Monday, November 15, 2010

Skype, Webcams and "Virtual Visitation" in Ontario Separation and Divorce

PostMedia's Misty Harris has a comprehensive article today on "virtual" access and family law visitation in the Skype Age. I was happy to contribute a few thoughts to her piece, A digital leap in parental rights: 'virtual visitations' becoming the norm in divorce settlements.

We previously touched on the topic of access visitation via Skype at Wise Law Blog a year ago - on November 16, 2009, to be exact.

To note up on developments since then, we conducted a a search of CanLii's Ontario database and found sixteen Ontario Superior Court cases in 2010 (to date) in which Skype has been referenced

Skype has clearly entered the mainstream and is commonly-proposed as an alternative means of facilitating parent-child contact in child mobility cases where one parent seeks to move with a child to a distant location.

The availability of "virtual access" has rarely proven to be a decisive, single factor in mobility cases. In most instances, however, the Court does appear to view it as a mitigating option that has good potential to reduce some of the harm of geographical separation between a parent and children.

Nonetheless, the law regarding child mobility continues to be governed by the "best interests test" set out by the pre-Skype Supreme Court of Canada, in its 1996 ruling in Gordon v. Goertz.

Accordingly, while Skype and video-chatting provide a new and appealing option, they do not on balance change the fundamental parenting equation favouring maximum parental contact with both parents, where possible. As I said in Ms. Harris' article:
"A video chat is not a substitute for doing homework with a child, it's not a substitute for holding your child's hand and it's not a substitute for watching your child play baseball or do ballet," says Wise. "These are all vital components of the relationship."
In the Appendix below, I've set out brief snippets from a some of these 2010 "Skype cases," to enable readers to canvas the Judge's actual comments in decisions related to webcam and Skype access.

These excerpts will illustrate the Court's current, highly situation-specific approach.
- Garry J. Wise


[22] Elena's assertion that the father-child relationship can not only be maximized but enhanced by technological tools, does not in my view take into account the sixteen hour time difference between New Zealand and Kingston. The time difference alone will mean the child's contact with Alexei will be at awkward hours either for the child or for the parent, and would necessitate a complicated schedule. Such schedule would necessarily preclude the daily and weekly involvement in the child's activities that exists in the current contact between child and father. A further complication in this case is that the child's school holiday times, apart from Christmas vacation, would likely not coincide with normal school vacation times in Canada
[135] Mr. Hibbert testified that if Braylon lives in Singapore, he will only be able to travel to Singapore to see him once per year for a couple of weeks, if Ms. Escano allows this. The agreement reached in Singapore was that Mr. Hibbert would not have to pay child support. If his cost of traveling to Singapore is taken into account in any future application for child support, that could provide Mr. Hibbert with more funds available to travel to see Braylon but that is not an issue before me and I make no determination as to how a court would decide that issue. As Mr. Hibbert is self employed and has employees, on his evidence he would have flexibility for planned time with Braylon either here or in Singapore.

[136] Ms. Escano has a webcam and would allow telephone and email access. I have no doubt that she would, as she did so when she was in Singapore in 2009. Mr. Hibbert is willing to use Skype but said he did not want that to be the nature of his relationship with Braylon. That is understandable. Ms. Escano also admitted that phone and webmail access is not the same and that she would not be happy with this. This would be necessary, however, assuming Mr. Hibbert is in Toronto and Ms. Escano is in Singapore, regardless of who has custody of Braylon. As Braylon gets older, this means of communication would become more meaningful.

[138] Having considered all of this evidence with respect to their respective parenting plans, I find that Mr. Hibbert’s plan is not realistic..... Given Ms. Escano’s success in finding a job in Singapore before, I find it probable that she will be able to resume working and provide financial support to Braylon. In any event, her parents are prepared to support her.
[72] Contact between parent and child is not limited to being physically together. Technology makes it easy and inexpensive to be in contact both orally and visually. The Ben-Tzvi’s are accustomed to using webcam and voice communications through the internet. They are able to speak long distance without time limit at no cost through internet programs such as Skype. Photographs can be sent almost instantaneously, also at no cost.

