Urgent Vancouver Surrey Child Custody Hearings are spiking under the COVID-19 Coronavirus pandemic. In today’s blog Lorne MacLean, QC and Fraser MacLean explain the new rules for Urgent Vancouver Surrey Child Custody Hearings and what evidence a Court will look toward in deciding firstly to hear the application because of urgency and secondly what type of evidence you need to put before the Court to allow it to properly decide the issues.
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In the new BC Provincial child custody dispute case of C.K.M v L.O.S., 2020 BCPC 75 Judge Ferriss reviewed what makes a Vancouver or Surrey family matter urgent enough to be heard:
[3]The Notice lists the types of matters that this Court is to consider in determining if a family matter is urgent. Those are:
a.Requests for urgent relief relation to the safety of a child or parent;
b.Requests to obtain or set aside protection orders, or urgent orders involving parenting time, contact with a child or communication between parties;
c.Urgent issues that must be determined relating to the well-being of a child, including essential medical decisions or issues relating to relocation, non-removal, wrongful removal or retention of a child;
d.Applications to suspend, change or cancel any order for imprisonment or committal pursuant to the Family Maintenance Enforcement Act;
e.In a child protection case, all urgent matters, including applications for supervision orders and for extension of time, and any other urgent motions or hearings; and
f.Urgent cases where irreparable harm will occur if the application is not heard.
Urgent Vancouver Surrey Child Custody Hearings Lawyers Can Help
So what does urgency mean for purposes of a Judge hearing a family matter during the current restricted court availability? Juge Ferriss went on to cite an Ontario decision:
[25] In Thomas v. Wohleber, 2020 ONSC 1965, at paragraph 37, the Ontario Superior Court of Justice referred to Onuoha v. Onuoha, 2020 ONSC 1815 in distinguishing between cases that are:
. . . “very important to the parties” and even urgent to one or both of them, from those that are “currently ‘urgent’” in accord with the Notice.
[26] The Court went on to set out four factors necessary to meet the Ontario Court’s requirement of urgency:
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.
Can A Family Matter Deemed Urgent Be Fairly Decided?
Judge Ferris then pointed out that meeting the test of urgency does not end the matter on when a family case should be heard during the restricted Court availability and pointed out:
[29] Even if the matter is deemed urgent under the Notice, I must determine if it can be appropriately decided, given the currently limited resources of our Court. In Johansson v. Janssen, 2020 BCSC 469, our Supreme Court commented on this factor:
[16] The authorization of a hearing under the RUH [Request for Urgent Hearing] process does not constitute a final determination that a matter is urgent. It remains for the judge or master hearing the application to determine whether it is in fact urgent and can be appropriately decided during the current state of emergency. Issues to be considered on the question of appropriateness may include the practical utility of any order, difficulties faced by parties in obtaining necessary evidence, and the possibility of changing circumstances as the emergency situation evolves.
Is This Matter Urgent?
Judge Ferriss decided the matter was urgent and should be heard because the wife refused to attend family justice counselling, she had not followed the court order, and the only way for the son to see his father was if the application proceeded.
Guidance For Evidence To Be Provided On Urgent Child Custody Applications
The Court then set out the evidence each party should provide to the Court as follows:
5. By Friday, April 24, 2020, Mr. M. will prepare and forward to Ms. S. and the Court Registry by email, an affidavit setting out at least the following:
• His current living situation and address;
• His current work situation;
• His proposal for parenting time with E., which should be specific and realistic, while fully addressing all COVID-19 considerations;
• The efforts he has made and can make to ensure E.’s safety, while adhering to the recommendations of public health officials at this time;
• Any specific concerns about Ms. S.’s living conditions, especially regarding COVID-19 considerations; and
• Any relevant facts regarding E.’s best interests as set out in s. 37 of the Family Law Act.
(Any documentation Mr. M. wishes to rely upon must be attached to his affidavit.)
6. By April 29, 2020, Ms. S. will prepare and forward to Mr. M. and the Court Registry by email, an affidavit setting out at least the following:
• Her current living situation and address;
• Her current work situation;
• Her proposal for parenting time with E., which should be specific and realistic while fully addressing all COVID-19 considerations;
• The efforts she has made and can make to ensure E.’s safety while adhering to the recommendations of public health officials at this time;
• Any specific concerns about Mr. M.’s living conditions, especially regarding COVID-19 considerations;
• Any relevant facts regarding E.’s best interests as set out in s. 37 of the Family Law Act; and
• Her response to Mr. M.’s affidavit.
(Any documentation Ms. S. wishes to rely on must be attached to her affidavit.)
If you have questions concerning Urgent Vancouver Surrey Child Custody Hearings, contact us at any of our 6 offices in Vancouver, Surrey, Richmond, Kelowna, Fort St John. and downtown Calgary.
