Bonus Season is Coming: Are You (And Your Documents) Ready?

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Each year companies reward their employees with payments under their “discretionary” bonus  (or short-term incentive) programs. The intent of these programs is to incent and improve  employee performance during the year with the outcome of paying bonuses reflecting annual  performance. 

While most employers characterize bonus programs as discretionary, implementation can result  in these payments becoming an integral element of the employee’s compensation. And this can  become a bone of contention when an employee leaves the organization, whether voluntarily or  involuntarily.  

A carefully drafted bonus program can assist employers in maintaining the discretionary nature of  the programs and protecting the company from larger payouts on termination of employment. 

What’s the issue?

You include wording in your employment agreements and offer letters that your bonus program is  “discretionary”. Your bonus plan goes on to say that employees must be “actively employed” on  the payment date to be eligible for the payment. 

Over the past several years, the courts have been asked to confirm what these terms mean when  employees are terminated and entitled to payment in lieu of notice of termination. Is bonus  included in this payment? 

First, courts will consider whether the bonus program is really discretionary. Has discretion  actually been exercised historically or are payments made each year? Where annual payments  are the norm, it is likely the bonus will be considered an integral part of the employee’s  compensation. And therefore, must be included in a payment in lieu of notice of termination. 

The matter is further complicated if a portion of the bonus is based on corporate performance and  not employee performance. The corporate portion of the bonus becomes payable on a termination  where corporate targets are being met, regardless of the reason for termination of the employee. Employers seek to address these issues by including language in their bonus plans saying the  employee must be “actively employed” on the date payment is made to receive it. Again, the  courts have interpreted this wording to be insufficient to exclude bonus in a payment in lieu of  termination where the bonus payment would be made during the reasonable notice period.

So, what can companies do? 

The most recent decisions of the courts impose a two-part test to determine if a company has  done enough to preclude damages for bonus from being included in a termination payment. 

First, would the employee have been entitled to the bonus payment as part of their compensation  during the reasonable notice period? 

For example, a 10-year employee is terminated on November 1^st. The reasonable notice period  is determined to be 10 months and bonus is payable on March 31 of each year. In this case, the  employee would be entitled to the bonus payment as it would have been paid during the 10 month notice period, which ends August 31. If the employee had 3 years of employment and the  reasonable notice period is determined to be 4 months, a bonus payment on March 31 would not  be included as March 31 is after the end of the reasonable notice period.  

The second question is, do the terms of the bonus plan or agreement unambiguously limit or  remove the employee’s common law right to payment of the bonus in lieu of working notice? 

This is a more difficult question to answer. The courts have been clear, merely saying an employee  must be actively employed on the payment date is not sufficient to limit or remove the employee’s  right to payment of the bonus on termination. The employer’s obligation is to give notice of  termination and if they had done so, the employee may be actively employed when the payment  date occurs. Recent decisions have found that more language is required in the employment  agreement or bonus plan. 

More specifically, employers are advised to add extra language to their bonus plans stating that  the employees waive their right to any claim to a bonus, or a portion of it, if their employment is  terminated on the day prior to the payment date of the bonus. Another option is to state that active  employment does not include any notice period on termination of employment. 

When making annual bonus payments, employers have the opportunity to clarify the language of  their bonus plans in annual compensation letters, to protect the employer in the event of  termination of their employees. 

Canadian employers are well advised to seek legal advice when drafting bonus plans and entering  into employment agreements. As experienced legal counsel, we can help you draft clear and  unambiguous terms in plan documents and employment agreements and work with you to  determine what, in your specific circumstances, is most effective and enforceable to protect the  company. 

Before you make your bonus payments for the 2023 performance year, our employment lawyers  are ready and available to work with you. 

Sources: 
Matthews v. Ocean Nutrition Canada Ltd. (SCC, 2020) 
Paquette v. TeraGo Networks Inc. (ONCA, 2016) 

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After 25 years advising large companies as inhouse legal counsel, Carmelle Hunka has joined Walsh to bring her business and employment law experience and practical approach to our  clients. Carmelle has extensive experience in all areas of employment law including policies and  plan documents, employment agreements, executive compensation including public disclosure,  incentive plans, terminations, human rights matters, ethics and business conduct matters  including investigations and anti-corruption and anti-bribery matters, and advising companies regarding employment law matters in merger and acquisition activity. 

