Educational Resources

The Coronavirus: The Impact on Justice and Family Law Matters

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Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

The Coronavirus: The Impact on Justice and Family Law Matters

The coronavirus (COVID-19) pandemic has brought with it many public health risks, on an unexpected and unprecedented scale.  The direct ramifications include the mandatory quarantining of afflicted individuals, widespread injunctions against travel and other methods of exposure, and encouraging at-risk people to self-isolate. The many “trickle-down” effects include the closure of schools, daycares, and the cancellation of many entertainment and sporting events, which impact individuals on a more direct and personal level.

In Ontario – as elsewhere – the justice system and its courthouses are also directly affected by concerns over the pandemic; this in turn impacts those who are involved in ongoing civil or matrimonial disputes.

On March 13, 2020, the Ontario Courts issued a Notice to the public, profession and the media respecting the related adjustments that have been made to address COVID-19 concerns.

Individuals who are afflicted or at-risk should not attend court.  The Ontario Superior Court of Justice advises that:

  • Those who have scheduled courthouse attendances, but who have been advised to self-isolate by Public Health, a doctor, or the Ministry of Health website, should not come to the courthouse.
  • Instead, they should immediately contact court offices and follow their directions. The court matter or hearing may potentially be postponed, or else the person may be able to participate through his or her lawyer, or by phone or video conference.

There are special measures in place for jury trials before the Ontario Superior Court of Justice.  Specifically:

  • All upcoming jury trials have been suspended.
  • Those jurors who have been summoned will be advised not to attend in court; they will be contacted by the courthouse or the jury office if they are required to attend in the future.
  • Those jury trials that are currently in-progress will continue, unless the presiding trial judge orders otherwise.

There are special instructions and contact information for lawyers, witnesses, and self-represented litigants in child protection, family and civil matters (including estates and the commercial list).

The Ontario Court of Appeal has also issued the following directives:

  • For now, the Appeal Court continues to hear scheduled appeals, but is suggesting that parties with non-urgent appeals scheduled to be heard prior to April 30, 2020 may want to ask for an adjournment.
  • Those whose appeal matters are scheduled to continue may want to avail themselves of the option to appear by videoconference or teleconference.

Finally, the Supreme Court of Canada has also advised as follows:

  • Out of concern for the health and safety of visitors and employees, the Supreme Court of Canada building has been closed to visitors.
  • However, the nation’s top court remains open for previously-scheduled case-related matters and appeal hearings.

For more detail on some of the measures being taken in judicial offices and courts across the country, see:

https://www.thelawyersdaily.ca/business/articles/18139/jury-trials-nixed-over-covid-19-scc-closed-to-public-courts-offer-remote-hearings-adjournments

For the Ontario Courts’ Advisory Notice to Lawyers, Litigants, Witnesses, Jurors, Media, and Members of the Public Regarding COVID-19 see:

https://www.ontariocourts.ca/scj/covid-19/

UPDATE: March 15th 

To protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice (SCJ) is suspending all regular operations, effective Tuesday, March 17, 2020, and until further notice. All criminal, family and civil matters scheduled to be heard on or after Tuesday March 17, 2020 are adjourned.

For more information, see: https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

UPDATE: March 16th, 12:00 p.m. 

Superior Court of Justice for Central East Ontario update from Russell Alexander:

  1. Firms still need to file materials;
  2. The definition of “emergency” with respect to issues that the court will deal with, depend on the facts of the case.  Currently, issues involving children, refraining motions, child protection motions and non-depletion orders will be considered.   The hearing will be conducted by teleconference.  They are not scheduling any in-person court dates until after June 1st; and
  3. Judges will be available each week to review the requests for emergency hearings that will be done by teleconference.

UPDATE: March 17th 

Mandatory information programs temporarily suspended.

UPDATE: March 18th – LSO and CPD 

Due to global events and the LSO’s changes in operations, CPD programs scheduled to take place between March 17 and April 3 will be postponed. Further information on CPD programming after April 3 will be made available to you soon. Thank you for your patience and understanding.

 

If you wish to obtain a refund or a store credit for registration fees, please send an email to cpdreg@lso.ca indicating which option you prefer. All refunds to the original method of payment and all store credits will be processed as soon as possible. 

 

Please contact the CPD Customer Service Team at (416) 947-3315 or via email to cpdreg@lso.ca, if you have any questions or require clarification.

 

For more information on the LSO response to COVID-19, please visit: https://lso.ca/news-events/news/latest-news-2020/corporate-statement-re-covid-19

 

UPDATE: March 19th 

On Monday March 16, 2020 the Oshawa Courthouse refused to let in anyone without an emergency filing and told us that they would remain closed until possibly April 3rd. On Tuesday March 17, they were open for regular business. 

On March 18, a notice was posted in the Oshawa Court announcing that they would be operating limited hours for filings, only accepting materials between 10am-12pm and again from 2pm-4pm. 

UPDATE: March 20th – Scheduling of Criminal and Family Matters in the Ontario Court of Justice

Please do not come into a courthouse if you have been advised by public health officials, your doctor or the Ontario Ministry of Health (MOH) website (https://www.ontario.ca/page/2019-novel-coronavirus) to self-isolate.

In response to the COVID-19 pandemic, the Ontario Court of Justice issued a directive on March 15, 2020, “COVID-19 Pandemic Planning for the Scheduling of Matters in the Ontario Court of Justice” to reduce the number of people who attend court for criminal, family and Provincial Offences Act matters. That directive has been revised and extended, as of March 20, 2020.

Unless you have an urgent criminal or an urgent family court appearance in the Ontario Court of Justice between Friday March 20, 2020 and Friday May 29, 2020 do not attend court.

All family trials, criminal trials and preliminary inquiries between Friday March 20, 2020 and Friday May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise. This applies to both in-custody and out-of-custody accused.

UPDATE: March 21st

Ontario Regulation made under the Emergency Management and Civil Protection Act. Order Under Subsection 7.1 (2) of the Act. 

The terms of which Order are the following: 

1. Any provision of statue, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020. 

2. Any provision of any statue, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 15, 2020. 

The duration of this Order is subject to any renewal required under subsection 7.1 (4) and, if applicable, subsection 7.1 (5) of the Act. 

UPDATE: March 24th – Lawyers are essential service

Ontario Government issues lawyers as essential service.

“65. Professional services including lawyers and para-legals, engineers, accountants, translators”

For a full list of essential services see: here.

UPDATE: March 25th – Association Member Issues for Justice Sector 

A brief Q and A on some real-time solutions: Family Law

1. Is the issue re: administrative dismissal deadline under the Rules if Civil Procedure being done for Family Law Rules as well?

  •  SCJ Response: O. Reg. 73/20, issued on March 20, 2020 under the Emergency Management and Civil Protection Act suspends limitation periods and time periods within which steps in a proceeding are to be taken. The Court has asked the Ministry not to issue Notices of Approaching Dismissal in Family. The SCJ’s Notice to Profession indicates: “…where procedural rules or court orders require the regular filing of documents during this emergency period, and it becomes impossible to file at the courthouse or the courthouse is believed to be unsafe, parties can expect the Court to grant extensions of time once the Court’s normal operations resume.”

2. Families would benefit from some immediate guidance re: managing access/parenting time schedules under existing court orders and/or refusing to return children to other parent. Also concerns about parents taking advantage and attempting to establish a new status quo.

  • SCJ Response: We understand that it will be difficult for many families to manage the parenting arrangements during this time and that it may give rise to some emergency situations. Clients and lawyers should be encouraged to resolve these issues between themselves where possible and only engage the court where there are really pressing issues regarding a child’s safety or wellbeing, or the safety of a parent. We understand that virtual mediation services may also be available that could be considered, for appropriate cases, to address pressing child-related issues.
  • The does not take into consideration (i) lawyers dealing with self-reps on the other side who refuse to cooperate, for example, and have taken advantage of the situation for more access (not an “urgent” situation defined as “real and pressing issues regarding the child’s safety and wellbeing”), (ii) issues where spousal abuse (control and verbal abuse) is a factor and mediation is not to be undertaken, or (iii) the fact that Children’s Aid Societies are cancelling access arbitrarily despite court orders. Many of these self-representing parents have no idea about the new processes and rules, or their rights during this period.

