On March 18, 2020, the Chief Justice of the Supreme Court of British Columbia announced a suspension of all regular operations to protect the health and safety of court users and to help contain the spread of COVID-19, with only essential and urgent matters to be heard. A copy of the notice may be found here.
In the family law context, the Court outlined what is essential and urgent, including:
- Orders relating to the safety of a child or parent due to a risk of violence or immediate harm (e.g., a protection order, conduct orders, or exclusive possession of the home);
- Orders relating to the risk of removal of a child from the jurisdiction (e.g., relocation, non-removal, wrongful removal, or retention of a child); and
- Orders relating to the well-being of a child (e.g., essential medical decisions, urgent issues relating to parenting time, contact, or communication with a child that cannot reasonably be delayed).
Applicants seeking to have a matter heard must submit an online form to request an urgent hearing. That form and related materials will then be heard by a judge to determine if an urgent hearing is required.
The recent judgment of Mr. Justice N. Smith in Johansson v. Janssen, 2020 BCSC 469, was the result of such a hearing, wherein the claimant father sought the return of his children from Germany to Canada, after the current travel restrictions related to the COVID-19 pandemic are lifted. The respondent mother filed a jurisdictional response, seeking a finding that the Court had no jurisdiction or, in the alternative, if it has jurisdiction it should decline to exercise it.
The children, ages 8 and 5, were taken to Germany in late January 2020 by their mother on what was believed to be a three week trip. Although both children are Canadian citizens, both the father and mother are not. The mother had to leave Canada due to an expiring visitor’s visa and had not yet obtained a renewed visa. At the time of the hearing, the father was in Sweden and not able to immediately return to Canada due to international travel restrictions.
In determining the matter was not urgent, Smith J. considered (1) the practical utility of any order, (2) the difficulties faced by parties in obtaining necessary evidence, and (3) the possibility of changing circumstances as the emergency situation evolves.
Regarding the first issue, the Court noted that it is unknown when the current international travel restrictions will be lifted and therefore any order would have no immediate practical consequences. Secondly, the mother’s ability to obtain a renewed visa was unknown. As such, her ability to travel with the children was uncertain and, in any case, if the children travelled unaccompanied there was no parent in Canada to meet them.
Ultimately, the application for the return of the children and the jurisdictional application were adjourned, with leave to reset the hearing after the travel restrictions had been lifted.
Should you require assistance in a family law matter, please contact a lawyer in our family law group and we will be pleased to assist you during these challenging times for parents.