Updated October 8, 2020

How have court services changed?

To protect the health of staff and the public, all levels of court in Canada suspended their regular operations earlier this year when the pandemic began. For several months, courts were only hearing “urgent” applications, with some limited resumption of non-urgent hearings via video or teleconference.

Now most courts have resumed somewhat regular operations, which negates the rule to only hear “urgent” cases in many courts. In others, a restricted service is continuing (see our Court Closures page for regular detailed updates).

Updates as follows:

Ontario Superior Court (SCJ)

• The Small Claims Court has expanded matters which can be heard virtually (which include settlement conferences), but has not put an end to the urgent cases procedure adopted during the pandemic, which can be found
• In opening courtrooms, priority is being given to urgent hearings, as well as hearings scheduled to be heard earlier (i.e. during the suspension of court operations).
• Parties are advised to check the SCJ webpage and find their region or courthouse, in order to determine if they are able to bring a non-urgent matter to the court. You can find your judicial region here.
• The Divisional Court is able to hear more than urgent matters at this time; however, it is not able to hear the same number of cases as it did prior to COVID-19 on any given day. Other matters will be scheduled to be heard in due course, bearing in mind the demand for urgent and other constraints faced during this period.

Ontario Court of Justice

• Although the Court has not cancelled the COVD-19 urgent cases procedure, it has announced that, as of September 28, 2020, it will resume hearing Applications, Motions to Change, and Family Responsibility Office (FRO) matters.
• Information here assists in determining if your case is urgent.

Other courts:

• The Court of Queen’s Bench of Alberta has announced the relaunch of Court sittings province-wide, with the Emergency/Urgent Hearing Request process being suspended.
• The British Columbia Provincial Court has indicated that the pre-COVID process for having urgent matters come before the Court now applies.
• The British Columbia Provincial Court has also announced that the application process for urgent hearings during COVID has been discontinued as of July 8, 2020. Since July 8, the pre-COVID court process for having urgent matters come before the Court applies.
• The Northwest Territories Courts have announced that COVID restrictions regarding bringing urgent cases only has ended as of July 6 2020.
• The Nova Scotia Supreme Court has announced that the Court will start to move away from the modified essential services model that has been in place during much of the pandemic, and transition to a safe services model. This means that counsel and parties will no longer have to establish that a matter is urgent or essential to proceed in-person.

Case Law

Because some courts still have restrictions relating to “urgency”, the following case law might be helpful in determining whether your matter will be regarded as “urgent”, depending on your court and province.

The court in Thomas v. Wohleber found that, in order to meet the requirement of urgency, the concern must be:

1. Immediate, meaning one that cannot await resolution at a later date;
2. Serious in the sense that it significantly affects the health or safety or economic well-being of parties or their children;
3. Definite and material rather than speculative; it must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical; and
4. Clearly described in evidence and examples that explain how the concern reaches the level of urgency.

Here are some examples of cases courts have found are NOT URGENT:

• Ribeiro v Wright: Mother’s motion to suspend all in-person parenting time for the father denied. Mother’s concern that father would not observe social distancing protocols was not urgent because she didn’t have any evidence he was actually violating these protocols. This is currently the leading Ontario case on urgency in custody and access issues during the pandemic.
• Douglas v. Douglas: Father’s motion for his parenting time to be reinstated denied. Mother withholding access due to father being exposed to COVID-19 at the hardware store where he worked. Judge encouraged counsel to work together toward a solution, saying complete termination of access was not in the child’s best interests.
• Eden v. Eden: Applicant’s motion to change current order denied. Applicant seeking parenting time in his home instead of the family home, as well as a police enforcement clause. Court encouraged parties to be reasonable and follow Health Canada safety protocols.

Here are some examples of cases courts have found ARE URGENT:

• Ivens v. Ivens: Motion brought by mother to terminate the parent’s access schedule was urgent because mother had unilaterally stopped parenting time for the father. Court dismissed her motion and ordered that the regular shared parenting time continue.
• Chrisjohn v Hillier: Motion brought by father seeking police assistance order due to mother withholding child because she believed that father was not following COVID-19 protocols by living with multiple people (which father denied). Court found the mother didn’t have a good reason not to follow the existing order and ordered parenting time continue, with a police enforcement clause.
• Skuce v Skuce: Motion brought by mother to stop father’s supervised access. Father lived in a Sobriety House. The judge said that it is in the children’s best interest to spend time with father at his parents’ home, supervised by them, as long as the father moves there from Sobriety House. The court imposed an initial 14-day social isolation period, during which the father could spend time with the children electronically.