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Determining urgency in family law during pandemic: Ribeiro v. Wright

Monday, April 06, 2020 @ 1:53 PM | By Alex Boland

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Alex Boland %>
Alex Boland
The courts are closed, but only mostly. Urgent matters are still proceeding. Jurisprudence on the meaning of the term “urgent” in these extraordinary times is developing on a daily basis. While much remains unclear, case law coming primarily from the Ontario Superior Court is beginning to emerge.

In the first substantive consideration of “urgency” as applied to family law cases, in Ribeiro v. Wright 2020 ONSC 1829, Justice Alex Pazaratz, sitting as a “triage” judge, provided guidance on what the Superior Court expects to see from parents attempting to bring “urgent” parenting-related motions.

The parties in Ribeiro had joint custody. The mother had primary residence and the majority of the time with the child, while the father had access every other weekend. The mother was concerned that the father would not maintain social distancing for the child.

Moreover, the mother’s household was practising social isolation in their home for the duration of the COVID-19 crisis, and the mother would not let the child leave the house for any reason, including to see the father. The mother accordingly brought a motion to suspend all of the father’s in-person parenting time.

These circumstances did not meet the urgency threshold and Justice Pazaratz declined an urgent hearing. The court’s reasons are brief, compassionate and well worth reading, but can be distilled to the following points:

1. Existing parenting arrangements and schedules will presumptively continue, although modified if necessary to ensure that COVID-19 precautions are adhered to.

2. In particular circumstances, existing parenting arrangements may require significant alteration for reasons including the following:

a. A parent’s personal restrictions may require a suspension or alteration of parenting time. For example, where a parent is under quarantine due to travel, illness or exposure to illness, regular parenting time probably cannot proceed.

b. A parent’s personal risk factors (e.g. employment or associations) may require “controls” with respect to their direct contact with a child. Although not explicit, the court likely had in mind persons in high-risk occupations, such as health-care providers and first responders.

c. A parent’s conduct could if sufficiently demonstrated lead the court to conclude that sufficient that direct parent-child contact should be reconsidered. Parents who do not comply with social distancing or fail to take reasonable health precautions do so at their peril.

3. Emergency motions can be brought where a parent has a COVID-related concern that gives rise to an urgent parenting issue. The court will not presume that the existence of COVID-19 will result in a suspension of the other parent’s parenting time and will not necessarily hear every supposedly urgent motion.

4. The court will be dealing with COVID-related concerns on a case-by-case basis, with the following considerations in mind:

a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 protocols. It will not be enough to raise generalized concerns about COVID-19.

b. The parent responding to such an urgent motion needs to demonstrate and reassure the court that COVID-19 safety measures — including social distancing — will be followed to the letter.

c. Both parents will need to provide specific and practical time-sharing proposals that address COVID-19 concerns in a child-focused manner. In other words, both parents will have to explain to the judge how they are going to make parenting work for their family.

Justice Pazaratz declined to hear the mother’s motion as her concerns were neither serious nor significant enough to merit a hearing. Instead, the court encouraged the parents to work together to find a more co-operative and conciliatory means of resolving their differences, stating: “None of us have ever experienced anything like this. We are all going to have to try a bit harder — for the sake of our children.”

Participants in the Canadian court system are desperate for the guidance set out in Ribeiro v. Wright. Although issued not quite two weeks ago, Ribeiro has been cited at least a dozen times in subsequent cases, including in British Columbia. Some of the notable decisions citing Ribeiro include Thomas v. Wohleber 2020 ONSC 1965 (additional guidance on the meaning of “urgency”); Baijnauth v. Baijnauth 2020 ONSC 1974 (urgent hearing vesting order for matrimonial home granted); and J.W. v. C.H. 2020 BCPC 52 (Ribeiro and Thomas cited by B.C. court).

Accordingly, the mere fact that COVID-19 causes fear and concern among parents does not mean parenting arrangements will need to be radically reworked, much less suspended altogether. The court will entertain only hearings where there are specific and evidence-based reasons that require urgent adjudication.

Alex Boland is a family lawyer with Connect Family Law in Kelowna, B.C. He is also a former law clerk with the B.C. Supreme Court.

Photo credit / AndreyPopov ISTOCKPHOTO.COM

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