Written on behalf of NULaw

Second Wave of COVID-19 Leads to Second-Guessing of In-Person SChool

As a second wave of COVID-19 spreads across Canada and much of the world, it’s natural for some parents to question whether or not it is safe to send their children to school. Even with parts of Ontario in “lockdown”, schools are still open, leaving some to question whether it’s responsible to do so. We can expect an increase in court decisions related to this second wave. A recent decision from British Columbia shows how the courts continue to approach this issue.   

Parents disagree over whether schools are safe

The father applied to the court seeking an order requiring the parties’ two children to attend in-person schooling. The application was opposed by the mother, who wanted to homeschool the children during the pandemic. Their children are eight-years-old and four-years-old respectively. If homeschooling for the year was not to be an option, the mother asked that she be able to homeschool for at least a “transition” period.

Ontario and Quebec provide guidance

The court noted that there is little authority out of British Columbia in relation to requiring in-person schooling during the pandemic. The court stated that while British Columbia and Ontario may have different operating guidelines for schools, the decision from Zinati v Spence in Ontario is of “particular assistance.” The decision states that it is not the role of the courts to determine whether large government-run schools are safe to send children to. The courts do not have experts available to second-guess the decision making of the government. While there is no guaranteed safety for any child, a number of factors can be used to determine what is in the best interests of the child, including:

  • The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;
  • Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
  • The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;
  • Any proposed or planned measures to alleviate any of the risks noted above;
  • The child’s wishes, if they can be reasonably ascertained; and
  • The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

 Applying the factors to this case

When schools first closed in the spring, the mother homeschooled the children while she had primary parenting responsibilities. The father works outside of the home and would not be able to assist with homeschooling.

At the time the issue was heard, the children had not yet returned to school due to the mother’s opposition to doing so. The court found it was in the children’s best interests to return to in-person schooling, particularly for them to maintain connections with others in order to foster their developmental well-being. While there is some risk that the children could come in contact with someone who has COVID-19 and pass it along to others, there is no guaranteed safety from the virus anywhere, and a general risk such as that is not enough to keep the children at home.

The court ordered the children to return to school at the earliest possible moment.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.

Court Rules Father Cannot Teach Children Hateful Religious Beliefs

Religion is a sensitive topic for many people, and people with opposing beliefs can sometimes find themselves at an impasse when it comes to reconciling differences in religious beliefs. For parents who find themselves working through a divorce or separation, religious differences can lead to litigation, even if both parents share the same faith on some level. This was the situation in a recent decision from the Provincial Court of British Columbia.

Father’s religious beliefs begin to cause problems in marriage

The parties involved have three children under the age of six and were separated on October 24, 2018. They appeared before the court to determine who between them would have the authority to make decisions in respect to religious and spiritual upbringing of their children.

Both of the parents are practicing Christians. During the early part of their marriage, the mother said her and the father shared religious views and interpretations of scriptures, and they attended the same church.

At some point in early 2015, the father began to watch online videos by two pastors the court referred to as “American Fundamentalist Baptists.” After being asked by the father to watch one of their videos, she did so and found the pastor’s teachings to be hateful.

Eventually, the father began to attend a different church than the mother. The couple started to argue about religion, and they ultimately separated. The children live with the mother, and visited the father once a week. The main issue at trial concerned whether the father would be able to teach his religious beliefs to the children.

Mother is concerned about children’s exposure to father’s religious beliefs

The mother told the court that her overarching issue is the father’s literal interpretation of the bible, which includes following verses in the book which direct people to hate certain groups, including homosexuals.

The father did not challenge this, admitting that his beliefs include following the words of the bible literally and that the meaning of the words should not change with the passage of time and changes in society. He said his hateful beliefs are based in good faith.

Best interests of the children are the issue, not religious freedom

The father argued that the mother’s application was an effort to restrict his religious practices. The court said this is not the case, and that the issue is not about the fathers right to religious freedom, but about the best interests of the children.

The court listened to the father’s beliefs on issues such as sexuality and found that his views separate him from many people he meets, and that while he doesn’t physically fight with people, his children are exposed to his beliefs which may cause them to feel the same say, writing the father “will teach his children that homosexuals should be put to death and he will teach them to keep their views about homosexuality to themselves while exhibiting peace and love.”

