COVID-19 Related Webinar: Adjournments, Legal Paperwork, & Urgent Cases

The courts are currently closed across all provinces and territories. What this means is that if you had anything before the court (such as a trial, case management conference, settlement conference, a motion), your matter has likely been adjourned. It may be adjourned to a tentative new date or it may be adjourned sine die, meaning “without a date”. You should check out the NSRLP Court Closures page for up-to-date information on your jurisdiction as they are all a little bit different. Essentially, this means that almost everything is on hold right now.

There is a chance that the court has decided to proceed with your hearing because it is of an urgent nature (see the question below), or because the court has decided it is something that can be dealt with appropriately over the phone or by videoconference. If your matter is proceeding, you will NOT attend in court. You should expect to be given information for video or teleconferencing in order to participate.

All existing court orders (e.g. parenting arrangements, child or spousal support) remain in effect. If you want to alter the current arrangement (eg for access or support), you can begin a dialogue with your child(ren)’s other parent about this.

NSRLP has a page with template (sample) social distancing clauses and a possible agreement (which you can modify as you wish) for co-parents which you can see here.

It is important that you not make a decision without consulting the other parent (or a unilateral decision as the courts sometimes call this) if you have a court order. The order is still in effect, and courts will likely frown on one parent unilaterally making decisions to change the arrangement. This could even be held against you in the future if there is more litigation.

Instead, try as hard as you can to work it out with the other parent; if you can show that you at least tried but failed, this will look better for you in the future than just going ahead and changing things up.

This You Tube video by family law specialist JP Boyd is also helpful on this point.

The courts are prioritizing and making exceptions for hearing “urgent” or “emergency” cases. Most courts have issued general guidelines for what will be considered “urgent” and you can see these on our Court Closures page.  Be sure to look at the latest list from your jurisdiction.

However the directives are pretty general, and the most useful information about what will actually be considered “urgent” in practice is coming from court decisions. These are coming out day by day, and NSRLP is tracking them carefully. While the picture is still confusing and evolving, the courts are clearly saying that the existence of the Covid-19 pandemic alone is not a reason to say that the safety or well-being of a child is being threatened.

The decided cases (some useful summaries on Can Lii can be seen here) are clear that you need concrete evidence (and not just your own concerns) of a parent violating social distancing protocols or other public health recommendations. Without being able to point to examples of problematic behavior by the other parent, being worried is not going to be enough to convince the court that your case is “urgent”, or do anything to change your existing order.

This may feel difficult to reconcile with your genuine concerns for your child, but since the courts are setting the bar quite high here, it is important to try as hard as possible to make an agreement with your co-parent (see above).

First, you must apply to the court for a hearing (by email) for consideration of your motion as “urgent”. You should follow the instructions on the court website (see the NSRLP Court Closures page for details on this). You should be aware that not all applications will result in hearings, so you will need to provide as much evidence of the problems that you see as “urgent” as you can.

Second, if your case is accepted for a hearing, this will take place by video or teleconference.  If a judge agrees that your case is “urgent”, they will then decide whether or not it is necessary to change your current order in some way, or to make a new order.

So far more than 50 reported cases have been released regarding whether a particular application is “urgent”, and of course this number is climbing every day. Everyone’s circumstance is unique, so you should realize that even if a decided case looks similar to your situation, there is no guarantee a court will deem your case “urgent” – and if they do, they may not make the same order to change as in that case.

Here are some examples of cases the courts have deemed “urgent”:

• Chrisjohn v Hillier F1098/18 (SCJ) : return after access visit – mother did not return children to father (who has sole custody) after an access visit. Father asked the court to order the children to be returned to him. Mother argued that father was putting children at risk by residing with multiple people. The court ordered the children returned to the father and the status quo
• Skuce v Skuce, 2020 ONSC 1881: risk to child – father residing in sobriety home and mother wished to stop his supervised access. Deemed urgent, and father given access provided he moves to mother’s home, who can supervise his access.
• R. v M.G. 2020 BCPC 57: risk to child – mother is a health care worker and father works in the community. Both following public health directives and had been trying to work out a regime between themselves, before that broke down. Deemed urgent, and judge imposed new schedule of shared parenting, as well as requiring parents continue to share information about any new risks to child.
• Thomas v Wohleber, 2020 ONSC 1965: dire financial circumstances – one parent drained the parties’ joint line of credit because he believed she was having an affair. Deemed urgent, and funds ordered returned.

At this time, courts are encouraging parties to keep existing arrangements in place. This will ensure the continuity of contact where there is some parenting access to the non-custodial parent. Courts are very reluctant to condone behaviour that unilaterally stop or restrict access. Making unilateral decisions will probably not be good for your argument if and when your case gets to court (see the case of Skuce v Skuce, 2020 ONSC 1881, above and Douglas v Douglas, 684-19 ON SCJ below).