Carmelle Hunka
Senior Counsel
403.267.8457 • chunka@walshlaw.ca
https://www.walshlaw.ca/practice-area/employment-law/

An Injection of Clarity: A Look at Recent Employment Law Decisions Regarding Mandatory Mask and Vaccination Policies

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Introduction

Over the last three years, everyone has used the word “unprecedented” an unprecedented number of times. A once-in-a-century pandemic will do that. But as we move beyond the emergency phase of the pandemic and into a more stable sort of normal, precedent has started to build around the policies and actions of the last few years, specifically COVID-related corporate policies regarding mandatory vaccination and mask wearing.

This shift from the urgent, medical perspective to a legal one can be confusing – and we predict that in the coming months there will be a growing amount of focus and legal scrutiny put on these policies. With that in mind, let’s take a look at recent decisions from the Courts in Alberta and British Columbia regarding mandatory masking and vaccination policies (“MVP”), constructive dismissal and what you need to know as a business leader.

Mandatory Masking Policies

While mask mandates seem to be behind us, the debate continues and has made its way into our courts. In the recent case of Benke v Loblaw Companies Limited, the Alberta Court of King’s Bench was asked to decide whether placing an employee on unpaid leave because of the employee’s refusal to wear a mask without a medical justification constituted constructive dismissal. Ultimately, the Court held that the employee’s inability to work was a consequence of a voluntary choice that he made, and therefore the employee was not constructively dismissed. In other words, the only thing standing in the way of the employee working was the employee’s own decision.

Specifically, the Court found that putting the employee on unpaid leave did not amount to constructive dismissal for two primary reasons:

1. The Mask Policy was neither a substantial change nor breach in the employment contract
   
2. While unpaid leave is a substantial change in the employment contract, the employee was choosing not to work so it was reasonable for the employer not to pay them.

While we surely haven’t seen the end of challenges to mask mandates and policies, the Court in Benke was clear in this case: in the absence of any proof that an employee is exempt from a mask policy on any of the acceptable grounds (ie, medical or religious), then there is no discrimination in the enforcement of an employer’s masking policy and an employee’s refusal would make repudiating the employment contract or unpaid leave justified.

Mandatory Vaccine Policies

Unlike masking mandates, many mandatory vaccine policies (“MVPs”) are still in effect – and have also started to have their day in court. We’ll no doubt continue to see additional cases, but last year’s Parmar v Tribe Management Inc, 2022 BCSC 1675. case provides an instructive example of what to expect moving forward. Ultimately, the British Columbia Supreme Court decided that the specific employee making the complaint was not constructively dismissed – but also found the MPVs must be decided on a case-by-case basis.

While the case-by-case ruling may seem vague, there are very clear factors the support the upholding of the validity of a MVP:

1. At the time of enactment of the MVP, was the employer relying on recommendations, information or orders from the Provincial Government, Federal Government, Public Health Officer’s, the Centre for Disease Control or other reputable agencies which would lead the employer to concluding that MVP’s were required to maintain a safe workspace?
2. Did the MVP apply to all employees, contractors and visitors who entered the workplace?
3. Was a MVP necessary for the employer to comply with their statutory obligations to protect the health and safety of all employees?
4. Did the policy contemplate exemptions on legitimate medical or religious grounds?

On the other side, there are also very clear factors that suggest the MVP is unreasonable:

1. Provisions of the MVP allowed for discipline, up to and including discharge, of employees who decided to remain unvaccinated;
2. The MVP applied to unvaccinated employees who worked exclusively from home where there was no reasonable expectation of them returning to the workplace; and
3. The MVP applied to employees who worked exclusively outside.
   

Ongoing Considerations

Just when you thought we’d moved from the unprecedented to the beginning of precedent, everything could change again. The current Premier of Alberta, Danielle Smith, has made numerous comments about protecting the rights of the unvaccinated and suggested future legislative efforts to do so. Should any future legislation be passed to do such a thing, the law as it relates to everything we’ve covered here may be subject to change through further judicial consideration and challenges.

The Bottom Line

The last few years have been a challenge for everyone in many different ways, but just as things are beginning to feel “normal” again, the legal system is also beginning to grapple with the polices borne of the pandemic. Right now, one thing is clear: each case involving an employee claiming constructive dismissal due to the enactment of an MPV or mask policy must be analyzed on its specific facts – but the precedents will only grow and provide more clarity in the future.

