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

.........................................................................

A P P E N D I X

• Valvashko v. Poustovetov, 2010 ONSC 2917 (CanLII):

QUIGLEY J.:

[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

• Hibbert v. Escano, 2010 ONSC 1445 (CanLII)

SPIES J.:

[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.

• Ben-Tzvi v. Ben-Tzvi, 2006 CanLII 25256 (ON S.C.)

FRANK J.:

[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.

• Cochrane v. Graef, 2010 ONSC 4479 (CanLII)

SCOTT , J.

[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....

THE ORDER

[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.

• Marcuzzi v. Lindo, 2010 ONSC 4739 (CanLII)

SPIES J.

Disposition

[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.

• Prokopchuk v. Borowski, 2010 ONSC 3833 (CanLII)

QUINLAN J.:

CONCLUSION

[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.

- GJW

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

A Message from Dr. Richard Warshak on Parental Alienation

We've posted several times over recent years on the approaches of various Ontario courts to Dr. Richard A. Warshak's controversial "deprogramming" techniques for treatment of children who have experienced parental alienation.

By way of background, here's an excerpt from my February 9, 2009 post, More on Dr. Richard Warshak and "Deprogramming" Parental Alienation:

Family Workshop, Dr. Richard Warshak's counter-parental alientation programme, was at the centre of last month's controversial Ontario Superior Court decision on parental alienation in A.G.L. v. K.B.D. (our previous reports are here and here).

The Dallas-based clinical psychologist, continues to attract the attention of Ontario's media and courts.

The Globe and Mail reported yesterday on a February 6 decision of the Ontario Superior Court, overturning an arbitrator's order that would have sent a Toronto teen to the Warshak programme. See Judge blocks sending teen for deprogramming treatment:

I've previously written to Dr. Warshak to request his comments. I heard from him by email this morning, indicating he has an article upcoming in tomorrow's Huffington Post. Dr. Warshak's new blog, Building Family Bridges, similarly advises.

Also noteworthy, his website's Publications section lists his articles, all of which may be purchased online. For example:

Family Bridges: Using Insights From Social Science To Reconnect Parents and Alienated Children

This article is the first in a refereed journal on the program for severely alienated children that has captured world-wide attention. The article passed a rigorous peer review process and provides the first detailed account of Family Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships. We received more than 100 requests throughout the world for advanced copies of this article before it was even published! This groundbreaking article became the centerpiece of an entire issue of a professional journal.

...The article reports on Dr. Warshak’s study of the outcomes of the first 12 families in which he was involved with Family Bridges. The sample was composed of 23 children, 8 of whom were 14 or older. The children had been alienated an average of 28 months. Seven of the rejected parents were mothers, five were fathers. At the workshop’s conclusion, 22 of 23 children, all of whom had failed experiences with counseling prior to enrollment, restored a positive relationship with the rejected parent. At follow-up, 18 of the 22 children maintained their gains; those who relapsed had premature contact with the alienating parent. 34 journal pages with 99 endnotes and citations to 79 social science and legal references.

We'll check out tomorrow's HuffPo article and report further.

- Garry J. Wise, Toronto

Update: November 8, 2010

The Warshak Huffpo article is here. Nothing new.

- GJW

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Ontario Family Law: Court of Appeal Rules Superior Court Judges May Request, But Not Order, Children's Lawyer Involvement

In a fascinating ruling released Thursday, the Ontario Court of Appeal held that Ontario Superior Court Justice Victor Paisley erred in ordering, rather than requesting, that the Office of the Children's Lawyer (OCL) investigate and report back to the court with its findings as to the best interests of children in six Ontario family law custody cases.

By way of background, the OCL's role in Ontario family law proceedings is described at its website:

The Office of the Children's Lawyer is a law office in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children under the age of 18 with respect to their personal and property rights. Lawyers within the office represent children in various areas of law including child custody and access disputes, child protection proceedings, estate matters and civil litigation. Clinical investigators prepare reports for the court in custody/access proceedings and may assist lawyers who are representing children in such matters.

In this wide ranging decision, the appellate court considered the breadth of the Superior Court's inherent parens patriae jurisdiction and the ramifications of Canada's role as a signatory to the UN Convention on the Rights of the Child - all against a backdrop of the OCL's enormous, current caseload.

