Judge admonishes parents for not utilizing dispute resolution clause in divorce order
An Ontario court has treated the issue of a child’s return to a COVID-19 hotspot, when the child was suffering from pandemic-related anxiety, as a mental health issue that called for the parents to take the child to counselling.
In I.L. v. C.R., 2021 ONSC 590, the applicant father and respondent mother, both lawyers, had three teenaged children, aged 18, 16 and 13. The parents separated in September 2015 and obtained a divorce order in October 2018 that settled their parenting issues. The children primarily resided with their mother in Hamilton, Ontario and stayed with their father, who rented accommodation in Hamilton, at regular times during the week. The order provided that a professional would facilitate and mediate the resolution of any remaining parenting issues.
The children spent Christmas holidays in Newfoundland with their mother each year. In November 2020 the mother told the father that she wanted to take a longer trip, to compensate for the time the mother and children would need to be in quarantine after arrival in Newfoundland. The mother and children then left for Newfoundland on Dec. 7, 2020, but failed to return on the agreed date of Jan. 7, which prompted the father to file a motion to bring back the children to Ontario.
The dispute before the Ontario Superior Court of Justice revolved around 13-year-old son “John,” a happy-go-lucky boy who developed pandemic-related anxiety as the COVID-19 crisis progressed. John would get upset when other children in school failed to observe distancing measures and would hurry home after school to use the washroom due to his fear of using public washrooms, which he perceived as unsafe.
The mother said that the three children responded very well to the “freedom” from COVID-19 in Newfoundland because of the limited case count there and being able to enjoy normal family dinners, celebrations and activities such as competitive swimming and playing instruments with a youth orchestra.
The mother reported that John was “terrified” by the prospect of returning to a COVID-19 hotspot. His siblings also resisted returning to Ontario. Both parents agreed that the children should return to Ontario at some point, but while the father demanded their immediate return, the mother said that the children were not yet ready.
The court adjourned the father’s motion until Feb. 12, shortly after in-class schooling is scheduled to resume in Hamilton, and ordered both parents to arrange for Hamilton-based counselling for John, conducted initially via video, to establish the timeline for John’s return to Ontario and, ideally, broader issues as well. The court also ordered the parents to communicate daily via email and for the father to reach out to each child daily via telephone or Facetime.
The Ontario Superior Court of Justice found the case involved a mental health issue, not a legal issue, and suggested that courts should pay more attention to the way that children are emotionally dealing with pandemic-related fatigue. Most of the cases dealing with COVID-19 have focused on the physical protection of children, their parents and others from being exposed to the virus, the court noted.
“And if adults are having trouble coping with life-threatening dangers, just imagine what it’s like for children,” wrote Justice Alex Pazaratz for the Superior Court.
The court then pointed out that neither parent had tried to make use of the dispute resolution section of the 2018 divorce order, which called for hiring a professional to facilitate and mediate parenting issues arising between the parties.
“While I generally commend both parties as being excellent parents, their failure to utilize the dispute resolution mechanism specifically set out in their court order is extremely disappointing,” wrote Pazaratz.
Russell Alexander, founder and senior partner at Russell Alexander Collaborative Family Lawyers, discussed the case in a blog post in which he cautioned lawyers and their clients to be mindful of such dispute resolution clauses before taking their cases to court. Otherwise, judges will admonish them for failure to explore resolution options other than litigation, Alexander said.
“Courts are increasingly recognizing the dangers to mental health that the pandemic is having on children,” Alexander told Canadian Lawyer. “When a child is hurting mentally, don’t rush off to court; get the child into counselling.”