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September 9, 2020

Canadian courts weigh in on child custody arrangements in the age of COVID-19

Canadian courts have now had approximately five months to weigh in on parenting-related COVID-19 disputes.  A comprehensive and consistent message has emerged:

Children’s lives should not be put on hold.  There needs to be a comprehensive analysis of what is in a child’s best interest, which should include consideration of the benefit to a child of receiving love, guidance and emotional support from both parents.  In most situations, this means that the existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to. Parents should not do anything that will expose themselves or their children to increased risk of contracting COVID-19.  There will be no easy answers, but in this time, families need more cooperation and not less. (Ribeiro v. Wright, 2020 ONSC 1829 and Le v. Norris, 2020 ONSC 1932)

This message has remained consistent in the face of many nuanced COVID-19 related disagreements and questions, including: What if my ex’s new partner is an airline pilot?  What if my child’s home with the other parent is listed for sale and being opened to strangers for showings?  Can my kids visit me if I live in a group home? What if I have supervised access to my kids and the access centre has closed due to COVID-19? Can I travel with my child right now?  And most recently: Do I have to return my child to the care of the other parent if I live somewhere with low numbers of COVID-19, and the other parent lives in a place with high numbers of COVID-19?

The later was the question answered by the Court of Appeal in Alberta just weeks ago, when asked to decide whether to enforce an Order that a child be returned to her mother’s care in Texas to begin the school year (Olanski v. Olanski, 2020 ABCA 297).

The parents have a nine-year-old daughter. The Court made a point of noting they are both kind and loving parents. In May, 2019 the mother was successful in obtaining an Order allowing her to relocate to Texas with their daughter. The Order provided the father with certain parenting time, including the whole summer school break save for the four days immediately prior to the resumption of school and a two week block within the summer break.

In June, 2020 the daughter got on a plane and arrived in Canada for her summer time with her father.  In July, correspondence between the parents caused the mother concern that the daughter would not be returned to her pursuant to the Order.

The mother (through counsel) clearly articulated the precautions she would take to protect her family in Texas, including avoiding all non-essential travel, limiting the frequency of leaving the house for errands or attending the homes of others, avoiding restaurants and playgrounds, wearing masks in any public location where social distancing is not possible, and the fact that both the mother and her partner are working from home.

The father, in his correspondence to the mother, provided various statistics regarding the rate of increase in active COVID-19 cases in Texas (and also the particular county in Texas in which the mother resides), comparisons of the number of cases and populations in Canada, Texas and the mother’s particular county, as well as Canadian government recommendations to avoid non-essential travel to the United States and a quote from Dr. Anthony Fauci that he “would not fly anywhere in the United States right now.”

These arguments did little to convince the mother that the daughter should remain in Calgary, and less to convince the Court that a stay of the Order mandating the daughter’s return to the mother’s care in Texas was appropriate.

Despite the Court’s agreement that the data presented showed the pandemic has “swept over Texas and threatened the welfare of Texans,” the Court was satisfied the child’s risk of being adversely affected by the pandemic was no higher in Texas than in Calgary. This was due to the “common sense precautionary measures” adopted by the mother. The Court instructed the mother to drive to pick up the daughter (rather than have the daughter fly to Texas) to reduce risk, use sanitizer, and avoid crowded places on the trip.

The message of our Canadian Courts is, in these ever-shifting times, thankfully consistent.  Whether a child is travelling a few blocks, between neighbourhoods, or across borders: Adhere to common sense precautions to reduce risk to an acceptable degree, and continue with existing parenting arrangements and schedules.

We are available.

Fillmore Riley’s family law practice can advise you on changing dynamics in your family relations on account of the pandemic. Our key contacts are:

Norman Yusim

Marcelin Murray

Marni Karpiak

Amanda Karalash Toker

Sarah Thurmeier

Jessica Isaak

Resource posted on September 9, 2020, with a report from Jessica Isaak.