The COVID-19 pandemic means that courts are hearing only matters that a judge considers to be urgent, but there has been little guidance thus far from BC courts on what constitutes such an urgency. In an earlier post, we noted a few recent decisions from Ontario courts dealing with parenting issues related to COVID-19. A recent case from Ontario, Thomas v. Wohleber, 2020 ONSC 1965, sets out some factors for the Court to consider in determining whether an issue is urgent. On the same day the Thomas v. Wohleber decision was released, the Supreme Court of British Columbia released a decision that considers whether a father’s application for his children to return to BC from Germany constituted an urgent matter in Johansson v. Janssen, 2020 BCSC 469. It remains to be seen whether the Thomas v. Wohleber factors, or a similar test, will be adopted in BC.
In Johansson v. Janssen, the parties lived in a marriage-like relationship for six years and had two children, aged five and eight. The children were born in Canada, but the mother was a German citizen and the father was a Swedish citizen. Both parents spent a significant amount of time in Canada. The father relocated to Sweden in September of 2017 due to his work visa expiring, but returned for several months in 2018. At the time of the hearing, the father was in Sweden.
In January of 2020, the mother took the children from BC to Germany. While the evidence indicated that she believed her absence to be temporary, the current travel restrictions prevented her from returning. The father sought an order that the children be returned to BC once the COVID-19 travel restrictions are lifted. The mother argued that Germany, not BC, was the proper forum for the dispute.
Justice Smith of the Supreme Court of British Columbia concluded that the matter was not urgent. The Court noted general issues to be considered on a request for an urgent hearing, such as the practical utility of any order, difficulties faced by parties in obtaining necessary evidence, and the possibility of changing circumstances as the emergency situation evolves. An order requiring return of the children to BC would have no immediate practical effect, as the father would have to wait for travel restrictions to be lifted before the children could return to Canada. In any event, there was no parent in Canada to receive them even if the children were old enough to fly home by themselves. Further, the issue of whether the children had a sufficiently real and substantial connection with BC was relevant to the determination of whether Germany or BC was the appropriate forum for the dispute. However, the Court found that the issue of jurisdiction may be subject to changed facts by the time travel restrictions were lifted. Therefore, it was not appropriate to decide the jurisdictional question.
Johansson v. Janssen indicates that if making an order would have no practical effect until after the COVID-19 travel ban is lifted, then a court will decline to decide the matter on an urgent basis. Though not binding in BC, the Ontario Superior Court recently set out factors to consider in determining whether an application is urgent in Thomas v. Wohleber, 2020 ONSC 1965:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- 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;
- 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;
- 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.
The Court arrived at this test after considering the test of urgency as stated in non-COVID-19 family law cases as well as the dictionary definition of “urgent”. The BC courts have not yet provided a similar test to be applied for urgency in COVID-19 cases, but it is possible that similar factors to Thomas v. Wohleber will be developed.
If you have questions about parenting during the COVID-19 pandemic, please contact a member of our family law team.