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Wesley Shields, FH&P Lawyers

Case-by-case approach adopted by B.C. courts for family law in light of COVID-19, lawyer says

Friday, May 01, 2020 @ 10:30 AM | By Ian Burns

As courthouses across Canada continue to grapple with the fallout from the COVID-19 pandemic, family law is the one area that has seen the biggest upheaval, with the possible exception of those facing criminal charges. And lawyers in British Columbia are saying the message from the courts is starting to come into focus — that the pandemic doesn’t mean an automatic suspension of parenting rights.

B.C., like Ontario and jurisdictions across the country, has seen courthouse doors close and matters limited to those which are urgent, such as orders relating to the safety of a child or parent due to a risk of violence or matters related to public health and safety and COVID-19.

Leena Yousefi, YLaw Group

Leena Yousefi of Vancouver’s YLaw Group said courts in the province tend to be focusing on such things as situations where two parents have an order for parenting time, and one is trying to prevent the other from seeing their children because of the risks the pandemic has brought.

“The general consensus is the courts will resume parenting time no matter what. Essentially, they are looking at situations as if the two parents were still living together and what they would do because of COVID-19,” she said. “So, just because now they are separated they can’t prevent each other from having parenting time with the children because they think it is not safe to transport them in the car or expose them to family members. Right now everything is a risk — but the bond with parents is worth taking that risk as long as you are observing the social distancing guidelines.”

Wesley Shields of FH&P Lawyers in Kelowna said the case law shows an almost zero tolerance to any health risk to children.

“If you don’t comply with the directions from [B.C. provincial health officer] Bonnie Henry or the provincial government, then we are not going to endorse your parenting plan being put into place,” he said. “The other thing that is interesting is judges have almost encouraged parents to adopt a common sense approach when dealing with parenting issues during this time — it is not quite a collaborative approach, but I think it is looking at the big picture and telling parents that nothing is going to be ideal, so let’s try and find a common sense approach.”

Wesley Shields, FH&P Lawyers

But that collaborative approach has not been embraced by all. Shields noted two decisions out of the provincial court, S.R. v. M.G. 2020 BCPC 57 and S.B. v. M.P. 2020 BCPC 68, in which the issue of COVID-19 was brought up in the context of changing parenting arrangements. In S.B., a judge dismissed an order by a father to return his children to Vancouver due to the fact that they would have to travel internationally, but in S.R. the court ordered a child to be returned to his mother despite the fact the father was concerned her job as a nurse had put her in contact with a COVID-19 patient.

“COVID-19 is coming up in decisions asking is this the appropriate time to award parenting time or to limit it depending on circumstances,” he said. “I don’t think it is general principles across the board, it is just looking at it on a case-by-case basis and saying will it work or won’t it work. And if that contact won’t work, we will look at things like FaceTime and Skype.”

In March, Justice Alex Pazaratz of the Ontario Superior Court of Justice fired one of the first shots in offering guidance on how to approach the courts as doors close and telephones go unanswered. In Ribeiro v. Wright 2020 ONSC 1829, he wrote that “in troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever” when he denied authorization to proceed with an urgent motion to suspend a father’s access to his 9-year-old son because the mother felt he would not maintain social distancing.

Shields noted the Ribeiro case has been cited in a number of B.C. cases and that similar principles are being expressed by judges there, in that COVID-19 doesn’t automatically result in a suspension of parenting rights.

“In S.R. the court said I’m going to allow the parenting time, and you have to weigh the factors of the harm to the child of not being with the parent versus putting the child in a situation where he or she is travelling through airports and possibly being exposed,” he said. “So, a case-by-case approach has been adopted, and what they are trying to do is not necessarily suspend parenting time carte blanche but look at each situation.”

But lawyers and judges in B.C. have also looked to sources beyond the legal system itself, said Shields. He noted Vancouver psychologist Dr. Michael Elterman put together a paper on parenting arrangements during COVID-19, which talks about the difficulties parents face and what they may want to consider when implementing a parenting time schedule.

“The courts have embraced it — they haven’t said it is the law but a series of guiding principles for them to look at when making parenting time orders,” he said. “When the crisis broke we were looking for directions on what approach we should take with our clients and certainly that type of info has been most beneficial. I’ve used it on a number of occasions to assist me in dealing with clients.”

And the challenge of dealing with what is and what is not an urgent matter is an issue that has also surfaced in British Columbia, as it has across the country. Yousefi said the procedure for hearing urgent matters had proven to be problematic for both lawyers and staff, but the courts have begun to “slowly open the doors” and start hearing non-urgent matters which were cancelled due to COVID-19. However, she added there are still limitations on issues which can be addressed and a need to have a case conference.

