C.K.M. v. L.O.S., 2020 BCPC 75 (CanLII)
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2020 BCPC 75 |
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Date: |
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File No: |
F42628 |
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Registry: |
Surrey |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Family Division
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
C.K.M.
APPLICANT
AND:
L.O.S.
RESPONDENT
DECISION
OF THE
HONOURABLE JUDGE K.J. FERRISS
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Appearing on their own behalf: |
C.K.M., (Applicant) by telephone |
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Appearing on their own behalf: |
(Respondent not present) |
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Place of Hearing: |
Surrey, B.C. |
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Date of Hearing: |
April 17, 2020 |
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Date of Judgment: |
April 20, 2020 |
[1] Mr. M. (“C.K.M.”) filed an Application for Urgent Hearing on April 9, 2020, which came on for hearing on April 17, 2020. He has asked the Court to determine that his application for parenting time to his son is urgent and may proceed. Ms. S. (“L.O.S.”) was not present, although the Court did attempt to contact her by telephone several times during that day.
[2] As a result of COVID-19, on March 19, 2020, the Provincial Court of BC has issued a Notice to the Profession and the Public suspending regular court operations. The Notice was updated on March 23, 2020. The Notice adjourned all family matters scheduled for court between March 18 and May 16, 2020 without the parties having to attend at court unless a Judge found the matter urgent.
[3] The Notice lists the types of matters that this Court is to consider in determining if a family matter is urgent. Those are:
a. Requests for urgent relief relation 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.
[4] Urgency is determined by a judge on application by one of the parties. The sole issue I must decide today is whether Mr. M.’s application for parenting time is an urgent matter under the Notice. If I find the matter to be urgent, I will also make a determination of how the matter is to proceed.
FACTS
[5] This is Mr. M.’s second application for an urgent family order. His first came before me in the form of a Notice of Motion on March 25, 2020.
[6] On March 25, Mr. M. was affirmed over the telephone and testified that the facts set out in his unsworn affidavit were true. It was filed as Exhibit 1 to the proceedings.
[7] Mr. M.’s evidence was that he and Ms. S. lived together commencing in July 2013. Their son E. was born on [omitted for publication], making him four years old. He is autistic. Mr. M. said that while they were together, he and Ms. S. co-parented E.
[8] On March 6, 2020, Mr. M. and Ms. S. had an argument and he left the house because he did not want to fight in front of E. He took E. to his brother’s home at around 7:00 p.m.
[9] When he returned home to obtain some things for E., the police were there. The police asked Mr. M. to stay away until the following day. He returned to his brother’s home.
[10] At 1:00 a.m. on March 7, 2020, Ms. S. called him to tell him he could get E.’s toothbrush, and when he returned to their home, she invited him in to talk. About half an hour later, Ms. S. became loud and angry, so he decided to leave again. The police arrived at their house as he was leaving, and he returned to his brother’s house.
[11] On March 9, Ms. S. and he decided to try to make things work. He returned home with E., and the parties apparently reconciled. However, when Mr. M. returned home from work on March 13, 2020, he found that Ms. S. had packed most of E.’s and her belongings and left. When he contacted the RCMP, they advised Mr. M. that his son was safe. Ms. S. did let him talk to E., but contact was brief and sporadic. She would not let Mr. M. know where she was living, which concerned him.
[12] Mr. M. says that there has never been any family violence, and his position was that he should have E. 50% of the time.
[13] Prior to the lunch break on March 25, 2020, I tried to reach Ms. S. on her cell number from the courtroom, but she did not answer. As a result, I asked Mr. M. to text Ms. S. with the information that the Court was trying to contact her regarding his application. When we resumed after the lunch break, Ms. S. still did not answer the phone.
[14] I made a without notice protection order providing that neither party could remove E. from the jurisdiction of the Lower Mainland of British Columbia. I also made an order for substituted service of Mr. M.’s court documents and the order on Ms. S. by way of text message. I put the matter over to March 27, 2020 so that Ms. S. could attend by telephone in order to work out some type of parenting time.
[15] Both parties appeared by telephone on March 27, 2020. Ms. S. said that on March 26, 2020, she had been advised by a social worker, Shannon O’Keefe, to self-isolate for 14 days, as she had been staying with friends who continued to work outside of the home. She denied receiving any court documents, although Mr. M. stated that he had sent them by text message on March 25, 2020 as required by my order for substituted service.
[16] Ms. S. said she was willing to allow parenting time by Skype to Mr. M. twice per day, but not “in person” parenting time. Mr. M. was not satisfied with such limited parenting time, but given the circumstances, I ordered that she provide parenting time via Skype twice a day, and suggested that the parties contact the Family Justice Counsellors to see if they could reach an agreement through mediation.
[17] There was no indication that E. was not safe, and Mr. M. was at least having some contact with him, albeit through Skype. The parties were unable to address the matter over the telephone without making accusations, arguing and cutting each other off.
