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Alberta COVID-19 Urgent Family Law Matters

Alberta COVID-19 Urgent Family Law Matters – UPDATE is provided by our Calgary, Edmonton, Red Deer and Grande Prairie family lawyers. MacLean Law helps family law clients across Alberta and our lawyers are open for business and ready to help you resolve your family matters during COVID-19. Peter Graburn of our downtown Calgary family lawyers office provides this Alberta COVID-19 Urgent Family Law Matters update.

What a difference a few days make.  For the past 7-8 weeks, we have all been in a state of social and economic shutdown: social/physical distancing restrictions; businesses closed; Court hearings suspended, all but for the most “emergency and urgent” matters. But things are starting to change.  Next week, playgrounds, recreational facilities, campgrounds, and many non-essential businesses in Manitoba will be open.  In Quebec, elementary schools are planned to re-open in a few weeks. Alberta is taking a more cautious approach, implementing a 3-stage re-opening plan [starting with some outdoor activities (hiking, golf, etc.) over the next few days]. So what’s the update on Alberta COVID-19 Urgent Family Law Matters?

Alberta COVID-19 Urgent Family Law Matters

The same may be said for Court decisions regarding hearings of “emergency and urgent” matters across the country. Most of the Court decisions on these matters (particularly regarding co-parenting of children during COVID-19 restrictions) have come out of Ontario, the most notable being Ribiero v. Wright (2020 ONSC 1829), which set out a widely-cited “COVID-19 Protocol” for co-parenting in “emergency and urgent” matters. A few cases have come out of B.C. But until this past week, there was a noticeable lack of reported COVID-19 parenting cases in Alberta. Fortunately, that has now changed.

“Emergency and Urgent Matters”

On March 20, 2020, in response to the growing COVID-19 pandemic, the Alberta Court of Queen’s Bench issued Master’s Order #2, suspending all Court hearings except for “emergency and urgent matters”, stating:

“The Court will hear only emergency and urgent matters as set out in Appendix [C] to this Order. The Court has the discretion to hear urgent matters other than those listed, and to decline to hear a matter listed.”

Family law matters allowed to be heard under Appendix [C] include:

● Orders where there is a risk of violence or immediate harm to one of the parties or a child;

● Orders where there is a risk of removal of a child from the jurisdiction, and;

● Emergency Protection Order reviews.

Court’s Discretion – Alberta COVID-19 Urgent Family Law Matters

Fortunately, in Alberta, we are now starting to get some direction from the Court not only as to what makes a matter “urgent”, but also the guidelines the Courts will expect of parents co-parenting their children during the COVID-19 social / physical restrictions. In the case of Hasham v. Kanji (2020 ACQB 276) (released on April 20, 2020), Alberta Court of Queen’s Bench Justice P.R. Jeffrey expanded on the meaning of the Court’s discretion to hear urgent matters, noting (at para. 12):

“That is, for matters not fitting within the categories enumerated in Appendix C, the need for the hearing must nevertheless be “urgent”. Therefore, the test is not whether the Applicant has an indisputable case, a strong prima facie case, or even a merely sympathetic case. It is whether there is sufficient urgency to the application to warrant an exception being made to the province-wide public health containment efforts. Also, a determination must be made of its relative urgency. That is, the triage process necessitates a comparison between it and the various other individual requests vying for limited available court times.”

Court’s Expectations

Furthermore, we are also now getting some direction from the Alberta Courts as to how the Courts expect parties to co-parenting their children during the COVID-19 restrictions, and the evidence and standards the Courts will expect of parties to these “emergency and urgent” co-parenting applications. In the case of SAS v. LMS (2020 ACQB 287) (released on April 24, 2020), Alberta Court of Queen’s Bench Justice R.A. Graesser summarized the Court’s expectations of co-parents on “emergency and urgent” applications, stating (at para. 44):

With these comments in mind, I will summarize my conclusions:

1.      Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.

2.      Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.

3.     Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;…

5.      The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;…

8.      Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and

9.   Non-compliant parents can expect no second chances.”

These are unprecedented times – never have we had such a sudden and drastic shutdown of both social and economic activity.  We are all trying to adjust to these changes: social/physical distancing; working from home; reduced access to the Courts. Up to this time, Alberta parents (and their lawyers) have had to look to Courts in other provinces for guidance regarding how the Courts will view co-parenting issues under COVID-19 restrictions, particularly the “model of clarity and common sense“ set out in the Ontario case of Ribiero vs. Wright. Fortunately, we now have some “Alberta-made” direction in this regard.

MACLEAN LAW ALBERTA OFFICE IS OPEN FOR BUSINESS

In time, the Courts will re-open (initially remotely) to non-urgent matters, but this may be many months. For now, the Courts are still only able to handle emergency and urgent matters. MacLean Law remains open to assist its Clients to bring forward emergency and urgent co-parenting applications while general Court hearings are suspended, and as that suspension and the COVID-19 social/physical distancing, restrictions are gradually lifted.

We hope this Alberta COVID-19 Urgent Family Law Matters update helps you understand steps separated parents should take to minimize risk to children during these difficult times. If you can’t resolve matters with your ex-spouse let us help you use the strategies in this Alberta COVID-19 Urgent Family Law Matters update to help your children and yourself obtain justice.