COVID-19: the concept of urgency in family matters and recent case law

This post discusses the concept of urgency in family law courts and summarizes some relevant and recent family law decisions related to the COVID-19 crisis.

In these exceptional circumstances brought about by the COVID-19 pandemic, the Minister of Justice announced on March 13 that courthouse services will be greatly reduced. As a result, the courts will only hear urgent cases until further notice.

In family law matters, the courts only will hear urgent custody or support applications, as well as other applications relating to matters that are deemed urgent.

All applications submitted are subject to a preliminary analysis by a judge who, before the date of hearing, determines whether each matter will be heard by the court.

From the outset, not everything is urgent: a litigant’s haste or the fact that a matter should be resolved quickly does not necessarily qualify it as urgent.

First, as a reminder, applications for a safeguard order must always meet the urgency test.

Case law has covered the concept of urgency for safeguard orders in family matters, in particular in the Droit de la famille 191066 case, in June 2019, in which the Superior Court reiterated the following regarding urgency:

[TRANSLATION] [6] The urgency required in applications for a safeguard order must be objective, not the result of a whim. The undersigned repeats the same thing over and over to counsel making such applications: Counsel, the fact that your client is in a hurry does not create urgency. A litigant may not provoke urgency and then invoke it to his or her benefit. This case does not meet the requirement of urgency under the law, and the application for a safeguard order must be rejected.

It is with this principle in mind that the court will analyze any application submitted during this period of significant reduction in judicial services, to determine whether the application is objectively urgent and should be heard.

Although case law concerning COVID-19 is still in its infancy, we have identified three recent and relevant decisions in family matters related to the current crisis.

On March 18, in Droit de la famille 20453, the Superior Court, hearing an application for shared custody submitted by the father, ruled on an interim measure because of the mother’s state of health and the period of confinement prescribed by a physician for her and the child.

The Court suspended the father’s access, with his consent, for the period of confinement prescribed, and granted his access rights to be resumed following the end of the confinement period. The Court ruled that this judgment would be valid until April 1 of this year, at which time the parties were to proceed with the father’s application for shared custody.

On March 19, in the Droit de la famille 20455 decision rendered at the hearing, the Superior Court refused to grant an interim application for a change of custody made by the mother in the context of the COVID-19 pandemic.

In particular, the Court ruled that there was no reason or urgency to modify the shared custody arrangement, initially agreed to by the parties in February 2020 under an interim agreement approved by the Court, despite the mother’s arguments.

A third and somewhat more extensive decision was rendered on March 27, 2020, in Droit de la famille 20474. In this case, the parties were in the midst of a divorce and custody of the children had been awarded to the father. The mother had been granted access to the children on two out of three weekends.

In the context of the COVID-19 pandemic, the father asked to suspend the mother’s access rights and suggested contact via technological means. The father wished to obtain a safeguard order to modify the mother’s physical access rights, which would be suspended and replaced with access via technological means (Skype, Facetime, etc.).

Before ruling on the issue, the Superior Court questioned whether there was an urgency to change the status quo, i.e., the mother’s access to the children as provided for in the judgment handed down in February 2020.

Despite the arguments submitted, including that one of the children has respiratory problems, that the mother lives with her parents aged 79 and 84, and that the father’s spouse had medical issues, the Court refused to change the status quo:

[TRANSLATION] [15] The Court must first determine whether there is an urgency to change the status quo, that is, to modify the terms of the mother’s access to the children, as provided for in the judgment dated February 6, 2020.

[16] Given that he has custody of the children, the applicant has taken hygiene measures and has ensured that he complies with the directives issued by government authorities.

[17] The Court must assess whether, as the applicant contends, the mother’s living environment presents dangers to the health and safety of the children.

[18] In her affidavit, the mother states that she is fully aware of the sanitary and hygiene measures that are necessary in the present circumstances and that she does not intend to jeopardize the health of the father, his spouse, the children, her parents and, therefore, her own health.

[19] While explaining the ins and outs of the situation in a transparent manner, the authorities, present in the media on a daily basis, provide reassurance that, when sanitary and hygiene requirements are met, contact with uninfected persons who do not present any symptoms is possible. However, vigilance and respect for everyone’s rights are still required.

[20] Consequently, although it may seem paradoxical, in the absence of symptoms for the individuals concerned, COVID-19 as a public health emergency is not in and of itself a sufficient reason requiring changes in the status quo, custody and access to the children.

The Court therefore dismissed the father’s application to change the access terms.

Ultimately, it appears that the urgency test for interim applications before family courts is strictly applied in this time of pandemic.

These decisions are the first to be released and the courts will continue to give further consideration to this issue in the coming weeks. In the meantime, these decisions tell us that the criterion of urgency to justify that an application is brought before a family court, and then granted, is interpreted very narrowly, in accordance with the directives from the Minister of Justice.

Therefore, only in clearly exceptional cases will the courts intervene to change the status quo.