Earlier this year, we wrote about a mother who objected to the father self-isolating with their child at a family cottage. We have also recently written about parents going to court over their child’s summer vacation travel plans due to COVID-19 concerns.

This month, an Ontario court was faced with a similar case, in which a mother sought to prohibit the father from taking their child to a cottage for a summer vacation during the COVID-19 pandemic. The case centred on the father’s proposed “social bubble”.

What Happened?

The parents married in 2007 and separated in 2015. Their son was born on September 28, 2010.

Pursuant to a 2018 court order, the parents shared joint decision-making and parenting time; the son lives with each of them in alternate weeks. 

As part of the 2018 court order, each parent was given a summer vacation with the son for a period up to 10 consecutive days until he reaches age 11. Each parent was to advise the other of their chosen weeks, no later than March 1st each year. The father was given first choice in even-numbered years and the mother had first choice in odd-numbered years. The parents were not allowed to object to the other parent’s reasonable plans with the child and the parents were to respect each other’s ability to care for the child appropriately. Finally, the travelling parent had to ensure the safety and security of the child and not endanger his health. 

On June 30, 2020, the mother requested an urgent motion.  

At issue was whether the parents’ now 9-year-old son could safely attend a rented cottage during the week of July 11 to 18, 2020 with his father, paternal grandparents, paternal aunt and cousin considering COVID-19 health risks. The cottage was located in the Kawartha Lakes region of Ontario. The grandparents were travelling from their home in Leamington, Ontario. The father’s sister and his niece were travelling from their home in Toronto. 

The mother sought an order requiring the father to comply with 
COVID-19 health protocols in Ontario in order to take the son on his planned vacation. The mother did not want the child exposed to any non-compliant situation, even if that meant he was prohibited from taking summer vacation with his father.  

The father opposed the motion.

Parties’ Positions

The mother alleged that the father had failed to properly consider the COVID-19 health risks of his summer holiday plan with their son. She contended that his determination to vacation with the son at the cottage was selfish and unnecessarily risky. She argued four main points: first, that seven family members from three different parts of the province could not constitute a social circle within the established provincial guidelines; second, that the recent COVID-19 outbreak in the Windsor-Essex region of Ontario added another layer of risk to the cottage plan; third, if the extended family group was not an allowable social circle, it would be nearly impossible for seven people to social distance in a cottage and keep surfaces properly disinfected; and, fourth,  she  expressed concern for her own health saying she had asthma and that placed her in a high-risk category for COVID-19.  

The father submitted that the mother’s motion was nothing other than an attempt to interfere with his summer vacation plans for the third year in a row. He said that the son’s best interests were always first and foremost in his mind and he would never do anything to expose him to harm. The father said his girlfriend moved in with him when the emergency was declared and, since then, the three of them had not socialized with anyone else. He said his plan to merge his social bubble with that of his parents and sister was consistent with provincial protocols and, therefore, the need to social distance or wear a mask at the cottage did not apply. He also explained that each family had their own bathroom, that he was well-acquainted with recommended hygiene practices, and that he had no reason to leave the cottage once there. Finally, the father acknowledged that the mother had asthma but said it was exercise-induced asthma; he therefore suggested that it did not increase her COVID-19 risks.

Decision

The court focussed on the “social bubble” proposed by the father, which would include the coming together of family members from three different households. It also considered the son’s best interests.

The court expressed concern with the lack of information in relation to the father’s sister and niece and their social contacts. The court stated that it had no ability to assess the extent of that family’s social circle. The court said:

“According to the provincial guidelines, each person can only belong to one social circle. So, if a person is invited to join a social circle, their social contacts must also be considered.  

Moreover, it does not appear that consideration was given to the social circling directive from the province indicating that separated spouses with children moving between their two homes must include each other in their respective household bubbles before expanding it. Here, this means that [the mother] is part of [the father]’s social circle and he is part of hers. [The mother] did not consent to be a part of the larger circle proposed by [the father]. I find nothing unreasonable about her decision to withhold agreement.” 

The court found that most of the father’s evidence showed that he had been thoughtful and careful about health and safety measures. However, the court stated that considering the current health threat and the evidence provided, it found that the potential risk to the son, and by extension to the mother, outweighed the benefits of one week at the cottage. It stated that whether the mother’s asthma was exercise-induced or not, it nonetheless heightened the potential consequences to her should she contract COVID-19.

The court concluded that it was not in the son’s best interests to vacation with the father at the cottage, given the shortcomings in the father’s plan to create a social circle or “bubble”. 

As a result, the mother’s motion was granted.

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.