E.D. v. B.G, 2020 BCPC 103

Citation: E.D. v. B.G 2020 BCPC 103 Date: 20200515 File No: F12761 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.D. APPLICANT AND: B.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. MUNDSTOCK Counsel for the Applicant: S. Trimble, by telephone Counsel for the Respondent: B. Hepburn, by telephone Place of Hearing: Chilliwack , B.C., via teleconference

Date of Hearing: April 24 & May 8, 2020 Date of Judgment: May 15, 2020 Overview [ 1 ] Family trials, case conferences and hearings scheduled between March 16, 2020 and May 16, 2020 in the Provincial Court of BC have been adjourned as a result of the court suspending its operations in response to the COVID-19 pandemic. Family trials scheduled between May 19 and July 3, 2020 will proceed on the day scheduled but only as a pre-trial conference. Parties may apply to a judge for determining urgency, and if determined urgent, the hearing will be by telephone only. [ 2 ] Mr. G. has filed a Notice of Motion seeking the following relief:

a) The trial currently scheduled for May 20, 21, 22, 25, 26 and June 2, 3, 2020 shall be determined urgent and proceed as scheduled; and

b) Alternatively, the parties be ordered to attend arbitration. [ 3 ] Counsel for Mr. G. acknowledges that the Provincial Court does not have jurisdiction to order the parties to participate in arbitration and has abandoned that relief. [ 4 ] Ms. D. has filed a Notice of Motion seeking permission to call Mr. Colby at the trial for cross-examination on the contents of his s. 211 report. Mr. G. does not oppose the order but states Mr. Colby’s costs to attend must be paid by Ms. D. alone. Background [ 5 ] The parties have a [omitted for publication] year old son, F., who resides primarily with Ms.

D. in Chilliwack, BC. Mr. G. resides in Pitt Meadows, BC. On April 9, 2014, the parties consented to an order that Mr. G. have parenting time with F. every weekend from Saturday at 6pm to Sunday at 6pm. [ 6 ] On April 3, 2019, Ms. D. filed an Application Respecting Existing Orders or Agreements seeking to change the order for child support. On July 19, 2019, Mr. G. filed an amended Reply with Counter-claim seeking an order that F. reside primarily with him. [ 7 ] On May 24, 2019, the court ordered the preparation of a s. 211 report. The parties engaged Mr.

Colby to prepare the report, which he completed on December 31, 2019 (the “Report”). The cost of the Report was born entirely by Mr. G. In the Report, Mr. Colby recommends the primary residence parent change to Mr. G. [ 8 ] The issues that I must determine are: 1. Is this matter urgent? 2. If yes, then how will the trial be heard? 3. Who should bear the cost of Mr. Colby’s attendance at trial? Is this matter urgent? [ 9 ] On March 11, 2020, the World Health Organization’s Director General made an assessment that COVID-19 is a pandemic.

On March 16 and 17, 2020, the Office of the Chief Judge for the Provincial Court of BC issued notices to the profession and the public that all family trials scheduled between March 18 and May 5, 2020 are adjourned unless a Judge directs that the matter is urgent upon application of one or both of the parties.

The Provincial Court of BC took immediate action in order to comply with the public health safety measures and recommendations issued by the Public Health Officer in response to the COVID-19 pandemic. [ 10 ] On March 19, 2020, the Office of the Chief Judge issued a notice to the profession and public, which replaced the previous notices. Effective March 25, 2020, the Chief Judge suspended regular operations of the Provincial Court at all of its locations to protect the health and safety of court users, staff and sheriff services and to help contain the spread of COVID-19.

Members of the public who do not have urgent business before the Court are discouraged from attending any courthouse in the Province. [ 11 ] On April 28, 2020, the Office of the Chief Judge issued an updated notice to the profession and public, which replaces the previous notices (“NP19”). NP19 indicates no in-person trials will proceed for the period up to July 3, 2020. NP19 continues to provide for the hearing of family matters determined to be urgent but in those cases where urgency has been determined by a judge, the hearing will be conducted by telephone.

The notice provides that all matters with existing trial dates between May 19 and July 3, 2020 will proceed on the date of trial but with a pre-trial conference only. [ 12 ] The guidelines with respect to what matters are deemed urgent has not changed since March 25, 2020.

