Child custody in the COVID-19 era: Judges ask for 'realistic solutions'

COVID-19 has turned up as an issue in a family law case for the first time in British Columbia — as a father asked a judge this week to order his ex-partner to return their children from Germany as soon as international travel restrictions are lifted.

The judge declined to make the order — finding in part that a ruling would have had little immediate effect anyway — but the decision speaks to a rising number of cases in which issues related to the novel coronavirus are being raised as urgent matters.

In one 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," Ontario Superior Court Justice Alex Pazaratz wrote in a decision last week that has already been widely cited in family law cases.

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

'Not urgent'

The B.C. case involved a Swedish father and a German mother whose children were both born in Canada during the significant amount of time their parents have spent working and studying here.

The mother has applied for permanent residency and owns a home in Pemberton, where the children attend school.

She left for Germany in January and had originally intended to return at the end of February but was delayed because of "issues."

Then COVID-19 hit and as Justice Nathan Smith notes "current international travel restrictions obviously preclude any immediate return."

The father applied for an order for the children's return, which the woman objected to — despite her stated intention to come back — because she argued the court had no jurisdiction as Germany was her natural home and that of her offspring.

Courts across the country have suspended regular operations to curb the spread of COVID-19. In B.C., Supreme Court Chief Justice Christopher Hinkson has directed that only essential and urgent matters should be heard.

Smith said the case didn't rise to that level.

"I have concluded this matter is not urgent," he wrote. "An order requiring return of the children to British Columbia would have no immediate practical consequences. [The father] recognizes that it could not be implemented until current international travel restrictions are lifted and no one knows when that may be."

'Inconsistent with 'social isolation''

By contrast, Pazaratz — the Ontario judge — found "potentially urgent" issues in the case involving the father who worried about his former partner's plans to sell her home.

"He is concerned about prospective purchasers coming into the house (and likely into the child's room) to view the premises," Pazaratz wrote.

"He worries that having multiple strangers coming into the residence is inconsistent with the 'social isolation' safety precautions strongly recommended in this COVID-19 era."

Fears of a parent's inability to maintain physical distance from a child also factored into a decision in which an Ontario child services society argued that a mother should not be allowed to have face-to-face visits with the children she had agreed to be placed in foster care.

"When I asked how she would remain socially distant from her child if the child was permitted to have face-to-face access, she did not have an answer," wrote Ontario Superior Court Justice Sonya Jain.

"She assumed that she and the child would not have to maintain social distance and that they would just stay inside and only have to maintain social distance from others outside her household."

'We are all going to have have to try a bit harder'

But even with the very real concerns around COVID-19, judges are having to make nuanced decisions around parental rights.

In one ruling, another Ontario judge ordered a father to have virtual visits with his children until he moved out of a communal recovery home. And then all parties must follow strict handwashing and physical distancing guidelines when face-to-face visits begin after a period of isolation.

In his precedent-setting decision, Pazaratz said the concerns of a woman who didn't trust her former partner to follow instructions were not urgent.

He said family courts should also be careful about issuing "blanket" orders that would put the lives of children "on hold" and deprived them entirely of the love of one parent a a time when they most need support. 

"Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day," Pazaratz wrote.

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