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| Giovanni C. Giuga |
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| Michael J. Piaseczny |
It is clear from our succinct analysis that the treatment of precedent has been upheld during an unprecedented time, specifically the COVID-19 pandemic. Moreover, our analysis shows that the court continued to use the “best interests of the child” lens to maintain child custody and access, despite pandemic concerns.
Since the penning of Justice Alex Pazaratz’s words in Ribeiro v. Wright [2020] O.J. No. 1267, Ontario courts have cited it 124 times within the premier’s self-described “first wave” of COVID-19, from mid-March until Sept. 27, 2020. Given the dramatic changes in the legal profession since the start of the pandemic, we used s. 20 of the Child Law Reform Act as a backdrop to examine how courts have subsequently treated Justice Pazaratz’s decision in Ribeiro v. Wright in child custody and access cases.
Moving party’s relationship to child relatively equal compared to most children
Graph 2 illustrates the different parties who brought forward a motion for child access. The number of cases between each party was relatively balanced, but a child’s biological mother was slightly more likely to bring forward a motion related to access compared to a biological father. We do emphasize that this article does not examine the moving party’s role within a custody arrangement.
Dataset: Main reasons for bringing forward a motion
Graph 3 illustrates the different reasons that parents brought forward their motions. The moving party predominantly brought forward motions to enforce an existing access order or change to the current access order. Over half of the cases fall into the “Enforce access orders” and “Wants/change access” categories.
Another popular reason was the “other parent is not following COVID-19 protocols,” with the number of cases at three, but the moving party’s success rate among these cases is mixed (see Little v. Cooper [2020] O.J. No. 1424, J.F. v. L.K. [2020] O.J. No. 4043 and Guerin v. Guerin [2020] O.J. No. 1396).
Conclusion
This article offers introductory empirical insight — during a time of epidemiological crisis — into the study of family law, specifically child custody and access, because this area of law, like others, has been greatly affected in many facets.
Even before COVID-19, those in the area of family law have argued that the practice area needs more empirical insights so family law can become “more inclusive and move beyond narrow dominant norms” (see Clare Huntington, “The Empirical Turn in Family Law” (2018), 118:1 Columbia Law Review, 227 at 231).
The premise behind this argument is that greater empirical study of family law has the ability to “give decisionmakers a clearer sense of areas in which legal inputs might yield particular social outcomes … [and that] it holds the potential to help depoliticize battles” by attempting to separate social beliefs from political arguments (see Huntington).
This short piece is a mere introductory step into analyzing empirical observations of family law during COVID-19. It is thus key to note that this article presents a piece of a larger project and does not make any causal assumptions.
This is the final part of a two-part series. See part one: “Child access during COVID-19’s first wave in Ribeiro v. Wright: Expansion and restriction.”
If you would like to know how these cases were coded or would like a copy of the dataset, please e-mail the authors at the links provided below.
Giovanni C. Giuga is a second-year law student at the University of Ottawa. He completed his bachelor of arts from Wilfrid Laurier University and master of arts from McGill University in political science. Michael J. Piaseczny is a second-year law student at the University of Ottawa, Faculty of Law. He completed a bachelor of arts in political science and masters of applied politics from Wilfrid Laurier and masters of political management from Carleton University. The authors would like to thank Natasha Bakht, professor at the University of Ottawa, Faculty of Common Law, for her insightful comments and feedback.
Photo credit / Andrii Yalanskyi ISTOCKPHOTO.COM
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