Another case on what is “urgent” in this COVID-19 world

Cases from Ontario continue to illustrate how urgent matters will be dealt with while under the pall of COVID-19.

In C.Y. v. F.R., 2020 ONSC 1875, the parties had two children, who were currently five and three. The parties had an unhappy relationship and had not concluded any formal agreement between them dealing with parenting issues, including parenting time.

According to the mother, since separation the father had access only at the mother’s home and in the presence of the nanny. The father had told the mother he intended to take the children for the week of March 15, 2020 (the second week of spring break), but the mother said she had not agreed. The father took the children anyway and refused to return them. The father maintained that the mother had agreed that he could have the children for the week of March 15, 2020, and further had advised by email that he would not return them unless the mother agreed to a 50/50 parenting time agreement. Of additional concern was the fact that while in the father’s care, the children had fevers, and had been taken to public places and to visit the father’s elderly father.

The mother brought on an urgent motion, seeking a return of the children. The father had very little notice of the hearing (as he had been served by email only the day before the hearing and served personally the morning of the hearing itself) but appeared by telephone. Without much difficulty, the court found that the father’s conduct had upset the status quo. The court clearly found the father’s position lacking an air of reality (although noted he had not had a chance to prepare a formal response). The Court determined it was in the children’s best interests that they be returned to their mother.

Of further interest is the mechanics by which the hearing was conducted:

1.      A triage judge reviewed the applicant’s motion material and determined that an urgent hearing was warranted.

2.      Because the matter was urgent the requirement for a case conference was waived.

3.      The applicant’s motion materials were served on the respondent by email the day before the hearing, and personally on the day of the hearing.

4.      Although the respondent had no opportunity to deliver a substantive response, he shared “his side of the story” by telephone with the Court.

5.      The court issued an immediate order for the return of the children.

6.      The mother’s motion was adjourned to a further telephone hearing on March 27, 2020, with the father to provide his responding materials by March 24, 2020.

This is an unsurprising result in very unusual circumstances. Unilateral and serious alterations of parenting arrangements will continue to be addressed by the courts. It is heartening that these kinds of motions continue to be dealt with a timely way.

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About Alex Boland

Partner – Kelowna

Every life contains great transitions. I hope to help my clients through their separation with compassion, integrity, intelligence and dignity. I try and see each file on its own merits, and this means that I want to work with my clients to develop an approach that moves them forward towards their particular goals. Practically speaking, I prefer to take a collaborative approach to files where possible; I like to apply the specialized knowledge and competencies I've developed over my practice to challenging problems; and I like to exercise compassion in all that I do.