Cliff’s Notes – FDRIO April 2020 Newsletter

Smith v. Sieger, 2020 ONSC  1681

It did not take long for an emergency motion to be brought before the Court in a case in which the current pandemic played a key role.

In a motion brought by the father of a sixteen-year-old male child, Kaufman J. was faced with an urgent situation: whether the child should remain in a treatment school in Utah, USA, or be returned to Ontario where he had resided until the day prior to his 16th birthday.

Adam was born October 28, 2003. His parents have joint custody of him (and two siblings). The Court found that he had been sent to Utah, on consent, to attend an educational and therapeutic program there.

Given the current closure of the courts, for all but emergency matters in the present crisis, it is clear that this case required a rapid decision. The facts, as set out by Kaufman, J. are spare. It appears that the parents disagreed about Adam’s future schooling. We are not told whether both parents live in Ontario, but this is suggested by the judge’s statement that decisions about Adam’s future education would not likely have to be determined until September, 2020. Other issues, described by the judge as “interesting”, were raised in documents submitted, but he chose to focus on Adam’s place of residence, leaving other issues for further deliberation and or negotiation.

The Court took judicial notice of the fact that the border between the USA and Canada was to be closed in a few days, and the “recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country”. As a result, the relief requested by the father was granted.

Kaufman, J. ordered that the child’s passport, that was removed from the school in Utah by the mother, without notice to or consent of the father, was to be turned over to the father, who was to retain it, pending further orders.

The Court also ordered the following:

• that each party provide “all consents required to facilitate the removal of the child from Utah to Canada forthwith”;
• that the child was to self-quarantine for 14 days upon his return, subject to further medical recommendations in the event that he tested positive for the coronavirus; and
• that the child was to reside with father for now, leaving the “residential schedule” to be determined by the parents later on.

As the background facts in this case were not set out in any detail, I cannot comment on how Adam came to reside in Utah nor why he was enrolled in a particular/specific program. Should this information be disclosed in a further reported case, I will be watching for it, and, if relevant, I will write on this again.

The case demonstrates that our courts do have the ability to respond to real emergencies in a time of crisis.  It is interesting to note the use of a judicial notice by the Court. Perhaps that will be developed if this case continues through the court system.

Needless to say, these are trying times. It is likely that coronavirus and the efforts being made to slow and stay its progress will play out on both macro and micro levels, and its fallout, socially and economically, will affect all of us. I expect that many families will experience different levels of distress previously unknown. As the Courts are limiting cases until at least June 1, 2020, there is an opportunity for mediators to assist people, particularly through remote services. Even when the pandemic passes, it is likely that the Courts will be extremely busy with a large back-log. Private mediation can be part of helping people resolve their disputes expeditiously and inexpensively.

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Since writing the above and submitting it for printing, three more cases and one unreported case have come to my attention. I shall briefly comment on them. They are worth reading in their entirety especially for those of you who are mediating these issues or fielding questions about them.

On March 18, 2020 a Notice to the Profession was issued as to how cases were to proceed pending the suspension of court operations. The following cases were assigned and heard on a summary basis.

In Ribeiro v. Wright, 2020 ONSC 1829, the mother of a nine-year-old child brought an urgent motion to suspend in-person access to the father, because she was concerned that the father would not maintain social distancing. The parents had joint custody.

Pazaratz, J. discusses the problems families are now facing, but, due to lack of evidence that the father would jeopardize the child’s health, found that the motion was not urgent and dismissed it without prejudice to its being brought back, if further evidence develops.

In Onuoha v. Onuoha, 2020 ONSC 1815 (CAN LII) Madsen, J. similarly dismissed a father’s motion to have the children returned to Nigeria. He alleged the mother had “kidnapped” them. In view of the Travel Advisory issued by the Government of Canada, the Court found that the father’s motion was not urgent and dismissed it. The case makes reference to the summary process in the Notice to the Profession, and the way it is to operate.

I raise this case as an example for mediators who are more concerned with the substance of access arrangements. Apparently, even given the current crisis, one must have evidence of harm or reasonable cause to believe a child will be placed in harm’s way, before arrangements, especially long-standing ones as in Ribeiro, will be altered.

In C.Y. v. F.R. 2020 ONSC 1875 (CANLII) a different results occurred. The mother brought a motion for the return of two children, ages five and three. The evidence revealed that the father unilaterally took the children from the care of their mother, and was not following the Canadian Government’s warnings about social distancing. As well, there was concern that the children had developed a fever. The mother’s motion was found to be urgent and the children were ordered to be returned to her. The case was held by telephone conference and adjourned for a week to allow more material to be filed ahead of a second telephone conference.

On March 27, 2020, Nakonechny, J. had to decide an access matter that was affected by the COVID-19 pandemic.

See Zee v. Quon, File FS-16-412436.  While the parties have three children, this particular matter concerned their eight-year-old daughter. The Respondent father, a microbiologist, raised concerns about a block of holiday time the Applicant mother was to spend with the child. The concerns were related to the coronavirus. The mother was a health-care employee at a major city hospital; the father was worried about the possibility of his daughter being exposed to the virus. The father refused to allow the mother access. The father attempted to use opinion letters from two doctors about COVID-19 but the Court excluded them as hearsay. The Court was also alive to the fact that there were “alienation” allegations made by the mother with regard to the two older children. 

The mother’s motion was found to be urgent.

In ordering access to the mother for the requested time, and then reinstating the regular parenting schedule, the Court was essentially following other cases discussed in this Month’s Notes. That is, the fact that we are in a heightened state of anxiety about the health crisis should not prevent access from taking place as normally scheduled, unless solid evidence is presented, demonstrating that a parent has been, or is likely to be, reckless in exposing the child to the virus.

Some judges deal with this type of case by denying “urgency” claims; others by allowing the motion to proceed, but then weighing the evidence carefully before deciding the issue. Judges are imploring parents to use common sense. If that is in short supply, then, as always, there must be evidence put before the Court before the status quo is changed.

If you are mediating a current access matter, it will be helpful to know that our Courts are maintaining the status quo except where the facts dictate otherwise.

I wish all of you good health over the coming months.

Until next time….

NB If you are looking for a more detailed discussion of these cases I suggest you look into “This Week in Family Law”, a subscription product by Carswell.