J.W. v. C.H., 2020 BCPC 52 (CanLII)
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2020 BCPC 52 |
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Date: |
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File No: |
F-1931499 |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
J.W.
APPLICANT
AND:
C.H.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE W. LEE
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Appearing for the Applicant: |
No in-person appearance by anyone |
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Appearing for the Respondent: |
No in-person appearance by anyone |
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Place of Hearing: |
Vancouver, B.C. |
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Date of Application: |
April 1, 2020 |
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Date of Judgment: |
April 2, 2020 |
[1] On March 11, 2020, the World Health Organization classified the COVID-19 virus as a pandemic.
[2] Both prior to and subsequent to that pronouncement, the Federal and Provincial Government, as well as the Chief Public Health Officer of Canada and the Provincial Health Officer of British Columbia, issued orders and directions to deal with the COVID-19 virus.
[3] These are unprecedented times. The Courts in this Province and throughout Canada have been forced to quickly develop procedures that balance the need to maintain access to justice with protecting the health of all persons involved with the judicial system. This includes registry staff, sheriffs, court clerks, support personnel and judges, as well as the parties in any court proceedings, witnesses and members of the public.
[4] On March 19, 2020, the Provincial Court of BC issued the first of its Notice to the Profession and Public dealing with the COVID-19 pandemic. On March 23, 2020, the Provincial Court issued an amended Notice to the Profession and Public No. 19 (“NP 19”), regarding the COVID-19 pandemic. The notice discussed the suspension of court operations, and, in relation to Family Law cases, permitted only the hearing of urgent applications.
[5] NP 19 states that if a judge determines that a matter is urgent, then it may proceed to a hearing, conducted by way of teleconference only. Urgent matters may include the following:
a) Requests for urgent relief relating to the safety of a child or parent;
b) Requests to obtain or set aside protection orders, or urgent orders involving parenting time, contact with a child or communication between parties;
c) Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to relocation, non-removal, wrongful removal or retention of a child;
d) Applications to suspend, change or cancel any order for imprisonment or committal pursuant to the Family Maintenance Enforcement Act;
e) In a child protection case, all urgent matters, including applications for supervision orders and for extension of time, and any other urgent motions or hearings; and
f) Urgent cases where irreparable harm will occur if the application is not heard.
[6] The BC Supreme Court and the Courts in other provinces have also issued similar directions limiting the hearing of cases to urgent matters.
[7] At this early date, there are only a few court decisions providing direction on what should be considered an urgent matter. It is clear though that what is “urgent” is a question that the court must deal with on a case-by-case basis.
[8] In the decision Ribeiro v. Wright, 2020 ONSC 1829, Justice A. Pazaratz stated:
6 The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. This is an extremely difficult and stressful period for everyone.
7 On the one hand, in this case there is an existing parenting order. There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.
8 On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.
9 Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.
10 None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
11 In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
12 In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
13 In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.
16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.
17 Each family will have its own unique issues and complications. There will be no easy answers.
18 But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.
19 Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.
20 If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
[9] An application to have a matter determined to be urgent may involve limited supporting information. Such applications are intended to be simple and expeditious: Ouoha v. Onuoha, 2020 ONSC 1815 at para. 14 and Reitzel v. Reitzel, 2020 ONSC 1977 at para. 9.
[10] In the decision Thomas v. Wohleber, 2020 ONSC 1965 (CanLII) at par.38, the court listed the following factors to determine if an application was 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.
[11] To be considered urgent, there must be some issue of immediate concern. Examples of this may include:
a) An imminent plan to relocate with a child or to remove a child.
b) An imminent or recent threat of family violence against a family member.
c) An imminent threat that a party may be arrested or committed to jail.
d) An imminent risk of irreparable harm, including undue financial loss, if an application is not heard at this time.
[12] A matter is not urgent if the order sought has no immediate consequence. For instance, an order involving international travel cannot be implemented at this time due to international travel restrictions, and therefore an application for such an order is not urgent: Johansson v. Janssen, 2020 BCSC 469.
