April 1, 2020

COVID-19 – URGENT APPLICATIONS IN FAMILY LAW

The following is for general information only. Obtain legal advice for your particular circumstances.

There have been a number of decisions related to applications brought on an urgent basis in family law matters. Most are in other provinces than British Columbia with one in BC’s Supreme Court that has been reported.

BC Courts continue to hear applications to determine whether they are urgent. If deemed urgent, then a hearing occurs by telephone. See our previous post about applications to the court.

The test for urgency in the current COVID-19 Pandemic was outlined in an Ontario case called Thomas v. Wohleber 2020 ONSC 1965. There are also other cases that deal with urgency based on the particular facts of those cases. In the following is a summary for those considering applying to court on an urgent basis in family law.

For what is urgent, review of the court’s definition of urgent applications is important. For the Supreme Court of British Columbia their practice direction states as follows:

“Essential or urgent matters in family proceedings include those in which the following relief is sought:

  • 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).”

https://www.bccourts.ca/supreme_court/documents/Notice%20of%20Suspension%20of%20Civil%20and%20Family%20Proceedings%20REVISED%20March%2030,%202020.pdf

The word “include” means that the courts have the discretion to determine whether other applications should be heard that are not otherwise listed. The practice directive also states:

While regular operations are suspended the Court will hear only essential and urgent matters.

The following family and civil matters are presumptively considered to be of an essential or urgent nature.

The Court has discretion to hear urgent matters other than those listed, and to decline to hear a matter listed.

Thus, applications for other type of relief are possible.

The Ontario Superior Court has issued a Notice which includes the following relief as urgent: “dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order“. Generally, a non-depletion order is to prevent a spouse from disposing or dealing with assets that are subject to another spouse’s interest. For e.g. if a spouse is taking money off a line of credit or disposing of funds from a bank account that are subject to a claim of the other spouse. The BC Courts have yet to report a decision that deals with non-child related relief or child support issues.

Thus, applications to deal with other non-child related issues on an “urgent” basis are possible. But before bringing any application, seriously consider the following:

  1. OUT OF COURT RESOLUTION: the law requires separated spouses or parents to try to resolve their differences without court intervention. In the current pandemic, this has never been more important and the courts are demanding it even more. Try to resolve it with the other party if at all possible. If the parties cannot resolve it between themselves, there are several options available: 4-way meetings (if with lawyers), mediation, parenting coordinators, or arbitration. All of this can occur remotely.
  2. ORDERS OR WRITTEN AGREEMENT: naturally the courts expect that agreements and court orders are complied with. So, if there is a written agreement or court order, abide by it or try out of court resolution. If it is urgent and cannot wait, then bring an application to court.

IS IT URGENT?

Refer to each practice directive of the court which lists those applications which it considers urgent. This may include non-child related applications that are otherwise not listed. Again, seriously consider whether it is in fact urgent.

Justice Kurz of the Ontario Superior Court set out factors to consider in determining whether an application is urgent in the current COVID-19 pandemic in a case called Thomas v. Wohleber 2020 ONSC 1965 at paragraph 38:

  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.

Consider Justice Kurz’s further comments:

[39]            The court’s adoption of the test of urgency in this time of pandemic requires all participants in the justice system, judges, lawyers and spouses/parents, to shoulder greater responsibility than they usually are required to assume in family litigation. They must assume this mantle of responsibility in order to ensure that the most urgent cases can continue be adjudicated by the court in these days of crisis. As Pazaratz J. pointed out in Ribeiro v. Wright, 2020 ONSC 1829 (Ont. S.C.J.):

Right now, families need more cooperation. And less litigation.

Remember, we are in a different time and things are changing rapidly as we deal with this pandemic. Take care and be safe, and try not to litigate!

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