Tag: child custody and access

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Family Law

Shared Parenting During COVID-19

Across the country, people are facing uncertainty relating to their jobs, the economy and even their daily activities. Parents are also dealing with kids being home from school or daycare, and balancing child care with working from home in many cases. However, the current “stay at home” protocol poses additional unique challenges to couples who are co-parenting children, due to the requirement to avoid close contact with anyone outside of one’s home. How are co-parenting arrangements supposed to adapt in cases where a child started the self-isolation process with one parent, yet is required to see the other?

A recent decision out of Ontario has addressed the issue, in refusing to allow an emergency motion to be heard in full. Although courts across the country are primarily shuttered, they are operating to address emergency hearings in criminal and family law matters. In this case, a mother filed an urgent motion seeking to temporarily suspend the father’s access to his child during this period of self-isolation. The judge refused to classify the matter as urgent and said that the existing co-parenting order should remain in place with special care taken to avoid infection of the parties involved.

Family Background and Existing Access Order

The parents share joint custody of a nine-year-old child, with the mother having primary custody. Under the current order, the father has access to his son on alternate weekends. The mother brought an urgent motion seeking to suspend the father’s access for the interim, out of concern he would not maintain social distancing guidelines for the child, potentially exposing is son to infection. The mother and her family were isolated at the mother’s home, and she did not want her son to leave the home for any reason until it was safe to do so.

Safety Must Be Balanced With a Child’s Best Interests

The judge in the case noted that there is a need to balance the best interests of the child, which would have formed the basis for the original shared parenting order, with the need to follow federal and provincial directives aimed at slowing the spread of COVID-19.

The judge found that, while much of our lives are currently being put on hold, we cannot put the important relationships in a child’s life on hold for an indefinite period. In the case at hand, there was no evidence that the child’s father would not follow social distancing guidelines, and so there was no need to set aside the existing access order.

However, the judge did set out situations in which it may be necessary to bypass an access order due to the pandemic. These circumstances include:

  • Cases where a parent is subject to quarantine or self-isolation due to illness, travel or exposure to illness;
  • Cases where a parent’s personal risk factors may put the child at risk; for example, if a parent’s place of employment puts them at a particularly high risk of exposure; and
  • Cases where a parent refuses to adhere to social distancing guidelines, creating an unnecessary risk for their child.

Here, the judge examined the materials provided by the mother and found no indication that the father would present any particular risk to the child. However, the court noted that it would be important for parents sharing custody to continue to observe all distancing requirements while picking up and dropping off a child.

Emergency Motion Protocol

The decision also set out a protocol for people seeking to raise an urgent motion during the pandemic while courts are closed to most matters. Parties should be cautious to follow the protocol set out below:

a.     The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.  

b.   The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c.     Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. 

d.   Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.

At Baker & Company, our family law lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce or separation or other family law dispute. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.

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Defamation And Social Media Family Law

“False Light” Privacy Tort Invoked in Canada for the First Time

A recent Ontario decision has invoked a little-known privacy law tort for the first time to award damages to a mother involved in a high-conflict divorce with her former spouse. Ultimately, the mother was awarded a total of $300,000, a serious condemnation of the father’s activities by the court.

High-Conflict Divorce & Social Media Posts

Just a few weeks ago, we blogged about considerations parties need to keep in mind when posting to social media through a family law dispute. This case is an excellent example of how seriously the courts take negative online behaviour, particularly when it affects minor children.

In the case at hand, the parties were married and had two children together. The father requested a divorce and a month later, the mother moved with the children to the UK out of fear for her safety. Soon, the father began a public campaign to smear the mother, which consisted of him posting videos to YouTube in which he provided personal commentary on the ongoing disputes with his former spouse. As part of these postings, he had included photos and videos depicting private family moments with his children and engaged in online bullying of them as well. One child has a neurological disorder, and in some videos the father could be seen mocking her, saying she seemed ‘drugged’ and ‘not normal’.

He had also publicly accused his former wife of a host of crimes, including kidnapping, drugging the children, theft, fraud and child abuse. He also sent emails and posted flyers directing people to his videos to increase the audience.

The mother brought an action seeking various orders including child support, spousal support, invasion of privacy, intentional infliction of mental suffering, and more.

