Estate Litigation During COVID-19

Articles

Due to the distancing measures necessary as a result of COVID-19, the B.C. Supreme Court (the “Court”) has taken drastic measures to protect those who work at the Court and members of the public.

In responding to COVID-19, the Court has set out that its objectives are to:

  • maintain and preserve the rule of law;
  • protect the health and well-being of judiciary, judicial staff, courthouse staff, sheriffs, lawyers, litigants, witnesses, jury members and the public; and
  • facilitate efficient and effective decision-making processes for Courts across the province.

It was announced on March 18, 2020 that, effective March 19, 2020, the Honourable Chief Justice Hinkson suspended the regular operations of the Court al all locations. This direction includes that all civil and family matters scheduled between March 19, 2020 and May 1, 2020 are adjourned, unless otherwise directed by the Court.

The Court provided that it will continue to hear essential and urgent matters.

What estate matters are considered essential and/or urgent?

The Court has set out a list of family and civil matters that are considered presumptively of an essential and urgent nature. The full list provided by the Court can be found here.

As stated in the Court direction, the Court will continue to hear matters which fit the criteria of having “prima facie” urgency. In other words, there must be a clear urgency to the matter. The list included by the Court should not be seen as a closed list. The Court’s direction notes that the Court retains discretion to hear urgent matters other than those listed, and also to decline to hear a matter listed.

With respect to estate related matters, there are numerous types of claims that can involve urgency and which will fit the criteria set out by the Court. For example:

  • Committeeship orders and issues regarding adult guardianship will be heard in cases of emergency. More information on such urgent orders can be found at the following link: https://www.cwilson.com/courts-are-still-open-for-urgent-incapacity-matters/;
  • Refusal of treatment and end of life matters, such as applications under the Health Care (Consent) and Care Facility (Admission) Act. Such cases do not need to involve an individual with COVID-19. It is recognized that such matters continue to arise and may be prevalent in the coming months; and
  • Preservation orders and injunction applications have been noted by the Court as potentially having urgency. An injunction application is brought to obtain an order to compel a person to carry out an act or to restrain a person from carrying out an act. A preservation order can be a type of injunction which makes it illegal for a person to alter or destroy property. Such orders may be of an urgent nature, for example, if an executor, a trustee or a power of attorney has put estate assets at risk and those assets require urgent protection.

A common theme among the urgent matters listed by the Court is that the failure to hear such matters will cause irreversible harm. If this can be demonstrated to the Court, then the Court is equipped with the resources it requires to hear such matters without the need for in-person attendance.

If you would like advice on whether your estate related matter is urgent and whether it may be considered by the Court during COVID-19 protocols, please contact a representative of Clark Wilson LLP’s Estates & Trusts Practice Group.

For more legal analysis of how COVID may affect your business, or personal affairs, visit Clark Wilson’s COVID-19 Resource and FAQ pages