Should custody arrangements be modified where one parent is a nurse working with patients who may be infected with COVID-19?
In child custody cases, the core principle is always what’s in the best interest of the child.
A recent BC court decision set out factors to be considered when assessing a child’s best interest in a situation where a parent is working in an environment of known risk. These include whether the child has medical conditions placing them at higher risk if they are infected, whether either parent has people with elevated risk in their household, what the risk is of either parent contracting the virus, and what steps each parent is taking to mitigate the risk of exposure.
In a recent case involving an eight-year-old child, with a mother working as a nurse, the judge acknowledged that while there was some risk to the child from infection, this was offset by the benefit that the child received spending time with his mother.
The judge took into consideration steps that the mother was following to avoid infection: wearing hospital scrubs, leaving her shoes and clothing at work, wiping down her bag, showing as soon as she got home, and using bleach to clean her door handles.
The judge did direct the child’s parents to continue discussing risk factors, as they had been doing, and that if it became apparent there was an elevated risk to the child, that they should take appropriate measures to protect him.
During the 7 seven-day periods that the mother, who is a nurse, has custody of the child, she would not be working.
Other cases discussed in the episode include a circumstance where a parent with shared custody enters into a new relationship with a partner who also has a child with whom they share custody. This case involved an assessment of the steps being taken to avoid transmission from one home to another.
Two other categories of family law cases also raise issues of urgency are being dealt with by way of hearing conducted by telephone: child apprehension cases and applications to vary support orders.
Where a child is apprehended by the Director of Child, Family and Community Services, the relevant legislation has several provisions directing that hearing be conducted promptly. A recent decision confirmed that this is so, even in the context of COVID-19, and required that a hearing be conducted promptly, by telephone.
A final category of cases, which will need to be dealt with on an urgent basis, will be applications for the reductions in child or spousal support payments as a result of people losing their jobs. There is an obligation to bring applications to modify support orders promptly, rather than not paying and applying after the fact for a change in the order.
If support payments are reduced, or eliminated, as a result of unemployment, former recipients may have issues qualifying for the Canadian Emergency Response Benefit if they were not previously employed.
Legally Speaking April 16, 2020
Adam Stirling [00:00:00] It is time for Legally Speaking, joined as always, by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, good morning. How are you?
Michael T. Mulligan [00:00:07] I’m doing well, socially isolating and staying healthy.
Adam Stirling [00:00:11] Indeed. I’ve been reviewing the stories that we are set to discuss today, and I am struck by the variety of complications that I would never have foreseen regarding family law, custody agreements, social distancing, and COVID-19. Where are we on this?
Michael T. Mulligan [00:00:27] Indeed we are. As we’ve talked about previously, the courts have been dealing with emergency or urgent cases and they’re doing them now by telephone or video conference and in the criminal context, some of those urgent cases are pretty obvious; things like a person waiting in jail for their trial. We sort of have to deal with that and can’t just put it off indefinitely. Right.
Adam Stirling [00:00:52] Hmm
Michael T. Mulligan [00:00:53] But we’re seeing now a whole host of family law cases where there are genuinely urgent matters that need to be dealt with. And we’re seeing decisions coming out of the courts dealing with those. One of the first cases that caught my attention was a case dealing with the custody of an 8-year-old child living over in Vancouver. And the fact pattern was the, the parents shared custody of the 8-year-old and they’re described as being from a bright cooperative people who had both the best interests of the 8-year-old child at heart. But the challenge arose this way. The young child was stating with her dad over spring break and the mother of the child is a nurse, working at the Vancouver General Hospital. In her capacity working as a nurse, she was exposed to and helping treat patients with COVID-19, and she expressed to her former partner her concern about not wanting to infect their child.
Adam Stirling [00:02:06] Yes.
