Family Law – Custody and Access
Civil Procedure – Court of Queen’s Bench – Directive Respecting Family Law and Child Protection Proceedings – COVID-19
The petitioner father requested a determination of urgency so that his application to vary the primary residence of the two children of the marriage could be argued and decided in accordance with the Directive and Advisory issued by the Chief Justice of the Court of Queen’s Bench. An order had been made in July 2018 that the parties’ two young children should reside with the respondent mother and that the petitioner would have parenting time every second weekend. The petitioner’s application in November 2019 to change the primary residence was denied, but the court ordered the respondent to provide clean drug screens on a weekly basis until the pre-trial conference. After the parties were unable to resolve their issues at the pre-trial conference in early March 2020, the petitioner filed an application to vary the earlier order. The petitioner submitted that the respondent had not submitted to the weekly drug screens. The respondent replied and explained that she was unaware of the November order and when she learned of it, she had submitted to weekly drug screens and the results would be provided. She also advised that as of mid-March, she and the children were living with her retired parents in their home. The petitioner responded with a list of his concerns about the respondent’s parenting ability, advising of his willingness to comply with safety protocols in relation to the COVID-19 pandemic and suggesting problems with the respondent’s living arrangements with her parents.
HELD: The application was dismissed. The court found that it was not urgent and therefore adjourned it to the chambers list for June 2020 in accordance with the Court of Queen’s Bench Directive. Speaking in general terms, the court noted that during the COVID-19 crisis, parents should not presume that its existence would automatically result in an urgent hearing regarding parenting arrangements and children should continue to see both parents. Regarding this application, it confirmed the terms of the November 2019 order and extended the requirement for the respondent to provide clean drug screens until the trial. There was no evidence here that the respondent was acting contrary to any COVID-19 precautions. The petitioner had not shown there was any reason to change the children’s primary residence. There was no evidence that they were in any imminent harm or danger, the respondent had adequately explained her earlier failure to have weekly drug screens, and she was now complying.