Citing a four-tort invasion of privacy catalogue introduced by American scholar William L. Prosser and later adopted by the American Law Society in 2010, the judge considered the following four civil invasion of privacy claims:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The ONCA first recognized the first in the list, intrusion upon seclusion, in a 2012 decision. This case also recognized that the fourth tort on the list, the appropriation of a plaintiff’s name or likeness, was already an actionable claim in Ontario.

The second tort on the list, the public disclosure of private facts, was also adopted in Ontario civil law via two decisions in 2016 and 2018, respectively.

The court in the case at hand then reviewed the elements of the American tort of ‘Publicity placing a person in a false light”, which are stated as follows in the Restatement (Second) of Torts (2010):

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The court adopted this definition of the tort and further clarified that while claims falling with the tort would be likely to be defamatory, defamation is not a required element. It would be sufficient that the public misrepresentation would be highly offensive to a reasonable person.

Tort Could Have Broad Implications

This finding could have much broader implications than just family law disputes. This tort could affect businesses and individuals going forward for characterizations posted publicly that could be said to misrepresent an individual. Further, the court in this case noted that while there is a $20,000 cap on awards for intrusion upon seclusion, the same could not be said for this new action, leaving the landscape open to large awards for misrepresenting a person on a public scale.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces

Social Media & Family Disputes

Family disputes, particularly high-conflict family matters, can drag on for a long time and cause pain to everyone involved. When one or both parties are difficult on purpose, this can cause even more delays, in addition to prejudicing that party in the eyes of the court. A relatively new consideration for divorcing couples to think about is their conduct on social media, and how that may impact what happens in the courtroom.

Negativity Online Can Only Hurt a Case

When parents are involved in a high-conflict dispute, it is difficult to keep emotions in check. However, parties are advised to keep their emotions offline if they don’t want to potentially damage their position in court. When one spouse takes to Facebook or Twitter to publically attack their former spouse, this creates a paper trail that can be easily documented and submitted in court. The same also applies to other forms of written communication, such as texts and emails.

If there are children involved, this can have a major impact on parenting plans as well. If one parent is seen to be trying to alienate their children from the other parent, in particular, this may limit the time they are allowed to spend with the child. Not to mention the harm this type of negativity can cause within the family. For the best interests of the child(ren) involved, it is always advisable to keep negativity at bay whenever possible.

Social Media Posts Can Serve as Conflicting Evidence

In some cases, the arguments advanced in court may be discredited by social media posts. Much like a person claiming to be too injured to work who then posts about running a marathon, a person attempting to hide income or other assets may be telling one store in court and a different story online.

As demonstrated in an Ontario case, a father claimed he was unable to pay child support because he was unemployed and receiving social assistance. However, his social media history painted a different picture. The father had initially been ordered to pay child support in the amount of $193 per month based on an imputed income in the amount of $22,800 per year. The father claimed he had no assets, however, and could not afford this modest amount. The mother claimed that he had worked while they were together, consistently earning twice the income that had been imputed to him. The father was trained in construction and forklift operations, and the mother claimed that he often worked for cash in order to manipulate his financial status and avoid creditors.

She further claimed that he would sometimes earn income using his father’s social insurance number in order to maintain his social assistance income and unemployment benefits. The father disputed this and claimed he had been unable to work for two years and was entirely supported by his parents and his girlfriend.

To corroborate her testimony, the mother provided evidence from the father’s Facebook account, which showed him on three separate vacations in a years’ time, as well as attending various sporting events, concerts and nights out with friends at nightclubs.

A Question of Credibility

When it came time for the court to make a decision, a key factor was the credibility of the two parties. While the court found that the mother was highly credible, the same could not be said for the father. If he was in fact unemployed, it appeared to be a deliberate circumstance, as he was capable of working. Further, his social media posts indicated that he had a much more comfortable lifestyle than the one he portrayed in court. He treated the obligation to make full financial disclosure in a cavalier manner and appeared to be dishonest in several respects.

