Is my Family Law Case Considered Urgent?

By Camille Boyer, Calgary Family Lawyer
It is nearing two months since life changed drastically for all Albertans in response to the spread of COVID-19. The courts and the legal profession have made swift and major changes to their day-to-day operations, including the ongoing restriction of court sittings in Alberta including in family law. While the courts have not completely closed their doors, only urgent and emergency matters will be heard at this time. This has left some separated or divorced parents wondering whether their family law case can move forward in court and, if so, how to start the process of getting a court date.

According to the Alberta Court of Queen’s Bench announcements regarding COVID-19, emergency family law matters are defined as “those in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order, including but not limited to:

  • 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.
  • Emergency Protection Order reviews.”

If you believe that your family law issue is an emergency as defined above, you should contact your family lawyer immediately. If you have an emergency situation as defined above but are representing yourself, you can visit the Court website for more directions on how to proceed. You can also hire a lawyer to help you with legal coaching so you can represent yourself better.

The announcement from the Alberta Court of Queen’s Bench on March 23, 2020 elaborates that urgent matters which are not an emergency must also be addressed in a timely fashion. This means that even if a matter is not an absolute “emergency”, but is time sensitive, the court is still going to find a way to have it heard as soon as possible. Included in the definition of “urgent” family law matters are “orders relating to parenting time, contact or communication with a child (that cannot reasonably be delayed)”.

This definition is quite broad, and it is unlikely that a family law matter concerning a child could be reasonably delayed without impacting the best interests of the child. However, if there is already a parenting schedule in place and that is being follow by the parties, it is unlikely the court would hear an application to vary parenting at this time. This was confirmed in the recent decision of the Honourable Justice Jeffrey in Hasham v Kanji, 2020 ABQB 276. Although the Applicant in that case had an important application, it did not rise to the level of urgency required for a hearing at this time.

An example of a pressing concern would be if a parent was being denied time with their child, or if a parent wanted to relocate with a child. While neither of these circumstances are an “emergency”, they arguably should not be delayed as it will prejudice the child and/or the parents.

Also, we continue to receive numerous inquiries about whether or not a parent will have to facilitate parenting time with the other parent due to any possible risk of exposure to COVID-19. Many parents are asking if they can get to court and what will happen to them if they disobey their parenting order.

First and foremost, all court orders are still in effect at this time despite COVID-19. If a parent wishes to suspend or limit the other parent’s time, they must do so with an urgent or emergency court application. According to a recent case in Ontario, the applying parenting 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.

Judges are well aware of the serious concerns and risks associated with COVID-19. If a parent is worried about risks posed to their children, but also worried about breaching their court order, it is imperative that they apply to the court on an urgent basis before making a unilateral decision. Otherwise, they could risk a costs award against them or even be held in contempt for failing to follow their court order.

If a parent is faced with a situation where they are the one being denied parenting time, this would also likely be considered an urgent family law matter that the court would deal with. According to another recent case from Ontario, an application to enforce parenting time which is being unreasonably denied, including parenting time being denied for COVID-19 related concerns, would likely be urgent because “it deals with safety of the child/parent, restrictions of contact and well-being of the child and issues relating to the retention of the children”. The court in that case noted that, while not urgent in and of itself, such a matter would need to be addressed by the court because it deals with upholding respect and compliance with existing court orders.

Parents and family lawyers should be careful not to rely on the court’s restricted sittings at this time in order to better their positions or, worse, to ignore current court orders. The court will not condone this type of behaviour. Judges will likely be very attuned to any such strategy meant to capitalize on the restriction of sittings in family law and divorce cases, and once the court resumes regular operations, such conduct could very well backfire.

However, there are situations in which a parent may deny another parent parenting time even when there is an order. These situations arise when there is risk to the child’s health or wellbeing, including domestic violence, neglect or addiction issues. Every parent has a duty to protect their child from abuse and a parenting order can be breached if required to protect the child from abuse.

It is unknown at this time how long the Alberta court’s restrictions on family law applications will remain in place, and how the court will lift those restrictions. It is possible that the court will gradually lift restrictions, similar to the manner in which the Alberta Government has indicated social distancing and other closures could be lifted. However, it is unlikely that, overnight, the day-to-day operations in Alberta will return to “normal”. Therefore, particularly with time-sensitive or pressing family law matters, it is imperative that parents act as soon as possible if they will require a court hearing. We expect a major backlog of family law and divorce cases once the courts do reopen.

The Calgary family law lawyers at Crossroads Law continue to closely follow all updates and announcements from the court. If you wish to schedule a free consultation to determine if your matter would be considered urgent, and to discuss your options for applying to the court at this time, please contact us.