As more employees begin to return to the office and pandemic policies evolve, issues related to the pandemic and measures taken to keep your workplace safe will surely continue arise – and that’s where we come in. Our team is experienced in handling all employments matters and together, we can help safeguard your business from any employment claims.

Feel free to get in touch with any questions you may have about COVID-19 policies, employment law or anything else you may need by calling our office at (403) 267-8400.

Cody Olson joins Walsh LLP

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We are excited to announce that Cody Olson will be joining Walsh LLP as an Associate primarily located in our new Claresholm office.

Cody has worked to build his practice in Claresholm for the last few years and previously worked in litigation/arbitration with a large national firm in both Calgary and Qatar.

We are excited to draw on Cody’s experience and deep connection to the Claresholm community to provide even better advice and solutions to our clients.

Robert Stemp joins Walsh LLP

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Please join us in welcoming Robert Stemp as the newest member of our Corporate Commercial team here at Walsh LLP!

Bob brings more than 40 years of practice and has extensive experience with commercial real estate transactions and banking as well as foreclosure and debtor-creditor matters.

We are excited to draw on Bob’s wide range of knowledge and experience to provide even better advice and solutions to our clients.

Brendan Hill has been called to the Bar

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Walsh LLP is proud to announce that Brendan Hill has been called to the Bar! Congratulations Brendan! A life long dream has now become a reality with hard work and determination! Brendan will continue with Walsh as an Associate and we are very excited to join him on his journey, we know that you will have a long and rewarding career!

Brody Sikstrom has been called to the Bar

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Walsh LLP is beyond proud of our newest Associate, Brody Sikstrom.

Today, Brody was called to the Bar, experiencing one of the proudest moments in the life of a lawyer. We thank you Brody for your dedication to Walsh and the years you have already provided to Walsh as both a Summer Student, Articling Student and now as an Associate. It has been a pleasure for all of us here at Walsh to watch you grow into the amazing person and lawyer you are today. We look forward to many more years of success together and wish you nothing but the best. Congratulations on your admission to the Bar Brody!

YOU DID IT!

An Employer’s Guide to Bill 32: Restoring Balance in Alberta’s Workplace Act

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An Employer’s Guide to Bill 32

The Alberta Government’s new Bill 32: Restoring Balance in Alberta’s Workplace Act proposes significant changes to both employment standards and labour relation laws in the province. The Bill was introduced on July 7, 2020 with the intention of providing clearer and more transparent rules, and reducing red tape for employers bringing employees back to work. It contains noteworthy changes to laws on termination and layoff restrictions, payroll deductions and pay calculations, youth employment, union dues and disclosure requirements, and strikes, lockouts and picketing.

As an employer, it is important to be mindful of these changes as, if passed, they will have a significant impact on your workplace. In an effort to prepare you for the proposed changes, we briefly highlight some key areas that will be affected.

Changes to Employment Standards

Hours of work: An hours of work averaging agreement (HWAA) allows employers to average an employee’s hours of work over a period of one to 12 weeks for the purpose of determining the employee’s entitlement to overtime pay or, instead of overtime pay, time off with pay. Under the proposed changes, an employer will be able to change or start an HWAA without an employee’s consent, provided they give the employee 2 weeks’ notice. The averaging period for an HWAA will increase from 12 to 52 weeks with the ability to request a further extension. With this change, an employer will still be required to ensure an employee receives 8 hours rest between shifts.

Additional changes include, an HWAA no longer requiring an end date, and more flexibility to employers to determine how and if daily overtime applies. Employers will not have to provide daily overtime, unless it is included as part of the HWAA. When included, daily overtime will be calculated based on the greater of weekly or daily overtime hours. A weekly overtime threshold will still apply regardless of whether daily overtime is included in the arrangement. Overtime must be paid out to the employee no later than 10 days after the pay period that the averaging period ends (which may be as long as 52 weeks).

Final pay upon termination: The Bill proposes extending the deadline for termination payments from the current obligation that an employer must pay a terminated employee no later than 3 or 10 days after the last day of employment depending on whether notice was required. The changes will no longer differentiate between termination of employment by employer or employee, or whether termination notice or pay was required. Instead, employers would be required to pay an employee within either, 10 consecutive days after the end of the pay period  in which termination occurred, or 31 consecutive days after the last day of employment. The choice will be up to the employer and can be made based on what would better align with their respective pay cycles.

Employer deductions: Employers will be allowed to correct payroll errors and recover vacation pay paid in advance without an employee’s written authorization to deduct the amount from their paycheck. Employers will still be required to notify employees prior to any other deduction.

