Two recent COVID-19 family law decisions

woman's hands on thick book

Court says no to “self-help” remedy

In Burton v Woods 2020 ONCJ 158, Justice Pugsley was quick and clear in his response to a father who decided not to return the 10-year-old child to the mother at the end of his access time. The existing order, issued after a trial, was for the mother to have custody and the father to have “very clear and quite limited” access. The father has appealed that decision and asked that the trial decision be set aside while the appeal is in process, but his motion to that effect has not been heard, so the existing order is still in effect.

When the father failed to return the child from access, the mother brought an emergency motion to have him returned to her care. Both parents were unrepresented during this process.

In his decision, Justice Pugsley makes a number of blunt comments about the father, noting that his issues “have no merit,” and that “Mr. Woods has decided to take advantage of the current world-wide crisis to take self-help remedies . . . .Mr. Woods knows that his assertion is false. He has decided to disobey a court order. This cannot be allowed to continue. . . .

“None of the respondent’s past behavior suggests that he can be trusted to follow the orders of the court. [The child] must be apprehended by the police and the local CAS immediately and returned to the care of the Applicant, Mrs. Burton. Pending further court order . . . all access by [the child] to Mr. Woods is suspended effective immediately.”

Alienation of children

In the case of Ivens v Ivens 2020 ONSC 2194, the mother sought a suspension of the shared parenting arrangement that was in place, in which the two youngest of the three children rotated between the parents on a 2/2/3 schedule. She claimed that the children were anxious about COVID-19 and the father was not taking adequate measures to protect them from exposure.

This case had a long and acrimonious history, with the mother persistently attempting to limit the father’s time with the children.

The order on the mother’s emergency motion is, itself, lengthy and is worth reading if you have the time. Justice Kurz reviews the past proceedings in some detail. He acknowledges some aggressive behaviour on the part of the father towards the mother, a past substance use problem and his use of corporal punishment on the children. He also notes that the father had failed to recognize his part in the conflict between the parents.

Justice Kurz also summarizes the mother’s behaviour, in particular, her repeated attempts to terminate the father’s parenting time with the children, including refusals to honour commitments she had made to allow him make-up time in exchange for time he had lost. He notes that the mother’s arguments “ring hollow,” that there has been little material change in circumstances, that the most recent attempt is just a continuation of the mother’s long-standing pattern of trying to limit the father’s time with the children and that her arguments about risks to the children posed by the father are, essentially, unfounded.

Justice Kurz found that the matter was urgent, but for different reasons than the mother had expressed:

“But this urgency is not the result of the COVID-19 virus or the risk that the father allegedly poses to the children. Rather the urgency arises from the mother’s second unilateral refusal in just over a year to honour the . . . orders that provide for equal shared parenting time for O and R and the father’s right to final decision making for both children. A continuation of that refusal runs the real risk of emotional harm to O and R through the rupture of their relationship with their father. Accordingly, I dismiss the mother’s motion and order that the regular 2/2/3 parenting time continue. . . . It is untenable that O and R’s relationship with the father is contingent on the mother’s willingness to both obey a court order and support that relationship. It is unacceptable for any parent to use this crisis as an excuse to usurp parental responsibilities to which they are not entitled.

As great as the danger of COVID-19 undoubtedly is, another great danger here, as it is for many families before this court, is the virus of conflict . . . Children have no special mask or protective gear that can shield them from this type of virus.”