Failed love in time of COVID-19: Urgent cases and best interest of child(ren)

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Failed love in time of COVID-19: Urgent cases and best interest of child(ren)

Carol Shirtliff-Hinds

(May 11, 2020, 11:16 AM EDT) -- The best interests of the child will continue to be the prevailing guidance factors in urgent cases. As such, the maximum contact principle with both parents will continue to govern in situations where one parent attempts to overhold the child in breach of a court order.

It will also be found to be irrelevant that one parent may have a larger rural property for the children’s use while the other parent is confined to an apartment building. The disparity in incomes between the two parents during COVID-19 will not disqualify the other parent from also being able to meaningfully participate in their child’s life.

This was one of the arguments advanced in the Kostyrko v. Kostyrko 2020 ONSC 2190 case as a reason why the children should remain with the father. The argument held that the children would have more room and would be safer in the suburbs than in a small apartment in the city. This argument found no favour with the presiding judge who found that the ownership of a rural or recreational property was no reason to change the custodial arrangements even in the midst of a pandemic.

Another argument that also finds no favour in the court would be for one parent to keep the child during COVID-19 with only Facetime being the method of communication with the non-access parent (see Zee v. Quon endorsement by Justice E. Llana Nakonechny. See also Skuce v. Skuce 2020 ONSC 1881).

The courts are clear that all existing parenting arrangements and schedules should continue with any necessary adjustments and COVID-19 precautions in place. Parents should not assume that the existence of COVID-19 per se automatically results in the suspension of an access parent’s time with their children or even that it will be presumed to be an urgent hearing (see Ribeiro v. Wright 2020 ONSC 1829).

It is important to note that during this COVID-19 era, there will be cases where parents acting improperly will benefit from their unfair actions. This is unavoidable.

In the Onuoha v. Onuoha 2020 ONSC 1815 decision, a parent unilaterally removed two children from Nigeria without the other parent’s knowledge or consent. The court found that this unlawful removal of the children did not meet the test of urgency as it would be “foolhardy” to send the children back through international airports during COVID-19. It may be that the kidnapping parent may later try to benefit from the unfair status quo that arises from them having the children for an extended period of time. It is hoped that when this matter is reviewed again by the courts, this issue can be meaningfully addressed.

To see examples of the types of cases deemed urgent by the courts, click here. (To see Zee v. Quon endorsement by Justice E. Llana Nakonechny, referred to in table, click here.)

Our post-COVID-19 future in family law

It is unlikely that we will go back to normal after the pandemic and there is a good argument to be made that we should not. We have now invested a lot of time and effort in making technology work for us. Not to mention the new technology that we had to learn! The courts have accepted electronic filing as the norm as opposed to the exception. E-mail is now an acceptable way of effecting service. Case law and other source materials are accepted by way of hyperlink. No more creating three or four copies of a large Book of Authorities with reams of paper.

The pandemic has taught us that we should revisit our separation agreements and other contracts and give thought to inserting pandemic clauses.

All of our lessons learned from COVID-19 will be invaluable for us when dealing with the tidal wave of family law cases to come, the ones that are not deemed urgent, but have instead waited in the wings, growing bigger, more toxic and more urgent the longer they remain in abeyance.

This is part three of a three-part series. Part one: Failed love in time of COVID-19: Pandemic and family law; part two: Failed love in time of COVID-19: What is urgent?

Carol Shirtliff-Hinds is founder and managing partner of Shirtliff-Hinds Law, a full-service boutique law firm in Newmarket, Ont. She practises family law and criminal Law. E-mail her at carol@shirtlifflaw.ca.

Photo credit / designer491 ISTOCKPHOTO.COM

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