Shields noted counsel will try to push an issue to determine whether it falls into the urgency category, but ultimately the judge acts as a gatekeeper on whether a matter is urgent or not. He noted the decision of Johansson v. Janssen 2020 BCSC 469 held if a matter is not urgent if the order sought has no immediate consequences, and the decision in J.W. v. C.H. 2020 BCPC 52 held urgency may arise if delay is contrary to the best interests of the child.

“For example, if you are seeking something like an access order for summer parenting time, the judge will likely say it is not urgent — we are talking about April right now,” he said. “But, if you deal with it in July and you are saying it is my turn to have Johnny with me during the summer months then I think it would be urgent at that time under this test.”

But Shields said one of the biggest messages which has emerged from the courts is something that is not restricted to family law cases — the lack of technology in the court system itself.

“Interestingly in B.C. there was a publication called the court digital transformation strategy, which they said would take from 2019 to 2023,” he said. “I think to a certain extent COVID-19 has put us further along in implementing changes in the system. So, assuming the system gets back on track I think one of the messages coming through is the system isn’t going to work unless there are significant changes and use of technology — and I get the sense that judges want to embrace that.”

The struggles surrounding dealing with technology in the courtroom were outlined by B.C. Supreme Court Chief Justice Christopher Hinkson and provincial court Chief Judge Melissa Gillespie during their participation in LexisNexis Canada’s Justice Adapting: The British Columbia Courts, an April 29 online discussion on how Canada’s justice sector is coping with the ongoing pandemic. Hinkson said his court has faced the challenges of dealing with live witnesses and many other “practical problems,” such as the fact that the clerk’s stations in most courts are within six feet of the judges and are largely immovable because of the equipment they use.

“That has hamstrung us to some extent in conducting video hearings because the judge and clerk are so close together,” he said. “We have not been able to do jury trials at all because we can’t put jurors too close to each other because of the health officers’ recommendations and edicts — and there are a number of senior counsel who are uncomfortable with prospect of anything other than a traditional hearing process, where lawyers stand in front of a judge and make their submissions.”

Gillespie said her court has been challenged both in terms of having to develop a plan to keep people safe and yet provide access to the courts on the most urgent matters.

“We had to approach that by minimizing the risk of transmission of the virus and yet move to virtual access for all of our court matters,” she said. “That is challenging for a number of reasons, given the type of technology that historically we have had as well as the bandwidth which has been available. And of course, you can imagine when so many people are coming on line and working remotely it increasingly challenges that bandwidth.”

Gillespie noted the court has primarily used telephone access to conduct hearings on the most urgent matters, but more work needs to be done to accommodate an unprecedented amount of demand on the system as everything moves forward.

“It is my view that as we go through this there is movement to a more sustainable platform, including videoconferencing if necessary, to make durable and enduring changes that will change the way in which we can conduct much of the work we can do in relation to a lot of our remand matters, bail matters and in the service of remote communities,” she said. “So, there have certainly been some positives here.”

Yousefi did express a concern that is likely shared among many lawyers — what to do about the backlog of cases that will undoubtedly arise when courts reopen fully. But she also said the situation is pushing legal practitioners to consider alternative dispute resolution mechanisms and how things can be settled without having to run to court.

“It has actually made me grow as a lawyer because my brain is thinking about creative ways to sort something out no matter how difficult the situation may be,” she said. “So, I think the other family lawyers should look at this as a great opportunity for growth. It is a huge change, and uncomfortable, but it is making us try things that previously we didn’t bother looking at before.”

Karen Nordlinger, Aaron Gordon Daykin Nordlinger LLP

Karen Nordlinger of Vancouver’s Aaron Gordon Daykin Nordlinger LLP, whose practice deals exclusively with mediations and arbitrations, said the use of technology such as Zoom “seems to be working as far as I can see.”

“But that does take a certain amount of co-operation and if you don’t have co-operation from one party then you are really struck with the court system, and the court system really has to up their game in terms of technology,” she said. “The courthouses aren’t set up for it and a lot of people don’t have access to computers or that kind of technology, especially in smaller areas — so it is tough but there are ways that it can be managed — and hopefully we can find a way.”

And Nordlinger said she would tell the profession, and parents in general, that “this is not a time to be fighting.”

“This is not a time for you to be bringing up your own personal issues with regard to your family and your children — we have much bigger issues in society to deal with,” she said. “If people could get that message and decided to co-operate that would be wonderful. It is probably pie in the sky but there are just too many other things going on and there may be people out there trying to take advantage of that.”

Dates and registration details for future Justice Adapting webinars can be found here.

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