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COVID and the race to the negotiating table

Wednesday, September 30, 2020 @ 8:45 AM | By Gary Joseph

Gary Joseph %>
Gary Joseph
I am often quick to criticize and perhaps not quick enough to bestow praise where deserved. Certainly, the associates in my office will concur. I like to write critically of decisions that do not fit within my view of the law and justice. This time I would like to write of one that most definitely does. 

COVID-19 has spawned an enormous wave of child-related motions. The decision of Justice Heather McGee in Clemente v. O’Brien 2020 ONSC 3287 appears initially as just one more. While not quite a COVID-motivated motion it becomes one as it caused the court to consider and opine (most elegantly in my humble view) on the various test(s) necessary to get before the court on a motion given the restrictions imposed on family law litigants by the shutdown.

Urgency was the initial test. Justice McGee in Clemente refers to Justice Marvin Kurz in Thomas v. Wohleber 2020 ONSC 1965: “In Thomas v. Wohleber … Justice Kurz has established the requisite test for a finding of urgency pursuant the March 18, 2020 Notice to the Profession,” she writes. I paraphrase the now well-known test; the matter must be immediate, serious, definite and material. There must be evidence to support concern as one that is urgent.

Justice McGee takes us to the “seminal decision” of Justice Ramona Wildman in Rosen v. Rosen [2005] O.J. No. 62, which set the test for motions to be heard before a case conference. Justice McGee notes that this case “succinctly transformed ‘walked-in,’ often without-notice motions into outliers in a reimagined, redesigned family court system that not only encouraged, but incentivized negotiation before litigation. There were to be no more races to the courthouse. Parties were first to reason with one another, make proposals for resolution with or without assistance, and only then come to court. Justice McGee further extols the wisdom of Rosen by noting: “It is a decision that must not be left behind because it incorporates the vision of the Family Court that serves the public well.”

With respect to urgency in the COVID era, she agrees with Justice Lucy McSweeney in Ramdass v. Ramdass 2020 ONSC 1983 that the standard for urgency under the COVID direction is slightly higher than the Rosen test. She then finds that the moving party has failed to meet that standard.  

In some jurisdictions the courts are now to consider whether the matter is urgent or pressing. Justice David Jarvis in Murphy v. Connolly 2020 ONSC 3047 defined pressing as only modestly relaxed from the test for urgency. Justice McGee in Clemente agrees. She then notes that the standard for “pressing” is no less than that required for an urgent motion during regular court operations pursuant to the Rosen test. She concludes that the moving party does not meet this test either. The motion was thus dismissed.

What I find to be the interesting takeaway in this decision and those discussed therein is not so much the various standards to be met but the underlying and oft repeated requirement of the moving party to make genuine efforts to try to settle before bringing the motion. This is not a new concept but one that runs frequently through the COVID cases. I am reminded of Rule 3.2-4 of the Rules of Professional Conduct directing lawyers to “encourage the client to compromise or settle disputes whenever it is possible.” As I have previously opined on other COVID-related matters, this requirement is one that will not change once COVID passes. We can never go back. Paying lip service to this requirement will not be accepted (not to suggest it ever was but COVID has refocused the requirement).

As one who, during my early years in practice often engaged in the now highly frowned upon “race to the courthouse,” I see all of this as positive. There has been a tidal wave of change in the way we now practise family law. There is more to come as we see both levels of government moving to amend family law legislation and process. The race to be run now is not to the courthouse but to the settlement and negotiation table. Let the race begin!

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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