OF URGENT HEARING
HOW THE PANDEMIC RESULTING IN LOCKDOWN AFFECTED THOSE IN NEDD OF URGENT HEARING
The COVID-19 outbreak in Canada is part of the ongoing worldwide pandemic of coronavirus disease in 2019(COVID-190 caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). In mid-March, as community transmission cases were confirmed, all Canada’s territories and provinces declared states of emergency. Closure of school was implemented, the prohibition of public gatherings, closure of non-essential business, and even courthouses were closed.
The closure of Courthouses necessitated applicants to establish an “urgent motion” before triage judge, and then if ruled urgent, then video/remote hearing, usually based on affidavits, and without access to court files. All documents were supposed to be filed by lawyers through email. Some of the “urgent motions” include exclusive possession, restraining orders, and parenting issues.
However, the lack of WIFI or access to a stable network is proving a barrier to some people seeking an urgent hearing. Without WIFI or a stable internet connection, it is impossible to file documents to facilitate a video hearing. For people seeking urgent motions like exclusive possession, lack of WIFI may derail access to justice.
Alternative dispute resolution mechanisms such as mediation may also prove difficult because of the Ministry of Health guidelines and safety measures such as restricting movement and social distancing. During the pandemic, statistics indicate that the number of people reporting domestic violence and child abuse incidences has increased significantly. Nevertheless, many lawyers and even mediators are under lockdown, and they cannot move from place to place to facilitate dispute resolution. The pandemic lockdown has limited access to justice for most people.
In urgent motions like parenting issues, the courts in Ribeiro v. Wright, 2020 ONSC 1829 stated that parenting is an essential service and that existing parental schedules should continue, with necessary modification due to schools’ closure. In instances where one parent establishes that the other is not following health guidelines, they must notify the courts. As much as parenting issues have moved to online-mediation or online-meeting, this does not work well with children and some people.
In urgent motions like exclusive possession, the courts have listened to the parties and adjudicated the cases regarding the children’s best interests. A case example is Alsawwah v. Afifi 2020, ONSC, whereby the parties had been married for 14 years and had three children aged 15, 13, and 8, respectively. In Oct 2018, the mother called the police and alleged that the father had been assaulting her. He was taken to court and was ordered to move out of the matrimonial home and keep 500 meters from the mother. Children lived under their mother’s primary care, and they visited their father on several occasions. On February 25, 2020, the second-born child attempted to commit suicide while under the mother’s care; the father brought exclusive possession proceedings against the mother, terming his case as an “urgent motion” in the midst of the pandemic. The Court considered the children’s best interests; the father was given exclusive possession of the matrimonial home. The father ordered to pay spousal support to the mother.
The courts are making efforts to enhance access to justice by allowing “urgent motions” to be solved by the courts. Since the COVID- 19 pandemic has created uncertainty and difficult times, the courts must consider alternative ways of solving disputes in peculiar times. Courts should be equipped with access to the internet and good computers and cameras to facilitate litigation of issues. The general public should also be equipped with knowledge on how to file their affidavits and attend online-mediation and video hearings. Generally, Court houses should be prepared better for future pandemics not only for urgent motions but also other civil actions.
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