Cooperation for the Sake of Our Children

In tough times, people pull together. Instinctively we might know or believe this, but this is substantiated by the research.

Cooperation is quite common among survivors of disasters, with socially structured and adaptive behaviour often manifested in mass emergencies. From an evolutionary biological perspective this makes sense, as the countless crises that have plagued humanity over the ages were only surmountable through interreliance on others.

Despite this history, which is often unwritten, there are many myths as to how we as a society respond to disasters. These myths include mass panic, when a crowd has a limited opportunity to escape from a pending danger; civil disorder, where emergencies bring out the worst in people, such as looting and rioting; and helplessness, that survivors are too passive to care for themselves.

Drury et al. review these myths in the Journal of Applied Social Psychology and how law enforcement and other professionals believe them. Some of these myths were adopted by these professionals, but there was also a broad acknowledgement of resilience among survivors.

While the benefits of horizontal cooperation are widely acknowledged, the approach to achieving this goal is still often disputed. For example, Coles & Zhuang utilize game theory to help explain and predict organizational cooperation during disasters. They note that complete maximization of organizational cooperation is not only unrealistic, but may even be counterproductive. Rapid response and disparities in local conditions often requires focused interventions that are uncoordinated by multiple actors, rather than a uniform collective solution.

During the COVID-19 pandemic, the response in the legal community has been similarly resilient, while also disparate to reflect unique circumstances related to practice area and settings. The Law Society of Ontario has indicated that they will interpret By-Law 7.1 in a manner that allows for client verification, where required, with video technology. They will also interpret section 9 of the Commissioners for Taking Affidavits Act, that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public,” to allow for commissioning via video conference.

At the same time, numerous stakeholders are working together to ensure that real estate deals can still go through during a pandemic. Land registration and documents can continue to be registered via Teraview®. However, where a land registry office is closed, lawyers are exploring other options such as title insurance gap coverage, escrow agreements, or postponements. Banks remain open, with mortgages still being funded, and TARION noting that new home vendors may be able to extend home delivery timelines using the Unavoidable Delay provisions.

Of course those experiencing the most conflict outside of a pandemic don’t necessarily stop experiencing that same conflict during an emergency. This is especially true in family law matters. Although the Ontario Superior Court of Justice suspended all regular operations effective March 17, 2020, they continue to hear urgent matters, defined as:

  1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

Determination of whether a matter is an emergency will only be made following submissions in writing or by teleconference, especially since judges do not have access to physical or scanned copies of court documents. The good news is that the Ontario Superior Court of Justice will be expanding services that they will be hearing virtually, starting April 6, 2020. Details on this are expected by April 2, 2020.

Despite all family matters being adjourned sine die, including matters that were adjourned on or after March 16, 2020 to a fixed date, existing family law orders continue to operate. Several reported family law decisions have emerged during this pandemic.

In Smith v. Sieger, the parties were disputing the return of their son to Canada, who was obtaining educational and therapeutic program in Utah. Although this arrangement was made subject to an agreement, both parties disputed the propriety of that agreement and its contents.

Justice Kaufman stated,

[6] Interesting arguments in normal times. Again, these are not normal times.

[7] The situation is changing as we speak. When this Motion was served, we had open borders and they are about to be closed. Just prior to the Motion, there was an earthquake in Utah that is interfering in air traffic. No one knows what tomorrow will bring.
Given the imminent closure of the border between Canada and the U.S., and the health concerns facing everyone in society, he granted to request that the child be returned to Canada.

In one [sealed] case, the court held a teleconference and concluded the matter reached the threshold of urgency, specifically the alleged withholding of two children. The mother had just returned from Brazil on March 13, 2020. The father indicated that he intended to take the children with him on March 15, 2020, but there did not appear to be an agreement to that effect. He terminated his retainer with his counsel, and picked them up anyway.

The children then soon fell ill, including having a fever. He minimized any concerns around their health, treating them with acetaminophen. He also took them to several public places, including to various stores, and a road trip to Sarnia to visit his elderly mother. Justice Diamond stated,

[9] …This would normally be some cause for concern, but in light of the current COVID-19 situation, the applicant is understandably extremely concerned for the children’s well-being, and argues that the respondent’s entire decision-making has been called into serious question.

He concluded that the father’s actions unilaterally altered the children’s status quo, and provided the children to the mother’s care and control.

In Onuoha v. Onuoha, the father sought to have his two daughters returned to Nigeria, where they were brought from to Ontario in October 2019. Although the case would appear to be an urgent matter, as it relates to what the father claimed was the wrongful removal or retention of a child, Justice Madsen stated that given the COVID-19 pandemic and the advisory of non-essential travel outside of Canada, even if the father was successful, the order would not be capable of being implemented for weeks or months,

[10] …It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein. Considering the language of the Chief’s Notice, the children’s “safety” and “well-being” are protected, for the time being, by remaining where they are in the care of their mother in Ontario. While the matter is very important to the parties, it is not in my view currently “urgent”.

[11] I understand that the father is anxious to proceed with the motion because he misses his children. He is no doubt worried about what he might see as an unfavourable status quo. It is clear from the materials already before the court that the father has taken many steps to have the children returned to Nigeria. He should want them to be returned at a time when it is safe to travel, not currently. There should be no question that the fact of the motion not being heard presently is occasioned by the pandemic and through no fault of the father. This would be a consideration on the eventual hearing of the motion. This is not a status quo arising from a lack of diligence on the father’s part.

Finally, in Ribeiro v Wright, Justice Pazaratz dealt with two unrepresented parties where the mother brought an urgent motion to suspend all in-person access due to COVID-19. She did not believe the father would maintain social distancing, and did not what her son leaving the home for any reason, including spending parenting time with his father.

Justice Pazaratz did not authorize the matter to proceed on an urgent basis, but made some important points about existing parenting orders,

7 …There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8 On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

9 Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

10 None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

He indicated that in most situations a presumption of existing parenting arrangements and schedules should continue, though parents could agree to necessary modifications to adopt pandemic precautions. In some cases, the restrictions placed on a parent, including a quarantine, time with a child may have to be forgone. Some of these personal risk factors may be out of a parent’s control, such as their occupation. But there are some risks that are within our control which need to be considered in the best interest of the child,

14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Although the family courts are used to dealing with parenting disputes, the courts are not operating as business as usual. Although parents want judges to protect children where necessary, the limited judicial resources during a pandemic require parents to engage in collaborative problem-solving without the use of the courts at this special time.

To this effect, Justice Pazaratz indicated that COVID-19 parenting issues would still be dealt with on a case-by-case basis, and provided some instructional guidance,

15 Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

17 Each family will have its own unique issues and complications. There will be no easy answers.

18 But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.

30 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.

[emphasis in the original]

As an interim measure, the Law Society of Ontario is working with the Superior Court of Justice and the Ontario Court of Justice to offer an emergency family law referral line (Toll-free: 1-800-268-7568
General: 416-947-3310). Self-represented litigants can get 30 minutes of free assistance to determine whether their matter is urgent.

This service is only possible due to collaboration between the Ontario Bar Association (OBA), Toronto’s Family Law Advice and Settlement Counsel project, the Family Lawyers Association, and the Federation of Ontario Law Associations (FOLA).

If the lawyers are able to find a way to collaborate and work together during this special times, the hope is that the parents will to. For the sake of our children.

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