[18] Mr. M. has now applied for another urgent hearing. He says that Ms. S. has not followed the order I made on March 27, 2020, in that she has not allowed him to see E. over Skype. She has not attempted mediation through the Family Justice Counsellors. His Application for an Urgent Hearing states that Ms. S. had said she would let Mr. M. have E. for the Easter weekend, but had since changed her mind.
[19] Mr. M. appeared by telephone before Judge La Prairie on April 9, 2020 in relation to his Urgent Hearing application. He said that she had been notified of the Urgent Hearing Application by way of text message.
[20] Judge La Prairie made an order that Mr. M. have parenting time on the Easter weekend, and put the matter over to April 17, 2020, when I was next scheduled to be in court. He allowed Mr. M. to serve the Order of April 9, 2020 by text message. He did not make any determination as to whether Mr. M.’s Application for an Urgent Hearing should be granted.
[21] Mr. M. did not serve the April 9, 2020 Order by text message, as he understood that the court registry would do that for him. I have reviewed the text messages sent between the parties regarding these hearings, and I am not satisfied that Ms. S. knew of the adjourned court date of April 17, 2020.
[22] I have also read the letter from Shannon O’Keefe, Child Protection Social Worker with the Ministry of Children and Family Development, dated March 31, 2020. She said that she has completed her assessment under the Child, Family and Community Services Act, and that, at this time, there is no need for further Ministry involvement. She has closed her file. She goes on to say that Mr. M. must ensure that his child is not exposed to domestic disputes and adds, “Please be advised that the MCFD is likely to take more intrusive actions should there be another report of similar nature.”
Review of the Case Law Regarding Urgent Hearings
[23] In my review of the decisions made regarding reduced court operations as a result of COVID-19 in both British Columbia and Ontario, I could not find one that dealt with a situation where the parties had separated recently and did not have an agreement, order, or even a status quo for parenting time in place. However, several of the cases provided helpful perspectives when determining whether a matter was urgent.
[24] In Ribeiro v. Wright, 2020 ONSC 1829, the Ontario Superior Court of Justice made the following observations:
21 We will deal with COVID-19 parenting issues on a case-by-case basis.
a. 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.
b. 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.
c. 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.
d. 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.
22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.
23 Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.
24 In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.
[25] In Thomas v. Wohleber, 2020 ONSC 1965, at paragraph 37, the Ontario Superior Court of Justice referred to Onuoha v. Onuoha, 2020 ONSC 1815 in distinguishing between cases that are:
. . . “very important to the parties” and even urgent to one or both of them, from those that are “currently ‘urgent’" in accord with the Notice.
[26] The Court went on to set out four factors necessary to meet the Ontario Court’s requirement of urgency:
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.
[at para. 38]
[27] In S.R. v. M.G., 2020 BCPC 57, at para. 22, Judge Bond set out the factors she considered in assessing a child’s best interests when determining whether parenting time should proceed when the mother was a health care worker. Those are:
a) Whether the child is at an elevated risk of suffering the more severe consequences of the virus;
b) Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;
c) Each party’s exposure to the risk of contracting the virus;
d) Steps taken by each party to mitigate the risk of exposure;
e) All of the relevant factors listed under s. 37 of the Family Law Act, including:
a. The child’s health and emotional well-being;
b. The child’s views, where appropriate;
c. The child’s relationship with each parent;
d. The history of the child’s care;
e. The child’s need for stability, given his age and stage of development;
f. Each parent’s ability to exercise his or her parental responsibilities;
g. The ability of each party to cooperate in parenting the child; and
f) In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.
[28] In the S.R. case, Judge Bond noted that the child was not at an elevated risk and that both parties had taken steps to mitigate the risk of exposure. In particular, she found that the child, who was eight, would benefit from safe contact with his primary caregiver. He had the benefit of two involved parents and had a solid relationship with both. Maintaining close contact with both parents was important for his healthy development.
[29] Even if the matter is deemed urgent under the Notice, I must determine if it can be appropriately decided, given the currently limited resources of our Court. In Johansson v. Janssen, 2020 BCSC 469, our Supreme Court commented on this factor:
[16] The authorization of a hearing under the RUH [Request for Urgent Hearing] process does not constitute a final determination that a matter is urgent. It remains for the judge or master hearing the application to determine whether it is in fact urgent and can be appropriately decided during the current state of emergency. Issues to be considered on the question of appropriateness may include the practical utility of any order, difficulties faced by parties in obtaining necessary evidence, and the possibility of changing circumstances as the emergency situation evolves.
Is This Matter Urgent?
[30] An important consideration is that there are likely many cases where a parent is unhappy with the current parenting time arrangements. Those parents may even have had their trial cancelled as a result of the Notice. It would be unfair to those parents to proceed in this case if the matter does not meet the definition of urgency as set out in the Notice. Clearly not every case can fit the criteria for urgency under the Notice.
