As we drag ourselves past the first month of COVID-19 isolation, some of the potential ramifications are starting to come into focus. Every area of life is affected – every job, every social interaction, every plan and arrangement that people have made. My area is family law in British Columbia, and it is facing a double disruption:
Firstly, the pandemic has brought with it a host of problems and issues which have not seen before. Concerns about children’s safety, compliance with distancing recommendations, and interaction with third parties are at the forefront. People paying child and spousal support are experiencing layoffs and income reduction. People receiving maintenance are facing non-payment.
Lawyers are dealing with these matters on an individual basis and on the merit of the facts of each case. Often, there will be ways to negotiate a resolution to the concern without the need to involve the court system. Sometimes, though, court will still need to be invoked to lead to the change which is needed. In all matters involving children, it is so important to remember that their interests – not those of the parents – are what must be promoted and protected. There is rarely a single side to an issue and in the vast majority of circumstances, parents are honestly doing what they believe is best for their kids.
Sadly, there are situations where people take advantage. There are times that children are denied time with the other parent, maintenance payments are skipped, or people fail to acknowledge the reality of a true drop in income, all for the parents’ purposes rather than the children’s. In our pre-coronavirus world, all of these would have characterized as “urgent matters”.
That brings us to the second disruption. On a nationwide basis, the courts have determined that they will only hear urgent matters, and crucially, not everything that used to be urgent now makes the cut. As we discuss further here, the courts in BC have issued directives which limit urgent applications to those which fall into the following categories:
- requests for urgent relief relating to the safety of a child or parent;
- requests to obtain or set aside protection orders, or urgent orders involving parenting time, contact with a child or communication between parties;
- 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;
- applications to suspend, change or cancel any order for imprisonment or committal pursuant to the Family Maintenance Enforcement Act;
- 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,
- urgent cases where irreparable harm will occur if the application is not heard.
While it sounds like this could cover a host of important, pressing issues, courts across the country have begun hearing applications for designations of urgency and have interpreted the directives very narrowly. Unless one can show an immediate and irreparable harm, the matter will not be heard. The trouble, of course, is that most harm (loss of income, loss of maintenance, denial of parenting time) graduates slowly from being repairable to irreparable. A single missed payment might be able to be covered through savings. A second might cause long term financial distress. After a third, the damage might not be recoverable. Many, many people are being lost in the cracks.
As I have discussed in a separate post, the effects of limiting access to justice to only a very few narrowly chosen disputes will be felt long into the future, with the backlog of important, life changing cases further slowing what was before COVID-19 already a horribly slow system.
The upshot of all of this is that it will become increasingly difficult for people to navigate legal channels and to secure real justice. We sincerely hope that the restrictions will be relaxed soon so that perfectly preventable harm to the justice system is not collateral damage to be added to so much that the pandemic has unavoidably caused. Regardless the effects, Henderson Heinrichs LLP will be here to help people with through the legal process and to advise them about the best ways to resolve their issues.