How far can parent go to protect children from impact of COVID-19?

Steve Benmor

For the past year, family court judges throughout the world, and especially Ontario, have been issuing court orders regarding parenting plans impacted by COVID-19.

One of the most prolific Ontario judges in this regard is Justice Alex Pazaratz. He has authored some of the most groundbreaking decisions in family law, not limited to the global pandemic. However, his rulings in family court cases triggered by COVID-19 have attracted widespread readership and acclaim.

In I.L. v. C.R. 2021 ONSC 590, Justice Pazaratz was faced with a case where a mother and her three children travelled to their vacation property in Newfoundland for the Christmas holidays. Once there, the parties’ three children voiced their fear of returning to Ontario where the infection rate was skyrocketing. Their youngest child, a 13-year-old boy, expressed significant anxiety about the possibility of returning to Ontario.

The children told their father that they wanted to stay in Newfoundland where there were few COVID-19 cases and life was normal. Their father asked Justice Pazaratz to order his ex-wife and all three children to return to Ontario so he could resume his shared parenting schedule with them.

In his usual polychromatic journalism, Justice Pazaratz wrote: “Imagine a vacation from COVID. A temporary return to ‘normal.’ Imagine business as usual. No restrictions. No lock downs. No curfews. No curbside pickups. No daily infection numbers. No death counts. No contagion. No constant fear.

“Imagine a place pretty much removed from the pandemic. Not a mythical place like Atlantis or Mayberry. But a real place with real healthy people, right here in Canada. That possibility — the chance to even briefly rescue children from this COVID nightmare — was the subject of this unusual motion where the facts might actually create a bit of envy.”

Normally, judges follow the doctrine of stare decisis, which means that their decisions generally follow past precedents. The concept of precedence is what has created a stable and predictable society. Lawyers give clients advice based on previous court rulings which thereby allow clients to predict the consequences of their actions.

But what is a judge to do when there is no previous court ruling because of a global pandemic?

Justice Pazaratz framed the problem by stating, “[T]his is all about COVID and how families — and family courts — try to keep up with issues and factual situations none of us have dealt with before.” Then, he reverted to first principles in such cases — make the decision based on the best interests of the children. He stated, “[P]arenting disputes like this must be determined based upon the best interests of the child. At age 13 a child’s views, preferences and emotional comfort level are not necessarily determinative — but they are certainly an important consideration.”

In describing what was in these three children’s best interest, Justice Pazaratz wrote:

“They are able to enjoy the normal activities of daily life because stores, restaurants, cinemas, museums, libraries, gyms, etc. are all open — subject to masks and social distancing. The boys have been able to resume their competitive swimming (banned in Ontario).

“George plays violin. John plays saxophone. [N.b. The children’s names have been changed.] They were members of a youth orchestra in Hamilton which curtailed its activities as a result of COVID. They are excited about possibly being able to play with a youth orchestra in St. John’s. They are also rehearsing to bring their instruments into the nursing home to play for the maternal grandmother.”

Bringing this back to the specific children involved and the lack of guidance from past cases, the judge stated, “[N]othing in this job has prepared me for how to respond when a 13 year old youth says he is ‘terrified’ about returning to Ontario because of COVID. If his own father tells me he has ‘trouble processing’ this information, then I have trouble processing it too. I’m not going to do nothing. But I need better information before I do something.”

In the end, Justice Pazaratz adjourned the case to allow more information to be provided to him, including whether family counselling could provide the solution this family needed. So in the meantime, the mother and the children will remain in Newfoundland. But the court is very keen to have the children returned to Ontario as soon as possible to resume their relationship with their father.

As difficult as this case is, this family was very fortunate to have such a thoughtful and child-focused judge helping them.

Steve Benmor of Benmor Family Law Group is certified as a specialist in family law and is the founding chair of the elder law section of the Ontario Bar Association. E-mail him at steve@benmor.com.

Photo credit / Alina Kvaratskhelia ISTOCKPHOTO.COM

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