The courts are closed because of COVID-19: What happens to my family law case?

“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 highest trial court in British Columbia. Expressing similar sentiments, both the Court of Appeal and British Columbia’s Provincial Court have done the same. The wheels of justice—not always speedy at the best of times—have practically ground to a halt.

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

At the same time “urgent business” has been allowed to continue. Of course everyone feels that their case is urgent. The Court does not always agree. The Rules of Court contain very specific rules about when matters can be heard, with detailed timelines that must be adhered to. However, certain applications are allowed to proceed on abridged timelines, called ‘short notice.’ These are  applications that are considered urgent.

So the idea of special treatment for urgent business is nothing new. Matters that were considered urgent in the past (and thus able to proceed more quickly than usual) are the same kinds of matters that will be allowed to proceed under the current guidelines.

The Court has issued further guidance explaining what constitutes an urgent family matter during the COVID-19 pandemic:

1.      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. In other words, where the safety or security of a party or a child is at risk, the Court will continue to act.

2.      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, in Smith v. Sieger, 2020 ONSC 1681, the Ontario Superior Court of Justice 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:

  [7]               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.

  [8]               The issue faced by the Court, not unlike all issues pertaining to children, is to be decided in a manner consistent with Adam’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 would undergo 14 days of self-quarantine.

3.      Orders relating to the well-being of a child (such as essential medical decisions, urgent issues relating to parenting time or communication with a child that cannot be reasonably delayed). This last category is hard to predict. We expect that many parents—rightly or wrongly—will restrict the other parent’s time with the child on the grounds of self-isolation or social distancing. Will the Court really intervene in these cases on an urgent basis? I suspect that only the most egregious of cases—where a parent is cutting off all communication (including telephone or video communication) will result in the Court hearing the matter. With that being said, in DeGiorgio v. DeGiorgio, 2020 ONSC 1674, the Court appeared to allow an interim hearing on overnight and holiday parenting time, to be conducted in April in writing, by conference call or video connection.

The Court has also said that certain civil matters are urgent, including “civil restraining orders, preservation orders [and] urgent injunction applications”. This suggests that similar family law orders—such as orders that prevent a party from selling, transferring or disposing of assets—will also be considered urgent and allowed to proceed. Again in the Ontario context, in Ali v. Tariq, 2020 ONSC 1695, the Superior Court seems to have agreed to hear an application for the setting aside of a default judgment in order to permit a sale of land on an urgent basis, with hearing to take place by telephone or video conference on electronic materials.

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

I Think I Have an Urgent Family Matter. Now What?

If you think that you have an urgent family matter as described above, you will have to apply to the Court having jurisdiction over your matter for a Judge to determine whether your 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 (the “BCSC.”) has set up a temporary online submission process which can be found here.

The Provincial Court of British Columbia (the “BCPC”) allows you to file your application by email, phone, mail or fax to your local court registry. Note, any non-urgent filings will not be accepted by the BCPC from March 18, 2020 to May 16, 2020.

What Happens After I Apply?

If you made an application through the BCSC, you and the opposing party(s) will receive an email confirming the receipt of your application with instructions for next steps. At this time, both parties should also file any relevant materials which will help the court determine whether or not your matter is sufficiently urgent to require a hearing. If further materials are not provided, the court will move forward without the materials and make a determination as to whether or not your matter requires an urgent hearing. If your 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.

If you made an application through the BCPC, you will hear back from your local court registry letting you know whether your application will proceed, and if it will proceed, you will be given a time and date for when your application will be heard. It is important that you have all of your materials and argument ready to go when you file your application as you may be given short notice of your hearing date. Notice can be as short as a couple of hours. Again to promote social distancing, you may be able to appear at the hearing by phone instead of having to attend the courthouse. At the hearing, the Judge may make an order without notice or provide further directions and instructions including, but not limited to, the service of your materials on the other parties.

We at Connect Family Law have extensive, experience dealing with urgent applications. We have successfully had matters dealt with on an urgent basis both before and after the COVID-19 outbreak. If you have an urgent family matter and require immediate assistance  please contact us as soon as possible.

NOT LEGAL ADVICE. Information made available on the Connect Family Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.