[73] I accept Ms. Ben-Tzvi’s evidence that she believes that Timor should have regular contact with her father. I accept that Ms. Ben-Tzvi would co-operate in facilitating this.

....[75] Failing that, it is open to Mr. Ben-Tzvi to return to Israel when he completes his studies in four years. He has no family, business or financial ties binding him to Canada.

[76] In all of the circumstances, the principle of maximizing contact does not prevent Timor’s return to Israel.

[81] In this regard, Gordon (at para. 24) requires that I take into consideration the willingness of the custodial parent to facilitate the child’s contact with the non-custodial parent. The Mother has made a proposal for how the Father would see the children. I have no reason to believe that she would not follow through with her proposal and, given the fact that she acted as a support person in the past, I am satisfied that she wants to ensure that the children will have a good relationship with their Father. I would therefore expect her to comply with an access order particularly as this court will retain jurisdiction to make the final decision with respect to custody and access. In any event, the Mother intends to remain in Canada and she could be compelled to comply with an order if necessary. I appreciate that access is more difficult as the children are young and unable to travel on their own. Furthermore, even with the Mother’s proposal for access there will be a negative impact on the Father’s relationship with the children over the next few months. The Mother’s proposal, however, does allow for regular visits and the Father has the financial means to travel to PEI if he wishes. Furthermore, the Mother has offered to permit the children to communicate with their Father on a daily basis by video telephone such as Skype. The time remaining on the contract and to the end of June 2011 when Sofia’s school would end is only ten months. Although there would be an impact, with a generous impact schedule, and given the fact the children have already bonded with their Father, in my view his close relationship with the children could be maintained.
[1] Mobility is the issue for consideration in this matter. Specifically, should Laura Cochrane, the mother of nine year old twins, Jacob (“Jake”) and Samuel (“Sam”) who were born on March 23, 2001, be permitted to relocate them to the United Kingdom where she intends to move for reasons related to work and an anticipated marriage to a British citizen or should they remain in Grimsby, Ontario with their father James Graef and his new wife?

[41] With respect to access, her proposal is that the children would be with the respondent during their holidays from school, plus extended additional time if the respondent would travel to the U.K. and work from there either by way of his computer or by attending at his company’s office in Tewkesbury. Specifically she has proposed the following:

....[42] In addition to the above, there would be telephone contact along with all the technical gadgets that might supplement that including webcam, the magic jack, skype, etc. Both children would have their own computer so that they could talk to the respondent whenever they wished. She adopted as well the idea that the respondent has in his plan of providing video recordings of the various activities of the children....


[68] Both parties have asked the court to make an order at this point for joint custody. ... Primary residence shall be with the applicant.

....[70] There will be access to the children by the respondent on the following basis:

...(g) reasonable telephone and webcam access.


[97] For these reasons, I make the following orders, which replace the various temporary orders made by Goodman J. and Frank J. in this proceeding with respect to access:

g) While the Mother is in PEI with the children pursuant to the terms of this order, she shall bring the children to Toronto, to permit the Father to have access to the children as follows:

....(13) While in PEI, the Mother shall ensure that the children have regular contact with the Father by Skype at least every other day.


[176] Ms. Borowski shall have sole custody of Tatyana Prokopchuk, born August 7, 2003.

[177] Ms. Borowski shall be permitted to move to Alberta with Tatyana.

[178] The week-about schedule currently in place shall continue until Ms. Borowski leaves for Alberta.

[179] Mr. Prokopchuk shall have liberal and generous access which shall include the following:

(i) Mr. Prokopchuk shall have unlimited and unobstructed telephone and Internet contact with Tatyana. Tatyana shall have privacy during all phone conversations with her father and shall be allowed to speak to her father on a phone in her bedroom. Ms. Borowski shall ensure that Tatyana has access to Skype or a similar program to allow face-to-face Internet contact with her father.

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