Michael T. Mulligan [00:02:08] And so they had discussions about how they could deal with that. Ultimately, the father said that he was concerned about returning the child to her mother’s care and because of the risk of infection and proposed various things like having them spend time together by phone, having the child come and visit and speak to her mum from the balcony of the mother’s apartment. And so, the matter wound up in one of these emergency hearings by telephone. And it was over to the judge to sort out what is to be done here. And the overriding principle, in these cases dealing with the children, is what is in the best interest of the child. And there would be a presumption that a child is going to benefit from spending time with both parents. That would be a starting principle. But what are we to do with this risk of infection? And the judge pointed out that essentially, we’re in uncharted territory and there’s very little case law dealing with it.
Adam Stirling [00:03:13] mmhmm.
Michael T. Mulligan [00:03:13] And so the judge tried to settle some of the things that judges should be considered considering when determining whether to modify custody arrangements to take into account risks posed by COVID-19. Those included things like whether the child is at elevated risk, maybe as a result of a underlying medical condition, whether there are people living in either household, that would be an elevated risk if they were to contract the virus, and then things like what mitigation steps are each parent taking to reduce the risk of infection. And the judge considered that in this case, for both parents, the father was somebody who runs a demolition company, and the judge analyzed what the father was doing to minimize risk and he provided that evidence about only coming into work when nobody else was present, and having doing other work remotely, and efforts he’d made for all of his employees to stay safe, driving trucks with gloves and so forth. And then analyzed what the nurse mother was doing, and she gave evidence that she was while they have to assume medical staff, they are at constant risk of exposure and infection, that she was taking all of the precautions recommended to nurses and those included wearing hospital issued scrubs, leaving her shoes and clothing at work, wiping down her bag, showering as soon as she got home and using bleach to clean door handles and other surfaces that she’d be touching. And the evidence was that despite doing work, including caring for a particular patient who was confirmed to have COVID-19. This assumption that, you have to assume working in that environment, that people are going to be infected, that she had not been flagged at that point for being at particularly high risk. And so, the judge took into consideration the risk factors, that the judge identified, and the sort of the underlying principle, which is you must make decisions in the best interest of children. And the judge concluded that, while, there is some risk to the child of contracting the virus, that the mother, who is the nurse, was taking reasonable steps to mitigate those risks.
Adam Stirling [00:05:38] mmhmm.
Michael T. Mulligan [00:05:38] Her and took into account the fact that the child didn’t have a pre-existing condition that would make the child particularly susceptible; and so the judge concluded that the child should go back to spend time with the child’s mother and set out how that was to work, including things like for the 7day periods when the child is staying with the mother, who’s the nurse, she’s not to be working during those periods of time. Then they also indicated that both parties are to keep communicating as they have been effectively, and that if there’s any change to risk factors or if the mother is flagged of being of high risk as a result of her employment, they need to communicate that to each other. And that may impact on the decision. But it brings into stark relief some of these really important competing values. Right, you have people doing incredibly important work in the community.
Adam Stirling [00:06:37] Yes.
Michael T. Mulligan [00:06:37] Doctors, nurses, people working in grocery stores and other essential services. When they’re doing that, they are putting themselves in jeopardy, and there is some risk that is going to attach to their children. And so, when you’re a judge charged with deciding what is in the best interests of the child, those are going to be weighty, difficult decisions. And this judge has tried to set a framework for how those things are to be approached. You certainly wouldn’t want to have a presumption that somebody is working in one of those critical jobs, can’t see their children. But on the other hand, those decisions aren’t made from the perspective of what’s best for the parent or what does the parent really want. They’re made from the perspective of what’s in the child’s interest and, while, the child, of course, would have an interest in spending time with their parents. Both of them.
Adam Stirling [00:07:29] mmhmm.
Michael T. Mulligan [00:07:29] You wouldn’t want to overlook the real risk that may be posed these days if there is a heightened risk of infection by permitting that. And you have to consider, of course, other factors, as the judge pointed out, things like people who might be in the household of either the individuals who could be at high risk.
Adam Stirling [00:07:47] Yes.
Michael T. Mulligan [00:07:47] Imagine, for example, if you had you know, let’s say the father wasn’t the factual pattern here, but let’s say the father had a high risk parent living with him or somebody was elderly or in a high risk factor.
