Technology helps, hinders in custody disputes

Relocation is a difficult issue in family law cases where parents may be forced to move for work, particularly in a military town such as Kingston, Ont. during posting season. While changing technologies such as Skype and FaceTime can be seen as ways to help the courts make determinations as to with which parent the children should reside, lawyers caution about becoming too reliant on that technology at the expense of necessary bonding time with children.

“Whether it’s Skype, FaceTime, Google sharing or any other social medium, it’s a very poor replacement for one-on-one interpersonal time and interpersonal relationship between a child or children and a parent,” says Mark LaFrance, a lawyer in private practice in Kingston. “This type of interaction is utilized by the court on occasion, whether the parents are posted in proximity or distance, but it gives rise to a host of problems.”?LaFrance says that distance arising from something like a military posting or job relocation exacerbates the stress on the parent-and-child relationship, and that cannot be adequately be replaced or compensated by technology.?“How does this technology maintain a bond or relationship?” asks LaFrance. ?“Candidly, it escapes me. Nor can the court order the child to have meaningful communication with the non-residential parent. I’m not aware of any social data that suggests that children who have relocated a significant distance from a parent have developed further a full and meaningful relationship.”?The criteria for mobility was set back in 1996 by the Supreme Court of Canada in Gordon v Goertz, which said that the presiding judge should consider the custodial parent’s reason for moving only in the exceptional case where it is relevant for that parent to meet the needs of the child. In military communities where there are Canadian Forces bases, such as Kingston or Trenton, Ont., relocation is a reality.

“What does the military do, if anything, for families who are caught in these conundrums, particularly on the advent of the separation not caused simply by employment but also because of the social dynamics within the family unit?” asks LaFrance.

Procedures for postings have come head to head with delays before the courts, creating even more problems for custody arrangements with members being posted elsewhere in the country.

“Typically, a member of the Forces may receive notice some time early in the year, probably around March or April, and they may have known something was coming down the pipe, but there’s difficulty acting until they actually have paper,” says Jacques Ménard from Ménard Family Law in Kingston. ?Ménard has worked a lot with military families as part of his practice.

“Meanwhile, if there are children involved and there’s a joint custody arrangement in place, it’s easily 18 months if it’s contested right until the end, if the children are leaving with the member — way beyond what the member can address.”

Ménard says that judges have been good about putting forward proposals and providing lists of technological means for communication in the hopes that it can bring about some resolutions, but he, too, warns that it’s an exceedingly hard sell to the person that will be without the children.

“That technology works exceedingly well and can be incorporated in an order where it is a question of a member leaving on a deployment overseas for a year or a long period of time — it just follows that they cannot take the kids with them,” says Ménard. ?“Where it is a typical three-year transfer from Kingston to Comox or Cold Lake, it is very small comfort and it is more like after the decision is made that the children are going to be leaving, that the spouse being left alone will be saying that they’ll take what they can get, but it does not bring about resolution for sufficient contact.”

Ménard agrees that where video access is light-years ahead of phone access is when they are in closer proximity to parents, where younger children respond better than with the disembodied voice over the phone.

Lorisa Stein, a family law lawyer in private practice in Toronto, who practises a collaborative approach to custody arrangements as opposed to going through the courts, says that she is seeing a greater uptake on technology in her practice, though there remains some frustration with some clients who are still wary of it.

“Where I have people that are a little older, and the kids may be still young, the kids are introducing it to the parents, so we have a learning curve, which is not always successful,” says Stein. “I have international clients and they latch right on to it — they just love it, because that way they have much more contact and it’s much more authentic and realistic.”

Stein says the trick is the scheduling and whether there is interference, such as if one parent has to call at midnight in their jurisdiction in order to reach their children at a suitable time in the other.

“I’m finding it very welcome once they figure it out and they get used to it,” Stein says. ?“Some of my clients in Europe are very keen, but their technology may not align with what’s available here, so there’s lots of pieces. But as long as the parents are talking with each other, I’m finding that they’re very creative, very open-minded and they are working hard to make it work for the kids’ sake.”

For LaFrance, nothing takes the place of face-to-face contact between parents and children. ?He uses the example of putting a small child with a limited attention span in front of a monitor or an iPad, which he says is an exercise in futility. 

“The non-resident parent cannot participate in the child’s community of friends, school or extracurricular activities, but more so, that very personal relationship that we would hope a child enjoys with the parent,” says LaFrance.

Technology is fleeting, and it can actually make people more distant, says LaFrance, citing people sitting together in a restaurant, each looking at their phones. ?LaFrance says he does see technology being used more, not necessarily only between parents and children in long-distance relationships but also in maintaining contact when the child is in close proximity to the non-resident parent.

“My view is that the courts’ reliance on technology for maintaining a child-and-parent relationship should only be utilized after the decision on mobility has been determined,” says LaFrance. “It should not be used as one of the many tools and criteria in making that hard decision in the first instance.”

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