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Case Background

The parties separated in April 2017 and have a three-year old daughter. Post-separation, parenting became a protracted dispute. For the first six months, the mother would only allow the child two to three visits with the father, all supervised by her. The father launched an Application in October 2017 and successfully expanded his parenting time to include overnight access. However, in April 2019, the mother began to intermittently withhold the child from the father and completely withheld the child for over a month during the summer of 2019. The father was left with few legal options other than to bring a contempt motion. During that motion, the mother was found to have engaged in deliberate gatekeeping behaviours designed to keep the father out of the child’s life. At that stage, the Office of the Children’s Lawyer became involved in the matter to provide their assessment of the situation.

The father’s parenting time was disrupted again on March 16, 2020 when the mother refused to allow any in-person contact between the father and the child. The mother claimed that she consulted with various physicians and, to support her decision, obtained a doctor’s note stating the mother’s concerns about the child’s unique vulnerability to the coronavirus and her need for total isolation.

In response, the father brought a motion seeking to enforce the existing parenting terms. He acknowledged that although he works as a chef, the facility in which he works is observing comprehensive COVID-19 protocols. The mother then brought a motion of her own seeking to suspend access until she is personally satisfied that the father is following all the COVID-19 guidelines. The question to be determined is whether the matter is truly urgent such that it must be heard notwithstanding the suspension of normal court operations.

Legal Analysis

In analyzing the issue of urgency, Justice McGee considered the following factors set out in Thomas v. Wohleber, 2020 ONSC 1965:

  1. The concern must be immediate; that is one that cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
  3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
  4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

Justice McGee reiterated that during the suspension of normal court operations, judges must apply a stringent test for urgency so that only the most urgent decisions are made in the absence of access to the full court file and community resources which help to ensure a good outcome.

In this case, the matter was urgent given the fact that younger children in the attachment phase of development are particularly vulnerable to the harmful effects of not having contact with a caregiving parent, especially since the child has already experienced previous disruptions in parenting time with her father. As Justice McGee notes, “parenting is an essential service” and when this crisis passes, families will have a story to tell. There will be time to reflect and determine whether parents put the best interests of their children first or focused on their own needs instead. In the result, the parties were permitted to bring motions on the parenting issues after attending a Case Conference in which the Office of the Children’s Lawyer is invited to participate.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.