Adam Stirling [00:08:00] Yes.
Michael T. Mulligan [00:08:00] Having the child potentially infected would put somebody else at risk. And that’s something that judges are also considering in these cases and I expect we’re going to see more of these.
Adam Stirling [00:08:09] I was going to ask, are did judges choose to hear which cases while considering that precedent will be set? What is the process for that? Because I would imagine the judge that was, was assigned to this case obviously knew that they were going to be creating some sort of precedent that they have to be recognized experts in the field of family law. How does that work?
Michael T. Mulligan [00:08:29] That’s a great question for all cases now, there has to be an application made to a judge, by telephone, to persuade the judge that a case is an urgent one, time sensitive and needs to go ahead. Now, the issue of specialization has been a long-term issue, whether we should have more or less of that in the judiciary. And in some places, like in Vancouver, there is some de facto specialization in the provincial court because, for example, you’ve got some courthouses, like the one the main street in Vancouver, which would do only criminal.
Adam Stirling [00:09:05] mmhmm.
Michael T. Mulligan [00:09:05] And then you have other places like the one that’s attached to the Supreme Court, which would do family and civil. So, there’d be some degree of specialization, but that’s not, of course, possible in some smaller centers. And so, the idea would be that judges would hear cases of all kinds and to a large extent, judges, of course, are relying on counsel. Right.
Adam Stirling [00:09:27] Yes.
Michael T. Mulligan [00:09:28] You know, you don’t necessarily need to be if you’re an open minded, fair person, to have an encyclopedic knowledge of all areas of law. That’s, of course, impossible. But the expectation is that counsel, you have both parties presenting the, the law and making the argument so that you have a fair minded person can listen to both sides and come to a decision, even if they might not have been an expert in that area prior to becoming a judge.
Adam Stirling [00:09:53] Fascinating
Michael T. Mulligan [00:09:53] So starting some specialization, but not in most cases.
Adam Stirling [00:09:57] I want to take a quick break here, Michael. Again, as we continue our segment this week, Legally Speaking, on CFAX 1070, he continues after this.
[00:10:05] COMMERCIAL BREAK.
Adam Stirling [00:10:05] We continue continuous Legally Speaking now Michael Mulligan from Mulligan Defence Lawyers as we come back from our break. Looking at family law and decisions being made by the courts in these extraordinary times, Michael, we began our conversation by reminding our audience today that for a hearing even to be held, a judge would have to be convinced over the phone that the matter was urgent in nature. How does that work?
Michael T. Mulligan [00:10:27] Well, that is, isn’t well defined in terms of what’s what the legal test is. But we are seeing now examples of decisions being made by judges that will provide some guidance in that regard. And that’s really how our common law system works, right. If you have a general principle like, you know, we’re going to deal with urgent cases. Well, what does that mean? Right.
Adam Stirling [00:10:51] Yeah.
Michael T. Mulligan [00:10:51] And again, different things to different people. And so the way the system would operate is you would have judges like in the case we just talked about, sort of setting out principles they think are important and then, other, in the future as a lawyer you could look at those and say, okay, fine, I see here what the tests or considerations might be. And that’s how the law essentially evolves. There is another case which was just decided in terms of whether something was urgent or not.
Adam Stirling [00:11:21] mmhmm.
Michael T. Mulligan [00:11:21] Involving a child apprehension case. Those are, I think, in the best of times, very difficult cases, but even more so now. One of the decisions which was just released dealt with a circumstance where a child was apprehended by the Ministry of Children and Family, Children and Families. And the child is apprehended because of a concern about drug and alcohol use by the mother and whether there was some physical abuse of the child. And where there are those kinds of apprehensions the provincial legislation that provides for them, actually sets out a number of presumptions about why those kinds of cases need to be dealt with promptly. And you can just imagine why. If you had a young child taken away from their parents and the parents says, you know, hold on, that’s not true. Right. You know, the report that I was using drugs is false. You know, that was my ex lying about it or something. Right.
