COVID-19 a challenge for judges when making family law decisions over custody and visitation

Children on a prolonged vacation in Newfoundland with their mother must plan to return to Ontario so their father can continue to spend time with them, says a Superior Court justice, despite there being many fewer cases of COVID-19 in Newfoundland. 

The mother doesn't intend to keep them there forever, wrote Justice Alex Pazaratz in his ruling, but the court will set a date for when they have to return. 

"This is all about COVID and how families — and family courts — try to keep up with issues and factual situations none of us have dealt with before," he said. 

But their mother says the children aren't ready to return to Hamilton. 

Pazaratz says the rules haven't changed since the pandemic — if this were a cottage, the court would have "little tolerance" — but it's certainly made them more complicated. 

"Imagine a place pretty much removed from the pandemic. Not a mythical place like Atlantis or Mayberry.  But a real place with real healthy people, right here in Canada,"  Pazaratz wrote of Newfoundland. 

COVID-19 is forcing judges to face several new considerations when making family law decisions over custody and visitation. 

In another Ontario case, a father feared his ex-spouse was going to expose their 10-year-old son to COVID-19 by trying to sell her home through an open house.

And in yet another, a woman applied to have her former partner's custody privileges revoked because she didn't want their nine-year-old son leaving her home for any reason.

"Judges won't need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there's a problem," Pazaratz wrote in that decision last March in which the mother expressed concern that the father "will not maintain social distancing for the child during periods of access."

"What we're looking for is realistic solutions."

Family law lawyer Candee McCarthy, in Nova Scotia, said the impacts of COVID-19 are widespread and have severely hampered the court processes.

"I have parents that are concerned about access and following their court order," she told CBC's Mainstreet Cape Breton last March.

"You have a court order, but then you also have this order from the chief medical [officer of health]. How do you balance both with respect to child custody?"

Newfoundland stores, restaurants, movie theatres, and gyms are open

Since COVID-19 cases continue to batter Hamilton, the mother says she and her children want to stay in Newfoundland for some time longer. Pazaratz described her perspective as "a chance to even briefly rescue children from this COVID nightmare."

The situation in Ontario is also worse than when they left. And while Newfoundlanders aren't untouched by the pandemic, according to the mother, they aren't "preoccupied" by it. 

As of Thursday, there were nine active cases in all of Newfoundland, of which four were announced that same day. There wasn't a single new case in the province on the day the mother signed her affidavit, the judge said. 

In Hamilton alone, there were 94 new cases and 710 active ones on Thursday. 

Stay-at-home order in Ontario

The Ontario government has a stay-at-home order in effect, as well as a lockdown that started on Dec. 26. Though rules such as physical distancing and masks are in place in Newfoundland, Pazaratz noted, its stores, restaurants, movie theatres, and gyms are open. 

In Newfoundland, children are also able to see family members, play instruments, and resume organized sports. 

In Ontario, school continues online until at least Feb. 10, 2021. While Pazaratz didn't order them to be back by this date, he said the mother noted she has some level of confidence that returning when school resumes is appropriate. 

Pazaratz ruled the parents also have to do all things necessary to alleviate any concerns the kids might have about returning to Ontario, Pazaratz ordered, so that the return can be arranged as quickly as possible.

Pazaratz said "at some point this court is going to determine a specific date by which the children must be back in Ontario." The case has been adjourned to February.