In Douglas v Douglas (so far unreported), the father brought a motion to have the status quo access arrangements with the 6 ½ year old child reinstated.
The parents have been separated since December 2018, and there are no court orders in place dealing with parenting time. Since February 2019, the father has had regular time with the child every other weekend and each Thursday evening following his access weekend. His most recent access was the weekend of March 13th.
On March 18th, the mother sent the father an email indicating that the child would remain in her care because she was concerned about the father’s access to the COVID-19 virus and the need for social distancing. She felt that the travel from one parent’s home to the other was “unnecessary” as defined by the state of emergency in place in Ontario. She also noted that the child had been ill during his most recent weekend with the father.
When the father came to the mother’s home on Thursday March 19th for his regular time with the child, the mother refused to allow him to see the child.
The father requested Facetime visits; the mother offered such a visit on March 18th, but none have taken place.
In making her decision that this was not an urgent matter as defined in the present circumstances, Justice MacPherson noted:
“There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. . . .Total removal of one parent from any child’s life must be exercised cautiously. This is uncharted territory for the court, as well. The safety and well-being of children and families remain the principal concerns for the court.
This matter is understandably very important to the father. However, in my view it is not urgent nor is it an emergency. There is no indication that [the child’s] safety is at risk. . . .
I would point out that in [his]notice, the Chief Justice of Ontario called “upon cooperation of counsel and parties to engage in every effort to resolve matters” during the period of suspension of regular court operations. The parties have experienced family law counsel representing them. It does not appear that mother’s counsel has responded to father’s counsel in any meaningful way to reach a reasonable resolution. He is encouraged to do so. Surely a complete termination of all contact between the child and his father cannot be in the child’s best interests even in these unprecedented times.
Finally, all counsel and parties must be aware that actions taken in these unusual circumstances may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.”
While Justice MacPherson’s decision not to deem the case urgent and make an order reinstating access, could seem to open the door for an abusive ex-partner to unilaterally withhold a child from the mother, I think the final two paragraphs send a strong message – in this case to the mother – that she and her lawyer need to get some access happening.
In Jackman v Doyle, the case we summarized and posted yesterday, Justice Diamond made an equally careful consideration on very different facts, and concluded that the case was urgent. In that case, when the mother had attempted to resolve matters by having her lawyer write to her ex-partner’s lawyer, he fired his lawyer and took the children from the mother without her consent. Given that the father no longer had legal representation, had never had the children with him other than at the mother’s house and with the nanny present and then acted unilaterally to take the children from their mother’s house to his, there would seem to have been little possibility that the parties, with only one of them represented, could cooperate to “resolve matters.”
It is my hope that, between the two cases, there is strong precedent that, while judges may not deem a case urgent when the parties are represented and can attempt to resolve matters through their lawyers, when that is not the case, the court will view the case as urgent and hear it on that basis.
Of course, as the judges in all four of the cases we have shared with you so far have said, these are unprecedented times and, like the rest of us, the courts are feeling their way. No doubt over the next few weeks, a body of case law will develop that we can refer to when assisting women fleeing abuse.