[31] In this case, I find that Mr. M.’s application for parenting time has become urgent for the following reasons:
1. Mr. M. has apparently attempted to contact the Family Justice Counsellors to try mediation with Ms. S. regarding parenting time, and she has not participated;
2. Ms. S. has apparently not followed the Order allowing Mr. M. to see E. by way of Skype, although she agreed to do so on March 27, 2020; and
3. It is not a case where Mr. M. is simply unhappy with the amount of parenting time he has been provided by Ms. S. Mr. M. has not had any in person parenting time with E. since separation, and an Order appears to be the only way he will be able to see his son. I note that he is seeking the extraordinary remedy of a police enforcement clause.
[32] I also take into account that E. is a four-year-old boy with autism. Until mid-March, he resided with both Ms. S. and Mr. M., and that was the status quo. He needs to have a relationship with both of his parents, as well as consistency in his schedule, provided that can be done safely.
[33] Accordingly, I am allowing the Urgent Hearing.
Procedure Going Forward
[34] Because it is not “business as usual” for those of us at court, or really anywhere in our society, I am setting out the method by which this matter will proceed. The court’s resources are reduced and so is its ability to hold a traditional hearing with parties personally appearing before the Court. Additionally, it does not appear that Mr. M. or Ms. S. can resist the urge to argue on the telephone, which is our only source of communication in these types of proceedings. Therefore, the Urgent Hearing will proceed by way of affidavit as follows:
1. I am seizing myself of this matter.
2. The Registry will email a copy of this decision to Ms. S. and Mr. M. today, together with the entered Court Order.
3. The Registry will also fax a copy of this decision and the entered Court Order to Ms. Shannon O’Keefe, at [fax number omitted for publication]. If Ms. O’Keefe wishes to join by telephone at the hearing, she must email the Surrey Family Court Registry at SurreyCourtRegistry@gov.bc.ca to advise of her contact information by close of business May 1, 2020.
4. On or before 4:00 p.m. on April 21, 2020, Mr. M. must text Ms. S. a message advising her to check her emails for an email that will be sent to her from the Court Registry. He must also send a copy of the entered Order by text to Ms. S.
5. By Friday, April 24, 2020, Mr. M. will prepare and forward to Ms. S. and the Court Registry by email, an affidavit setting out at least the following:
• His current living situation and address;
• His current work situation;
• His proposal for parenting time with E., which should be specific and realistic, while fully addressing all COVID-19 considerations;
• The efforts he has made and can make to ensure E.’s safety, while adhering to the recommendations of public health officials at this time;
• Any specific concerns about Ms. S.’s living conditions, especially regarding COVID-19 considerations; and
• Any relevant facts regarding E.’s best interests as set out in s. 37 of the Family Law Act.
(Any documentation Mr. M. wishes to rely upon must be attached to his affidavit.)
6. By April 29, 2020, Ms. S. will prepare and forward to Mr. M. and the Court Registry by email, an affidavit setting out at least the following:
• Her current living situation and address;
• Her current work situation;
• Her proposal for parenting time with E., which should be specific and realistic while fully addressing all COVID-19 considerations;
• The efforts she has made and can make to ensure E.’s safety while adhering to the recommendations of public health officials at this time;
• Any specific concerns about Mr. M.’s living conditions, especially regarding COVID-19 considerations;
• Any relevant facts regarding E.’s best interests as set out in s. 37 of the Family Law Act; and
• Her response to Mr. M.’s affidavit.
(Any documentation Ms. S. wishes to rely on must be attached to her affidavit.)
7. By May 1, 2020, Mr. M. will prepare and forward to Ms. S. and the Court Registry, by email, an affidavit replying to any information or facts contained in Ms. S.’s affidavit that he has not addressed in his affidavit.
8. Mr. M. must also prepare an affidavit indicating that he has served both Ms. S. and Ms. O’Keefe as set out above. The affidavit of service must be emailed to the Court Registry by May 1, 2020.
9. The affidavits do not need to be sworn or affirmed before a commissioner, but the parties must expect to affirm as to the truth of the contents of their affidavits by telephone at the hearing, and have the affidavits marked as Exhibits.
10. The hearing will proceed by telephone on Monday, May 4, 2020, at 2:00 p.m., with both parties attending. The hearing will proceed even if one party does not attend, provided that Ms. S. and Ms. O’Keefe have been notified as set out above. The parties must be available at their telephone numbers until 4:30 p.m. in case another matter proceeds theirs. The parties should note that the courthouse telephone number will not be displayed, but will likely show as “Private Caller” or “No Caller ID”.
11. The evidence at the hearing will only be that contained in the affidavits, unless Ms. O’Keefe wishes to add anything. The parties will not be able to add any new information unless permitted by me.
12. Mr. M. will have no more than 20 minutes to make his submissions, followed by Ms. S., who will have no more than 20 minutes to make hers. Mr. M. will have 5 minutes for rebuttal if necessary, unless permitted otherwise by me.
13. While a party is making his or her submissions, the other party will put his or her phone on mute until it is his or her turn. Neither party will interrupt the other’s submissions without my permission.
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The Honourable Judge K.J. Ferriss
Provincial Court of British Columbia