The predicament of the OCL, already under-resourced and having difficulty responding to an existing avalanche of requests for its services by Ontario's provincial and federal family law judges, was summarized by Madame Justice Karen Weiler, writing for the Court:

[4] The OCL submits that the Superior Court judge who made the six orders from which appeal is taken exceeded his jurisdiction and erred in invoking the parens patriae jurisdiction of the Superior Court. The Superior Court judge ought to have requested a legal representative pursuant to s. 89(3.1) or a social work report from the OCL pursuant to s. 112 of the CJA and, if that request was refused, asked the OCL to reconsider its refusal or to consider other alternatives. The OCL’s position is further that the Superior Court judge could only invoke the court’s parens patriae jurisdiction to fill a legislative gap which, the OCL submits, does not exist in light of ss. 89(3.1) and 112 of the CJA. Thus, the judge could not order the OCL to act.

[5] Even if the court had the power to exercise its parens patriae jurisdiction, the OCL submits that that jurisdiction ought not to be exercised as, to do so, would open the “floodgates” and the OCL would be unable to function properly. At the oral hearing before us, the OCL sought leave to introduce fresh evidence in the form of an affidavit by Ms. Denal Moyal, the Legal Director of the Personal Rights Department and acting Children’s Lawyer at the time. The intervener, Justice for Children and Youth (JFCY) consented to the affidavit being filed as fresh evidence. In her affidavit, Ms. Moyal deposed that between April 1, 2009 and August 25, 2010, the OCL received 5,548 referrals from judges across Ontario. Of those, 1,873 were from the Ontario Court of Justice and 3,673 were from the Ontario Superior Court of Justice. Five hundred and eighty-two of the 5,548 referrals came from judges sitting in Northern Ontario. Sixty-eight per cent of these orders were made by Ontario Court of Justice judges. During this same period, the OCL accepted a total of 3,432 cases across Ontario. Based on this affidavit, the thrust of the OCL’s argument appears to be that if Superior Court judges do have parens patriae jurisdiction and exercise it in the manner the Superior Court judge has done in these cases, the OCL would be ordered to act in so many cases that it would no longer be able to meet the requests made by Ontario Court of Justice judges, (who do not have parens patriae jurisdiction) particularly those in Northern Ontario.

Madame Justice Weiler summarized the Court's findings:

[79] These appeals did not require the court to engage in a theoretical discussion about whether the Superior Court’s parens patriae power could be used to order the OCL to act. Assuming, without deciding, that Superior Court judges can, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, that jurisdiction ought not to have been exercised in these six appeals. The Superior Court judge ought to have respected the structure of ss. 89 (3.1) and 112 in the CJA, which give the OCL discretion in considering requests for their involvement. He ought not to have circumvented the existing statutory structure for engaging the OCL. Prior to exercising his parens patriae jurisdiction to make an order, it was incumbent on the Superior Court judge to consider and avail himself of the other available avenues for assistance that were responsive to the specific factual problems before him.

Accordingly, I would allow the appeals in the manner indicated.

See the Court's decision: Bhajan v. Bhajan, 2010 ONCA 714 (CanLII)

At root, this ruling casts a spotlight on but one of the many crunches on access to justice now occurring in Ontario's adversarial system of adjudicating family law disputes.

Privately-conducted assessments of children's best interests, typically performed by clinical psychologists, psychiatrists or social workers and often costing $10,000.00 to $15,000.00 or more, are simply unaffordable to most Ontarians.

Nonetheless, family law judges often require such objective, professional input when determining child custody and access disputes. The OCL has long operated as a next-best substitute for such private assessments. In an era of fiscal restraint, however, it simply cannot keep up with the demand. In such a climate, the OCL - institutionally - must have some means of conducting triage. This is a practical reality.

Can one reasonably conclude, however, that the OCL, relying largely on self-serving "Intake Forms" prepared by parents and counsel, is better equipped than judges to operate as preliminary gatekeeper for its services? In fairness, that is where the legislation points.

The Court of Appeal's ruling confirms what family law practitioners in the Province have long known. Our system leaves a vacuum that limits the availability of clinical input in some child custody disputes, even where judges find that it is required, based on the evidence before them .

Could a directional shift toward mandatory family law mediation in Ontario, as recently advocated by Ontario's Chief Justice, Warren Winker, be at least a part of a solution?

Perhaps.