Holiday pay & wage calculations: While employees are still entitled to general holiday pay, employers will no longer have to include vacation pay and general holiday pay in the average daily wage calculation. The employer can choose between two options on how an employee’s average daily wage is calculated, depending on which calculation period best aligns with their respective payroll cycle. The calculation can either be the total wages averaged over the number of days they work in (a) the four weeks immediately before the general holiday, or (b) the four weeks ending on the last day of the pay period that occurred just before the general holiday.

Layoffs: Employers will be able to lay off employees for a longer period of time, increasing the time from 60 to 90 days within a 120 day period. Note that COVID-19 related layoffs are a separate issue and will continue to be up to 180 consecutive days.

Rest periods: Employers will be required to provide at least 30 minutes of rest every 5 hours for shifts that are longer than 5 hours. The rest period can be within or immediately after the 5 hours of work, or at any time mutually agreed upon by the employer and employee.

Group Termination Rules: There will no longer be different rules for terminations depending on the number of staff being terminated. The Bill proposes one set of rules for all terminations of 50 or more employees in a four-week period. Employers will still be required to give the Minister 4 weeks’ notice, or as much time as is reasonable when they terminate more than 50 employees at a single location.

Youth in the Workplace: The list of jobs available to youth aged 13-14 years old will expand to include positions in the restaurant industry, light janitorial work, coaching and tutoring and will no longer require a permit, provided the youth workers are working with someone at least 18 years old.

Penalties: The Bill proposes a reduction on a case-by-case basis for administrative penalties imposed on employers that contravene employment standards and will give the employer more time to make the payment. It will also make it easier for employers to get approval for a variance or exemption to an employment standard.

Changes to Labour Relations

Alter Employment Standards Rules: Under an HWAA, employers and unions will be able to agree to alter employment standard rules for hours of work, notice of work times, days of rest, and overtime hours.

Certification & Revocation Timelines: Specific timelines for union certification and revocation processes will be removed and replaced with a more general rule that applications should be processed as soon as possible, no later than 6 months after the date of application. The legislation will also specify when remedial certification can be used, as in instances when no other remedy is sufficient to counteract the impacts of the employer’s misconduct and the true wishes of employees can’t be determined.

Collective Agreements: Employers and unions will be able to renew a collective agreement before it expires if employees give their informed consent. And, if employees choose a new union, the existing collective agreement would still apply until it expires.

Opt-in Portion of Union Dues: The proposed changes mandate greater transparency for union spending and give employees the ability to opt-in to pay the portion of union dues that may go towards funding political parties and causes.

Complaints: When a complaint is made against an employer about an employee being unfairly terminated, the employer will be responsible for proving they did nothing wrong. The same responsibility will be placed on unions in cases of alleged coercion or intimidation.

Strikes, Lockouts and Picketing: The proposed changes will require the immediate filing of a Labour Relations Board’s order on a strike, lockout or picketing, at the request of one of the parties. During an illegal strike the Board may order employers to suspend union dues. During an illegal lockout, they may also order employers to continue to pay employees’ union dues.

Additionally, there are stricter rules proposed for picketing. Picketing would be deemed wrongful when it obstructs or impedes a person from crossing a picket line. Unions would also be required to get approval from the Labour Relations Board before picketing somewhere other than the employer’s business.

Construction Sector Changes: The Bill introduces more flexible rules for construction unions to organize their members, in an effort to help reduce employers’ administrative work associated with unionized employees. Industrial unions will be able to form “all employee units” by representing all employees who work for the same employer, regardless of their trade. This change will not affect building trade unions who will continue to certify their members on a craft-by-craft basis and international unions who will still follow existing rules in provincial collective agreements.

Conclusion

The changes detailed above are only a highlight of the total changes proposed under Bill 32 and do not represent a comprehensive list. The team at Walsh LLP is experienced in all these matters and together we can help ensure your business practices are aligned with the new changes if or when they are approved.

Questions

If you have any questions, please do not hesitate to contact Walsh LLP and speak to one of the members of our employment law team.

How to Resolve Your Case During COVID-19

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Walsh LLP’s counsel discuss how to resolve your case, even during covid-19, through court-approved means outside of court. Mediation and Arbitration are tools available to have a meeting/hearing to solve the case. Please watch and follow up with any questions: +1 (403) 267-8400.

