A roundup of key Canadian cases from Thomson Reuters that highlight how the pandemic has changed family law practice
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Covid 19 has impacted every aspect of our lives. For those individuals involved in complex legal matters – especially family law - the effects have introduced new wrinkles into an already fraught situation. Law firms who support these clients need to be aware of what’s changed, what hasn’t, and what it could mean for their family law clients.
Below are some recent examples from the past few months of cases where custody and spousal support was reviewed. These cases were highlighted by Thomson Reuters on their blog.
Custody And Access Enforcement During COVID-19 (May 19, 2020)
SAS v. LMS | 2020 ABQB 287 | Alberta Court of Queen's Bench
Family law --- Custody and access — Enforcement
Parties separated in 2013 after five years of marriage — There were two children, aged nine and 11 — Parties shared parenting on week on/week off basis — Father was accountant and mother worked as nurse — On March 18, 2020, parties discussed COVID-19 pandemic and mother suggest that father work from home — Parties nevertheless continued with weekly rotation of children — Mother learned father was taking children horseback riding and to father's office — Evidence differed over whether children remained in car or went into office — Because of concerns, mother advised father that children would remain in mother's care — Father brought application for finding that mother was in contempt of divorce judgment or, alternatively, for primary residence of children during pandemic — Application adjourned — There should be no unilateral withholding of access or parenting time except in true emergency situations where there was imminent risk to child's health or safety — Mother should have sought variation of existing order rather than threatening withholding children from father — Mother had legitimate concerns — Father acknowledged that friend/employee was regular visitor in father's home, although father claimed that stopped after mother raised concerns — Father provided no information as to how paperwork dropped off by clients was dealt with — Father remained willing to meet with some clients — Children indicated that father did not always follow social distancing rules, wear gloves while shopping or sanitize car after shopping — Father also ignored potential for transmission from horseback riding — Father needed to demonstrate commitment to scrupulous compliance and commitment to putting safety issues ahead of business issues — Application was adjourned for one week to allow parties to work out acceptable solution.
Meaningful Timesharing And COVID-19 (June 15, 2020)
Wallegham v. Spigelski | 2020 ONSC 2663 | Ontario Superior Court of Justice
Family law --- Custody and access — Miscellaneous
Parties had joint custody of child, with primary residence being with mother — Mother claimed that face-to-face access would not occur due to COVID-19 pandemic, and father brought related motion — Hearing held regarding urgency — Suspension of long standing agreement by one party was potentially urgent — Mother had not had opportunity to respond to materials, but there appeared to be parenting issue which required quick resolution — Mother to file responding materials — COVID-19 awareness and meaningful timesharing are not mutually exclusive.
Custody Enforcement, Quarantine, And COVID-19 (July 21, 2020)
McNeil v. Christie | 2020 NSSC 145 | Nova Scotia Supreme Court
Family law --- Custody and access — Enforcement
Parties with young son had been in court on numerous occasions to deal with parenting issues — Father's supervised parenting time had been changed to unsupervised in recent months — Father's unsupervised parenting time was to be reviewed but review hearing was removed when courts adopted essential services model — Mother filed request that court deal with parenting situation on "urgent" basis and after reviewing correspondence, it was determined that request met threshold — Mother brought motion for return of child to her care — Evidence didn't satisfy that mother having her boyfriend return to home to provide childcare, without period of self-quarantine, was reasonable — Father manufactured reason to keep child with him, taking advantage of current health directives — Given state of emergency, fact that someone living in mother's home didn't properly quarantine after returning from out-of-province, and that police and child welfare checks had raised no alarms with child in father's care to date, it was directed that child stay with father until April 19, 2020 which would allow mother's boyfriend full 14 days since his return from Western Canada — If he showed no signs of illness, child would be returned to her care and if he did develop symptoms of COVID-19 before child was returned to her care, child would remain with father pending review by court — Once child was returned to mother, father's in-person parenting time with child would be suspended until further review by court.
Spousal Support, Determination Of Quantum And COVID-19 (September 08, 2020)
Small v. Small | 2020 BCSC 707 | British Columbia Supreme Court
Family law --- Support — Spousal support — Determination of quantum
Parties had two children and separated in 2015 after 12 years of marriage — Wife was born in Russia, husband was born in Canada, and parties married in Japan where husband was living before moving to Canada in 2003 and living in home owned by husband and his parents — As of late 2019, husband was working as director of sales and business development with technology company and had annual salary of $80,000, with potential for annual bonus — Wife had law degree from Russia, and from November 2013 to present she taught yoga and Pilates at various studios — Since October 2019, she had also worked part-time for meal delivery service and cleaning houses — Wife's gross business income for 2019 was $39,000 — Issue arose as to determination of parties' incomes for purposes of spousal support — Impact of COVID-19 pandemic on issue of prospective support was relevant issue for consideration — Trial concluded in January 2020 and since then there had been public health directives greatly restricting business operations in British Columbia, including mandated closures of fitness centres and yoga studios — These events were not part of trial record and there was no evidence as to impact, if any, of COVID-19 restrictions on income of either party, but determination of income was issue that would influence parties' future financial positions and it was not appropriate to ignore post-trial events that suggested there might already have been material change in circumstances for one or both parties since conclusion of trial — Amount of $100,000 was fair and reasonable estimate of husband's annual income for support purposes as of trial date, and income was imputed to him in such amount — Commencing February 1, 2020, husband was to pay wife $850 monthly in spousal support — Both parties were given leave to return to court to ensure that any prospective support orders reflected any COVID-19 related impacts on incomes that were of more than temporary nature.
Sadly, the impact of COVID-19 on families is certainly not yet finished. Lawyers will need help keeping up to date on how the virus has affected their clients and the specific details of their cases. Fortunately, meeting their needs, and delivering the service they expect, won’t require completely new tools or skills. Lawyers just need access to up-to-date legal information and practice area knowledge.
WestlawNext® Canada FamilySource gives lawyers the tools they need to efficiently handle any family law matter. This includes family law rules, separation agreements and divorce, child custody law, spousal and child support and matrimonial property law.
