Pursuant to the Chief Justice’s Notice in response to the COVID-19 pandemic, it would appear that issues pertaining to the wrongful removal or retention of children are urgent matters that need to be heard by a judge notwithstanding the suspension of court operations. Yet, as the decision in Onuoha v. Onuoha demonstrates, not all child abduction allegations are deemed to be urgent.

Background

In this case, the father sought a return of the parties’ two daughters to Nigeria. He alleges that he did not consent to the mother bringing the children to Ontario in October 2019 and has used both the Nigerian and Ontario courts in an effort to have the children returned to Nigeria. The ongoing family law matter was going to be heard on March 25, 2020, but was adjourned to June 2, 2020 as a result of the suspension in court operations.

The father wrote to the court that as there was an international kidnapping, this matter was urgent and cannot wait until June 2^nd. The mother’s position was that this matter was not urgent and can be heard on the return date of June 2^nd.

Decision

Justice Madsen of the Ontario Superior Court of Justice notes that at first blush, this case appears to fall within the meaning of “urgent”. However, the reality of the situation is that the children will remain in Kitchener, Ontario with the mother for the time being, as there are wide-spread restrictions on international travel to limit the spread of COVID-19. It is understandable that the father misses the children and would not wish to establish an unfavorable status quo, the fact is that an Order for the return of the children could not be implemented for weeks or even months as it is not safe for the children to travel at this time. However, the Court does expect the mother to facilitate telephone or video access between the children and the father during this time.

Important Note

In her decision, Justice Madsen provided some clarifications as to the process for seeking a determination of whether a case is urgent under the Chief Justice’s Notice:

1. The determination of urgency is intended to be simple and expeditious and is not supposed to be turned into a motion unto itself.
2. The determination of urgency is without prejudice to either party on the substance of the motion when heard.
3. The process contemplates limited materials before the court, recognizing that judges do not presently have access to the physical files. As such, the Court expects that parties will submit only brief materials to allow for a fair, timely and summary disposition.

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