Canada

Ian Mulgrew: Judges lay out when they will act on custody issues during the pandemic

Domestic abuse has soared with the stress of isolating, but separation, custody, support and access disputes are being disrupted as the pandemic batters families in trouble across the country.

Children’s lives — and vitally important relationships — are being disrupted and they do not lend themselves to being held in abeyance without emotional damage.

Public health orders to stay at home block kids caught in tugs-of-war from visiting their non-custodial parent at a time they need the love and support of both.

And the economic distress not only imposes another hardship, it allows deadbeats balking at support payments an opportunity to blame the coronavirus.

These are especially problems when access to court has been restricted only urgent issues — such as one spouse thumbing his or her nose at an emergency health order.

Courts across the country have been struggling to address the issues since last month when they began suspending regular operations.

“These are unprecedented times,” B.C. provincial court Judge Wilson Lee wrote in a ruling published Thursday that addressed the situation.

“The courts in this province and throughout Canada have been forced to quickly develop procedures that balance the need to maintain access to justice with protecting the health of all persons involved with the judicial system. This includes registry staff, sheriffs, court clerks, support personnel and judges, as well as the parties in any court proceedings, witnesses and members of the public.”

He explained a matter must involve an immediate consequence to be urgent. For instance, a parent seeking an order blocking the other spouse from taking their children on an international flight would no longer be urgent — international travel is already restricted.

What matters, Lee said is the best interest of the child.

He quoted Ontario Superior Court Justice Alex Pazaratz, who issued an emergency child access decision on March 24: “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. … 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.

“We know there’s a problem. What we’re looking for are 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.”

In most situations, there will be a presumption that existing parenting arrangements and schedules continue, subject to COVID-19 precautions — including strict social distancing.

In some cases, custodial or access parents may have to forgo their times with a child: if the parent is subject to some specific personal restriction — for example, self-isolation for a 14-day period as a result of recent travel, is ill or has been exposed to the coronavirus.

In other cases, a parent’s personal risks (through employment or associations, for example) may require controls on their direct contact with a child.

There will be zero tolerance for any parent who recklessly exposes a child or members of the child’s household to any COVID-19 risk.

“If an application relates to an allegation that a party is not complying with COVID-19 protocols, such as have been issued by the provincial health officer, there should be specific examples of such behaviour or actions,” Lee added.

“There must be more than mere suspicions. Any resulting orders made under these circumstances are likely to be interim and made on a without prejudice basis. Indeed, in Ontario, the courts have been describing such orders as ‘temporary, temporary, without prejudice orders.’”

These are difficult issues that expose the fundamental difficulty of resolving domestic and emotional issues that are not best settled by judges and lawyers.

“This is an opportunity for the parties to work together in an effective way to protect the child while still fostering and encouraging the child’s relationship with each of the parties,” Lee said. “These plans require discussion between the parties, with a focus on the best interests of the child, and not unilateral action.”

Lawyers have responded by embracing video-conferencing and a flat-out push to move to alternative dispute resolution processes like mediation and arbitration where possible.

Not surprisingly there already have been calls of embracing a model like B.C.’s Civil Resolution Tribunal for many family law proceedings — a model far less expansive than bricks-and-mortar courts and, because it is online, still functioning normally during this crisis.

“None of us have ever experienced anything like this,” Pazaratz said. “We are all going to have to try a bit harder — for the sake of our children.”

imulgrew@postmedia.com

twitter.com/ianmulgrew

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