The court found these views to be anti-social and would cause the children to be unable to get along with a large number of people they will meet through their lives. For these reasons, the court found that the father should not be in a position to make religious decisions about their children.  

Contrary to popular belief, “custody” does not refer just to where a child lives. It includes a parent’s responsibility to make decisions about their child’s care, including religion. If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

Husband Attempts To Relitigate Ownership Of Car

When a family goes through a divorce or separation, it’s easy for disagreements to escalate into serious conflict requiring litigation to resolve. What happens to a couple’s shared property when a marriage breaks down can be one such source of conflict. However, once divorce orders are issued and property issues are recognized as resolved, it can be difficult to attempt to relitigate in the event that one of the parties changes their mind. This was the situation in a recent application made to the Ontario Superior Court of Justice.

Questions about car ownership leads to dispute

The issue first arose in late 2019 as the couple was working through their divorce. One of the key issues at the time was who owned the minivan the couple shared. The husband was seeking a declaration that he is the exclusive owner of the vehicle, and that the wife was unjustly enriched by her continued possession and use of the vehicle.

The court explained that the separation of the parties was a high-conflict affair. The minivan was a part of this conflict, with the wife stating that the parties had an oral agreement that she enjoy possession and use of the vehicle; something the husband disputes.  

Things reached a head on August 29, 2019, when the husband sent a tow truck to the wife’s residence and had the vehicle towed to a car dealership. The husband was later seen going through the minivan by a security officer at the dealership who in turn called the police.

The police called the wife after talking to the husband. She told them she had discovered the minivan missing and was about to file a police report of her own, and explained to the police that she had the understanding she would be the primary owner and user of the vehicle. The police arrested the husband and kept him in custody overnight before deciding to release him without laying charges.

Final order of divorce is issued

On September 21, 2020, a final order was issued. It stated that neither party was to pay the other an equalization payment and that they would each be responsible for their own debts. The wife was ordered to return the minivan to the husband, which she did.

However, the husband later decided that he wanted to pursue damages against the wife for unjust enrichment and for damage done to the vehicle while it was in her custody. The wife, meanwhile, took the position that all of the couple’s issues were resolved by the September 2020 order and that he had no grounds to pursue damages against her.

The court stated that there is a real interest to society in minimizing the costs of ongoing litigation. If the husband had intended to pursue damages against the wife for her use of the car in the runup to the final order, he should have brought those issues to court at that time. The court said the husband knew all of the facts that he now says support his causes of action at that time, and that they should have been a part of the original matrimonial proceedings.

If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance and ensure that you receive a fair division of your property and assets. Contact us online or at 416-481-5604 to book a consultation with family lawyer Lex Arbesman.

Father Asks Court Not To Include RRSP Withdrawals In Income

When a couple goes through divorce or separation, it’s not uncommon for one of the parties to have to pay spousal support to the other. In the event the parties had children, there could also be child support obligations. The amount of support that someone has to pay is determined by their income. Usually, people think of income in terms of money received from an employer. In a recent decision from the Ontario Superior Court of Justice, the court was asked to include RRSP withdrawals in one of the party’s income.

What is the father’s income?

The parties were married in 2008 and separated in 2017. They had three children while married, and the mother, who is a registered practical nurse, has worked exclusively out of the home since 2008. A consent order is in place, which requires the father to pay child support in the amount of $4,006 per month based on income of $239,604. It also requires spousal support of $3,250 per month to be paid to the mother.

Father argues that his income is not as high as originally thought

The father argued that he had a higher than usual income when the consent order was put in place in 2017, stating it has been lower since. He added that he is experiencing financial hardship, and has accumulated debts that he has been struggling to pay.

In order to pay those debts and make ends meet, the father said he has been withdrawing money from his RRSP. These withdrawals have amounted to about $15,000 per year. The mother has asked the court to include these RRSP amounts in the father’s income. However, the father’s position is that his support obligations should be reduced, and says his RRSP income should not be included.

What is the father’s income?

