In a recent Ontario case, a mother sought to have her daughter’s time with her father suspended because he was staying in a secondary home, at a cottage, during the COVID-19 pandemic.

What Happened?

The parents separated in May 2017 after living together for over two years. They have a 4-year old daughter. On September 1, 2017, they reached a partial separation agreement, including a parenting plan. Under the arrangement, their custody was almost equally shared with the father having parenting time with the child six nights and seven days out of fourteen. 

The mother is a family physician. She has stage 3 breast cancer and is at high risk of experiencing complications and serious illness were she to contract COVID-19. 

The father is a lawyer. He lives with his new partner, who is also a lawyer. The new partner has three-year-old daughter who also lives with them when she is not in the care of her father. 

The father and his new partner decided to self-isolate during the pandemic with the partner’s parents, who are seniors, at their cottage.

The mother objected to this arrangement. She stated that the father was not respecting public health guidelines because he was in a group of more than five people who were not of the same household, and he was not staying at his primary residence in Toronto. She claimed that by staying at the partner’s parents’ cottage, they were far from the mother and from appropriate medical care should their daughter become ill with COVID-19.  

As a result, the mother sought an order for temporary sole custody of the daughter, an order that the daughter’s primary residence would be with the mother for the duration of the COVID-19 pandemic, an order suspending the father’s parenting time with the daughter, and an order that the father’s parenting time be limited to video conference calls only. In the alternative, the mother sought an order directing the father to comply with COVID-19 protective measures and community based measures, including, among other things, an order that he not visit the cottage and not invite third parties into his home other than his immediate family. 

Decision

The court explained that all parenting motions must be determined in accordance with the best interests of the child and that there is a presumption that existing parenting arrangements should be respected.

In this case, the court found that it was in the daughter’s best interest that the parents continue the existing parenting arrangement. 

First, the court found that the parenting arrangement promoted and fostered the close and loving relationships that the daughter had with both her parents, and with the new partner and her daughter, stating:

“[I]t provides stability and continuity for [the daughter] at a time when most other aspects of her daily life have changed.” 

The court observed that it was also in the daughter’s best interest that both she and her parents do not contract the virus. 

However, despite the mother’s concerns, the court found that the father had been minimizing the risks to his household, and to the mother, by taking prudent measures to prevent the risk of exposure to COVID-19. For instance, the father stated that he had taken the following actions in response to the pandemic:

  • The six family members living at the cottage were not seeing any other people, including any other family members, except whomever the children saw when they were with their other parent;
  • When it was necessary to go out, they wore gloves and masks, used hand sanitizer, washed their hands frequently, and practiced physical distancing;
  • The father ensured that the daughter washed her hands frequently; and
  • The children were not having playdates or using playground equipment.

Additionally,  the court found that the risk to the daughter from COVID-19 by spending her parenting time with the father at the family cottage was negligible. It stated that the risk to the daughter of becoming ill and being unable to receive adequate treatment in time was purely theoretical. 

Thus, the court was not convinced that any health-related concerns justified changes in the parenting orders. It concluded that the father was abiding by the conduct orders and was acting as a responsible and capable parent and should be allowed to parent without interference from the mother.

As a result, the court denied the mother’s application and concluded by saying:

“I understand that the parties are dealing with very stressful circumstances, made even more stressful by the [mother]’s immunocompromised state. In these circumstances, it is hard for anyone to be at their best. The communication between the parties was strained before the pandemic, and the extra stress created by the pandemic understandably creates an additional obstacle to effective communication, even here, where the parties are both intelligent, loving parents who want the best for their child.” 

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.