15 May COURT TRENDS AND COMMENTARY: Separated parents

NOTE: This is not legal advice, but general comments and information only. For legal advice, contact us for an appointment at [email protected] or through the contact us page on this website.

The BC Courts (BC Supreme Court and BC Provincial Court) are starting to open up operations. Further, the courts have indicated that some of the scheduled hearings, trials and conferences for the upcoming months will go ahead as planned at this time; but there will be ongoing practice directions from the courts as we move along.

The courts have broadened the scope of applications that it will hear at this time which continue to be by telephone or video. Most are by telephone so the absence of hair cuts to date are less of a concern.

In family law, since March 2020, most urgent applications have been related to parenting time with children and COVID concerns; that is, parents’ concerns or raising claims that a child’s health and safety are at risk if with the other parent because of the virus itself, the other parent is not properly following preventative measures, the child is at increased risk because of immune deficiency or respiratory issues, or the other parent is at a higher risk of infection because of their occupation (truck drivers, health professionals, food retail workers, etc).

Since the pandemic, I have reviewed hundreds of the cases around COVID and parenting time, as well as consulted medical experts, obtained medical-legal reports, and submitted statistics and information to the courts in cases revolving around this issue.

Most reported cases are out of Ontario, some Alberta, a few from our BC Provincial Court, and a handful from from our BC Supreme Court. The development of the law and legal principles in this area was fast, and continues to change. There is also information that is coming fast and furious from our public health authorities.

One significant issue that arises in the context of these cases, as well as in family cases generally, is where the court demands specific details about what each parent or a parent is doing in their homes despite finding that both parents are caring, loving and able to meet the child’s needs. In my view, this creates more conflict, legal cost, and court proceedings.

I came across a case from Ontario that mirrored my frustration around this issue where a Judge not only criticizes parents, but also Judges. The case is Johnson v. Johnson, 2020 ONSC 2896: https://www.canlii.org/en/on/onsc/doc/2020/2020onsc2896/2020onsc2896.html

In the Johnson case, mom claimed the child was at increased risk and harm because of an asthmatic condition, and that the dad should not have “in-person” parenting time. Judge Pazaratz stated:

[18]           There is absolutely no doubt that COVID-19 is a life-threatening pandemic.  We all have to take it very seriously.  We have to protect one another.  And we especially have to protect the vulnerable: children and the elderly.

[19]           Recommendations for “social distancing” and “social isolation” have been clearly articulated and still apply.  They’re common sense and relatively easy to comply with.

[20]           But beyond that, we’re inviting trouble if we pretend that there is a single, one-size-fits-all solution for how separated parents should raise children during this incredibly complicated COVID-19 crisis.

[21]           And we’re inviting even bigger trouble if we allow separated parents in high conflict disputes to start imposing their own rules on their estranged partner.

The Judge went on further to comment about a common sense approach and conclusion where the court finds that the parents are both loving, caring, responsible, safety-concious parents, that is is unnecessary to go into an in-depth analysis which leads to further hearings and conflict:

[30]           Once the court concludes that both parties fall into the category of “loving, caring, responsible, safety-conscious parents”, it is unnecessary – and inappropriate – for judges to conduct a microscopic analysis of every single decision each parent makes during their time with a child.

a.      During COVID-19, daily life for separated parents has become exponentially more complicated, entailing many new responsibilities and countless judgment calls.

b.      Parents have to think about and agonize over activities and interactions previously regarded as routine and benign.

c.      They have to stop doing certain things.

d.      They have to do other things differently and more safely.

e.      Parents have to provide children with as normal a life as possible in abnormal times.

f.      If parenting standards demonstrably fall below a certain threshold, the court will have no hesitation to intervene.

g.      But once parental insight, trustworthiness and devotion have been firmly established, we need to step back a bit and let parents make some of the tough day-to-day decisions on their own.

[33]           As Triage judge it would have been just as easy for me to say: “Mom says there’s a problem — let’s give them a hearing and they can sort it out.”

a.      But every time high conflict parents return to court with a fresh proceeding, it re-opens old wounds.

b.      It’s like a fresh declaration of war which poisons home environments and spoils children’s lives.

c.      Many parents have come to regard family court as an inevitable destination, as opposed to a place of last resort.

d.      We have to change this mind-set.

e.      Judges don’t want to be erroneously perceived as dismissive or disinterested.  But sometimes we have to tell both parties:  Go home and be more sensible.

The case of Johnson is a refreshing approach and reminder of how the courts, parents, and lawyers should approach these issues which have inundated the courts during the pandemic. This has been an ongoing problem in family law before the pandemic as well.

In my view, too many children are denied a meaningful relationship with their parents because of false claims, and too many of us that are a part of the legal system enable this to happen. There are certainly a number of cases where parenting time with a child should not occur or should be modified because it is not in the child’s best interests. But when we let fear and/or efficiency be our main drives, we our failing those whose interests are paramount: the children.

I get it. Easier said than done. But at least saying it, gets the conversation going.