With courts continueing to operate on a limited basis thorughout Canada, ugrtent matters contineu to have priority. Child protection issues will remain the most pressing, in addition to other urgent matters to be determined on a case-by-case basis. As an example of how courts are determining urgency, a case out of Ontario had to weigh in on whether or not to return a child to Canada from the United States as the govnerments of both countries were in talks to shut down the border indefinitely.

Decision Needed Before the Closure of the Border

In Smith v. Sieger, the couple shared joint custody of their three children, pursuant to a separation agreement they had entered into in 2004. One of their children, AS, had been sent to live in the U.S. at a therapeutic educational program in Utah, just prior to his sixteenth birthday. He had been sent there on the mutual consent of both parents.

As the governments of both Canada and the U.S. began to discuss the imminent closure of the border between the two countries in an effort to limit infection and exposure to COVID-19, the father became concerned and wanted to bring his son home before it became too late. The applicant claimed the parties had reached an agreement to bring the child back to Canada, where the father would assume custody and all decision-making rights regarding his son for the interim. HOwever, the mother claimed the agreement had been made under duress and without the advice of independent legal counsel.

The court determined that the matter was urgent, distinguishing it from an earlier application, Riberio v. Wright, which we blogged about previously. In the former case, the parents were in a dispute over whether sharing access to their son would increase his risk of infection. The mother wanted to halt shared access, for the time being, to protect the child’s safety. However, the court found that parents have to work together to accommodate access whenever possible, and determined there wasn’t sufficient reason to find that sharing access with the father was a significant threat to the child, nor was the matter considered urgent under the circumstances.

The Best Interests of the Child Prevail

In the case at hand, the child in question was not currently living with either parent. Utah, where the child was enrolled in school, had also recently suffered a serious earthquake. Given the unknown factors related to the pandemic, including the severity of the impact, the length of time emergency protocols would be in place, and the stress of the situation in general, the court determined it was appropriate for the child to be with at least one parent for emotional support during the quarantine. Further, the imminent nature of the border closing meant that a decision was required quickly as to how to proceed before international travel became impossible.

The court remained consistent in putting its focus on the best interests of the child. The court looked to the recommendations of health professionals and government authorities in Canada and determined that AS should be returned home immediately. Further, it was ordered that AS was to isolate for 14 days, during which time he would reside solely with his father. After the quarantine period was over, and presuming he showed no symptoms of infection, the parents were expected to work out a mutually-agreeable shared access plan for the duration of the time AS remained in Canada.

As restrictions begin to lift in provinces across the country, courts will begin to hear more and more motions. However, it is expected that hearings will remain remote for the foreseeable future, and priority will continue to be given to matters that are urgent, and those that can be determined quickly. We will continue to monitor the situation and provide updates as needed.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting plans and child access arrangements following the breakdown of a relationship. If you have questions or concerns about your current access arrangement, especially urgent matters in light of the current pandemic, we are prepared to get to work for you right away. Contact our office today by calling us at 403-910-3000 or reach out to us online.

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