the child. Additionally, her household practiced social isolation and she did not want the child leaving her home. You can read our blog post on this case here.

Onuoha v. Onuoha, 2020 ONSC 1815 (March 24, 2020)

In Onuoha v. Onuoha, the Court declined to hear a father’s urgent motion after his regular motion was adjourned because of COVID-19. The father wanted to return his daughters to Nigeria after their mother unilaterally moved them to Ontario in 2019.

Not the Time to Hear a Travel Based Motion

The Court found that this motion should not be heard on an urgent basis because:

• current government recommendations to avoid non-essential travel “could not be more clear” and “[t]his is not the time to hear a motion on the return of children to another jurisdiction”; and

• the matter should be heard only once the Court could review the entire, voluminous record which was not possible under the current emergency procedures.




https://www.canlii.org/en/on/onsc/doc/2020/2020canlii23204/2020canlii23204.html?autocompleteStr=Ribeiro%20v%20Wright&autocompletePos=1

https://www.mannlawyers.com/family-law/how-to-co-parent-in-a-pandemic-advice-from-the-onsc-on-custody-access-and-urgent-motions/

https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1815/2020onsc1815.html?searchUrlHash=AAAAAQApIkNPVklELTE5IiBPUiAiQ292aWQtMTkiIE9SICJjb3JvbmF2aXJ1cyIAAAAAAQ&resultIndex=2


At the same time, the mother needed to make every reasonable effort so that the children could speak regularly with the father through FaceTime, Skype, or telephone.

Without Prejudice Status Quo

The father was concerned that adjourning the motion would prejudice his position. In response, the Court said it was obvious that the matter was adjourned because of the global pandemic and the adjournment was made without prejudice to either party on the substance of the motion.

Determinations of Urgency Should Be Fast

Justice Madsen made this decision based on emails from counsel and previous knowledge of the matter. The Court emphasized that determinations of urgency should be simple and expeditious.

Burton v. Woods, 2020 ONCJ 158 (March 23, 2020)

The mother brought an urgent motion because the father withheld the child. The father had limited access per the trial decision but refused to accept it. He engaged in a self-help remedy while waiting for his appeal to proceed. The Court deemed the matter urgent and suspended the father’s access. The Court also ordered that CAS and the police apprehend the child and return them back to the mother.

Jackman v. Doyle, 2020 ONSC 1875 (March 20, 2020)

The Court found the mother’s motion presumptively urgent per the March 15 Notice, the father’s alleged unlawful withholding of the children over March Break, and the COVID-19 situation.

Court Disagrees Whether Withholding Over Parenting Time is Urgent

This case does not sit comfortably with the endorsement of Justice MacPherson in Douglas v Douglas where withholding over the other party’s parenting time did not qualify as urgent given the global pandemic. Lawyers and parties should note that Douglas v Douglas is the more recent decision by five days which may matter given the quickly changing circumstances.

Children’s Fevers Not a Deciding Factor

The children had fevers while in their father’s care and he still took them to the store and to visit his elderly mother. The Court did not explicitly cite the children’s’ illness as a consideration for returning the children to their mother and instead, relied on following the status quo as reason enough. This approach may again be outdated given the evolving public health guidelines.

Father Did Not Get to Deliver a Substantive Response

Procedurally, the father did not get a chance to deliver a substantive response to the mother’s motion but was offered an opportunity to share “his side of the story” by telephone hearing.






Matter Returns to Court

This matter came back before the Court on March 27, 2020 as reported in Jackman v. Doyle, 2020 ONSC 1928.

The father missed the deadline to file his responding material and the mother argued the matter was no longer urgent given the children had returned to her care. The father argued that the terms of the earlier Endorsement rendered his access very limited and he sought the opportunity to address these issues on an urgent basis. The Court was not prepared to “foreclose the [father’s] request for access terms without first reviewing his responding materials” and made arrangements for the matter to proceed by telephone conference.

Hrvoic v. Hrvoic, 2020 ONSC 1711 (March 19, 2020)

The parties created an urgent situation due to their ongoing, tactical maneuvers which included, among other things, the husband summarily firing the wife from the family business without notice and the wife borrowing $60,000 from the joint line of credit.

Smith v. Sieger 2020 ONSC 1681 (March 18, 2020)

In Smith v Sieger, a father brought an urgent motion to return his teenager to Canada from Utah where the child had been attending school.

The Court granted the father’s urgent motion because of:

• COVID-19; • the imminent closure of the border between Canada and the United States; and • the recommendations of health professionals and government authorities regarding

Canadian citizens out of the country

Notably, the decision also provided that, upon his return, the child must self-quarantine for 14 days subject to further medical recommendations.

S.A. v. Y.M. 2020 ONCJ 147 (March 16, 2020)

This was a focused trial of the parties’ motions to change final parenting orders regarding their 10-year-old daughter. Of note was the Court’s ruling that “the child shall spend half the March Break with each parent. For clarity, this does not include the additional two weeks when school has been ordered closed by the Ontario Government from March 23 to April 5 this year and will not include any additional times that the Ontario Government closes school due to the COVID-19 virus.”





https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1681/2020onsc1681.html?searchUrlHash=AAAAAQApIkNPVklELTE5IiBPUiAiQ292aWQtMTkiIE9SICJjb3JvbmF2aXJ1cyIAAAAAAQ&resultIndex=17

https://www.canlii.org/en/on/oncj/doc/2020/2020oncj147/2020oncj147.html?searchUrlHash=AAAAAQApIkNPVklELTE5IiBPUiAiQ292aWQtMTkiIE9SICJjb3JvbmF2aXJ1cyIAAAAAAQ&resultIndex=33