Carrie Campbell; If you are divorcing/divorced in the midst of COVID-19 Read This Judge's Decision

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Carrie Campbell

Today, we received the first Judicial decision in Ontario, that I’m aware of, that contemplates our new “Covid-19” reality. First, let me explain the new procedure. If you believe your case is an emergency, you are entitled to file materials for a Judge to consider. These materials will be sent to the trial co-ordinator electronically, who will forward the material to a “triage” Judge. That Judge’s job is to review the material, and decide if the case is an emergency. If it is not an emergency, that will be the end of the matter. If it is determined to be an emergency, the Judge will advise the trial co-ordinator, and a telephone conference will be organized for the parties to argue the matter, before a Judge, who may or may not be the same Judge who triaged the case. It’s a two-stage procedure.

Today, in the case Ribeiro v Wright, 2020 ONSC 1829 (CanLII), the Honourable Justice Pazaratz, of the Superior Court of Justice, Family Court (Hamilton), reviewed materials to determine if the matter should proceed to argument. The facts of the case are as follows. The parents have joint custody and the child’s primary residence has been with “Mom” since 2012. The child spends every other weekend with “Dad”, from Friday evening until Sunday evening. Mom brought an emergency motion, requesting that all in-person access be suspended, because of COVID-19. Mom expressed concern that Dad would not maintain social distancing for the child, and as she and her family are choosing to practice social isolation in their home, for the duration of the COVID-19 crisis, she does not want the child to leave the home for any reason, including to see his Dad. The Judge reviewed the complex, unique, situation, we are all facing. The Judge noted that we do not know how long this situation will continue and that children “need the love, guidance and emotional support of both parents, now more than ever”. In determining children’s parenting time with their parents, the legislation directs us to the Best Interest Test. The Judge indicated that in most situations, the schedule you were using prior to COVID-19 should continue, subject of course, to any modifications that may be necessary, to ensure precautions are taking place, such as social distancing. Every case will turn on its own facts. The Judge confirmed that if a parent is required to isolate, that will be a different situation, during that period of time. The Judge also confirmed, that where there is evidence that a parent is failing to protect the child from COVID-19 or perhaps his/her employment or associations should preclude time with a child, controls should be put in place, however those were not the facts in this case. The Judge also touched on shared parenting and blended families, and the importance of ensuring each person, in each household, is taking the necessary precautions. In short, these are very difficult situations, but we must remember, that despite our feelings about the other parent, the other parent is very important to your child’s well-being and that has to be taken into consideration.

I think it’s important to quote the Judge’s last few paragraphs: 21. “ We will deal with COVID-19 parenting issues 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.

b. 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 – including social distancing; use of disinfectants; compliance with public safety directives; etc. c. 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.

d. 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 which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

22. Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

23. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

24. In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.

25. I have carefully reviewed the materials filed on this case. Even in the absence of responding materials from the father, I have had the benefit of considering the e-mails he exchanged with the Applicant’s lawyer in relation to COVID-19 considerations.

26. While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.

27. Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.

a. The disruption of our lives is anxiety producing for everyone.

b. It is even more confusing for children who may have a difficult time understanding.

c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.

d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.

e. Right now, families need more cooperation. And less litigation.

28. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

29. My denial of authorization to proceed with an urgent motion is without prejudice to the issue being returned to court if more serious and specific COVID-19 problems arise. Any future motion would again have to be reviewed by the Triage Judge. However, I hope that both parents will understand the limitations of the family court process at this critical time. 30. None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”

We are in new territory and the Court system has been limited by this virus. Please consider your children and their best interests. You have the opportunity to teach them so much about life, love, family and resolving conflict right now. As always, I strongly recommend mediation as an alternative, to assist in these tough, emotional conversations. Reach out for help – we are here and providing assistance.

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