Case law: First two COVID-19 family law decisions

Case law:  First two COVID-19 family law decisions

Two COVID-19 family law decisions addressing the issue of what makes a case “urgent” under the present court regime in Ontario have been decided on in the past week. One has been reported (Smith v Sieger, 2020 ONSC 1861); the other, Ribeiro v Wright, is expected to be reported shortly, but for now, we only have access to the judge’s endorsement.

While neither case involves family violence, the reasons for the judges’ decisions may be helpful to the women you are supporting:

Smith v Sieger

In this case, the child, who is 16 years old, has special needs and was placed in an educational and therapeutic program

Last week, the father brought a motion seeking an order for the child to be returned to Canada immediately, due to concerns about possible border closures and travel difficulties. He argued that he and the mother had agreed to this on the condition that she would take on sole decision making with respect to health and education issues, but that his agreement to this was made “under protest and duress.” She argued that the arrangement was entered into without benefit of independent legal advice.

In the body of his decision, Justice Kaufman noted that “these are not normal times. The situation is changing as we speak.”

In making his decision, Justice Kaufman found that the matter met the test of urgency and noted that his responsibility was to the best interests of the child:

“Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the applicant is granted in its entirety.”

He ordered that the child’s passport, currently held by the mother, be turned over immediately to the father and that the parties cooperate to facilitate the children’s return to Canada. The child is to live with the father for his 14-day quarantine period.

He also dispensed with approval of the order and required the filing office to expedite entry of the order.

Ribeiro v Wright

This case, which is not yet reported, was decided yesterday by Justice Pazaratz, who is never one to mince his words.

The parents have had joint custody of their nine-year-old son since 2012, with the mother having primary residence and the father exercising access on alternate weekends. The access arrangement is relatively new, having come into effect in September 2019.

The mother brought an urgent motion to suspend all in-person access because of her concern that the father will not maintain social distancing for the child and because she and her family are practising social isolation in their home for the foreseeable future.

Justice Pazaratz is the triage judge in Hamilton, which means he has to decide which of the urgent motions that are submitted to the court fit the definition of urgent during the COVID-19 crisis. In this case, he decided not to authorize the matter as urgent.

In his reasons, he noted that there was an existing order in place and there is a presumption that orders should be complied with. He also acknowledged that, due to COVID-19, many of our “daily routines and activities will for the most part have to be suspended, in favour of social distancing and limiting community interactions as much as possible.” He points out that while, at this time, we don’t know how long the crisis will last:

“children’s lives –and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

Justice Pazaratz sets out that COVID-19 parenting issues will be dealt with on a case-by-case basis:

“ a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

  1. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to . . .
  2. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner
  3. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities that have been closed. . . . “

With respect to the case in front of him, Justice Pazaratz found that, while the mother’s concerns were well-founded, she did not establish a “failure, inability or refusal” by the father to adhere to proper protocols in the future. He urged the parents to “renew their efforts” to address the issues in a “conciliatory and productive manner.”

Comments

There are at least two important takeaways from these COVID-19 family law decisions.

  1. Both judges acknowledge that these are not normal times and that the situation is constantly evolving. This means that a decision about what is urgent or not urgent today might be made differently next week. Watch our page about family law supports for women during COVID-19 to stay up to date on these changes.
  2. As with any ex parte or urgent motion, the evidence has to be very strong for the case to be deemed urgent for the purposes of being heard immediately by the court. If you are supporting a woman who needs an urgent order to address custody, access, return of children or safety issues, you can:
  3. Assist her to connect with the Luke’s Place Virtual Legal Clinic for summary legal advice
  4. Help her gather evidence to support her motion. If she wants to limit access because of COVID-19 concerns, she needs to document why she has concerns about the child spending time with the father. Has he explicitly said he won’t follow social distancing? Does he live in an unsafe/unhealthy environment? Has he behaved irresponsibly in the past with respect to the children’s health? She needs to say more than “I don’t think he will follow the rules.”
  5. Assist her with safety planning for herself and her children
  6. Provide her with up to date information about COVID-19 containment protocols in your community
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