Mandatory family law mediation, with its laudible focus on conflict de-escalation from the outset, may ultimately prove to be the most effective "triage" mechanism of all.

It is worth a try.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Quoteworthy: On Joint Custody

National Post's Barbara Kay, arguing for family law reform to establish "equal parenting as the default custody presumption (in the absence of abuse) after separation:"

Decades ago women told men they had to take more responsibility for active parenting. They listened. Fathers have earned the moral right to equality of involvement in their children's lives in post-separation agreements as a matter of social justice. It is now up to our legislatures and judiciary to assume responsibility for establishing an equal-parenting presumption in law,

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Major Changes Ahead for B.C. Family Law

The Province reports: B.C. proposes sweeping legal changes for separation, divorce, child custody:

Highlights of the government white paper on proposed changes to the Family Relations Act:

• Structure the law so that court is not the only implied starting point.

• Promote a broader range of non-court dispute resolution options.

• Adopt a conflict-prevention approach to family-law disputes.

• Increase the law’s ability to deal with family violence and safety issues.

• Use less adversarial terminology.

Also under consideration are revisions the the B.C. Family Relations Act that will provide common law spouses with the same property entitlements as married spouses, a parenting coordination focus with respect to child residency issues, and mandatory mediation by separating spouses prior to the commencement of court proceedings.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Long Island Judge Jails Mother for Parental Alienation

A New York Superior Court judge has sentenced a mother to six weekends in jail for civil contempt, finding she engaged in a pattern of alienating behaviour, including false allegations of sexual abuse, calculated to interfere with her former husband's scheduled time and relationship with their children.

Law.com reports:

Supreme Court Justice Robert A. Ross in Nassau County... held Ms. R. in civil contempt and ordered her to report to the Nassau County Correctional Facility every other weekend this summer.

Her term was to have begun on Friday, but was temporarily stayed pending appeal by a judge from the Appellate Division, 2nd Department, on Thursday.

"The evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties' Stipulation of Settlement," Ross wrote in Lauren R. v. Ted R., 203699-02.

"The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant's parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of 'good faith,' and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father."

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Child Custody Assessors Seek Protection from Misconduct Complaints

The National Post reports today on lobbying efforts by the Ontario Medical Association to seek legislation protecting child custody assessors from professional conduct complaints by parents who are unhappy with assessment results:

One of the country's largest doctors' groups wants more protection for psychiatrists, psychologists and others whose advice to judges in child-custody cases often leads to unfounded disciplinary complaints from the losing parents.

Charges filed to regulatory bodies by emotionally wrought parents are deterring experts from taking on the important work of custody assessments, some practitioners say.

..."The people who complain have usually lost their children," said Oren Amitay, a Toronto psychologist.

At a meeting last month, the Ontario Medical Association's board of directors instructed the group's staff to work with the Ontario Psychological Association and other groups to lobby for amendments that would protect professionals from "the harm" caused by "frivolous and vexatious" complaints.

Read the full report: Child-custody assessors at risk: doctors' group

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

E-Access, E-Visitation and Child Mobility

We looked briefly last month at Canadian courts' mixed reception toward the use of Skype and other new online communications tools to facilitate access visitation by non-custodial parents.

Via Margaret Ryzner at Family Law Prof Blog, we learn today that the State of Illinois has now enacted legislation to deal specifically with electronic access and visitation.

The amendments to the Illinois Marriage and Dissolution of Marriage Act law provide that the availability of electronic communications may not to be considered a factor in child mobility applications, where a custodial parent seeks to move out-of state with a child:

Sec. 609. Leave to Remove Children.

(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.

(b) Before a minor child is temporarily removed from Illinois, the parent responsible for the removal shall inform the other parent, or the other parent's attorney, of the address and telephone number where the child may be reached during the period of temporary removal, and the date on which the child shall return to Illinois.

The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.

(c) The court may not use the availability of electronic communication as a factor in support of a removal of a child by the custodial parent from Illinois.

"Electronic communications" are specifically adopted as a means of exercising access with a child, and are defined in the statute, as follows:

Sec. 607. Visitation.

(1) "Visitation" means in‑person time spent between a child and the child's parent. In appropriate circumstances, it may include electronic communication under conditions and at times determined by the court.

2) "Electronic communication" means time that a parent spends with his or her child during which the child is not in the parent's actual physical custody, but which is facilitated by the use of communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG