Family law litigants can not challenge the urgency of a matter once a hearing has been scheduled under the court’s COVID-19 measures, according to a recent Ontario Superior Court judgment.

Since its temporary suspension of operations in mid-March, the court is only open for hearings of urgent family law matters. As a result, triage judges are tasked with determining urgency and scheduling hearings for those cases that meet the threshold.

Still, that has not stopped parties from seeking a second kick at the urgency can when matters come before the presiding judge. However, the case of C. v. M., in which I acted for the successful father, confirms that the triage judge’s word on scheduling is final.

The respondent mother in the case asked the presiding judge to find that the parenting-time motion brought by the young girl’s father was not urgent and should not have been scheduled, but after a review of the court’s approach in civil matters, the judge declined to revisit the issue.

Background

The parties separated immediately before the court’s lockdown in mid-March after almost six years of marriage, when the father left the matrimonial home.

He applied for an order granting him parenting time with the couple’s four-year-old daughter on a week-on, week-off basis, allowing the child to split her time between their homes. 

Ahead of the motion’s hearing, the mother denied the father in-person meetings with his daughter, replacing visits with frequent video calls. She cited concerns about contracting COVID-19, in spite of his insistence that he was complying with all protocols regarding the virus.

The mother’s cross-motion proposed parenting time for the father on alternate weekends, but only after a 14-day self-isolation period.

Urgency

On April 7, a triage judge scheduled the father’s motion for a hearing on April 14, concluding after a review of the circumstances: “On a preliminary basis, I am satisfied that this matter is urgent.”

When the case came before the presiding judge, the mother asked him to reconsider whether the motion should be heard at all, given the “preliminary” nature of the triage judge’s finding of urgency.

However, the presiding judge agreed with our submission that family court judges should adopt the same approach to urgency taken by those hearing civil proceedings during the pandemic, outlined by Justice Frederick Myers in the case of Wang v. 2426483 Ontario Limited.

Identifying scheduling as an administrative function of the court and urgency as an issue on which counsel may be asked to make submissions, Justice Myers emphasized that it is “not a legal determination.”

“Once a civil proceeding is booked in Toronto under the Notice to the Profession, there is no basis for further submissions to be delivered on the issue of urgency. Nor is the issue before the motion judge. Parties are always free to seek adjournments and appropriate scheduling terms before a judge presiding at a hearing. But they do not challenge the scheduling of the hearing itself. The court’s administrative process is not part of the lis or the dispute between the parties,” Myers concluded.

The judge in our case agreed that these views were equally applicable in family law proceedings:

“This Court’s and the parties’ limited resources should be used to address the merits of the substantive relief sought on scheduled motion rather than to re-consider the administrative decision to schedule the hearing,” he wrote. “Accordingly, I decline to re-visit whether the Applicant’s motion should have been scheduled for a hearing.”

This is an important case for family law counsel, and in my view, a welcome one. Former spouses in contentious family law matters already have enough to argue over without allowing proceedings to become bogged down in discussions over urgency or other administrative issues that have already been decided. Everyone benefits from the cost savings associated with avoiding a second kick at the can. 

Parenting Time

One of the other messages to emerges from this decision is that video conferences with a child are no substitute for in-person parenting time, even during a pandemic – so long as there are no genuine safety concerns regarding face-to-face meetings.

The judge was persuaded to dispense with the normal requirement for a case conference in part because of the mother’s refusal to allow my client to see his daughter in person.

Dismissing the mother’s COVID-19 concerns as “hollow” in light of her frequent visits with her own children, the judge accepted our proposal for a week-on, week-off parenting arrangement.

“[The girl’s] best interests are served by having two parents fully participating in her life and development. Accordingly, I accept the Applicant’s request for a shared and equal parenting plan,” he concluded, adding that the non-custodial parent may video conference with the child twice per week. “Both parents should put [the child’s] interests first by supporting her during this transitional period in order to make it as smooth as possible.”