The court looked at the last few years of the father’s income. It found that he made $127,645 in 2019, and $166,558 in 2018. In 2017, he made $239,604. This did not include about $15,000 per year that he took out of his RRSP. His income this year is on track to be about $126,000.

The court noted that a 2013 Ontario Court of Appeal decision found that income from RRSPs should be presumptively included in the payor’s income, but added that the same decision stated courts can depart from this in the event that it would not be the fairest determination of income.

The father said in this case, it would not be fair to include it, stating that after he pays his support amounts, he is left with just $954 to pay for rent, groceries, and transportation. This is in addition to the $149,000 in debt that he has. The court noted that the mother is debt-free and has savings of about $33,000.

The court found that in this case, it would be fair to exclude the father’s RRSP withdrawals from his income.

Father asks for a reduction in spousal support

The court was asked by the father to impute some income to the mother, who is able to work, but has not worked since they separated. The court was told that the children of the marriage are in school full time, and there are no responsibilities precluding the mother from working. The court agreed, and imputed an income of $30,000 to the mother.

In addition, the court lowered the father’s support obligations to match his income from last year and his projected income for this year.

At NULaw, our experienced family lawyer can guide you through the process of making post-separation and post-divorce amendments. Contact us online or at 416-481-5604 to book a consultation, discuss your options, and ensure that you and your children are protected in changing circumstances.

Supreme Court Of Canada Issues Decision On Bonus Payments For Terminated Employees

Almost exactly one year ago, we wrote a blog about how bonuses factor into payment in lieu of notice. This month, the topic has made legal headlines across the country following a Supreme Court of Canada decision related to how bonuses should be applied to employees of a company who have been terminated.

Constructive Dismissal

The employee started working for the employer in 1997. He was an experienced chemist and held a number of senior management positions with the employer. Like other senior executives, the employee was enrolled in the employer’s long term incentive plan (“LTIP”). The LTIP was designed as an incentive to keep top employees and drive the company’s success. Upon the arrival of a “realization event” such as the sale of the company, payments would be triggered to those enrolled in the plan.

Ten years after starting work with the employer, a new Chief Operating Officer was brought into the company. The new COO marginalized the employee, limiting his responsibilities and lying about his status with the company. The employee was not happy at work, but wanted to stay due to the prospect of a pay-off under the LTIP. However, after four years of working under the new COO, the employee left.

The company is sold, and the employee receives nothing

The company was sold for $540 million 13 months after the employee left. The sale qualified as a realization event, and eligible employees received payouts. The employee involved in the trial did not. He filed an application stating that while he left the company, his leaving was a result of constructive dismissal. The trial judge agreed, stating the employee was owed a reasonable notice period of 15 months, meaning he would have been an employee at the time of the sale.

The case made its way to Nova Scotia’s Court of Appeal where the employee was awarded payment in lieu of notice for the 15-month-period, but was not entitled to damages related to missing out on the LTIP payment.

The case makes its way to the Supreme Court of Canada

The court began its explanation of its decision by stating that employers can prompt employees to leave their job, and that doing so results in constructive dismissal, which is subject to a duty to provide reasonable notice. The court noted that an absence of good faith is not required to trigger this duty. Instead, it’s simply the failure to provide reasonable notice. That said, the actions of the employer may lead to additional damages.

The court stated that two questions must be asked to determine if damages should include bonus payments in cases where notice was not provided. The first is whether but for the termination, the employee would have been eligible for the bonus. The second is question is triggered if the first is answered in the affirmative. The second question asks whether the terms of the bonus would otherwise take away or limit the right to receive the bonus.

In this case, the court stated that had the employee been given proper notice, he would have received payment from the LTIP, which did not limit his ability to do so in such a situation. As a result, the employee passed both steps necessary in the test.

The knowledgeable and experienced employment lawyers at NULaw in Toronto assist clients with navigating the risks and obligations in employment relationships. Contact us online or at 416-481-5604 to book a consultation today.

Annulments Due To Inability To Consummate The Marriage

We’ve covered a large number of issues on our blog over the years, but it has been some time since annulments have been covered. Unlike a divorce, an annulment is a declaration that a marriage never existed (rather than a legal ending of a marriage, such as in a divorce). Annulments are also not nearly as common as divorces, and a recent decision from the Supreme Court of British Columbia has provided us with an opportunity to look at how the courts address annulments in certain situations.

What is an annulment?

As we mentioned above, an annulment is a declaration from the courts that a marriage is not recognized – making it as though it never happened in a legal sense. There are a limited number of reasons why a marriage may be annulled.

  1. The couple was unable to consummate the marriage
  2. One of the people married was already married
  3. The married parties are related
  4. One of the parties in the marriage is underage
  5. The marriage was not properly consented to by one of the parties

Other reasons for an annulment might be factors such as the person who officiated the marriage was not allowed to do so.

In today’s situation, we look at a situation where an annulment was sought because the parties did not, or could not, consummate the marriage.

The history of annulment due to inability to consummate the marriage

While the parties involved in the trial were married in 2018, laws concerning the inability to consummate a marriage have existed for over 150 years. Since 1857, courts in Canada have assumed jurisdiction over annulments, and in British Columbia (and Ontario) the lack of capacity for a spouse to consummate a marriage is grounds to void a marriage.

The court noted in this case that the facts upon which the annulment is sought must have existed at the time of the marriage, rather than after the marriage occurred. If the grounds only arose after the marriage occurred, it would mean the couple would need a divorce rather than an annulment.

Was the husband unable to consummate the marriage at the time it occurred?

The parties were married on August 11, 2018. The wife sought an annulment on the grounds that the marriage had not yet been consummated due to the husband’s impotence. The burden of proof in this case fell on the wife, who was required to satisfy the court that the husband was incapable of consummating their marriage.

Traditionally, courts in Canada stated that the inability to consummate a marriage must be a permanent issue, and not one that could be cured. More recently, courts have lessened the burden. A 2003 decision from British Columbia stated that impotence could arise from physical or psychological incapacity, meaning the spouse who is impotent could be able to perform intercourse with others, but not with their spouse.

The court received affidavits from the parties, and while the husband submitted one, he did not challenge the wife’s statement that he was incapable of consummating the marriage. The wife’s affidavit stated that they attended pre-marriage counselling sessions, where the husband did not mention any sexual health issues. The parties spoke about having kids together, but did not live together or have sexual intercourse prior to their marriage. After they were married, the wife said the husband was not able to maintain an erection, a problem that persisted for close to a year. Eventually, they couple spoke to a doctor who found no medical issue preventing the consummation of a marriage.

The facts as presented by the wife, and unchallenged by the husband, were enough to lead the court to conclude that the husband was not able to consummate the marriage with the wide, and as such, the marriage was determined to be null and void.

The end of a marriage is always difficult and emotional. The experienced and compassionate divorce lawyer at NULaw can make the process easier by providing outstanding legal guidance and ensuring your interests and rights are protected so that you can focus on moving on with your life. Contact us online or at 416-481-5604 to book a consultation.

Mother Says Father Of Children Is Not Taking Covid-19 Seriously

With a second wave of Covid-19 on the rise, it’s natural that stress levels amongst family members may be higher than usual. This is especially applicable to parents who are divorced or separated. As restrictions in many parts of the country have loosened, parents may not agree on the best way to protect the health of their children. In a recent case heard before the Ontario Superior Court of Justice, the court was asked to determine whether the father’s social circle was too large.

Mother wants to keep social circle tight

The parents were married in December 2012 and separated just over six years later in early 2019. They had two children while married. Since the separation the children have lived primarily with the mother. The mother’s application asked for her to be formally granted primary care.

One of the reasons for this request is that the mother stated she had concerns about the father’s care of the children. She told the court he has a history of unreliability and irresponsibility, including incorrectly installing car seats, accepting video calls while driving, and not properly fencing his pool. However, the mother’s primary complains was that the father had not been following Covid-19 protocols. The mother alleged, and the father admitted, that he had introduced the children to his new partner and her two children.

The mother stated this is a major concern because she and the children are in regular contact with the children’s maternal grandfather, who is 77-years-old and has a “complex and involved medical history that puts him at a very high risk of a bad outcome should he develop a COVID-19 infection.” The mother added some context, explaining her father suffers from severe asthma, rheumatoid arthritis, and was recovering from recent cancer treatments.

The mother requested that the court limit the children’s social circle to her, the father, and the maternal grandparents.

Father says mother is trying to keep him from his partner

The father said that he has been compliant with the province’s social circle guidelines. Instead, the father stated the mother was trying to prevent him from seeing his girlfriend and her family. He said the mother was demonstrating strange behavior around his girlfriend, including showing up at her residence or workplace, investigating her private life, and other actions.

Should the social circles of the children be reduced?

The court found that the father has not complied with the province’s Social Circle guidelines. He did not identify his girlfriend’s name to the mother or ask the mother for her agreement to introduce the children to the girlfriend and her children. However, the court also said that the father’s concerns about the mother have some merit. There was also a lack of evidence about how often the children interact with their maternal grandparents.

Ultimately, though, the court focused on the father’s failure to abide by the general public health recommendations. Even though there was no evidence of a medical concern on the part of the children, the court ordered that the children’s social circle be limited as per the mother’s request, and that the mother shall have primary care responsibility for the children, though both parents will share decision-making responsibilities.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. Lex Arbesman has been helping clients in Toronto since 1953, providing clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

Is Potential For Health Problems Enough To Keep A Child From School?

We have written a few blogs over the last number of months dealing with the issue of whether it is safe for children to return to school, or whether education during COVID-19 is an educational matter or one of health. One of the most interesting parts of the law is the nuance in various situations. In a recent decision from the Ontario Superior Court of Justice, the court was asked to rule on whether a child’s predisposition to a disease is enough to allow a parent to keep her from school.

Parents cannot agree on school attendance

The parties have a ten-year-old daughter who is in grade 5. While the parents were able to agree on which school the child should attend, they were not able to agree on whether she should attend school virtually or in-person. The father sought an order that she attend school virtually. The mother, on the other hand, wants the child to attend in-person.

The dispute was largely the result of whether it would be healthy for the child to attend school. The father stated that she had pneumonia in the past and that she is genetically disposed to an autoimmune disorder called ankylosing spondylitis, with which the father has also been diagnosed. While the daughter does not have the condition, he states there is a “probability” she carries it. As a result, he claimed in-person schooling would be a threat to both his and the daughter’s health.

The mother told the court that the child has difficulties in reading and writing and has had an Individual Education Plan designed for her. The mother said that attending school through this plan would be the best way for the child to succeed at school. The mother also presented a letter from the child’s doctor, stating she does not currently have any medical conditions.

What is in the best interest of the child?

The court recognized that each of the parents is looking to secure the best interests of the child, but have different opinions on how to best do so. The debate about in-person or virtual schooling is a common one for many people, even those without underlying health concerns.

The decision cited a recent statement from the court in another decision from earlier in the year where the court stated that the Ontario government is in a better position than the court when it comes to assessing school attendance risks. With the government concluding along with medical experts that while it is not 100% safe to return to school, the balancing of mental health, psychological, academic, and social interests means that in-person schooling is appropriate at this time.

As for the child’s likelihood of developing the condition her father has, the court relied on the physician’s statement that she does not currently have a medical condition that would put her at risk. With that being the only medical evidence available at the time, the court found it was safe for the child to return to school, adding that the benefits of her doing so outweigh the potential risk to her father, who has the condition.

Separation, divorce, and other family disputes are tough to work through even when there isn’t a global health pandemic occurring. The situations that many families are currently in may compound these stresses. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer Lex Arbesman at NULaw online or at 416-481-5604 to book a consultation.

Husband Asks Court For Possession Of Home To Comply With Order To Sell

For many couples, the matrimonial home is the most valuable asset they own. When you add in sentimental attachments to a home, what happens to a home can be a very emotional and financially consequential decision to make. In a recent case heard by the Ontario Superior Court of Justice, a father went to court in an attempt to resolve what would happen to the matrimonial home he shared with his wife and their two children.

