In a recent Ontario decision, a court temporarily suspended a father’s in-person access to his children due to the COVID-19 pandemic and his youngest daughter’s pre-existing health issues, ordering virtual video access instead.

What Happened?

The case was heard in mid-June, 2020; the parents had separated a year and a half prior. They had two daughters together, aged four and five. 

The court described their relationship as “somewhat torturous”; for instance, in a November 2019 incident, the father was charged with three counts of threatening the mother and her parents.

In December 2019, a court awarded the mother custody of the children and gave access to the father. The order expressly stated that it was made to lend necessary stability to a situation that had the potential to become unstable to the detriment of the children.

In February 2020, the father was arrested on weapons charges. The mother went to court to obtain an order suspending the father’s access, which was refused.

With the advent of the COVID-19 crisis, the mother immediately resisted a continuation of face-to-face access between the children and the father. 

Their youngest daughter has a genetic condition which can cause potential lung conditions and the mother was advised by a doctor to engage in enhanced distancing pending public health clearance. After this, the mother asked the father to forgo access and for two visits he agreed to skip his access. However, he then took the view that the children had isolated long enough and that access on a regular face-to-face basis ought to immediately recommence. 

Issues

The mother resisted a return to face to face access with the father due to their daughter’s health condition. 

The father took the position that she was refusing to follow the consent court order and was deliberately acting to stop him from seeing the children. He claimed that the mother was using the COVID-19 pandemic as a reason to keep him from the children.

Decision

The court noted the large volume of materials filed with the court, but found that their value was limited, stating:

“From the morass of material placed before the court a limited number of facts stand out. First, the parties were well served by their decision to stop living together; second, they have two apparently well-adjusted little girls who are adored by all and who benefit from seeing their dad regularly.”

The court accepted that the youngest daughter had a serious genetic condition that would make her exposure to the COVID-19 virus potentially very harmful, as the condition could attack her lungs and liver and a COVID-19 exposure could cause severe difficulty in breathing. 

In addition, the court did not accept the father’s position that there would be no risk of any harm to their daughters if they were in the father’s home for regular access. The court then explained the fundamental issue of the motion was keeping the youngest daughter safe. The court stated:

“To be clear, the [daughters] will not be waiting until there is a COVID-19 vaccine available to all: access should be expected to be relaxed again when the measures reasonably expected of the parties will adequately protect [the youngest daughter].”

As a result, the court made an order that the father’s face-to-face physical access to the daughters be temporarily suspended and replaced by virtual video access.  

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.