As a result of the courts findings, the support award was doubled, as was the income imputed to the father. This case clearly demonstrates that social media posts do not exist in a vacuum. Posts that can damage a party’s credibility or posts that demonstrate aggression or negativity toward a former spouse can hurt a party when it comes to both support payments and parenting plans. For any party going through a divorce, it is prudent to exercise caution when posting online, or sending other electronic communications.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces

ONCA Determines Habitual Residence Using SCC Model

When parents display separate intentions with respect to which country their children should live in, courts must often make a determination following an application under the Convention on the Civil Aspects of International Child Abduction, otherwise known as the “Hague Convention” (Convention). If both countries in question are parties to the Convention, the parent seeking to have their child returned from the other party country will make an application and a court in the country where the children are located will make a determination based on the child’s place of habitual residence.

Previously, the model used in Ontario to determine habitual residence was based solely on the intentions of the parents. In a decision last year called Office of the Children’s Lawyer v. Balev, the SCC adopted a hybrid approach to determining habitual residence. In that decision, the SCC rejected the traditional Ontario model and considered both parental intention along with the circumstances and preferences of the children.

A recent decision of the Ontario Court of Appeal (ONCA) is the first Ontario appellate decision to apply the new hybrid model.

Facts of the Case

The parents were married in 2001 and had four children, between 9 and 15 years of age. The father was a German citizen and the mother was Canadian. The family had resided in Germany almost exclusively for the duration of the marriage. The children were dual citizens of Germany and Canada but held only German passports.

In August of 2017, the couple relocated to Ontario with their children. Once here, they purchased a home, cars and invested in significant home renovations. They had also brought most of their belongings with them from Germany. The father did not have a work visa, and the children were issued visas for one year, expiring in September 2018. The parents had not settled on how long they planned to remain in Ontario, but the children quickly adapted, and successfully completed the 2017-2018 school year. They also developed close ties with their mother’s extended family in Ontario.

The couple separated in March of 2018, and the father made plans to return to Germany. In July, the mother filed for divorce in Ontario and sought to retain custody of the children. In August, the father filed a Hague Application for the return of his children to Germany.

The Trial Decision

The judge ordered the involvement of the Office of the Children’s Lawyer (OCL) to represent the children and provide the court with their views and preferences. The OCL counsel conducted extensive interviews with all four children and reported that the oldest three expressed a desire to remain in Ontario, while the youngest remained neutral and did not claim a preference.

When determining habitual residence, the trial judge considered both parental intention and the wishes of the children, as established by the SCC. She found that the parents had not moved to Ontario with a set intention to return to Germany. They had enrolled the children in school for the 2018-2019, spent considerable money on renovating a home, and sought health care coverage for the children. With respect to the children, while they had been in Germany much longer, their time in Ontario was extensive and also more immediate. They had adapted well and had become very close to their mother’s family. She also acknowledged that the three oldest children had expressed a desire to remain in Ontario. On the balance of both factors, the judge determined that their habitual residence was in Ontario, and dismissed the father’s application.

The Court of Appeal

In Balev, the SCC explained the reasoning behind the hybrid approach as one which allowed a court to consider the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”. To do this, the court found that they must examine the following three factors:

  1. The child’s links to and circumstances in country A;
  2. The circumstances of the child’s move from country A to country B; and,
  3. The child’s links to and circumstances in country B.

If a court finds that a child was habitually resident in the country in which the applicant is based, they generally must order that the child be returned. However, the Convention sets out five exceptions which the SCC summarized as follows:

  • The parent seeking return was not exercising custody or consented to the removal or retention;
  • There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation;
  • The child of sufficient age and maturity objects to being returned;
  • The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state; and
  • The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment.

In examining the trial judge’s decision, the ONCA found no errors of reasoning or fact. The judge had correctly set out and applied the framework from Belev, and she had clearly considered the children’s preferences in light of their circumstances and links to Ontario. The father’s appeal was dismissed.

In Belev, the SCC has set a new model for considering habitual residence when deciding on Hague Applications; one in which the preferences and circumstances of the child are taken into account, along with the intentions of the parents. it is likely that the older the child is, the more weight their opinions will be given. In this case, the three oldest children were all over the age of 10. It will be interesting to see how this model is interpreted in a case where the child is considerably younger.

At Baker & Company, our lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.