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Parents fight over child

Urgent family law matters during COVID-19

Tuesday, March 31, 2020 @ 3:14 PM | By Noemi Argueta


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Noemi Argueta %>
Noemi Argueta
“It is a constitutional imperative that the courts must remain open; however, in light of the extraordinary circumstances during the current public health emergency, members of the public who do not have urgent business before the court are discouraged from attending any courthouse.”

With those words, the chief justice of British Columbia’s Supreme Court announced the effective closure of the court. Expressing similar sentiments, both the Court of Appeal and British Columbia’s provincial court did likewise.

What would be considered ‘urgent business’ in family matter?

The court already has rules about when it can hear applications quickly or on “short notice.” These rules apply to matters that are considered urgent, so the idea of special treatment for urgent business is not new. Matters that were considered urgent in the past (and able to proceed on short notice) are the same kinds of matters that will be allowed to proceed now under the current guidelines.

Regarding family matters, the court has issued the following guidance regarding what it would consider to be urgent:

Orders relating to the safety of a child or parent due to a risk of violence or harm. The court will continue to hear applications for protection orders (i.e. restraining orders); conduct orders (which are orders that require parties to do or not do certain things, such as participating in counselling or limiting the extent or form of communication); and exclusive possession of a home.

Orders relating to the wrongful removal of a child from one place to another. For example, where a party attempts to remove a child from British Columbia, the court will hear the matter and may grant an order prohibiting the move. In one of the few cases decided under the shadow of COVID-19, the Ontario Superior Court of Justice in Smith v. Sieger 2020 ONSC 1681, ordered the return to Canada of a 16-year-old from Utah, where he was studying.

The court’s reasons echo the urgency of the situation:

The situation is changing as we speak. When this Motion was served, we had open borders and they are about to be closed. Just prior to the Motion, there was an earthquake in Utah that is interfering in air traffic. No one knows what tomorrow will bring.

The issue faced by the Court, not unlike all issues pertaining to children, is to be decided in a manner consistent with [the child’s] best interests. Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the applicant is granted in its entirety.

The court also ordered that on the child’s return, he undergo 14 days of self-quarantine.

Orders relating to the well-being of a child. This category refers to things like essential medical decisions or urgent issues relating to parenting time or communication with a child and it is more difficult to predict how it will be used. For example, during this pandemic some parents may restrict the other parent’s time with the child because of self-isolation or social distancing. Will the court really intervene in these cases on an urgent basis?

It is unlikely that the court will intervene except in the most egregious of cases — where a parent is cutting off all communication (including telephone or video communication) with the other parent.

The court has also said that certain civil matters are urgent, including “civil restraining orders, preservation orders [and] urgent injunction applications.” Similar family law orders — such as orders that prevent a party from selling, transferring or disposing of assets — may also be considered urgent and allowed to proceed.

Notable in its absence is any reference to urgent child or spousal support hearings. Spouses — both payors and recipients — may have found themselves suddenly under an enormous amount of financial pressure. There is at present, however, no indication that the court will allow any applications for support orders to proceed.

How to proceed if there is an urgent family matter

A party who believes it has an urgent family matter will have to apply to the court having jurisdiction over the matter for a judge to determine whether the matter is urgent. The process for filing this application varies depending on which court has jurisdiction over your family law matter.

The Supreme Court of British Columbia (BCSC) has set up a temporary online submission process.

The BCSC will send an e-mail to all parties confirming the receipt of the application along with instructions for next steps. Parties should then file any relevant materials that will help the court determine whether or not the matter is sufficiently urgent to require a hearing.

If the matter is found to be urgent, the BCSC will set a hearing date and provide the parties with instructions about filing and serving materials. The parties will then attend the hearing by telephone or video, whichever option is possible and appropriate.

The provincial court of British Columbia allows the party to file the application by e-mail, phone, mail or fax to your local court registry. Note, any non-urgent filings will not be accepted by the provincial court from March 18 to May 16.

The local court registry will let parties know if their application will proceed and when. It is important that all materials and arguments are ready to go when the application is filed, as notice of the hearing time can be as short as a couple of hours. To promote social distancing, the parties may be able to appear at the hearing by phone instead of having to attend the courthouse.

Noemi Argueta is a lawyer with Connect Family Law in Kelowna, B.C. and a former social worker. She can be reached at noemi@connectfamilylaw.com.

Photo credit / Liliia Kyrylenko ISTOCKPHOTO.COM

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