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My abusive partner won't return the children to me and courts are closed because of COVID-19. What can I do?

Question
My abusive partner won't return the children to me and courts are closed because of COVID-19. What can I do?

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My abusive partner won't return the children to me and courts are closed because of COVID-19. What can I do?
Reviewed: 
April 8, 2020
Answer

Your abusive partner may be more likely to not return your children to you after an access visit during COVID-19 as a way of controlling you. They might say that the children are not safe with you because of COVID-19 for example, because you or someone you live with works in an environment that puts you at risk or because you’re living in a women’s shelter. Or, they may have no real reason at all. It can be difficult to talk to an abusive partner to deal with access challenges, especially where there are increased concerns about the health and safety of your children.

Since March 16, 2020, Ontario family courts are only open for urgent matters and a few non-urgent matters. Since April 6, 2020, the Superior Court of Justice (SCJ) family courts have started to hear some non-urgent matters. Check the SCJ website for more information about which non-urgent matters they will deal with. Hearings are being heard by telephone or video conference.

Custody and access to a child may be an urgent matter. The safety of your children may also be an urgent matter. To get your partner to return your children to you despite COVID-19, you may need to file an urgent motion.

For now, filing counters in most courts are open. Most of them have reduced hours and are only open from 10 a.m. to 12 p.m. and from 2 p.m. to 4 p.m. But your court may want you to file your documents by email. Check the OCJ website and SCJ website for more information.

Each court decides how they will hear urgent cases and what qualifies as an urgent matter. This means that after you file your documents, a judge looks at them and decides whether or not your case is urgent. When deciding, they look at 4 main things:

  1. Your concern must be immediate and cannot wait to be resolved
  2. Your concern must have a big impact on the health, safety, or economic well-being of you, your children, or all of you
  3. Your concern must be real and practical; it should not be a “what if” situation that might or might not happen
  4. You must have detailed evidence to support why the situation is urgent

The court expects every parent to follow an existing court order or agreement, unless they have a good reason not to. There’s a good chance the court will find your case urgent and hear it if:

  • you and your partner have a court order for custody and access or you have an ongoing arrangement that you have both been following
  • your partner doesn’t have a good reason to stop following it
  • your partner stopped following it only to harass you

If the court decides your case is urgent, you will probably have a telephone or video hearing. You have to present your evidence in writing to explain your situation. You will likely have to send a copy of your existing court order or agreement, explain how the plan has been working, and show the court that there’s no real reason for your partner to keep the children.

You have to show how the children will be safe with you and protected from being infected with COVID-19. For example, you can give evidence that shows:

  • you’re able to work from home
  • you don’t work in a job that puts you at risk of getting COVID-19
  • you will follow all the COVID-19 precautions
  • you’re living in a place that is safe for your children

It’s important to include a lot of details in your documents. The court’s decision will be based on how strong your evidence is compared to your partner’s evidence, and the best interests of the child.

Once a decision is made, it is in effect immediately. This means you don’t need to get an official order issued.

If you need legal support or advice, read the questions I’m being abused or have experienced abuse. Where can I find legal support during COVID-19?

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