Urgent family matters may include: a. requests for urgent relief relating to the safety of a child or parent; b. requests to obtain or set aside protection orders, or urgent orders involving parenting time, contact with a child or communication between parties; c. 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;

d. applications to suspend, change or cancel any order for imprisonment or committal pursuant to the Family Maintenance Enforcement Act ; e. in a child protection case, all urgent matters, including applications for supervision orders or for extension of time, and any other urgent motions or hearings; and f. urgent cases where irreparable harm will occur if the application is not heard. [ 13 ] There have been a number of decisions from this Province and throughout Canada dealing with the issue of what constitutes urgency in the face of the current COVID-19 pandemic.

Since March 16, 2020, many family trials, case conferences and hearings have been adjourned to dates several months into the future. The test for urgency must be strictly enforced because the court must ensure that its limited resources are available to hear the most serious and urgent of cases. It stands to reason that the threshold for determining urgency is a high threshold. To view it otherwise would flout the stated intention of NP19. The court cannot adjourn a multitude of cases due to its limited operations and grant urgency status to large number of cases. [ 14 ] In Onuoha v.

Onuoha , 2020 ONSC 1815 , at para. 10 , the court noted that when determining urgency, it must distinguish cases that are “very important to the parties” from those that are “currently urgent” within the high threshold required by that court’s Notice to the Profession. [ 15 ] In Thomas v. Wohleber , 2020 ONSC 1965 , at para. 38 , the court found four factors are necessary in order to meet the definition of “urgent” as contemplated by that court’s Notice to the Profession: 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. [ 16 ] In N.J.B. v.

S.F. , 2020 BCPC 53 , the court determined that the mother’s application to enforce the existing order for parenting time was urgent because the father was denying the mother all parenting time. In S.R. v. M.G. , 2020 BCPC 57 , the court heard an urgent application for parenting time and went on to make an interim order for a parenting time schedule. In that case, the mother worked as a health care worker and the father denied parenting time out of concern for the possible exposure of the child to COVID-19. [ 17 ] In C.K.M. v.

L.O.S. , 2020 BCPC 75 , the father filed an Application for Urgent Hearing seeking a determination that his intended application for parenting time was urgent and should proceed. The court granted the Application for Urgent Hearing on the basis the father attempted to mediate but the mother would not participate, the mother failed to facilitate a Skype call with the child even though she agreed to do so, and the mother was not permitting the father to have any parenting time.

The court ordered a 45 minute telephone hearing with the use of affidavit evidence and gave very detailed directions to the parties with respect to how the hearing would be conducted. [ 18 ] If the court determines a matter is urgent, the court must then determine how the matter can proceed given the inability of this court to accommodate in-person trials. If this matter were to be determined urgent, the trial would proceed by telephone on the days scheduled. At the time of writing this decision, this court does not have the ability to conduct trials by videoconference. [ 19 ] Mr.

G. argues F. will suffer irreparable harm if the trial does not proceed because the result will be that F. will remain in Chilliwack, living with his mother. Mr. G. is concerned about F.’s education because he is chronically late or absent. Further, he argues the living arrangements for F. are harmful to him because F. is isolated, unsupervised while Ms. D. works, and plays video games for an inordinate amount of time. Mr. G. is disabled and unable to work. He argues that he is able to provide better care and supervision of F. [ 20 ] Mr. G. relies heavily on the Report.

He argues the trial can proceed with each witness testifying under oath over the telephone. It appears, from the tenor of Mr. G.’s argument, that he has an expectation the court will simply accede to the opinion of Mr. Colby and make the orders Mr. G. seeks. It was apparent, when listening to the argument of Mr. G., that he sees this case as straight forward. [ 21 ] Ms. D. argues this matter is important but not urgent within the context of the COVID-19 crisis. Ms. D. contests many of the underlying facts contained in the Report and she takes issue with the ultimate opinion.

She is currently not working as a bartender because her workplace closed by order of the Public Health Officer. She states F. had several health issues that required his attendance at BC Children’s Hospital and that is why his attendance at school was poor. She states his health has improved and his appointments at the hospital are no longer required. She admits the opinion of Mr. Colby was somewhat of a shock and she will likely have to look at an alternate career so she is able to spend more time at home with F.

