Ruling follows others suggesting courts are taking stand against “self-help” approaches to disputes
A Calgary father lost his appeal to stay an order forcing him to let his daughter go back to Sugar Land, Texas with his ex-wife, with the Alberta Court of Appeal ruling there would be “no irreparable harm” if the nine-year-old returned to the U.S. despite Covid-19 outbreak there.
Family law practitioners say this decision, and others across the country, is indicative of how courts have been deciding cases of disputes over access since the pandemic began, leaning towards maintaining the original custodial orders unless there is a clear indication that the welfare of the child is at stake.
“Right from day one, since everybody went into lockdown, the courts have been taking a really strong approach to parents trying to use the pandemic to alter parenting arrangements,” says Ontario family law lawyer Russell Alexander, who maintains several offices across the province.
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He adds that judges are generally taking a dim view of “self-help” actions such as not returning the child or children to the other parent, contrary to the court orders and custody arrangement. “The assumption among judges is that both parents are loving parents and are going to follow safety protocols,” he says.
Judges “expect parents to abide by the [custody orders] and try to work things out if there are concerns,” he says, adding that there is always the concern that the parent making the allegations that the other parent is presenting a risk is doing it for nefarious reasons.
In the Calgary case, decided August 14, Justice Thomas Wakeling of the Alberta appeal court ruled that the mother “is a caring and loving mother,” and that he is satisfied
she will take all reasonable measures to reduce the risk that her daughter will be exposed to the COVID-19 virus while travelling from Calgary to Sugar Land, Texas and while residing in Sugar Land, Texas.
His decision also says that the mental health of the girl will be “enhanced if she returns to Texas” in compliance with a May 2019 final custody order. She now has “significant connections in Texas — it has been her home for the last year — and it is desirable that they not be diminished.
On August 13, the applicant father filed a civil notice of appeal of an Aug. 10 court order directing him to return his daughter into the care of the mother, under the May 2019 final custody order. He also filed for a temporary stay of the final custody order which allowed the mother to let the daughter permanently live in Texas. The mother responded asking that the final custody order be obeyed.
This final custody order gave the applicant parenting time with his daughter for designated periods, including “[i]n 2020 ... for the entire summer except for the last four days immediately prior to the resumption of school in the fall of that year and a two-week block ... within the summer break that the ... [mother] shall select.”
The mother complied with that provision and delivered the girl to her father in Calgary, and in her response to the stay application, said the father was “satisfied with the risk mitigation efforts” taken to protect the daughter from infection.
However, Wakeling said a July 27, 2020 letter from the father to the mother’s lawyer “made it clear” that he would not discharge his obligation to return his daughter to the mother. “While I am not seeking a permanent change in primary responsibility, I do believe that the current pandemic brought on by the SARSCov 2 virus does align with a material change in circumstances,” the father’s letter said.
He also said in his letter that Texas is experiencing a large increase in active Covid-19 cases “I do not believe … [our daughter] should return to Texas until it is safe to do so.”
However, in his decision ordering the father to comply with the final custody order, Wakeling said that the appeal is “frivolous” in that the applicant should have asked the Court of Queen’s Bench to vary the May 2019 final custody order “if he believed that the current pandemic constituted a material change, which he did.
“Simply refusing to return his daughter to her mother was not an option the applicant had.”
Justice Wakeling also said he is satisfied that the likelihood the applicant’s daughter will be adversely affected by the pandemic is no higher if she resides in Texas with her mother than if she stays in Calgary with her father. He noted the mother said she has been taking special precautions, such as wearing masks and social distancing, to keep the family safe from Covid-19.
The mother has also said she was willing to drive from Calgary to Sugar Land, Texas, “if that form of travel reduces the risk of infection.” Justice Wakeling agreed that driving is the preferred option, as it will relieve the need to be in airports, which present a greater risk.
Justice Wakeling concluded he is satisfied that the daughter’s “best interests will be advanced if she returns to Texas and resides in Texas with her mother.”
Court rulings in similar cases in different provinces are in keeping with this case, with judges saying that one parent can’t unilaterally cut off another parent’s access to a child.
In a case before the Alberta Court of Queen’s Bench in mid-April, Justice Robert Graesser specifically addressed situations in which parents decide not to follow court orders without first seeking the court's approval.
In this case, the father was arbitrarily denied access to his two children by his former spouse. She claimed he was subjecting his children to undue risk by taking his children to the office, having a friend over to the house and letting the children continue to take riding lessons.
The father wanted his ex-wife to be found in contempt of court for not honouring his access rights and wanted his children to live with him on an interim basis while the matter was being settled. However, Justice Graesser denied his request, saying the father had “yet to demonstrate that he will scrupulously comply with all applicable COVID-19 rules and requirements.” But the judge also adjourned the application to give the parents a week to work out a solution allowing both regular access while keeping everyone safe.
“Unilateral action or self-help remedies can never be countenanced,” Graesser wrote, although he said exceptions can be made, such as in a case where a parent diagnosed with COVID-19 still insists on in-person access to children, or if a parent exhibits symptoms but refuses to do anything about it. However, he added parents should not presume the pandemic automatically suspends in-person parenting time.
Graesser's ruling relied in part on an Ontario Supreme Court ruling, which gave directions on how COVID-19 parenting issues should be treated by the courts and by parents.
In that case, Justice Alex Pazaratz said COVID-19 parenting issues should be dealt with on a case-by-case basis guided by four main principles: there must be specific examples where Covid-19 protocols are not being followed; parents responding to an application to have their access denied must assure that Covid-19 safety protocols are being adhered to; both parents should be required to provide specific child-sharing plans that address Covid-19 considerations; and, judges should take note that social distancing is commonplace, and many public places may still be closed or have limited access.
Pazaratz also wrote in his ruling that “we need parents to act responsibly and try to attempt some simple problem solving before they initiate urgent court proceedings.”
Family law lawyer Russell says that the courts will act if there is genuine concern that one parent is not taking appropriate actions to protect their children. He points to one case where a mother alleged the father was living a “glitzy” lifestyle with his new girlfriend and not following pandemic precautions. The court ordered the children returned to the mother, with the father only getting access through Skype and other virtual means.
“But in general, the courts are not going to permit parents to change existing parenting regimes without good reason.”