Adam Stirling [00:12:18] Yes. Yeah.
Michael T. Mulligan [00:12:19] It would be awfully unsatisfactory if the child was apprehended and there was no hearing for, you know, 18 months or something. Right. It would be a lifetime for a child and could be very harmful. And so one of the decisions which just came out dealt with a circumstance, like that, where a child was apprehended, and the Director, that’s the provincial entity that deals with these apprehensions was saying, well, this isn’t really an urgent matter. And arguing that their office was short on resources and not wanting the hearing to proceed on an urgent basis. On the other hand, the lawyer for the mother who had the child taken away wanted, not surprisingly, the hearing to occur promptly and argued to the judge, look, we can do this by telephone and make admissions about things that couldn’t be done by telephone and wanted it done right away. And so, the judge had to decide, you know, what’s to be done here. And in that case, the judge analyzed all of those general principles in the act, talking about the need to deal with these kind of hearings promptly and decided that, yes, indeed, that is the sort of case which is a an urgent one and has ordered that the hearing occur by telephone promptly, despite the Provincial Director for Children and Families arguing that, you know, this isn’t the most urgent case and arguing. The Director argued that, look, other ones should take priority to this one and saying we only have limited resources. it shows the benefit of having an independent judiciary. Right.
Adam Stirling [00:14:03] Yes.
Michael T. Mulligan [00:14:03] It’s a position of the province. The judge said, no, I’m sorry. We’re going to deal with this by telephone. And the judge said I’m seizing myself of this and we’re going to have a telephone conference in a week and we’re going to set the date for the hearing and we’re running this. So that kind of case, you know, in terms of what is urgent, what will happen now is lawyers will, who do this work, would look at that decision, say, okay, you know, there has been some interpretation of what those sections of the act mean. And that judge has set out why it is an urgent case which should be dealt with by telephone. And so, I could, I would expect that other people in that same circumstance would’ve had their child apprehended, would be making similar applications saying, look, me too. I want to do mine in the same way, let’s do it by telephone, and that’s good to see. I must say, in terms of the justice system being flexible and, you know, making it work in these difficult times. There, I should say, there’s a whole other category of cases, which, haven’t yet, started to be decided, but I expect if this proceeds for any length of time, we’re going to also see cases coming on for people who are paying spousal or child support.
Adam Stirling [00:15:19] Yes.
Michael T. Mulligan [00:15:19] Because you’re going to have all sorts of people…
Adam Stirling [00:15:21] Oh Yes, financial hardship. Yeah.
Michael T. Mulligan [00:15:23] Right, and if you one of the requirements is that if you’re ordered to pay child or spousal support and there’s some, there’s to be a reasonable threshold, it is going to be a material change in circumstances, right. But if there is that you’re, you’re expected not to just ignore your obligation to pay child or spousal support and try to deal with it later. They’re one of the considerations is that if there is to be a change, a person should be applying to make the change in advance, not just ignoring the order and coming along weeks or months later saying, hey, how about cancelling those payments I didn’t make for the last six or nine months because I was out of work. You’re expected to get into court promptly and make your application to modify the order. And so, for that reason, there would be a reasonable argument to be made that there is some urgency to those cases being decided. And then that’s going to raise another issue, which would be if you had a parent who is the recipient of those payments and who is not otherwise employed. Let’s say you had a mother with several children whose only source of income was spousal and or child support. That person would presumptively not be eligible for the federal emergency response benefit because they wouldn’t have otherwise been employed. And so, you can just imagine what that knock on effect is going to be, payor unable to pay because they’ve been laid off due to COVID-19. Urgent application, I’ve got to change this, I have no money. I can’t pay. And then you’re going to immediately have the person who was the recipient left in the position of what am I supposed to do? I have no further income, particularly if that was their only source of income, as might be the case if somebody had young children. And so, there’s a whole category of cases like that. And it will be interesting to watch whether judges find those sorts of applications to be urgent matters, like the child apprehension or the child custody issue, or whether they think those are the kinds of things which could be dealt with later. Although if you deal with the later, as I said there, when you have a person who hasn’t paid, there is a high burden, if somebody comes along later and says, look, I shouldn’t have to be required to pay, you know, the child support that I didn’t pay for the last nine months when I was unemployed. You know, you should cancel that. One of the problems that person would then run into would be, you know, well, hold on, why didn’t you come and ask for this nine months ago?