She argues the issues must be resolved by way of a full trial and she does not see this trial as suitably conducted by telephone. [ 22 ] When the Ministry of Education decided schools in the Province would close until further notice, Ms. D. and Mr. G. agreed F. would spend 14 days with one parent followed by 14 days with the other parent. This agreement was reached by the parents alone. In other words, the parents acted reasonably and responsibly based on what they deemed to be the best interests of F. when faced with an unprecedented state of emergency.

When they reached this agreement, both parties had legal counsel. I am told legal counsel did not participate in the negotiations. The parties, and particularly Ms. D., were able to put aside their differences to place F.’s interests at the forefront even when faced with a 7 day trial to commence in May 2020. [ 23 ] Ms. D. intends to continue with the 14 day rotating

schedule for so long as school remains closed. As at the date of hearing,

Ms. D. had no new information about school resuming before the end of June 2020 and for that matter, what the school setting will look like in September 2020. [ 24 ] This matter is very important to the parties and I do not doubt that Mr. G. believes the matter is urgent. However, when I consider the threshold test that I must apply, I cannot find the matter is urgent within the context of the COVID-19 crisis and the limited operations of this court. [ 25 ] F.’s immediate health and safety is not at risk.

The parties are sharing parenting time with F. equally given that F. is not physically required to attend school and both parents can employ the online learning implemented by F.’s teachers. F. is travelling between homes in a safe manner and there was no evidence before me to suggest that the parties are not following the current public health recommendations and guidelines.

Neither parent is denying parenting time to the other and there are no allegations of immediate harm. [ 26 ] At issue in the trial of this matter is the long term parenting plan for F., a plan that takes in to consideration his long term best interests. The issues are not immediate in the circumstances of a pandemic in which the court is not operating in full capacity and in which its resources must be reserved for the most urgent of cases. [ 27 ] I also do not see this as a case in which a telephone hearing is suitable. The trial is scheduled to take place over 7 days. Mr.

G. intends to call 5 to 8 witnesses in addition to himself and his current spouse. Ms. D. intends to call 10 witnesses in total. Ms. D. also wishes Mr. Colby to attend for the purposes of cross-examination. This is not a matter where the evidence may be tendered by affidavit because credibility findings will be necessary given that many facts are in dispute. A trial involving an application to change an existing parenting time order that has been in place since 2014 is not a simple issue. Finally, Mr.

G. seeks a final order where the court is being asked to determine the long term best interests of F. rather than an interim order in which the court is being asked to impose a temporary solution to a problem that will be adjudicated fully at a date in the near future. In my view, a trial of this nature is not suited to a telephone hearing. [ 28 ] Accordingly, the scheduled trial dates will be cancelled and the matter will be adjourned to September 11, 2020 to fix a date for trial. [ 29 ] The parties were able to reach an agreement on interim parenting arrangements when F.’s school closed.

The original parenting time order was a consent order. This confirms that the parties are capable of reaching agreements. Unfortunately, it will take several months for this matter to be re-set. In the interim, I encourage the parties to consider attending mediation, which can be accommodated while respecting social distancing recommendations. As the court aptly stated in Ribeiro v. Wright , 2020 ONSC 1829 at para. 27 , “Right now, families need more cooperation. And less litigation.” How will the trial be heard? [ 30 ] As I have found this matter is not urgent, it is not necessary for me to determine this issue.

Who should bear the cost of Mr. Colby’s attendance at trial? [ 31 ] It is premature to determine this issue. The parties do not have an impending trial date and circumstances may change entirely prior to the new trial dates. The application can be brought again in advance of the new trial dates and based on the circumstances of the parties at that time.

Summary [ 32 ] The Notice of Motion filed by Mr. G. on April 24, 2020 is dismissed. The Notice of Motion filed by Ms. D. on April 24, 2020 is dismissed. The scheduled trial dates are cancelled and Ms. D.’s application and Mr. G.’s counter-claim are adjourned to September 11, 2020 to fix a date for trial. _____________________________ The Honourable Judge K. Mundstock Provincial Court of British Columbia