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COVID-19 decision: Minimizing the backlog

J.T.K. v. A.E.M. 2020 CarswellOnt 6682 (C.J.): After weeks of being told that the courts can only deal with the most urgent of situations, that parents are expected to work out their differences on their own and that parties are expected, most of the time, to maintain the status quo, this decision sends a slightly different message.

The parents were able to work out their main parenting issues without the court having to hear the motion. Left unresolved was the Applicant’s request for makeup time with the children as well as costs.

The Applicant wanted the court to deal with these issues immediately and in writing, whereas the Respondent felt the issues were not urgent and could wait to be dealt with until the courts reopen.

The Justice sided with the Applicant, noting that the issues were straightforward and could be dealt with in writing without difficulty.

Influencing her decision was growing concern about the steadily building backlog of cases awaiting the attention of the courts when they reopen; an event that, so far, as no date attached to it. As she wrote, in part, in her decision:

“The court can take judicial notice of the fact that the restrictions on hearing arising from the COVID 19 emergency will lead of a substantial backlog of cases. When the emergency abates, the court will face unprecedented workload demands in dealing with that backlog. There is, then, a substantial systemic benefit to resolving those matters that can be dealt with under the new expansion of workload, now.”

COVID-19 case: Contempt of court

Snively v. Gaudette 2020 CarswellOnt 6838 (S.C.J.): Before the pandemic, the two adolescent-aged children of the parties lived primarily with the mother, as set out in a court order. Because the mother worked in a detention centre where there was a suspected outbreak of COVID-19, the mother asked the father to keep the children with him until this was resolved.

He did so, but once it was confirmed that no one at the detention centre was infected, he refused to return the children to the mother when she requested him to do so. At this point, the mother brought a contempt motion.

In ruling in the mother’s favour, Justice Bondy noted that contempt orders should be used sparingly and “only in the clearest cut of cases.” He felt that the mother’s case established the elements of contempt beyond a reasonable doubt inasmuch as the existing order set out a clear regime, the father was fully aware of the order and, nonetheless, he breached it:

“In summary, the applicant father resorted to self-help rather than coming to court. . .. his motives are most likely related to taking advantage of the COVID-19 crisis to change the status quo. . . .

[He]  has on more than one occasion put his needs ahead of those of the children. . . Finally, he has a history of physical abuse with the children which required the intervention of the CAS. . . I am far more comfortable trusting the children’s safety to the mother than I am to the father in the circumstances.”

Justice Bondy found the father in contempt, but did not sentence him because the father had “purged” his contempt by returning the children to the mother. The mother asked for a penalty of $252 to compensate her for income she lost by dealing with the mother, which the judge agreed was reasonable.

COVID-19 case: Child protection guidelines

C.A.S. v. J.N., A.F. and M.S.c2020 CarswellOnt 6741 (S.C.J.): This case looks at parental access for children in care during the pandemic. The children in this case were in the care of their fathers. Their mother’s access had been suspended in mid-March because of a general CAS policy to suspend all in-person access for families on their caseload.

The CAS lifted that policy on May 8th, which allowed the mother to have access once again. However, the fathers opposed this, expressing ongoing concerns about the mother’s ability to follow court orders as well as pandemic protocols.

Justice Piccoli set out the key principles that should be applied in child protection cases during COVID-19 in the decision to permit the mother’s access to resume:

  • The CAS does not have a “presumptive authority” to suspend all in-person access without providing some alternatives
  • The positive aspects of ongoing in-person contact must be considered alongside potential risk to the child in care and/or to the child’s caregivers
  • It is up to the party wishing to restrict access to provide specific evidence to support its position
  • No self-help
  • Medical evidence must be presented to support any attempt to limit in-person child-parent contact