Follow up Question: Where and when is the information about the processes, issues that might arise and how to resolve them going to be posted for the general public in a manner that is uncomplicated, so that they have access to justice?

  • (i) we acknowledge that this is not an easy situation but lawyers will have to do their best to deal with difficult litigants, whether represented or not, to attempt to resolve issues without the court’s intervention. (ii) the court is concerned about situations of spousal abuse and how that will impact well being and safety both before and after separation. Lawyers are encouraged to include any pertinent information in urgent requests. The court has been working with DV stakeholders and the OBA to maximize access to legal advice in these circumstances (more information to be shared shortly). (iii) we understand from MCCSS that supervised access may no longer be available through the societies for safety purposes and that societies have been encouraged to consider other safe alternatives. These situations can potentially be urgent, however lawyers should consider whether these requests are likely to be successful given the particular circumstances.
  • Generally – As noted above, we are working incredibly hard with the OBA and the LSO and others to facilitate access to legal advice for SRLs to determine what is urgent and how to proceed.

3. If there is a specific Court Order imposing a serving and filing deadline on a party in a Family Litigation matter, will that party be able to file their documents with the Superior Court on March 20 or anytime in March, 2020? Further, if the party fails to comply with the specific Court Order by failing to serve and file documents by the deadline, is the opposing party allowed to file their Motion materials permitted by the same Court Order? The Motion material would be decided in writing and would not require a Court hearing or attendance. Further still. if the above type of documents can be filed, does that mean only electronically?

  • SCJ Response: Parties are expected to comply with existing court orders, to the extent they are able. The Notice to the Profession indicates that the Court is expected to grant extensions of time where parties are unable to file, due to COVID-19. At this time, several courthouses remain open for “regular” filings. The direction from the Ministry suggests some courthouses may be closing due to COVID. Only “urgent” filings, as described in the Notice to the Profession from March 15, 2020 may be filed by e-mail to the listed trial coordinator.

4. Determination of “Urgent Matters” is there a tool that can be used for lawyers to provide clients or to walk through with clients (or that could be posted for use by self-reps) to help them understand what are “urgent” matters such that they can be heard, in each of the different contexts. This is to expand on the general information being provided by the courts on what constitutes urgency, as there is also a basket clause in most cases. Given that the courts are all now essentially operating privately, through technology, it is difficult to see what is getting through in the urgent category.

  • SCJ Response: At this time, the only guidance in determining what is “urgent” is the language contained in the Notice to the Profession. The SCJ Notice did not exhaustively list what is an urgent family law issue intentionally, because the urgency of the matter may depend on the circumstances. Counsel may wish to be guided by the definition of urgency under the Family Law Rules for some guidance. The SCJ is tracking the number and nature of “urgent” matters that are being brought. The court is also assessing its capacity to hear other matters.

5. Question: Could a framework be created for simple Motions known as 14B Motions in Family Court, to still be dealt with in writing only?

  • SCJ Response: Possibly. Some regions are seeking to deal with in-writing motions. At this time, the SCJ provincial policy is to only deal with “urgent” matters. An issue is the capacity to submit “in-writing” motion material via email given limited e-mail size capacity (10MB). We are seeking secure ways of transmission via tools like DropBox. 14B motions for urgent matters can still be brought.

6. Question: Can proposed Orders submitted pursuant to a Justice’s Endorsement, after all parties have consented, still be filed with the Court electronically or otherwise?

  • SCJ Response: For “urgent” matters, counsel are encouraged to file draft orders, which can be signed by the judge hearing the matter, and sent back to the parties signed electronically. The ability to have clerks sign orders will depend on the ability of court clerks to perform this function remotely, which is a Ministry issue. Counsel should seek direction from the judge to ensure the timely issuance of the order.

