Henderson Heinrichs LLP | Vancouver Family Lawyers

Urgent Court Applications amidst the COVID-19 Pandemic

HHLaw

Written by: HHLaw (View All Posts ) Published: April 2, 2020
Categorized: COVID-19 (Coronavirus).

On March 18, 2020, the B.C. Supreme Court issued a notice on its website providing that, due to the COVID-19 pandemic, all Supreme Court courthouses are closed and all regular court operations are suspended, effective immediately. The B.C. Provincial Court issued a similar notice suspending all court operations on March 25, 2020.

While the courts have postponed all non-urgent hearings and conferences, they will hear urgent matters where children are involved, and applications to obtain or remove a protection order. The Supreme Court considers the following child-related matters to be urgent: issues relating to the safety of a child or parent due to risk of violence or immediate harm, issues relating to the risk of removal of a child from the jurisdiction, and issues relating to the well-being of a child. Henderson Heinrichs LLP is also taking the position that the list of urgent matters includes financial issues relating to a child’s care and well-being. In addition, both the Supreme Court and the Provincial Court have the discretion to hear urgent matters other than those listed in the published notices.

When is a matter considered urgent enough to be heard amidst this coronavirus pandemic? In Thomas v. Wohleber2020 ONSC 1965 [Thomas], a decision published on March 30, 2020, Mr. Justice Marvin Kurz of the Ontario Superior Court of Justice addressed this question directly. In summary, Mr. Justice Kurz found that the following factors were necessary in order to meet the 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.

Although this is a case from Ontario, we expect judgments from our courts to align with Thomas.

The Ontario Superior Court of Justice has published a notice suspending court operations that is similar to the notices issued by the B.C. Courts. It is interesting to note that the Ontario Superior Court has included in its list of urgent matters, “dire issues regarding the parties’ financial circumstances, including for example the need for a non-depletion order.” The B.C. Supreme Court has not included such financial issues in their list of presumptively urgent matters. However, the Ontario Court’s notice helps show that a financial issue, unrelated to a child, can be an urgent issue.

If you are uncertain as to whether your case qualifies as “urgent”, or if you believe that you need to bring on an application that is urgent, please contact Henderson Heinrichs LLP to set up your free 30-minute consultation via phone or video conference.

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