Although society in British Columbia has largely been put on hold due to the COVID-19 pandemic, the lawyers at Hawthorne Piggott and Company understand that family matters will continue to arise, and may even be aggravated by the difficulties associated with social distancing and the COVID-19 pandemic in general. As such, they are here to help you navigate the novel legal challenges that have arisen due to the Province of British Columbia’s response to the COVID-19 pandemic.
Court closures and the concept of urgency
Effective March 19, 2020, and revised April 16, 2020, all regular court operations are suspended and all matters scheduled to be heard are automatically adjourned by the order (the “Closure Order”) of Chief Justice Christopher E. Hinkson of the Supreme Court of British Columbia. Despite this suspension, the Closure Order indicates courts may hear essential and urgent matters family matters. Under the Court Order, essential and urgent matters family matters include:
- orders relating to the safety of a child or parent due to a risk of violence or immediate harm (e.g., a protection order, conduct orders, or exclusive possession of the home);
- orders relating to the risk of removal of a child from the jurisdiction (e.g., relocation, non-removal, wrongful removal, or retention of a child); and
- orders relating to the well-being of a child (e.g., essential medical decisions, urgent issues relating to parenting time, contact, or communication with a child that cannot reasonably be delayed).
However, the court has the discretion to hear urgent matters other than those listed, and to decline to hear a matter that is listed. Although the British Columbia Supreme Court has, as of the time of this posting, not provided a framework as to what constitutes an urgent matter, the Provincial Court of British Columbia has cited with approval frameworks utilized by the Ontario Superior Court in Thomas v Wohleber, 2020 ONSC 1965 (“Thomas”) and Ribeiro v Wright, 2020 ONSC 1829 (“Ribeiro”). As the restrictions on court activity in Ontario are largely similar to the court restrictions imposed by the Closure Order, review of the Ontario frameworks can provide some insight to how the Supreme Court of British Columbia may interpret a question of urgency.
At paragraph 21 of Ribeiro, Justice Pazaratz states what will be required, and considered, for a matter that is submitted under the urgency standard:
- The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
- The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
- Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
And at paragraph 38 of Thomas, Justice Kurtz enumerates the factors which are necessary to meet the requirement of urgency for family matters in Ontario during the COVID-19 pandemic:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- 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;
- 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; and
- 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.
As noted earlier, the British Columbia Supreme Court has yet to adopt the frameworks listed above. However, the British Columbia Supreme Court has enumerated that actions which, if successful, would generate orders that have no immediate practical consequences will be considered not urgent and as such will not be heard. An example of this can be found within Johansson v Janssen, 2020 BCSC 46, whereby an order requiring return of children from an international destination was found to have no immediate practical consequence and therefore not be urgent.
Hearing of non-urgent matters through teleconferencing
Further, as of April 20, 2020, by the order of Chief Justice Christopher E. Hinkson of the Supreme Court of British Columbia, parties who had matters scheduled between March 19, 2020 and May 29, 2020 may, at the discretion of the court, schedule a telephone conference hearing if their matters meet the following criteria:
- the matter is limited to one disputed issue, or (if the matter involves more than one issue) the parties have reached consent on some or all of the issues;
- the disputed issue is suitable for determination by telephone and is estimated to take less than one hour; and
- the disputed issue can be addressed on the basis of a single affidavit filed per party, no longer than 10 pages.
Largely due to the closure of the courts of British Columbia, on April 8, 2020, the Minister of Public Safety and Solicitor General of British Columbia declared that effective April 15, 2020, all mandatory limitation periods and other mandatory time periods would be suspended under the Limitation Periods (COVID-19) Order No. 2 (the “Limitation Order”). The Limitation Order enumerates that it will be in effect until the date on which the last extension of the declaration of a state of emergency made March 18, 2020 under section 9(1) of the Emergency Program Act expires or is cancelled. As such, any timelines or time periods in ongoing family matters are suspended until the provincial state of emergency is removed.
- British Columbia Courts – Notice of Suspension of Civil and Family Proceedings
- Ontario Courts – Notice of Suspension of Family Proceedings
- British Columbia Courts – Notice of Telephone Conference Hearings expansion
- Emergency Program Act; Ministerial Order M098 (April 8, 2020)
- British Columbia Provincial Court discussion of urgency
- J.W. v. C.H., 2020 BCPC 52
- C.K.M. v. L.O.S., 2020 BCPC 75
- N.J.B. v. S.F., 2020 BCPC 53
- British Columbia Supreme Court example of non-urgent family matter
- Johansson v Janssen, 2020 BCSC 46