COVID-19 and Employment Law

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Virtually no employer is immune from the effects of Covid-19. Whether it is continued uncertainty, post-crisis recovery or re-opening for business, all employers must be informed of legal issues and obligations that may arise when dealing with employees.  In effort to be better prepared to mitigate risks and react quickly, we briefly discuss issues that all employers should be considering.

Re-Opening For Business

Employers must determine if it is legally permissible to reopen its doors, based on present government orders and restrictions, which will continue to evolve as Alberta continues to relax restrictions.  Care should be taken because breaching orders may result in fines, penalties and other adverse effects.

In conjunction with reopening for business, employers must use this time as an opportunity to update employment contracts as well as policies and procedures.

Foremost, employment contracts should be reviewed and updated, where necessary, to sufficiently address issues that COVID-19 caused to surface, such as temporary layoffs. Another significant consideration is whether or not your employment contracts have effective termination clauses or the express authority to changes to duties, compensation, and work location with defined notice requirements.

In terms of polices, some additional key considerations include adopting or updating work from home protocols and what that means in terms of security and privacy and the use of company tools, equipment, and computers. Revisions to travel polices may be required as well as clarity on whether or not various leaves of absences, such as sick leave, are paid or unpaid.  Policies will also need to be revised to reflect amendments made to various legislation as a result of Covid-19.

Layoff

A change to Alberta’s employment legislation extends an employer’s rights of temporary layoffs from 60 days to 120 days. Prior to layoffs, employers may wish to consider other statutory or personal leaves available to an employee.  Furthermore, layoffs require strict statutory compliance and must be carried out carefully.  The technical requirements of layoffs are not often discussed in the media and can provide employers a false sense of right or security.  For example, the legislative right to layoff does not necessarily provide a contractual right to layoff and may result in an unintentional termination of an employee where severance is owed.

For employers who have already conducted layoffs, the specific legislative guidelines regarding callback notices or options to continue the layoff status of its employees should be considered and reviewed.  Failure to adhere to legislative requirements may result in the deemed “termination” of employees, which result in catastrophic obligations in terms of exposure to paying large amounts of severances.

Human Rights

Covid-19 has not changed an employer’s obligation to accommodate employees beyond undue hardship.  In fact, the closure of schools and daycares in the province has caused the rarely used “family status” protection provided for in human rights legislation to surface to forefront of consideration.

In short, family status protection extends to an employee whose personal family obligations interfere with the ability to perform occupational duties. For example, it is discriminatory for an employer to refuse to allow an employee to work from home due to children care obligations.  Options should be explored, such as offering flexible work-schedules, using sick leaves, vacations and the prescribed job-protected leave to combat the uncertain time for short term relief.  Accommodation is a two-way street and the employee has a shared obligation to cooperate and act reasonably in terms of accommodation efforts and must exhaust all possible solutions before requesting a leave.

Workplace Health and Safety Obligations

Alberta occupational health and safety (“OHS”) legislation has always mandated employers take all reasonable and practicable measures to provide a healthy and safe working environment. COVID-19 presents a risk to the health and safety of workers and accordingly, employers must take reasonable steps to address this risk. What is appropriate and reasonable depends on the nature of the organization and the workforce and are reasonable steps today may not be reasonable tomorrow. Employer should ensure that they are following best practices by staying on-top of recommended safety protocols from our federal and provincial governments, the Public Health Agency of Canada and the Centre for Disease Control and others.

Some key considerations included limiting the number of employees, customers and clients in the workplace, encouraging social distancing in the office, lunchroom, waiting room, reception and elsewhere, ensuring all workplace hygiene and regularly sanitizing shared surfaces, preventing sick employees form being at work and implementing appropriate policies such as limiting non-essential travel, maintaining a list of names and contact details of people who attend the workplace to assist health authorities trace people exposed to Covid-19 and more.

Conclusion

The impact that Covid-19 has had on the legal landscape has and will continue to provide significant challenges to employers in Alberta. However, with careful thought and attention to the issues that may arise, it is possible to face these challenges, whether now or after the pandemic, in order to ensure that your business not only continues but thrives into the future. The team at Walsh LLP is experienced in all these matters and together we can help safeguard your business and make sure your obligations to your employees are met.

Questions

If you have any questions regarding the above please contact our office at 403-267-8400.

