WHAT CAN BE TAKEN TO COURT CURRENTLY?
Firstly, during Ontario’s State of Emergency, all limitation periods have been suspended. If you have a case that must be commenced, legally, by a certain date, that date is now extended at least until after the State of Emergency is ended.
Secondly, the Ontario Courts have made it very clear they are depending upon cooperation between parties to limit the number of hearings required, and avoid the need for Court proceedings whenever possible.
Thirdly, only “urgent” matters will be heard by the Court – whether a matter is “urgent” will require initial judicial review. If that threshold is passed, the Court will give directions for how the issues will legally be determined.
Urgency will be determined on a case-by-case basis. Matters which have been found to be urgent include those which:
- were considered urgent prior to the suspension of Court operations;
- are directly related to the COVID-19 pandemic;
- may interrupt the closing of a real estate transaction;
- involve a judgment debtor attempting to remove assets;
- involve the expiry of a government-issued permit; and
- involve termination of commercial leases.
The Court has also in some cases extracted urgent issues from within broader legal matters.
Even where a matter is found to be urgent initially, the Court is likely to initially appoint a Justice to hear the matter and convene a case conference to determine the process to be followed for the remote hearing.
In some cases, the Court may also relax the legal formalities that would otherwise be strictly enforced, like how evidence is accepted by the Court – a case-by-case approach is being taken.
IS VARYING OR CHANGING SPOUSAL SUPPORT CONSIDERED URGENT?
COVID-19 may have removed or reduced a spousal support payor’s income, particularly if he or she owned/operated, or worked for, a “non-essential” business, per the Ontario Government’s continuing emergency order(s).
However, while that is certainly an urgent issue financially speaking, it may not be urgent legally.
Whether a spousal support payment may be varied or changed depends on several factors, including:
- whether the parties were married to each other and, if so, the federal Divorce Act applies;
- the specific language or wording of the parties’ separation agreement or Court order;
- whether there has been a “material change in circumstances” that has some degree of continuity, rather than a temporary change, triggering the ability to review the support issues; and
- other factors underlying the relationship when the agreement was signed or the Order was made and currently, such as the recipient’s need, the payor’s ability to pay, etc.
So far, the Court takes the position that support payor’s request to vary or change his or her spousal support payments does not qualify as an urgent matter in Family Court.
Rather, the Court indicates that requests to vary or change spousal support payments, if legally permitted to do so, may be made by payors retroactively at a later time.
There have been a number of cases to date indicating the Court’s position on this issue [Purdy v. Purdy, 2020 CanLII ONSC 1950; Baker v. Maloney, 2020 CanLII ONSC 1929, etc.]
Accordingly, both parties must use their best efforts to work together, to try to reach a temporary arrangement during the pandemic, even on a “without prejudice” basis.
Neither party will benefit from a surge in Family Court proceeding arising from COVID-19, when the Court’s operations expand.
While the pandemic continues, absence exceptional circumstances, neither a receiving nor paying party is likely to utilize the Family Court to demand, or vary, spousal support payments.
These are not fault-based, or blameworthy, circumstances for the most part – the pandemic was reasonably unforeseeable by most parties who previously separated.
As a result, practical sense and pragmatism must prevail, failing which delayed, protracted and challenging litigation will likely ensue.