7. Question: Can lawyers still book conferences and motions this time when part of the court operation is suspended?

  • Contact your local trial coordination office regarding scheduling protocols in their region.

8. Is the Registrar open for the purposes of filing and issuing documents? Will the judges accept remote phone calls, teleconferences, video conferences etc.

  • Contact MAG re the availability of filing counters. SCJ has directed that all urgent matters be filed by email to the appropriate trial coordination office. Teleconferences and in some circumstances video conferences are being arranged for matters with approval of the local triage judge.

9. Question: How should family lawyers be addressing situations where access parents are relying on coronavirus as an excuse not to return children to the primary caregiver? Should lawyers/clients be proceeding through court with an emergency motion.

  • See above. While these issues may meet the test of urgency, many likely will not given the court’s direction at this time. Lawyers are encouraged to consider other appropriate alternatives, eg. Mediation and parenting coordination where an acceptable agreement cannot be reached between the parties.

10. Same issue as above (but specific to the Orangeville Superior Court) parents who are using this crisis to punish the other parent by withholding the child. They are not at all interested in mediation or listening to reason. These are high conflict cases. Steven has a pressing case is in Orangeville Superior Court and is wondering if someone can consult with Justice Miller who is currently in charge there.

  • See above. The SCJ cannot comment on specific cases that are before the court, nor will this office reach out to judges regarding specific cases.

11. Will supervised access sites be closed? Is there any direction for parents/lawyers on how this should be handled if they close through until they re-open?

  • We expect that this has already happened for domestic and child protection cases. Clients should be encouraged to consider safe alternative arrangements to supervised access and supervised access exchanges.

UPDATE: March 27th – Notice to the Profession from AG

Dear Members of the Legal Community in Ontario,

As communicated in my March 15, 2020 Notices to the Profession, the decision to suspend all but urgent matters in the Ontario Superior Court of Justice (SCJ), effective March 17, 2020 was not made lightly. It was a necessary step to protect all involved in SCJ proceedings during the COVID-19 crisis.

Since the suspension, all members of the SCJ’s Council of Regional Senior Judges have been discussing our capacity to expand operations. We know the profession, along with our judges and masters, are eager to do more. The primary impediment has been the ability of the Court to receive filed materials in an electronic format, as well as the provision of other court-related support necessary to run a virtual court. The Court knows, however, that it has a constitutional responsibility to ensure access to justice remains available.

Accordingly, with the support of the Council of Regional Senior Judges, the scope of events that may be heard remotely by the Superior Court of Justice will expand, effective April 6, 2020. I am seeking the advice of each Regional Senior Judge on each region’s capacity to expand services in this next phase of virtual court expansion. I accept that not all eight regions of the Court are alike – some may be better equipped to hear more types of events than others.

By Thursday April 2, 2020, I expect to issue further Notices to the Profession which will itemize the Court’s plan for expanded virtual courts, effective April 6, 2020.

Thank you for your patience and continued support during this time.

UPDATE: April 2nd 

The Oshawa courthouse law library is now official open for use. Please do refrain from signing out any books and remember to continue social distancing.

UPDATE: April 3rd 

In addition to previously defined “urgent” matters, and effective April 6, 2020, the following civil and family matters will now be heard in most court locations. 

CIVIL
✓ Pre-Trial Conferences that have a settlement objective.
✓ Rule 7 motions or applications for approval of settlement, in writing.
✓ Consent motions, in writing.

FAMILY
✓ Requests for consent orders submitted by 14b motions under the Family Law Rules.
✓ Case conferences with a potential limit on the number of issues that can be addressed at the hearing.
• Effective April 6, 2020, the following criminal matters will now be heard in most court locations:

CRIMINAL
✓ Broader range of judicial pretrials.
✓ Guilty pleas resulting from judicial pretrials.
✓ Extensions of orders such as stays of prohibition.
✓ Other matters can be considered on request based on urgency


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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.