Pandemic Parenting: Covid-19 in the Alberta Family Law Courts

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If you are a parent, it is likely that you have had to make some adjustments during the Covid-19 pandemic.  Parents’ work schedules have changed, kids are no longer in school or daycare, and you now have to relearn and teach your children math equations you forgot back in 1992.

Spending time (being trapped) indoors with your wonderful (crazy) children is challenging enough; however, it is made easier by knowing that by self-isolating you are keeping your family safe and healthy.  Parents who are separated, divorced, or otherwise attempting to co-parent with a former partner do not always have that same comfort.  What do you do when you believe that your former partner is putting the children and others at risk of contracting Covid-19?

If you are in this situation, you are not alone.  Fortunately, the courts across Canada have been swift in addressing this issue.  Despite the fact that courts are refusing to hear non-urgent family law matters, a number of cases have been reported during the past two months which have addressed parenting in the time of Covid-19.

The first, and most frequently cited, is the Ontario case Ribero v. Wright 2020 ONSC 1829.  In Ribero, Justice Alex Pazaratz, sitting as triage judge, provided guidance on the court requirements from a parent attempting to bring an “urgent” parenting-related application, as well as the type of behavior that warrants the suspension or limitation of a parent’s time with the children.

This decision was recently adopted here in Alberta by the Honourable Justice Graesser in SAS v LMS, 2020 ABQB 287.  In this case, the parents had a shared parenting regime.  The mother suspected that the father was not following the appropriate procedures and was putting the children at risk of contracting Covid-19 during his time with them.  Her concerns were based in part on the children’s comments to her, as well as her conversations with the father, who admitted to attending his office, allowing a coworker to come to his house to drop off papers, and taking the children horseback riding.  The parents attempted to address the matter between themselves, but were unsuccessful, so the mother unilaterally withheld the children from the father.  The father then made an “urgent” application requesting that the mother be found in civil contempt and requiring her to adhere to the parties’ prior parenting order with a police enforcement clause.  In the alternative, he asked the court to order the children to live primarily with him during the pandemic.

Justice Graesser’s decision is a clearly written must-read for parents concerned about the other parent’s adherence to Covid-19 health and safety precautions.  In SAS, Justice Graesser states that as a precursor to an application to suspend or vary parenting, parents should make good faith attempts to resolve the issue between them. His Lordship goes on to say that if the concerns remain unresolved, a court application should be brought before a parent withholds the children from the other.  Despite a strong caution against these “self-help” remedies, Justice Graesser acknowledges that there may be exceptions when such actions might be warranted:

“One is where a parent is diagnosed with COVID-19 and insists on still exercising face to face access with a child. Another would be where a parent is displaying symptoms of COVID-19 but refuses to do anything about it. A third situation would be where a parent has or is about to do something involving the children that poses an immediate threat to their health or safety. In any of these cases, if there is no time to apply for permission to make an emergency application, unilateral action may be forgiven if an application is made at the earliest opportunity.”

After undergoing a detailed analysis of the evidence, Justice Graesser finds that the majority of the mother’s concerns were valid and that, despite correcting his behavior, the father continued to express a cavalier attitude towards the recommendations which suggested that he did not appreciate the associated risks.  However, his Lordship also found that, while the mother better appreciated the risks of Covid-19, she was somewhat hypocritical in failing to meet her own standards by allowing her healthcare worker partner to return to her home without self-isolating for the requisite 14 days.

His Lordship states that if parents are continuing to work during Covid-19 they must commit, at a minimum, to “scrupulous adherence to all AHS recommendations and requirements relating to the workplace.”  He clarifies that this applies to healthcare workers, but that just because a parent is, or lives with, a healthcare worker does not automatically make them a higher risk household.

Ultimately, Justice Graesser dismisses the father’s application but also admonishes the mother for failing to make an application before attempting her “self-help” remedy of withholding the children.  Had the mother been the applicant or made a cross-application instead of attempting the “self-help” remedy of retaining the children, the court’s strong, safety-first language implies that the outcome might have been different.

While the case as a whole is worth a read, overall, SAS suggests that a parent’s attitude towards AHS recommendations (and the other parent), may be just as decisive a factor as their actual adherence to these recommendations.

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Justice Graesser’s summary is below:

1. Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.
2. Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.
3. Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;
4. Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order;
5. The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;
6. If an application cannot be made because of the urgency of the situation, an application by the defaulting party must be made as soon as possible after learning of the emergency;
7. Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful; and
8. Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and
9. Non-compliant parents can expect no second chances.