A digital leap in parental rights: 'virtual visitations' becoming the norm in divorce settlements
By Misty Harris, Postmedia News
November 16, 2010
"Virtual visitation" will soon be fully entrenched in the language of divorce, as more and more broken families
are subject to court orders for everything from parent-child Skype calls to scheduled instant-messaging sessions.
Photograph by: File photo, Postmedia News
Though video chats are still a privilege for most, they're becoming a right for an increasing number of Canadian parents.
"Virtual visitation" will soon be fully entrenched in the language of divorce, as more and more broken families are subject to court orders for everything from parent-child Skype calls to scheduled instant-messaging sessions.
For now, this kind of plugged-in parenting is enforced primarily with couples facing distance hurdles — father on the East Coast, mother on the West Coast, for example. But with six U.S. states having included virtual visitation in their legislation, and Canadian courts ordering it on a case-by-case basis in nearly every jurisdiction, experts predict it won't be long before digital rights are a fixture in custodial agreements of every stripe.
"I don't think it has quite hit critical mass but it's clearly getting there," says Garry J. Wise, a family law lawyer from Toronto. "Virtual visitation now comes up as a matter of routine when an issue of mobility is raised."
In August, an Ontario mother was granted permission to relocate with her twin sons to the United Kingdom, provided her ex-husband — who planned to remain in Canada — was afforded "reasonable telephone and webcam access" with his children.
Similarly, in February, a Halifax mother had her request to move to Missouri granted on the condition that virtual visits took place twice a week between daughter and father via computer.
But Wise, of Wise Law Office, hastens to add that such technology "doesn't amount to a carte blanche notion where . . . you can move anywhere you want without consequences."
In May, a Kingston, Ont.-based mother was denied permission to relocate to New Zealand, despite her assurances that video technology would allow her daughter regular "visits" with her dad. Ontario Superior Court ruled that "the time difference alone will mean the child's contact with (her father) will be at awkward hours, either for the child or for the parent, and would necessitate a complicated schedule."
In all cases, Wise says the chief consideration is what's in the best interest of the child.
"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."
Stephen Grant, a past president of the Canadian chapter of the International Academy of Matrimonial Lawyers, says it's typically a dance between the need of the custodial parent to move and the need of the child to have maximum contact with both parents.
Digital rights can also come into play when the child's well-being is in question, with Grant noting that "sometimes with restricted or supervised access, a court might allow email . . . rather than specific visits."
Michael Saini, an assistant professor in the faculty of social work at the University of Toronto, believes there's great benefit in the immediacy and visual component of webcam chats, whether across a few neighbourhood blocks or an entire country.
Where things get contentious is when virtual contact is misconstrued as a replacement for physical visitation or when one or both parents don't enforce structure in e-communication — mutually deciding, for example, whether a video chat takes place in private or in the presence of the other parent, who has access to parent-child emails, the timing of each visit, et cetera.
"There are still so many unanswered questions," says Saini, who does custody evaluations for The Office of the Children's Lawyer. "We need to speak to children about their use of these technologies to see the benefits, the limitations, how it works, whether it works. Future research is definitely needed."