Given the ongoing COVID-19 pandemic, Courts throughout Alberta (and throughout Canada) are operating on a very limited basis and only permitting urgent cases to proceed. This is difficult for many litigants who have either had their previously scheduled court matters adjourned indefinitely, or who feel they are facing an urgent issue but are uncertain with respect to whether they meet the Courts’ ever-changing definition of “urgent.”
So – how do you determine if your case is “urgent” enough to warrant an emergency application to the Court during these strange times? What does the Court consider in determining whether or not case is urgent?
A recent case out of Ontario, Ribeiro v. Wright, 2020 ONSC 1829, sheds some light on how the Courts’ determine urgency in the current circumstances. In this case, the Ontario Superior Court of Justice made the following helpful comments with respect to its’ thought process in determining whether or not a case is urgent enough to proceed during the pandemic:
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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. We will deal with COVID-19 parenting issues on a case-by-case basis.
- 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.
If you have a question about your family law case, or think you may be dealing with an urgent issue that requires immediate attention, contact the experienced family law lawyers at Vogel LLP. We are here to help you during these difficult times.