Some of the cases the courts have so far said are not considered “urgent” include:

• Ribeiro v Wright, 2020 ONSC 1829: social distancing – mother concerned father would not observe social distancing. Deemed not urgent; mother needed evidence that father was violating social distancing protocols.
• Douglas v Douglas, 684-19 (ON SCJ): risk to child’s safety – no access order in place and mother withholding access because of COVID-19 concerns (father works at Lowe’s). Deemed not urgent and no indication that child’s safety at risk. Warning that mother withholding access may in future be seen as “inappropriate” by a court.
• Zheung v Zheung FC-13-043392 (SCJ) : risk to child’s safety – mother argued that the child’s safety was at risk in access visits with father. Court said that access would only be suspended if there were specific safety concerns that could not be addressed, or that the parent refuses to address. Important for child to retain relationship bonds with both parents during the pandemic crisis.

There is no “magic bullet” here – but a good strategy is to can ask your co-parent to sign off on a list of understandings and agreements, based on public health directives, that put the child(ren)’s safety, well-being and health interests at the forefront. It could be something that looks like this (from NJB v SF, 2020 BCPC 53):

• If a parent has had contact with an infected party, they should disclose this immediately to the other parent.
• If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.
• There should be no play dates and the child should not be taken to family or social gatherings.
• Parenting time should not occur in a public place such as a community centre, a mall or a restaurant.
• If a supervisor is required, and that supervisor does not live in the parent’s home, then the parenting time should be suspended.
• If either parent or anyone in the household is an essential service worker or is still working with the public (e.g. doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) this can represent an increased risk to the child and you may want to clarify steps that parent is taking to reduce risk.

If you feel over the next few weeks that the other party is not respecting these recommendations and remain concerned for your child(ren)’s safety, you can start to put together evidence for the court and proceed with bringing your matter forward as an “urgent” case.

NSRLP has a number of sample clauses and also a whole “agreement” that you can look at here. You can take and use – and modify – any part of this.

Your filing and procedural deadlines may be:

• suspended
• extended until a given date, or
• still required (mostly just in Courts of Appeal) but judges will “exercise their discretion, mindful of the special circumstances arising from the COVID-19 situation when considering any extension of time requests or special accommodation requests”

Details for your court are available on the NSRLP Court Closures page.

Almost nothing is moving ahead right now. If any filing or procedural matter does not have to happen right now, just wait. With a couple of exceptions, any kind of deadline to respond to the other side is suspended. You can see this as a time where legal proceedings are on “pause” for the time being.

If you do choose to still file a document, it will usually be electronically (except for originating documents that begin a case) or by dropping the document it on a designated outside box and not in the court registry. There are more details available for each court on the NSRLP Court Closures page.

What this all means is that if you have not yet started your case, you will not be able to at that present time (because starting a case requires an originating document be filed). If you already have a case that has been started, and you want to file something relevant to it, you can do so electronically. Finally, you do not have to respond to the other side within the normally prescribed period of time.

Statutory limitation periods are the time you have to begin a claim. This means that you have a certain amount of time from when an event – such as an injury, or a breach of contract –  either took place or was discovered, to begin a claim against another party. You can envision this as a clock that counts down the time that you have to start a proceeding. Each province or territory has their own rules around statutory limitation periods and these time periods are set out in legislation (statutes).

In almost all provinces and territories, statutory limitation periods presently remain in place, with the exception of Ontario and British Columbia. In Ontario and British Columbia, all statutory limitation periods have been suspended – this means the clock is not running right now. Other provinces and territories may follow suit, but as of April 8, 2020, it is only Ontario and British Columbia that have completely suspended all statutory limitation periods.

The terminology is often confusing here. Note that when court websites refer to filing and procedural deadlines, they are referring to things like filing documents, responding to the other side, etc. When court websites refer to statutory limitation periods, these are set out in statutes and refer to restrictions on how long you have to begin a claim (for example, 6 years for a breach of contract or injury claim).

Normally, when you file an affidavit in your case to support your argument, you would swear that in front of a commissioner for oaths or lawyer, and this would require being in their physical presence.

Most law societies are implementing procedures for the “virtual”  commissioning of oaths. This means you can now in some jurisdictions have a videoconference call (like Zoom, Skype or Facetime) with a commissioner for oaths/lawyer and have them witness you signing the affidavit. Some courts have gone even further to say they are not requiring people to have affidavits sworn by a lawyer or commissioner at all. Instead they are telling litigants to file the affidavits without being sworn, and they will ask you to formally commission it at a later time.

If you do submit an unsworn affidavit, we suggest you add a note to it saying that you understand that it is not sworn but based on the current court rules, this should be acceptable at this time and you plan on having it sworn at a later date.

What this means is that depending on your jurisdiction, court documents are either being sworn virtually, or not being sworn at all now but at a later date. Be sure to check out the court website where your case is being heard for more information. You can also check out the NSRLP Arrangements for Swearing Affidavits During Covid-19 page which is updated regularly.