Lawyer looks at documents

Removing a child from Ontario during pandemic

Gillespie v Jones, 2020 CarswellOnt 5720 (S.C.J.): The child and mother live in Ontario, pursuant to a 2017 order from a British Columbia court, where they had been living following the parents’ separation. The father remained in B.C. and was scheduled to spend a week with the child in April. While the original plan was for the father to take the child to his home in B.C. for this time, because of the pandemic, the parents agreed that the father and child would remain in Toronto for the visit.

However, the father, in fact, flew to British Columbia with the child, without notifying the mother and without communicating with her as required by the terms of the parenting order. The mother contacted police in B.C., who confirmed that the father and child were at the father’s home.

The mother brought an urgent motion for the return of the child.

In making his decision, Justice Diamond noted that the father’s decision to travel with the child placed “the respondent’s parental judgment squarely into issue,” and that he had breached the original order by not communicating with the mother about the child’s whereabouts.

He ordered that any further in-person access by the father must take place in Ontario and prohibited the father from taking the child on any public transit.

Self-help measures not successful

Brazeau v Lejambe, 2020 CarswellOnt 6923 (S.C.J.) We already know that parents who engage in what the courts call self-help measures are not likely to see the outcomes they want, and this case further confirms that.

The children (8 and 11 years old) lived primarily with the mother and spent one night a week and every other weekend with the father, pursuant to a 2016 final order. The mother and children spent two weeks in Mexico in March. Upon their return to Ontario, the children remained with the mother for a further 14-day quarantine period, at the end of which time, the mother told the father that the children did not want to leave her home to spend time with him and that she would not force them to do so.

The mother’s arguments in opposition to the father’s motion to reinstate his parenting time were dismissed by Justice Bale, who found that

“this is one of those unfortunate situations wherein one parent is seeking to capitalize on the public health crisis in order to marginalize the children from the other parent.”

He also pointed out that a court order is “not a suggestion; it is to be obeyed.”

Not urgent if you caused your own trouble

Capone v Fotak 2020 CarswellOnt 7050 (S.C.J.). A final order was made against the father in 2016 after he failed to comply with a number of orders made against him. Last year, he brought a motion to set aside all of those orders, but the hearing on that motion (set for mid-March) did not proceed because of the pandemic.

In late April, he brought a motion seeking that his previous motion proceed on an urgent basis, noting that he was in the United States with health insurance coverage scheduled to end at the end of July. His position was that he could not return to Canada because the FRO had seized his passport for non-payment of support.

Justice Diamond was not overly concerned for the father’s situation and found that it was not sufficiently urgent to be heard during the pandemic, also noting that the urgent situation in which the father found himself was largely self-made.

Impact of COVID-19 on parenting arrangements

C.G.R. v J.L.R. 2020 CarswellBC 1346 (S.C.): In this British Columbia decision about whether children should start having overnight access with their father, Justice Riley ruled that the matter could be dealt with in writing.

He also summarized five key points that courts consider when deciding on the impact of the pandemic on existing parenting arrangements:

“First, COVID-19 concerns should not be used as a justification for denying parenting time under an existing parenting order absent some specific concern that the health of the child or someone else in the child’s household is at risk.

Second, absent some specific concern, the mere fact that a child has to go from one household to another during the COVID-19 era is not a basis for refusing to comply with or even applying to vary an existing parenting order.

Third, each parent is expected to show some flexibility by making every effort to work with the other parent and to comply with recommendations of public health officials regarding things such as self-isolation, physical distancing and proper hygiene.

Fourth, case-specific evidence that a particular parent is not adhering to the recommendations of public health officials regarding COVID-19 may be a basis for variation of an existing parenting order.

Fifth and finally — and this is really my synthesis of the law rather than a point explicitly made in any of the cases – there may be situations where a child or a member of one parent’s household is subject to heightened risks associated with COVID-19, and in such circumstances, the court must look for an arrangement that minimizes those risks to the greatest extent possible in a manner consistent with the best interests of the child.”

Case conferences

Clemente v O’Brien 2020 CarswellOnt 7438 (S.C.J.): In this case, the father brought a motion for a case conference to deal with access issues unrelated to the pandemic. He had not seen his 3-year-old son since November, when an altercation between him and the child’s mother resulted in him being criminally charged with a number of offences. After this, the father left the country for periods of time and did not seek time with the child.

The court had to decide whether the father’s evidence met the standard of urgent or pressing such that a case conference was appropriate.

The mother provided evidence of a long history of serious abuse, much of which took place in the presence of the child. In fact, the child had been injured during the November incident. There was additional third-party evidence of the abuse.

The father wanted joint custody and overnight access to begin immediately, even though there was no existing access order or agreement, and the parents had never lived together.

Justice McGee found that the child did not have an ongoing or healthy connection with his father and that the father was focused on his own interests rather than on what was best for the child. He also found that the father did not meet the test for urgency that we have discussed in earlier cases: the child was safe, there had been no unlawful withholding of the child, no regular routine had been disrupted.

Justice McGee ruled that the father failed to establish that the situation was either urgent or pressing.