Urgency, COVID-19 and Family Law


Urgency, COVID-19 and Family Law
Posted in Gary Joseph, Family Law Posted on May 27, 2020

Gary S. Joseph, LL.M., C.S., Managing Partner, MacDonald & Partners LLP., Family Law Practitioners

 

Access to our courts is now largely governed by the test of “urgency”.   There is a multitude of cases addressing what our Judges view as urgent.  For the most part, but not all, cases have focused on child-related issues.  However, in the civil litigation world, the courts have also tackled the issue.  In Wang v. 2426483 Ontario Limited, Justice Myers cautioned that determining whether a matter is urgent is part of the court’s administrative function, and once the court has decided to schedule a matter for a hearing, “there is no basis for further submissions to be delivered on the issue of urgency.” Justice Myers specifically expressed the following views which the family law bar would be well advised to carefully note:


[11] The Notice to the Profession provides guidelines for those who nevertheless need to access the courts while they are not in full operation. People needed to be told the kinds of matters that could be accommodated, the types of materials that they should file, and the email addresses to contact to reach court personnel. This is all important information for the purposes of explaining to the public and the legal profession the processes put in place to maintain operations by the extraordinary efforts of the Superior Court of Justice.


[12] However, none of this affects the court's jurisdiction or the applicable rules of law. All court proceedings continue although only a very few are being scheduled for hearing at this time. Scheduling is an administrative function of the court. Normally, in the civil division in Toronto, hearings are scheduled by administrators over the telephone or by email and by judges in Civil Practice Court. Many factors go into scheduling that is not the subject of discussion with or among the litigants. The availability of judges for the type of hearing proposed, the availability of courtrooms, of staff, and numerous other administrative inputs may be brought to bear.


[13] Counsel may be invited to make submissions on the timing of a proposed hearing including whether there is a degree of urgency. Or not.

 

[14] But it is not a legal determination. There is no need or call for detailed submissions. There is no need for submissions on the merits of the proposed proceeding before and certainly not after the scheduling determination has been made.


[15] The court has very limited access to staff with full computer capabilities at present. Much back and forth about urgency, the merits, and parsing of the terms of the Notice of Profession are literally clogging up the Motion Coordinator's email. This is not required. In the main it is not helpful. And it must stop.


[16] The court has jurisdiction to schedule and hear a proceeding that is brought before it. If a matter appears to be one that should be scheduled, a case conference is frequently convened. In that way, the presiding judge can quickly contact the parties and determine an appropriate schedule for the exchange of materials and hearing, if any.


[17] Submissions on the merits and emails arguing back and forth among counsel about urgency should not be sent to the court unless invited. Once a civil proceeding is booked in Toronto under the Notice to the Profession, there is no basis for further submissions to be delivered on the issue of urgency. Nor is the issue before the motion judge. Parties are always free to seek adjournments and appropriate scheduling terms before a judge presiding at a hearing. But they do not challenge the scheduling of the hearing itself. The court's administrative process is not part of the lis or the dispute between the parties.


[18] It is not the intention of the Notice to the Profession that hearings will become bogged down by arguments over the applicability of its terms. It is not a new front for parties to battle. Once a hearing is scheduled by the triage judge(s) the Notice to the Profession is spent and the presiding judge will deal with the parties in the manner she or he determines is appropriate. [emphasis added]  Wang v 2426483 Ontario Limited, 2020 ONSC 2040 (CanLII), http://canlii.ca/t/j69r8 at paras. 11-18

 

These wise words have been adopted in the family law context.  In Chahine v. Martins, Justice Faieta determined that the views expressed by Justice Myers in Wang, are equally applicable in a family law proceeding. Justice Faieta declined to revisit the issue of whether the Applicant father’s motion for parenting time should have been scheduled for a hearing, stating, “This Court’s and the parties’ limited resources should be used to address the merits of the substantive relief sought on schedule motion rather than to re-consider the administrative decision to schedule the hearing. This approach is consistent with the primary objective of the Family Law Rules expressed in Rules 2(2)-(4).”  Chahine v Martins, 2020 ONSC 1825, at para. 25.  


Let’s stop wasting our time, the client’s money, and the court’s resources.  Once a determination of urgency has been made, get on with the substantive determination of the matter.

 

 

 

We can help you find a resolution that will help your family move on.


If you are going through family issues or a relationship breakdown in the Greater Toronto Area, contact the laywers at MacDonald & Partners LLP and come into our office, in downtown Toronto, Etobicoke, Oakville and North York.

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