In last week’s blog, we discussed how Ontario’s courts have responded to the COVID-19 crisis, including family court only being open to hearing urgent matters. Decisions for some of these urgent matters are starting to be released, including the case we will be discussing today.

An urgent motion

The motion was brought by the father, who was seeking the immediate return of the parties’ son from the United States. The son, born in 2003, was attending school in Utah.

The parents share joint custody of the son as well as two other children pursuant to a separation agreement signed in 2004.

The motion was treated as urgent due to the unfolding of the COVID-19 crisis and concern that the Canada and United States border may be closed, preventing the son from returning to Canada at a later date.

Two stories

The father alleged that he and the mother worked out an arrangement the week before the trial, where the mother agreed to return the child to Canada subject to her being given sole decision-making authority on matters related to the child’s health and education. The father said he agreed “under protest and duress,” while the mother challenged it on the basis it was entered into without the benefit of independent legal advice. The court made note that even with the parents’ coming to an agreement, the child is 16-years-old and was entitled to participate in plans pertaining to his future.

A changing situation

The court noted that its analysis of the decision would be heavily impacted by the situation unfolding. In fact, in between the motion being filed and the case being heard, the closing of the border went from a possibility to a fact. Plans to close it were in pace.

The court turned, as we often see in these situations, to the best interests of the child. The court wrote,

“Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the applicant is granted in its entirety.”

In addition to granting the order sought by the father, the court also ordered the mother to return the child’s passport, which she had removed from his school. The court also ordered the child to self-quarantine for 14 days upon his return. During this time he was ordered to live with his father. The parents were ordered to work out an arrangement for his residential schedule following quarantine.

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. Our lawyers 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.

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