The practice of law in Ontario has undergone unprecedented change due to the COVID-19 pandemic. Both the Ontario Court of Justice and the Superior Court of Justice have had to place many matters on hold, including all trials, and in person court appearances remain suspended for the foreseeable future. Ontario’s justice system is trying to keep pace by instituting a variety of reforms designed to ensure that access to justice is not lost.
While the pressure for these reforms is certainly amplified at the moment, the recognition of their potential benefits for persons interacting with the justice system is not new. In November 2017, the Attorney General for Ontario released a plan for the modernization of the province’s justice system entitled, “Putting Justice Within Reach: A Plan for User-Focused Justice in Ontario.” The plan called bringing the justice system “up to speed”, by embracing technology that can “enhance access to justice, save time and reduce costs”. At the same time, the plan noted that the justice sector’s core features – its integrity, people and commitment to equality and fairness – must be preserved. But fundamentally, the plan called upon all members of the legal profession to accept that, in order to be “truly innovative”, we must be willing to “challenge the status quo and step outside our comfort zone.”
The spirit of this plan needs to be embraced now more than ever. All areas of the law have been affected by the pandemic, and all courts and lawyers are having to drastically adapt. It will take a great deal of ingenuity and creativity for the legal profession and the courts to ensure that timely access to justice can remain achievable.
For cases involving children and youth, the need for reform is even more pressing. The Supreme Court of Canada commented on the “inherent vulnerability” of children and youth as they interact with the justice system in AB v Bragg Communications. This recognition has “deep roots in Canadian law” and may require adapting common procedural practices where appropriate.
Ontario’s courts and justice system participants are already demonstrating a commitment to these principles as the pandemic continues. Delays are, unfortunately, inevitable. If having a case adjourned months – or even a year – is frustrating for adult litigants, imagine what that kind of delay is like for children and young persons. Consider a 12 year old child and her parents awaiting the decision of a family court judge on if she will be able to continue living with her parents. Or a 16 year old teenager wondering when his criminal case of assault can finally end, so he can apply for the summer jobs or volunteer opportunities he needs to finish before he can graduate and apply for college or university.
Fortunately, court matters for children and youth have been able to adapt to the current crisis. Much work and innovation must still be done, yet there are signs of progress. In this article, we will explore what has been changing in both family and youth criminal court over the past six weeks.
Youth Criminal Justice
The Youth Criminal Justice Act (YCJA) governs Canada’s youth criminal justice system. It applies to any young person aged 12 to 17 who is charged with a criminal offence. It requires that the youth criminal justice system must be separate from the adult system. Young persons who offend must be held accountable for their actions, but in a manner that takes into account their greater dependency and reduced level of maturity.
The Act also requires that the youth criminal justice system implement “special procedures” to ensure that young people are treated fairly, and it must emphasize the importance of “timely intervention” in matters involving youth. Similarly, those charged with enforcing the YCJA must conduct their responsibilities with “promptness and speed”, given that young persons perceive time differently than adults.
In R v KJM 2019 SCC 55, the Supreme Court held that prolonged matters in courts can have a greater psychological impact on young persons. Adolescence, the Court made a point of noting, is a time of rapid brain, cognitive and psychological development. Youth matters should proceed “expeditiously and in a timely manner.”
Young persons are often offered the opportunity to complete extra-judicial sanctions (EJS) in exchange for their charges being withdrawn or stayed. These are non-court measures used to dispose of a criminal offence and hold a young person accountable for his or her criminal conduct but without the need for a formal finding of guilt. It often involves a young person completing community service hours or engaging in appropriate programming. Such programs have continued even in the face of the pandemic. Online programming and counseling are often available and the Ministry of Children and Social Services has made great strides in adapting to the challenges posed by the pandemic. Counsel should inquire of their local Crown’s office what can still be done so that their youth clients can continue with these opportunities.
Youth criminal courts continue to operate in a revised but restricted manner. Urgent criminal court matters may be heard by way of video or teleconferencing. For young persons arrested by the police and held for a bail hearing, the Ontario Youth Court of Justice remains functioning. Bail hearings can be held remotely, with all parties appearing by way of a teleconference. If counsel are proposing a surety bail, the surety can be cross-examined over the phone and need not attend at the courthouse to sign the bail papers. Bail de novo hearings – heard before a judge – can also be scheduled.
Some simple matters may be possible to conduct by way of email applications to the court. The Ontario Youth Court of Justice will now accept filing of materials electronically. Counsel should review the Court’s website for the appropriate procedure to follow when doing so. Matters that are typically straightforward – such as applications brought under YCJA s. 25(4) for the public funding of counsel – may be done entirely via email if they are on consent. Bail variations can also be obtained where conditions are causing undue hardship on a young person or his or her family. Again, a simple email application to the appropriate judicial office with the forms attached and signed may be sufficient.
Family Law / Child Protection Proceedings
Family matters that involve issues related to children such as custody/decision making, access/parenting time, child protection, adoption, etc., are generally governed by a ‘best interests of the child(ren)’ test. Delaying a resolution to matters impacting children will rarely be in the best interests of a child and should be avoided where possible. Maintaining access to justice for those parties litigating child issues during the suspension of normal court operations is critical for parties and more importantly, their children.
Recognizing the importance of access to justice, especially as it related to children, courts have remained relatively accessible to address child related issues on interim/temporary bases, even in the face of the cessation of normal operations.
In the context of domestic/matrimonial litigation
Although now closed for normal operations until at least July 6, 2020, the Superior Court of Justice has remained available, and dare I say somewhat more accessible, via teleconference or video conference to address child related issues, including access disputes that have arisen because of concerns about COVID-19.
