Urgent Applications During COVID-19
COVID-19 has had a widespread effect felt throughout the City of Calgary and the judicial system is no exception. The Calgary Courts Centre is typically full of people from all walks of life attending to various legal issues. The busy nature of day to day operations make the courthouse a high risk location in the midst of a global pandemic. As a result, the Court of King’s Bench and Provincial Court are only hearing “emergency and urgent” matters. In family law, the personal implications of every matter may make it seem like it is an emergency. However, the courts have emphasized that this is not the case.
There has yet to be a reported decision from Alberta setting out what qualifies as emergency or urgent in the family context. However, courts have been taking the lead from a number of Ontario and British Columbia decisions dealing specifically with triaging emergency or urgent cases to proceed before a judge.
Ribeiro v. Wright 2020 ONSC 1829 was the first case from Ontario to serve as a roadmap for urgent family applications during COVID-19. The decision is written by the Triage Judge responsible for determining whether the file meets the threshold of urgent and warrants a hearing. In this instance, the Judge held that this matter did not constitute an emergency and it was not authorized to proceed to a hearing.
In this matter, the parties have joint custody of their son and the son’s primary residence is with the mother. The father has always had regular access with the child and the current schedule is alternating weekends from Friday – Sunday. The mother brought an “urgent” application to suspend the father’s access with the child due to COVID-19. Her primary concern was that the father would not appropriately social isolate and she planned to keep their son from leaving her house under any circumstance.
The Court set out principles to guide parenting applications in the face of COVID-19:
- 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.
- 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.
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- 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.
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- 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.
The Judge found that the mother did not present sufficient evidence to establish a “failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future”. As such, the former parenting order governed and the father’s access should continue as set out in same. Lastly, the Court emphasized the necessity of the parents working together to address health and safety issues for their child.
The takeaway from this case is that the court expects parents to work together to establish a plan for their children during the pandemic. This plan should attempt to maintain the status quo parenting time and both parties should diligently comply with health and safety protocols.
At Vogel LLP, we have a team of family lawyers prepared to assist individuals facing parenting issues arising from COVID-19. We are committed to continuing to provide top tier service during this uncertain time and are available for consults by telephone or video conference.