If you have an urgent case to bring before the Courts during COVID-19, trust a family law attorney to help you best prepare your case. The courts are currently operating with limited capacity and resources. To use the limited resources wisely, the determination of urgency is set at a high standard. Not only does your case need to fulfill the criteria for urgency, but it must be air-tight. A family law attorney will help you navigate this process effectively.

Last week, we highlighted two recent case examples that were deemed urgent. Today, we look at two recent examples which were denied urgency, and how a family law attorney can help your case. 

Cases Deemed Not Urgent

J.R.K.P. v. L.A.S. 2020 BCPC 73

In this case, the mother claimed that the father refused to return their child into her care. The mother claimed urgency on two grounds: 

1. The father was refusing to return the child
2. The father lives in a home with his mother (the child’s grandmother), who works in an elderly care home

The case was deemed non-urgent because of insufficient evidence and an unsubstantiated claim. The ruling is as follows (bold added for emphasis): 

• On the first ground, the Respondent does not provide details of the alleged denial of parenting time. Her affidavit in support of the application simply reads, “The father is refusing to return the child”. No further details of this refusal are set out. This may constitute urgency under paragraph c) of this Court’s direction, as being a wrongful retention of the child. However, before an emergency hearing can be set, further details of the denial should be provided. 

• On the second ground, the mere possibility that a person in someone’s home may have been in contact with someone carrying the virus is not a valid reason for denial of parenting time. If this was the case, those health care workers directly dealing with this pandemic would not be having contact with their own children. In order for Covid-19 concerns to prevent contact between a parent and child, there must be a more substantive reason for denial of contact, supported by some form of objective medical evidence, rather than the lay opinion of one of the parties themselves.

E.D. v B.G 2020 BCPC 103

In this case, the father was applying for primary care of his child. Before COVID-19, the child’s mother had primary custody. However, since school closures due to COVID-19, the parents agreed to rotate custody equally based on a 14-day rotation. The Judge ruled the father’s request for primary custody not urgent for the following reasons (outlined in para 25): 

• The child’s immediate health and safety was not at risk
• Custody was being shared equally between parents, given that the child was not needed to physically attend school
• The child was travelling safely between homes, and there was no evidence that the parties were not following public health recommendations
• Neither parent was denying parenting time, and there were no allegations of harm  

What Can We Learn From These Cases? 

Provide Sufficient Evidence 

As discussed, denial of parenting time is a serious offense in family law. However, in J.R.K.P. v. L.A.S., denied parenting time was not deemed urgent because there was insufficient evidence to back up the claim. The mere accusation that parental time was being withheld was not enough to be considered urgent. The verdict of this case may have been different had there been appropriate preparation with a good family law attorney. 

The Child(ren) Must be at Imminent Risk

The Courts have limited capacity right now. Only cases in which the child(ren) is/are at risk of immediate harm will be heard. From both of the above cases, the Judge ruled them not urgent because there was no evidence that the child(ren) was/were in imminent danger. Before you submit an emergency motion, first consult with a family law attorney to determine the seriousness of the case. It may save you time and money in the long run. 

The Child’s Best Interest Comes First

A judge’s decision has and continues to be based on the fact that the child’s best interest comes first—global pandemic or not. In J.R.K.P v L.A.S., Judge Skilnick cautioned against parents who use COVID-19 against the best interest of the child(ren): 

[...] parents who use the current pandemic as a tactic to deny parenting time to the other parent, without any other further justification for doing so, are not acting in the child’s best interest. Parents who attempt to create fear in the mind of a child by suggesting that the child is at risk by being in the care of the other parent, without any objective justification for doing so are also not acting in the child’s best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy.

Contact a Family Law Attorney Today

If you believe you have an urgent case, first consult with a family law attorney. The Westside Family Law team is here to assist you. Get in touch with us today.