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Sunday, March 29, 2020 - Fathers - Not disclosed - Fathers Rights Canada


What counts as ‘urgent’ in a pandemic? From children’s aid to custody cases, Ontario family courts adjust to COVID-19


Sat., March 28, 2020

Family courts in Ontario are now dealing only with urgent matters, with hearings taking place remotely.

But what does the word “urgent” actually mean amid the COVID-19?

The provincial family court at 47 Sheppard Avenue East.

The provincial family court at 47 Sheppard Avenue East. (CHRIS SO / TORONTO STAR)

Across the province, judges, lawyers, legal clinics, couples and parents are learning how to adapt to the restrictions being placed on family court cases amid the pandemic.

So far in Toronto, the urgent matters have included the usual violations of custody arrangements and domestic violence, but could soon include child support variations as the number of Canadians laid off increases, said family lawyer Lorna Yates.

“What we are starting to see is people who, through no fault of their own, have lost their jobs and can’t maintain the level of support so they need to get a bit of relief. And you would hope that people would be able to deal with each other in a mature way,” said Yates. “But a lot of people can’t.”

Article Continued Below

To help answer questions like whether a matter is urgent enough to be heard by a court, the Law Society of Ontario has set up a phone line to connect self-represented litigants with volunteer lawyers for half-an-hour of free advice (Toll-free 1-800-268-7568, General: 416-947-3310). If the issue involves domestic violence, the lawyers can also help with basic safety planning and contact information for family court support workers and Luke’s Place.

Legal Aid Ontario is also offering free legal advice by phone at 1-800-668-8258 with no financial eligibility requirement.

Family law information centres, which can assist with other needs including housing, interpreters and social assistance, also remain available by phone. Free remote mediation services are also still available through the courts.

But even with these resources, lawyers remain concerned about litigants who may not be able to easily access phone or video services, and those who require interpreters.

Some questions through the emergency line have been about custody arrangements as a result of COVID-19, said Yates, who helped create the emergency line.

There have been calls about ensuring the safety of children if one of the parents is a health-care worker, for example, she said. Other lawyers have been asked questions that have no clear answer, like what would happen should a lockdown be instituted, and whether there would be an exception to allow for parenting arrangements to continue.

The courts so far have said that custody arrangements should continue as normal where possible — modified where needed to ensure COVID-19 precautions including strict social distancing or mandatory quarantines are being followed — and that parents should try work out a solution themselves before resorting to a court hearing.

Article Continued Below

“Right now, families need more co-operation. And less litigation,” said a recent decision from Superior Court Justice Alex Pazaratz. “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,”

The decision came from a Hamilton case where a mother had primary custody of a nine-year-old boy and the father had access on alternate weekends. The mother sought an urgent hearing to suspend the father’s in-person access out of concern the father would not maintain social distancing.

“Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system,” Pazaratz said.

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

He said the matter would not be considered urgent at this point and urged the parents work it out on their own.

However “there will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk,” he said.

Most co-parents are able to resolve parenting disputes without resorting to court hearings, making the cases that do come to court high-conflict, family lawyer Katherine MacDonald said.

But she has been pleased to see that, among her high-conflict cases, there have been efforts made to continue custody arrangements in a safe way. In one instance, a parent who has a car is picking up and dropping off their child rather than making the other parent use transit as normal.

However, she is concerned about her clients who have children in the care of the Children’s Aid Society. The CAS is no longer doing in-person visits — only phone and video — lawyers say. And the locations where supervised access typically occurs, like malls or parks, are now closed. Over months, the impact of this restriction could be devastating for both parents and children, MacDonald said.

“The pandemic is basically severing a lot of these face-to-face relationships between parents and kids, and it’s particularly important for infants, where video calls are just not the same,” said family lawyer Tammy Law, who specializes in child-protection cases.

Lawyers are waiting on decisions from the court on this issue, she said.

While the direction of the court in non-CAS cases has been to encourage flexibility and creativity in the best interests of the children, the position of the CAS has been inflexible, she said.

“It doesn’t matter if your client has an amazing plan, if your client is self-isolating and the other parent agrees to the access,” she said. “I’m not suggesting everyone should be having face-to-face access, some people may be at high-risk of contracting this virus, but that’s not all families.”

In a statement, the Children’s Aid Society of Toronto said that starting on March 18 they began “replacing some in-person contact with telephone or video calls when possible and appropriate for families” and continue to assess the practice on a case-by-case basis prioritizing public health issues and ensuring the safety of the children, youth and parents.

Yates says that as Superior Court of Justice gets the hang of remote hearings via phone and video they hope to be able to be able to begin to deal with some non-urgent matters again.

“That may take a lot of creativity and a lot of technology,” she said. “But there is certainly an openness to that in the courts.”

A silver lining has been that the courts are having to significantly improve their technological capacity, allowing for documents to be filed electronically and remote hearings.

“We are going to learn some stuff out of this,” said family lawyer Mary Reilly.

And hopefully, she said, it will improve court efficiency when the courts resume and face a huge backlog of adjourned cases.

Alyshah Hasham is a Toronto-based reporter covering crime and court. Follow her on Twitter: @alysanmati








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