COVID-19 Case Law Summary – Family Law
May 29, 2020
Canadian courts continue to hear only emergency matters, although some courts are gradually making more services available.
This update to my summaries from April and May 2020 includes cases which stand out as having unique facts. For parenting issues, judges continue to prioritize contact with both parents. The majority of these cases are not included in this summary.
My next summary will be in two weeks, and will include a review of decisions released between May 25 and June 5, 2020.
Courts continue to urge parties to mediate their disputes during the COVID-19 pandemic.
Levesque v. Windsor, 2020 ONSC 3110 (CanII)
The applicant brought a motion to stay final order made in January 2020 pending his appeal from that order. The final order awarded joint custody with a gradual increase in parenting time, whereas the previous order had provided for sole custody to the applicant father. The mother had previously been addicted to cocaine. The child was 7 years old. The child had been under the care of a child psychologist since 2016. The psychologist noted a deterioration in the child’s condition by February 2020. The mother attributed the increased anxiety of the child to the effects of COVID-19. Sessions with the psychologist could not occur due to COVID-19. The motion to stay the joint decision making was stayed. The increase in time spent with the mother was also stayed.
Aslezova v. Khanine, 2020 CanLII 33567 (ON SCDC)
A final order was made for the sale of a marital home. The property was listed for sale and an offer was made, but not accepted by the husband. The husband then appealed the final order and brought a motion for a stay of the final sale order pending the appeal. The court denied the stay, indicating that the real estate market has added volatility due to the COVID-19 crisis, and that the applicant husband had not paid his share of taxes and mortgage in April 2020, although the bank had deferred payments due to COVID-19.
Stefanska v. Chyzynski, 2020 ONSC 3028 (CanLII)
The mother travelled with the children from Poland to Toronto, ostensibly for a vacation, but instead enrolled them in school and refused to return them to Poland. The father brought an Application for the children’s return under the Hague Convention. On April 21, 2020, it was ordered that the children be returned to Poland forthwith, despite COVIC-19 and the complications of international travel. The court further ordered the parties to “exercise best efforts to agree on a date” for the return of the children, failing which the court would set a date.
AMD v. KG, 2020 ABQB 325 (CanLII)
The parties separated in October 2019 and the father’s access has dwindled since that time. The father was facing multiple criminal charges stemming from the parties’ separation. The father sought a first time order for shared parenting. The father also sought an order that the maternal grandfather (who resided with the mother and the children) not be left alone with the children. The court determined that the children remain in the primary care of the mother until the conclusion of the father’s criminal proceedings, even though those proceedings could well be delayed due to COVID-19. Father’s access was to remain the same and the maternal grandfather’s contact with the children was not restricted.
Child and Spousal Support
Ade-Ajayi v. Ngure, 2020 ONSC 3095 (CanLII)
The children no longer primarily resident with mother in this case, but the father still paying child support and arrears of child support. The matter was determined to be urgent, and both the ongoing support order and the enforcement were stayed.
Grover v. Batra, 2020 ONSC 3089 (CanLII)
The parties had filed Minutes of Settlement in the fall of 2019, but had not made arrangements for the sale of the matrimonial home since that time. Both parties lost their incomes due to COVID-19. Carrying costs on the hoe were $4,400 and each of the parties were receiving $2,000 in government pandemic assistance. The mortgage holder was seeking a power of sale. The wife brought a motion requiring the husband to consent to an arrangement with the mortgage holder and an order for the appointment of a specific real estate agent for the sale of the property. The husband gave no realistic grounds for his disagreement. The orders were made.
DePotter v. Smith, 2020 ONSC 2967 (CanLII)
The husband alleged that the wife had been “removing everything” from the matrimonial home, including tools required for his employment. The judge found urgency, set a motion date and made a temporary without prejudice order that the wife was not to remove any items from the matrimonial home.