A recent Ontario case, in which a mother tried to block a father’s access to their child amid COVID-19 fears, offers custody and access advice to parents for coming months.

What Happened?

The parents had joint custody of their now nine year old son since a final order in 2012. Primary residence has always been with the mother, while the father had access rights. In a September 2019 temporary order, the father was given access on alternate weekends from Friday 6:00 p.m. to Sunday at 6:30 p.m.  

In 2019, the father had brought a motion to expand parenting time and that motion remained outstanding.  

The mother brought an urgent motion to suspend all in-person access with the father because of COVID-19. The motion was heard on March 24, 2020.

The mother expressed concern that the father would not maintain social distancing for the child during periods of access. Additionally, the mother stated that she and her family were practicing social isolation in their home for the duration of the COVID-19 crisis and she didn’t want her son leaving the home for any reason, including seeing the father.

Hearing

The motion was heard by a triage judge, who noted that, as a result of Covid-19, all regular Superior Court of Justice operations had been suspended. As a result, the mother’s emergency motion was referred to the triage judge for determination as to how the file was to proceed. Additionally, there were no in-person appearance and all electronic materials were filed through the courthouse email address for review by the triage judge.

Decision

The triage judge acknowledged that all parents are understandably confused and worried about what to do in the face of Covid-19. Similarly, the triage judge noted that the situation presented uncharted territory for the court system and stated:

“We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”  

The triage judge highlighted different family situations that may arise in coming months:

  • In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing. 
  • In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
  • In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
  • And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Ultimately, the triage judge stated that each family will have its own unique issues and complications and there will be no easy answers. The judge offered the following advice for parents moving forward:

  • The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols.   
  • The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
  • Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.  
  • Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

In the mother’s case, the triage judge found that, while her concerns about COVID-19 were well-founded, she had not established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.   

As a result, the triage judge denied the mother’s authorization to proceed with the motion and urged both parents to deal with their child’s health and safety issues in a conciliatory and productive manner.  

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.