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CO-PARENTING IN THE COVID-19 ERA

CO-PARENTING IN THE COVID-19 ERA raises financial issues as well as parenting time and parenting responsibilities issues. Fraser MacLean of our downtown Vancouver family lawyers team has been answering a lot of BC CO-PARENTING IN THE COVID-19 ERA  questions so he decided to write this blog to help separated parents understand their obligations to their children and their options if their children’s best interests are being threatened.

The coronavirus disease (COVID-19) pandemic has brought with it unique obstacles to parents who co-parent and their children. With parents facing changing job requirements and restricted social interaction, combined with children’s schools, daycares, and extra-curricular activities closing, coordinating tasks and responsibilities as a parent has become extremely difficult. CO-PARENTING IN THE COVID-19 ERA lawyers help you sort through the new challenges.

CO-PARENTING IN THE COVID-19 ERA 1 877 602 9900

In this unprecedented and challenging time, children need the love, guidance and emotional support of both parents more than ever. 

The current landscape requires effective communication, cooperation and common sense for parents to craft arrangements that are in the best interest of their children. 

Unfortunately, COVID-19 has created more potential points of conflict for separated parents and their children. Tensions are running high, and not all parents may be able to be rational and sensible during this time. That is why it is important to hire an experienced, proactive COVID-19 Family Lawyer to help guide you through this challenging time. 

COVID-19 Response in British Columbia 

On March 18, 2020, Chief Justice Hinkson issued a direction suspending all regular operations, effective immediately in BC Supreme Court and similar directives have been made in the  BC Court of Appeal and BC Provincial Courts. 

The Court remains available, however, to deal with urgent and emergency matters. Lorne MacLean, QC just won a BC Court of Appeal case conducted by teleconference just last week.

Today’s Vancouver Sun ran a story on the case in today’s blog and another one involving a dispute over parenting time where issues were raised about the abilities of parents to keep children safe during the COVID-19 Coronavirus. Ian Mulgrew just wrote an article sharing the case we profile in this blog.

What Qualifies as Urgent? 

To be considered urgent, there must be some issue of immediate concern. The Honourable Judge W. Lee provided examples of this in the case of J.W. v C.H. 2020 BCPC 52. These may include: 

1) An imminent plan to relocate with a child or to remove a child. 

2) An imminent or recent threat of family violence against a family member. 

3) An imminent threat that a party may be arrested or committed to jail.

4) An imminent risk of irreparable harm, including undue financial loss, if an application is not heard at this time.

More details on this can be found outlined in our blog here.

Recent B.C Provincial Court Judgment 

In Judge W. Lee’s recently released April 2, 2020 reasons in J.W. v. C.H. 2020 BCPC 52 the Court allowed only the critical matter to proceed and set out directions courts will follow on hearing matters on disputed CO-PARENTING IN THE COVID-19 ERA.

In this case, there was an existing filed agreement that the parties’ child would spend alternating weeks with each parent. The applicant alleged that the other parent has refused to return the child. 

The Court found this to be an allegation of wrongful retention of the child and an urgent matter to be heard in Court. The application also included an order for “full-time guardianship” and supervised parenting. 

The Court ruled that only the matter relating to the application for the return of the child, and not the request for “full-time guardianship” would proceed. 

The Court provided the following reasons: 

[13] As set out in s. 37 of the Family Law Act, the parties and the court must always consider the best interests of the child. A matter may be urgent if it would be contrary to the best interests of the child if an application were delayed. 

[14] Once there is a determination that an application is urgent, then the applicant must still comply with the court procedures set out in the Family Law Act and the Provincial Court (Family) Rules, unless otherwise ordered by a judge. The applicant must still file a proper notice of motion. As the court is only conducting hearings by teleconference at this time, applications should be supported by an affidavit if possible. 

[15] The court is of course aware that having an affidavit sworn may be difficult since there is no longer open access to the court registry and lawyers or notaries may not be willing to meet a deponent in person. Therefore, a judge may be prepared to accept other evidence if it is both necessary and reliable, taking into account ss. 199 and 202 of the Family Law Act. In the decision Young v. CRC Self Help, 2020 ONSC 1715 the court said that if a sworn affidavit could not be obtained, the affiant could swear to the truth of the affidavit’s contents by phone. At times like this, the court must be flexible. An example of this is the Provincial Court Notice to the Profession and the Public No. 20 issued March 20, 2020, which allows an affidavit to be sworn using video technology. 

[16] If an application relates to an allegation that a party is not complying with COVID19 protocols, such as have been issued by the Provincial Health Officer, there should be specific examples of such behavior or actions: see Ribeiro v Wright, 2020 ONSC 1829 at para. 21. There must be more than mere suspicions. 

[17] Any resulting orders made under these circumstances are likely to be interim and made on a without prejudice basis. Indeed, in Ontario, the courts have been describing such orders as “temporary, temporary, without prejudice orders”: see for example Phipps v. Petts, 2020 ONSC 1999. The nature of such orders is that they would be subject to review or variation when there is an opportunity for a full hearing and that a party would not be prejudiced by the terms of any interim orders made while the COVID-19 protocols are in place. Furthermore, a material change of circumstances may not be required to justify a change in such orders.

[18] The overriding principle of the child’s best interests remains and that includes any health concerns for the child: Smith v. Sieger, 2020 ONSC 1681 at para. 8. 

[19] Parenting arrangement orders continue in effect and should be complied with. However, the parties must also be practical and exercise their common sense. A child should not be exposed to unreasonable risk but at the same time, COVID-19 is not an excuse to deny a person from having scheduled time with a child when there is no reasonable basis for doing so: see Le v. Norris, 2020 ONSC 1932 at paragraph 13. This will be a difficult balancing act because the best interests of a child includes a consideration of the child’s health and safety. Given COVID-19 and the threat it poses to the child, a person’s right to time with a child could be considered of less importance despite the terms of an existing court order. 

[20] The parties to any existing order or agreement should review any terms that limit a person to time with a child in a public place, or which may expose a child to COVID19. This is an opportunity for the parties to work together in an effective way to protect the child while still fostering and encouraging the child’s relationship with each of the parties. These plans require discussion between the parties, with a focus on the best interests of the child, and not unilateral action. 

[21] With the above principles in mind, I turn to the case before me. There exists a filed agreement that the child will spend alternating weeks with each parent. The applicant alleges that the other parent has now refused to return the child. This is an allegation of a wrongful retention of the child and is clearly an urgent matter. As such, I have given permission for the applicant to file a notice of motion for the return of the child, which hopefully will be supported by an affidavit.

[22] The application for an urgent hearing also included a request for an order for “full-time guardianship” and supervised parenting time. Such an order requires a full hearing, which is impossible when hearings are currently restricted to telephone conferences. The applicant has also alleged that the other party was displaying emotional distress a number of months ago but this dated information is not evidence of any immediate concern justifying an urgent hearing.

[23] This matter will proceed only in relation to the application for the return of the child.

CO-PARENTING IN THE COVID-19 ERA Lawyers Can Help

If you are facing disputes due to COVID-19 in your family matter, we can help.  Please contact a member of our MacLean Family Law COVID 19 family lawyer team today. 1 877 602 9900