COVID-19 a problem for judges when making household legislation selections over custody and visitation
Children who are on extended Newfoundland vacation with their mother must plan to return to Ontario so their father can continue to spend time with them, says a Supreme Court judge, although Newfoundland has far fewer cases of COVID-19.
The mother has no intention of keeping her there forever, Judge Alex Pazaratz wrote in his judgment, but the court will set a date on which they must return.
“This is about COVID and how family – and family courts – are trying to keep up with issues and issues that none of us have dealt with before,” he said.
But her mother says the children are not ready to return to Hamilton.
Pazaratz says the rules haven’t changed since the pandemic – if this were a cottage, the court would have “little tolerance” – but it certainly made them more complicated.
“Imagine a place that is pretty much removed from the pandemic. Not a mythical place like Atlantis or Mayberry. But a real place with really healthy people, right here in Canada,” wrote Pazaratz of Newfoundland.
COVID-19 is forcing judges to face several new considerations when making family law decisions about custody and visits.
In another Ontario case, a father feared his ex-spouse would expose their 10-year-old son to COVID-19 by trying to sell their home through an open house.
And in another case, a woman filed for revocation of her former partner’s custody rights because she did not want her nine-year-old son to leave home for any reason.
“Judges need not be convinced that COVID-19 is extremely serious and that sensible precautions are needed to protect children and families. We know there is a problem,” wrote Pazaratz in that decision last March, in which the mother expressed her concern about the father “will not maintain social distancing for the child during access times.”
“What we are looking for are realistic solutions.”
Family law attorney Candee McCarthy, Nova Scotia, said the effects of COVID-19 are widespread and have significantly hampered legal proceedings.
“I have parents who are concerned about access and compliance with their court order,” she told CBC’s Main Street Cape Breton in March last year.
“You have a court order, but then you also have this order from the chief physician [officer of health]. How do you reconcile the two when it comes to custody? “
Shops, restaurants, cinemas, and gyms in Newfoundland are open
With COVID-19 cases continuing to hit Hamilton, the mother says she and her children plan to stay in Newfoundland for some time. Pazaratz described her perspective as “a chance to save children even shortly before this COVID nightmare”.
The situation in Ontario is also worse than when she left. And while Newfoundland dogs are not left untouched by the pandemic, they are not “busy” according to mom.
There had been nine active cases across Newfoundland as of Thursday, four of which were announced on the same day. On the day the mother signed her affidavit, there was not a single new case in the province, the judge said.
In Hamilton alone there were 94 new and 710 active cases on Thursday.
Order at home in Ontario
The Ontario government has a stay at home order and lockdown that began on December 26th. Although Newfoundland rules such as physical distancing and masks apply, Pazaratz noted that its shops, restaurants, and movie theaters and gyms are open.
In Newfoundland, children can also see family members, play instruments, and resume organized sports.
In Ontario, the school will be online until at least February 10, 2021. While Pazaratz did not order them to be back by that date, the mother has noted that she has some level of confidence that returning after school is appropriate.
Pazaratz decided that the parents must also do whatever was necessary to address any concerns the children had about returning to Ontario, ordered Pazaratz, so that the return could be arranged as soon as possible.
Pazaratz said, “At some point this court will set a specific date by which the children must be back in Ontario.” The case was adjourned to February.