Mar 25, 2020

COVID-19: SECOND Emergency Child Access Case Decision from the SCJ

Smith v. Sieger, 2020 ONSC 1681 (CanLII)

Yesterday we posted about the first decision from the Superior Court of Justice pertaining to emergency child access in light of COVID-19. Today we have an update on a second decision from the SCJ.

In Smith v Sieger, an urgent motion was brought for relief that (if granted) would provide the immediate return of the parties child from the United States who was enrolled in an education program in Utah. The parties shared joint custody of the child and the urgent matter was brought to the court in light of the closure of the US/Canada border and Prime Minister Trudeau’s call for Canadians to return home.

The applicant states that the parties came to an arrangement recently that the child was to return to Canada subject to the applicant assuming sole decision making on health and education issues; this arrangement was later disputed. In its decision the court continues to give priority to the best interests of the child and granted the relief requested by the applicant in its entirety. Due to the travel, the court recommend the child be self-quarantined for 14 days in the care of the applicant until that period of isolation is completed and no further health issues arise.

The courts decision to authorize the urgency of this matter can be distinguished from that of Ribeiro v Wright due to the facts. In Riberio v Wright the application was brought due to one party’s belief that the other would not obey social distancing protocol and in turn endanger the child’s health; the court did not find the respondent’s behaviour to deem the matter urgent. In contrast, in this case of Smith v Sieger the court highlights the urgency of the matter for several reasons. First, the child is not presently residing with either parent. The COVID-19 situation has yet to peak and it is in the best interests of the child to be with parents for support. It is also worth noting that Utah (where the child is residing in the US) had recently experienced a 5.7 magnitude earthquake the likes of which the State had not felt since 1992. Second, the border is closing thus making any future travel difficult and increasing the urgency of the situation.

The decisions of the court have shown that the best interests of the child will continue to be prioritized. If the facts of the case indicate an actual urgency that is applied for in good faith, this decision shows that the courts are responding appropriately.

[This post by Russell Alexander first appeared on FamilyLLB.com on March 25, 2020]