Adam Stirling [00:18:04] Yeah.
Michael T. Mulligan [00:18:04] Why did you wait?
Adam Stirling [00:18:04] Yeah.
Michael T. Mulligan [00:18:05] And so there’s going to be, I expect, hundreds or thousands of cases where you got people, even in British Columbia, who have been laid off, no longer have an income and are simply not capable of making support payments that they would have been ordered to make when they were employed. So that I think is going to be a very interesting thing to watch going forward.
Adam Stirling [00:18:30] We have about four minutes left, Michael. Now, I know we had one other story that we have briefly touched on with a 9-year-old and the 6-year-old and whether or not they should spend time with their father. Do we want to touch on that at this time?
Michael T. Mulligan [00:18:40] Yeah, I think I can sort of summarize that. Another category of cases that are being dealt with are circumstances where you have modern blended families and you have children who are shared between parents in two relationships. So what do you do when you have a child of a relationship that spending time with mother and father and the mother or father is in a new relationship, where there are other children who might be going back and forth to the other parent? What is to be done then? And courts are looking at things like, well, what is the risk factor of the other child going back and forth when assessing whether there ought to be some change to custody arrangements for one person? Right.
Adam Stirling [00:19:23] Yeah.
Michael T. Mulligan [00:19:23] You talked about the nurse and the child. Now imagine if the you know, the there was another if the nurse mother was in a new relationship and there was a child going back and forth to somebody else. It becomes even more complicated. And of course, the whole point of the social isolation, isolation is to avoid these possible chains of transmission. And when you have multiple arrangements for children going back and forth between different parents, that is creating a whole other layer of complexity. And we’re starting to see cases like the one that you mentioned, where judges are having to assess things like, well, what does that other parent in the new relationship doing to ensure that there isn’t transmission into that household that could be passed along to, you know, the shared custodial parent number one?
Adam Stirling [00:20:11] Yeah.
Michael T. Mulligan [00:20:12] And so all of this is, I think, highlighting just how complicated the family law implications of this are and with parents who are, with the best of intentions, right, doing their best to help their children. You can clearly see just how many urgent matters they’re going to be, because if you did some of these things, don’t deal with it now, it’s going to be too late. And so, it’s good to see that the court is finding ways to make these things work. And they are doing so in many cases by permitting these kinds of cases that are urgent and important to proceed by, by telephone.
Adam Stirling [00:20:52] Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour every Thursday, Legally Speaking on CFAX 1070. Michael, thank you as always for the benefit of your knowledge and insight on these matters. 90 seconds left, anything else you’d like to touch on?
Michael T. Mulligan [00:21:07] Well, I guess I would say that the watching how the courts have sort of evolved to deal with this thing over the past week has been very interesting as counsel. There were originally, sort of a flurry of, releases by the court deciding how things were going to be dealt with. And now we’re seeing sort of increased refinement of those general principles. And the refinement is coming as our system is designed to, on a case by case basis, with judges dealing with each of these kinds of knotty problems. You know, what do you do with the nurse who might be infected? What do you do with the person who can’t pay their support? And what do you do with the multiple families, with children going back and forth? And, you know, we’ll just, we’ll have to watch this evolve over the coming weeks.
Adam Stirling [00:21:55] Michael Mulligan, pleasure, as always. Stay safe.
Michael T. Mulligan [00:21:57] You, too, thank you very much for having me.
Adam Stirling [00:21:59] All right. Have a great day talking soon. Bye now.
Michael T. Mulligan [00:22:01] Thank you.
Automatically Transcribed on April 16, 2020 – MULLIGAN DEFENCE LAWYERS