COVID-19 Case Law Summary – Family Law
April 6, 2020
Courts across the country are permitting only emergency matters to be heard. There have been a number of cases in Canada where the circumstances were sufficiently urgent to be heard by the court. Cases have been reported from Nova Scotia, Ontario, British Columbia and Quebec which give us some guidance on family law issues in the face of the COVID-19 crisis. I have not found any New Brunswick cases referencing COVID-19.
Ribeiro v. Wright, 2020 ONSC 1829 (CanLII)
In denying a mother’s motion to stop access due to COVID-19 concerns, Justice Pazaratz stated that children need both parents now more than ever. He then urged both parents to work out the health and safety issues brought on by the pandemic in a more “conciliatory and productive” manner.
Justice Pazaratz set out some guidelines for dealing with access and custody of children during this crisis:
- The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
- The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
- Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
Skuce v. Skuce, 2020 ONSC 1881 (CanLII)
The Court heard a father’s urgent motion where the mother was withholding access due to COVID-19 concerns (even though the parties had signed Minutes of Settlement dated March 16, 2020 which provided for access). Access was ordered.
Simcoe Muskoka Child and Youth Family Services v. JH, 2020 ONSC 1941
The Court made an Order for access by the mother where the child had previously been removed from the mother by Children’s Aid. The Court relied on Ribeiro v. Wright in reaching its decision.
Eden v. Eden, 2020 ONSC 1991 (CanLII)
The Court determined that there was no urgency in a case where the father was alleged to have allowed children to go to the pet store to purchase a fish, that he has exposed them to third parties (his elderly parents and his friend who is a personal support worker) and that he permitted them. The Court did, however, state that: “Everyone MUST follow Health Canada safety protocols to keep these children safe and healthy.”
Le v. Norris, 2020 ONSC 1932 (CanLII) and Chrisjohn v. Hillier, SCJ (Ontario)
In each of these two cases, the Court made an Order authorizing police enforcement of a previous access Order. Access had been withheld out of fear of the access parent’s lack of social distancing measures.
In Chrisjohn v. Hillier, the Court stressed that all cases are unique and some situations may warranted access being withheld.
In Le and Norris, the Court stated: “Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child, C., contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by C. Neither party shall do anything that will expose him/herself or C. to an increased risk of contracting the virus.”
L-A.F. v. K.V.S., 2020 ONSC 1914 (CanLII)
The Court ordered that a mother was not to move a child’s residence out of the jurisdiction and that the mother was not to allow showings of her home for the purpose of selling the property.
Reitzel v. Reitzel, 2020 ONSC 1977 (CanLII)
A father’s motion for access was determined not to be urgent, because (among other reasons), the parties had been separated for six months, and he chose not to bring the access motion until March 23, 2020.
Tessier v Rick, 2020 ONSC 1886 (CanLII)
The court set a date for a motion to take place by teleconference where a mother was denying access to a father due to COVID-19 concerns as she alleges that the father’s household is not abiding by the social isolation directives. The mother gave no specific examples of the father’s conduct.
Placha v. Bennett, 2020 ONCJ 164 (CanLII)
The Court ordered that a child be returned to Ontario from Newfoundland. The father (access parent) had travelled to Newfoundland with the child for March Break and refused to transport the child back to Ontario upon the announcement of school being cancelled. The father’s residence is also in Ontario.
Smith v. Sieger, 2020 ONSC 1681 (CanLII)
The Court ordered the return of a child from Utah to Ontario due to COVID-19 concerns. The child was attending an education program in Utah.
Onuoha v. Onuoha, 2020 ONSC 1815 (CanLII)
The Court refused to order that children be returned to their father in Nigeria from Ontario because of the COVID-19 crisis.
Johansson v. Janssen, 2020 BCSC 469 (CanLII)
The Court declined to make an Order that children be returned from Germany to Canada, citing that there was no urgent issue.
Child and Spousal Support
Droit de la famille — 20450, 2020 QCCS 1012 (CanLII)
After making a child support order, the Court went on to say that if the COVID-19 crisis did affect the earning capacity of the parties, they would be free to bring a motion seeking a modification of support.
Baker v. Maloney, 2020 ONSC 1929 (CanLII)
The Court allowed additional time for the delivery of a child support arrears payment due to COVID-19 closures and delays, and further stated that the bank draft was to be delivered “as long as it is safe to do so.”
Guerin v. Guerin, 2020 ONSC 2016 (CanlII)
In a case where separated spouses were living separate and apart under the same roof, exclusive possession of the marital home was granted to the mother as the father was not following the COVID-19 measures, and not taking the increased risk to the mother and the children seriously. The court further ordered that communication between the father and children would be by electronic means.
Thomas v. Wohleber, 2020 ONSC 1965 (CanLII)
The Court ordered that a husband replace funds which he withdrew from a joint line of credit. The matter was heard on an urgent basis because the depletion of the LOC deprives the wife of “potential resources that she may require in the future in order to support herself and the children during these difficult times.”
Qu v. Calvesbert, 2020 NSSC 115 (CanLII)
The Court declined to consider a potential loss of income for one party due to COVID-19 in making a costs determination.
In some cases, Courts have ruled that, in the circumstances of the Covid-19 emergency, the Reasons for Decision were deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.