COVID-19 and the Courts Q&A

Vincent Tong | May 8, 2020

Woman lawyer on computer with lady justice

How can we resolve any ongoing family law disputes while the Courts are not hearing most matters due to the COVID-19 pandemic?

Accessing the legal system can be difficult at the best of times. As the world wades through the current pandemic, alternative dispute resolution processes should be given consideration. One such approach is to consider participating in Collaborative Family Law, where the parties agree specifically not to use the Court process to resolve their disputes.

The process most commonly associated with Collaborative Family Law is the four-way meeting. This approach can also be used outside of the Collaborative Family Law process if the parties and their counsel wish to do so. Whilst it may be possible to hold such meetings with sufficient social distancing, the more prudent course of action is to have all four parties meet virtually, provided all parties have the technology available and that sufficient security measures are in place.

If your matter is contentious, and is of emergency or urgent nature, then potentially the Court will hear an application, as discussed below. The Court of Queen’s Bench has enacted directives on the remote swearing of affidavits by video conference.

What happens with existing Court Orders and parenting arrangements?

We are in unprecedented times, but all Court Orders remain in effect until they expire or are varied. Given the lack of judicial resources at the moment, it will be tremendously difficult to vary existing Orders.

The Chief Medical Officer of Alberta suggests that separated parents could work together to create a ‘common isolating group’, notwithstanding that parents live in different households. Accordingly, parenting time should still be exercised, but strict parameters should be put into place between the parties restricting the total number of people who may be in close proximity to each other. One way to think about such arrangements is as ‘one large group in two households’.

The overriding suggestion at the moment is to use common sense. It is likely a good idea to maintain a sense of normality for children, especially younger ones, given that classes have been cancelled. That normality should include maintaining parenting time arrangements that have been in place.

That said, everyone has a role to play in limiting the spread of COVID-19. For example, if one party is required to self-isolate due to the presence of symptoms, then that party likely should not be insisting on exercising parenting time. Similarly, the other party should do his or her best to accommodate such changes.

A very recent and excellent summary of parenting time issues in the midst of the COVID-19 pandemic comes from the Ontario Superior Court of Justice: Ribeiro v. Wright, 2020 ONSC 1829. In this case, the Court declined to permit the hearing on an urgent basis of an application to restrict the other party’s parenting time merely because of the existence of the current COVID-19 crisis.

The Court’s opinion was that “existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to, including strict social distancing.”

The American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts have released a set of seven suggestions for separated parents during the pandemic. The rule of law (whether by Court Order or by contractual relations between parties) should be respected notwithstanding the public health crisis. The alternative, taken to the extreme, could be anarchy if parties attempt to leverage the pandemic for selfish purposes. The other suggestions are all common sense, practical ones which are good reminders given the COVID-19 crisis has affected so many aspects of society. Ideally, the COVID-19 crisis will encourage separated parties to work together for the greater good of their children. Collaborative Family Law professionals can assist parties in this manner by focusing their attention on common interests and goals.

Can I still commence a divorce when there are social distancing measures in place, and limited access to the Courts?

Yes. As of 3 April 2020, the Court of Queen’s Bench is still open for document filing. That means a divorce or family property action can be commenced. Once filed, the Statement of Claim can still be served. Note that the Court of Queen’s Bench has indicated that all filing deadlines under the Alberta Rules of Court are suspended, with the exception of rules regarding the commencement of proceedings. Please call us if you have any questions about document filing and deadlines.

Alternatively, parties should consider refraining from filing a divorce action immediately, and instead utilize Collaborative Family Law to resolve the issues involved in their separation. As the Collaborative Family Law process is designed to keep parties out of the courtroom, it is ideally suited for the present pandemic circumstances.

There is probably going to be a backlog when the Courts eventually start hearing matters in person again. What options do I have to speed up the process?

To avoid the anticipated backlog in Court applications once social distancing measures are relaxed and courthouses revert to normal scheduling, parties should consider settlement outside of the Court process entirely. Collaborative Family Law is an ideal option, as it does not involve applications in Court at all.

Prior to the introduction of COVID-19 counter-measures in Alberta’s courthouses, scheduling a court application to argue interim issues would typically take several weeks. Accessing the Court system in the next several months, even if social distancing measures are relaxed, is likely going to be more difficult than in the past. Therefore, parties undergoing separation should seriously consider the Collaborative Family Law process as the preferred option for resolving issues related to family breakdown. Then the Court process will only be used for document filing.

What is an ‘emergency’ matter?

The Court of Queen’s Bench specifies that a matter is an emergency matter if there may be serious consequences to people or to property if the matter is not heard; there may be a loss of jurisdiction or the expiration of an existing Protection or Restraining Order in the following circumstances:

  1. Where there is a risk of violence or immediate harm to a party or a child;
  2. Where there may be a risk of a child’s removal from Alberta; and
  3. Emergency Protection Order reviews.

What is an urgent matter?

The Court of Queen’s Bench specifies an urgent matter if does not rise to the level of an emergency, but still requires hearing in a timely fashion. In the family context, an urgent application means any matters regarding parenting time, contact or communication with a child that cannot be reasonably delayed.

However, note that these categories are not exhaustive, and the Court may well hear other applications. On the other hand, the Court may also decline to hear any application. Unfortunately, the already scarce judicial resources are going to be even more scarce for the time being.

What about Provincial Court matters?

As of 25 March 2020, the Provincial Court has only stated that it will continue to hear “Family Court matters that are urgent e.g. Absconding with a child.” There is the ability for quite a broad interpretation of those guidelines, but the Provincial Court has promised to release further details soon.

Vincent Tong, Barrister and Solicitor | Veria Law

Filed under: Children and divorce, Collaborative Process, Covid-19, Dispute Resolution

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