Mother and children stay in home following separation

The parties were married on August 11, 2001 and separated just over 17 years later in 2019. They had two children during the marriage, both of whom are still under 18-years-of-age. The couple own a home in Toronto, which the father voluntarily vacated in April 2019. Since then he has continued to pay 50% of the capital expenses associated with the home, including property taxes and repairs. He had been renting an apartment close to their home, but left it to move in with his brother outside of Toronto once the cost of maintaining the apartment and his share of the home became too much of a financial burden. The father has said that is inability to have overnight access with the children while he lives with his brother has been unsatisfactory, and that the children don’t have the experience they should while spending time with him when he visits the city.

An order to sell the home, but no action

The parties attended a case conference in January 2020 in which they agreed to sell the home. This would allow the father to purchase a home which would be suitable for the children to visit him in.

Following the case conference, the parties retained a listing agent for the home. However, the home was not listed, and their contract with the listing agent expired. Since then, the father stated the mother has not complied with the order to list the home, or another order related to temporary custody and financial disclosure.

In the meantime, the court learned that the father and his lawyers had reached out to the wife on a number of occasions in order to inquire about the home. The correspondence indicated the mother was in violation of the order to sell the home, which had still not been listed. Despite this, he heard from his children that the mother was planning to move with them to her mother’s home. However, the father was not able to confirm any of this as the mother did not respond to letters, phone calls, or text messages.

This time around, the father asked the court to compel the mother to comply with the order to sell the home. It is his position that her willful refusal to respond to him is an obstruction of the order. The father also asked for exclusive possession of the home so he could ready it for sale.

The court determined that the mother had provided the court with no evidence in regard to the motion, bringing no reasonable explanation to the table. The court also had no faith that she would comply with an order to sell the house. As a result, it ordered the husband to have exclusive possession of the home so he could ready it for sale.

If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance and ensure that you receive a fair division of your property and assets. Contact us online or at 416-481-5604 to book a consultation with family lawyer Lex Arbesman.

Parents Disagree As To Which Country Is Safest For Children During COVID-19

With the school year here, it’s natural for there to be a number of questions around what to do if two parents who are divorced or separated can’t agree on how or where their children should attend school. These questions can arise during any school year, but COVID-19 has brought new wrinkles to these difficult decisions. Last week we looked at two parents who couldn’t agree on whether their child should attend school. This week’s blog looks at two parents who were at odds over whether it is currently safe for the child to move countries and schools.

Two parents in two countries

The parents were married in 2003 and separated in 2013. They had three children together, who are 15, 13, and 10-years old. At the time of the separation, all of the children as well as the parents lived in Hamilton, Ontario. However, in 2013 the mother moved to St. Louis with the children, while the father remained in Hamilton. The father sees the children several times each year, and the parents have followed an access schedule outlined in an order.

On June 20, 2020 the children arrived in Hamilton to visit their father. They were originally supposed to return to the United States on August 9, 2020. However, the father brought an urgent motion on July 30, asking the court to make a temporary order to allow the children to remain in Hamilton and attend school there.

Why the father requested the children move to Ontario

The father’s submission hit on a number of issues that could be addressed by a move, including the children’s desire to live in Canada and the mother’s approach to COVID-19 as well as how St. Louis and the United States is handling the pandemic. The father said the mother is not adhering to all COVID safety protocols, statin the children do not wear masks, that they have traveled across state lines, and that the mother said she had no plans to have the children vaccinated.

The mother, meanwhile, argued that the father was not being honest about her approach to COVID-19, stating she has complied with all precautions, including the use of face masks.

Has a material change in circumstances been demonstrated?

The court stated that for an existing order to be changed, there party asking for the change must demonstrate a material change in circumstances. The court acknowledged that COVID-19 has upended the lives of nearly every family, but added it is important to keep children’s lives as “normal” as possible during the pandemic.

The court did not find that the father brought sufficient evidence to demonstrate a material change in circumstances. Instead, his evidence is more akin to a list of allegations against he mother. The court said, “how could we possibly risk life-changing upheaval for these children on the basis of bald and uncorroborated allegations that the mother won’t wear masks or engage in social distancing?  Particularly where the mother categorically denies these allegations, and there is no evidence that she has ever been reckless in any aspect of her life.”

In this case, the court ordered the father to return the children to their mother’s care in St. Louis.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.