In a recent Ontario case, a mother filed an emergency motion for the return of her children after the father refused to let her see them because she is a nurse working during the COVID-19 pandemic. 

What Happened?

Due to the COVID-19 pandemic, the mother filed electronic materials asking that the court make an order on an urgent basis for the return of the parents’ two children to her care.

The parents separated on July 1, 2013. Their children are seven and six years old. 

The mother stated that she had been the primary caregiver for the children since the parents’ separation. 

The parents had entered a separation agreement on October 1, 2018, under which the children were to be with their father on alternate weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m., and every Wednesday overnight to Thursday.

The mother stated that she had recently proposed a week-about schedule while the children were not attending school due to the COVID-19 crisis. The father did not agree to her proposal; instead, he told her he would keep the children in his care.

Additionally, the mother claimed that the father had refused to return the children to her on March 23, 2020, on the basis that she is a healthcare worker.

However, the mother argued that while she is a registered practical nurse at a hospital in Kitchener, she is a perioperative nurse and not a front-line worker, and was therefore less likely to come into contact with COVID-19. She was also taking precautions to ensure that she was not exposed to contamination.

As a result, the mother sought the return of the children to her care and a resumption of the schedule set out in the parent’s separation agreement, or in the alterative, a week-about schedule while the children were not in school.

The matter was referred to a triage judge for a determination of urgency and of how the matter should proceed.

Decision

The triage judge first explained that determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.

The Notice to the Profession issued on March 15, 2020 provides that urgent matters may include matters related to the safety of a parent or a child, or urgent issues related to the wellbeing of a child. 

The triage judge cited principles set out in a recent case used in the determination of urgency with respect to parenting issues during the pandemic, which are:

1. In most situations, there is a presumption that existing parenting arrangements and schedules should continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing.

2. In some cases, a parent may have to forego scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness.

3. In some cases, personal risk factors through employment or associations may require controls on direct contact on a child.

4. Further, lifestyle or parental behaviour in the face of COVID-19 may necessitate restrictions on parenting time. There would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk.

The triage judged added that there may be risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments.

The triage judge concluded that, applying the Notice to the Profession and the developing caselaw on this issue, and having regard to the parents’ separation agreement, the motion brought by the mother was in fact urgent. The parents were directed to file materials to the court, which would then hear the motion by teleconference. 

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.