[13] As set out in s. 37 of the Family Law Act, the parties and the court must always consider the best interests of the child. A matter may be urgent if it would be contrary to the best interests of the child if an application were delayed.
[14] Once there is a determination that an application is urgent, then the applicant must still comply with the court procedures set out in the Family Law Act and the Provincial Court (Family) Rules, unless otherwise ordered by a judge. The applicant must still file a proper notice of motion. As the court is only conducting hearings by teleconference at this time, applications should be supported by an affidavit if possible.
[15] The court is of course aware that having an affidavit sworn may be difficult since there is no longer open access to the court registry and lawyers or notaries may not be willing to meet a deponent in person. Therefore, a judge may be prepared to accept other evidence if it is both necessary and reliable, taking into account ss. 199 and 202 of the Family Law Act. In the decision Young v. CRC Self Help, 2020 ONSC 1715 the court said that if a sworn affidavit could not be obtained, the affiant could swear to the truth of the affidavit’s contents by phone. At times like this, the court must be flexible. An example of this is the Provincial Court Notice to the Profession and the Public No. 20 issued March 20, 2020, which allows an affidavit to be sworn using video technology.
[16] If an application relates to an allegation that a party is not complying with COVID-19 protocols, such as have been issued by the Provincial Health Officer, there should be specific examples of such behavior or actions: see Ribeiro v Wright, 2020 ONSC 1829 at para. 21. There must be more than mere suspicions.
[17] Any resulting orders made under these circumstances are likely to be interim and made on a without prejudice basis. Indeed, in Ontario, the courts have been describing such orders as “temporary, temporary, without prejudice orders”: see for example Phipps v. Petts, 2020 ONSC 1999. The nature of such orders is that they would be subject to review or variation when there is an opportunity for a full hearing and that a party would not be prejudiced by the terms of any interim orders made while the COVID-19 protocols are in place. Furthermore, a material change of circumstances may not be required to justify a change in such orders.
[18] The overriding principle of the child’s best interests remains and that includes any health concerns for the child: Smith v. Sieger, 2020 ONSC 1681 at para. 8.
[19] Parenting arrangement orders continue in effect and should be complied with. However, the parties must also be practical and exercise their common sense. A child should not be exposed to unreasonable risk but at the same time, COVID-19 is not an excuse to deny a person from having scheduled time with a child when there is no reasonable basis for doing so: see Le v. Norris, 2020 ONSC 1932 at paragraph 13. This will be a difficult balancing act because the best interests of a child includes a consideration of the child’s health and safety. Given COVID-19 and the threat it poses to the child, a person’s right to time with a child could be considered of less importance despite the terms of an existing court order.
[20] The parties to any existing order or agreement should review any terms that limit a person to time with a child in a public place, or which may expose a child to COVID-19. This is an opportunity for the parties to work together in an effective way to protect the child while still fostering and encouraging the child’s relationship with each of the parties. These plans require discussion between the parties, with a focus on the best interests of the child, and not unilateral action.
[21] With the above principles in mind, I turn to the case before me. There exists a filed agreement that the child will spend alternating weeks with each parent. The applicant alleges that the other parent has now refused to return the child. This is an allegation of a wrongful retention of the child and is clearly an urgent matter. As such, I have given permission for the applicant to file a notice of motion for the return of the child, which hopefully will be supported by an affidavit.
[22] The application for an urgent hearing also included a request for an order for “full-time guardianship” and supervised parenting time. Such an order requires a full hearing, which is impossible when hearings are currently restricted to telephone conferences. The applicant has also alleged that the other party was displaying emotional distress a number of months ago but this dated information is not evidence of any immediate concern justifying an urgent hearing.
[23] This matter will proceed only in relation to the application for the return of the child.
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The Honourable Judge W. Lee
The Provincial Court of British Columbia