Getting material in front of a judge has been made relatively easy. Courts in most regions require a brief affidavit or letter setting out the facts that give rise to the urgency. It is incumbent upon lawyers drafting these letters/affidavits to consult the COVID-19 practice directions in your region prior to asking the court to intervene on a urgent basis.
If the judge reviewing the request determines a situation of urgency has arisen, a designated judge will schedule a conference or motion where more comprehensive material may be filed to address the urgency.
My experience has been that where the issue involves a parent disregarding an order or agreement because of fears related to COVID-19, a judge weighing in on the matter and admonishing such self-help tactics is sufficient to resolve the issues. The message is clear – parenting should proceed as normal unless there is clear evidence that it would be dangerous to do so. A fear that a parent does not take physical distancing ‘seriously enough’ will not cut it.
Judges have been instructive in their reported decisions related to parenting in the COVID era. Clear messages have been sent by judges that parents who use the current situation to limit another’s parenting time or who use self-help tactics, will suffer consequences and lose credibility when we return to normal operations. These reported decisions are equally useful implements to wield upon an obstinate client and as a reminder to a poorly behaved opposing party.
When drafting material to establish urgency, it is important to frame your evidence within the factors that judges are looking at to establish urgency. In Thomas v. Wohleber, (2020) ONSC 1965 , Justice Kurz sets out factors that judges are looking for when deciding if they are going to address a party’s concern as urgent:
1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
Although all trials and most summary judgment motions have been adjourned, parties still have recourse to the court to ‘put out fires.’ The ability to serve via email focused material to opposing parties/counsel and to file same via email, has lead, in my experience, to quicker resolutions of ‘routine parenting issues’ than was possible in the pre-COVID era where a motion and comprehensive material needed to be filed, a timeline set and adjournments were routine. An email service and filing system for discreet parenting issues which can be dealt with on a summary basis by a judge should become a permanent fixture in Ontario family law.
Judges continue to hear urgent and statutorily mandated child protection hearings via teleconference or video conference. As parents’ counsel, most activity will revolve around a child’s initial apprehension, either at the initial hearing after a child has been brought to a place of safety or a temporary care motion. Courts are also hearing urgent motions, including restraining order motions or section 94(4) motions changing the placement of a child where it is in the child’s best interest to do so.
If the Society has eliminated in person access between a parent and a child as a result of a blanket policy without an alternative plan to preserve the important relationships of children to their parents, a court will likely find it to be a situation of urgency allowing a parent to seek relief from the court. The case law is clear that each family is different and a blanket policy to suspend access is inappropriate.[i]
Similar to the domestic context, all trials have been suspended until at least July 6, 2020. Temporary motions are proceeding sparingly, via teleconference or video conference. The concern for some is that, for a large portion of parents involved in child protection matters, they do not have access to the equipment necessary to participate in video conferencing
Many judges who have case managed files that are near conclusion have been going beyond the call of duty and hearing matters that are not, strictly speaking, urgent, so that they can conclude matters and move towards permanency for children.
Advocating for Children and Young People During COVID-19
Children and young people may be especially vulnerable as a result of the COVID-19 measures. For children experiencing conflict, abuse, and violence in their homes, the direction of public health officials and governments to remain at home increases their vulnerability while at the same time limiting their access to supportive services, for example, their Society workers, mental health professionals, and guidance counsellors.
Schools, drop-in, and community centres, on which many young people rely, are closed and, despite the Ontario government’s announcement that mental health services may now re-open, mental health services are likely to continue to be provided at a distance. For many, school offers a place of safety and support, which is largely lost in the context of remote learning. Many may not be able to access remote services because they do not own or cannot access a device, or lack a private space in which to reach out to service providers. In these circumstances, it is more important than ever to ensure that children and young people’s voices are being heard, their needs addressed, and their rights respected by both counsel and courts.
In the family and child protection contexts, where decisions are being made with respect to supervision, custody, and access, these decisions must remain child-centred, even in the context of a public health crisis. Children continue to have the right to participate meaningfully in these processes, which means not only the opportunity to voice their views and preferences, but to be given information about the decisions being considered, the measures being taken to ensure not only health and safety, but their well-being more broadly. While the rapidly shifting public health landscape, and evolving family circumstances, often mean decisions must be made urgently, expediency cannot be achieved at the expense of children’s rights.
Similarly, in the youth criminal justice context, the young person’s rights and personal circumstances must remain central to decision-making and service provision. For example, counsel should closely scrutinize bail conditions to ensure that they are reasonable and the young person is capable of compliance, given the pandemic and their personal realities. Expectations for their participation in diversion or extra-judicial sanctions should be tempered, especially given the additional practical and emotional burdens of COVID-19. The unprecedented circumstances call for flexibility and creativity on the part of counsel and the courts.
During these isolating and anxious times, as always, children and young people are entitled to special protection and care, and depend on their counsel and adult supporters to safeguard their rights and well-being. Organizations like Justice for Children and Youth, mental health agencies, and community support services continue to operate during the pandemic and are open to referrals to respond to not only their legal needs, but their social, emotional, and physical health and safety.
While so much is being lost or suspended during the pandemic, it nonetheless remains incumbent on counsel – defence, Crown, parent, Society, or child – and all of us as child advocates, to ensure that children and young people’s rights are not among these losses.
About the authors
Brock Jones is Assistant Crown Attorney, Ministry of the Attorney General. David Tobin is Partner at Murray and Tobin, Family Law. Jane Stewart is Lawyer for Justice for Children and Youth.
[i] Durham Children’s Aid Society v. J.Q, 2020 ONSC 1761; Children’s Aid Society of Oxford County v. C.L, 2020 ONCJ 183;Children’s Aid Society of Toronto v. O.O., 2020 ONCJ 179;Children’s Aid Society of the Region of Halton v. R.O., 2020 ONCJ 209
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.