We recently wrote about a Quebec decision in which a father was stripped of custody of his son, in part because of his beliefs and behaviours relating to the COVID-19 pandemic.

In a similar Ontario case, a court suspended a father’s in-person visits with his child because he was not respecting COVID-19 public health guidelines and had called the pandemic a “scamdemic”.

Mother Goes to Court Over Parenting Time

The parents have a four-year-old child. They lived together briefly, but separated within three months of the child’s birth. Despite not having a parenting plan in place, the parents had cooperated to establish a parenting schedule which gradually grew to the point where the father parented the child six nights out of fourteen.

The catalyst for the dispute between the parents was the father’s rejection of the seriousness of the COVID-19 pandemic, and his active and willful disobedience of public health guidelines, including organizing and hosting protests in Toronto against the public health measures taken by government and public health officials in Ontario. The mother withheld the child from the father as a result, and, in June 2020, sought urgent relief from the court for, among other things, temporary sole custody. 

On July 3, 2020, the court heard the full motion.

COVID-19 Issues

As of May 8, 2020, the mother had refused to allow the father in-person parenting time with the child after she learned that the father was gathering in large crowds to challenge government and public health measures taken around the COVID-19 pandemic. She was concerned that the father’s behaviour would expose the child, herself and her contacts, including her elderly parents, and other immuno-compromised family members, to COVID-19.

The evidence showed that the father referred to the COVID-19 pandemic as a “scamdemic”. He had organized and participated in public protests against the government’s handling of the COVID-19 pandemic. On social media, he encouraged his followers to “reject the new normal”, and criticized the World Health Organization as “corrupt”, alleging it must be held accountable for genocide against humanity. He had been interviewed by local media sources who identified him as a protest organizer. He claimed that deaths from the flu shot were greater than deaths from COVID-19. He also admitted to hugging strangers, and wearing a shirt that said “hugs over masks”.

However, in his court materials, the father attempted to downplay the risks of his behaviour during the pandemic. He admitted to believing that the government had “over-reacted” to the virus, and agreed that his views would be called “unconventional”. However, he stated that it was not his views that mattered, but his actions. The father argued that there was no criticism about his parenting skills, and that he was healthy and perfectly capable of parenting the child. He also argued, relying on a report from the Hospital for Sick Children about children and COVID-19, that the child was at low risk from the virus, and that both he and the child were healthy. He wanted his in-person parenting time to be restored.

The mother did not dispute that the father was a loving parent. She had some concerns about some of his parenting choices, but did not seriously dispute that he could appropriately provide care for the child. However, she was concerned that the father was acting irresponsibly during the pandemic, and as a result, was putting himself, the child, herself, and her contacts at risk of the virus.  

The mother supported the restoration of in-person parenting time between the child and the father after the father had self-isolated for a period of 14 days and had committed to following public health guidance with respect to COVID-19. 

However, the father was unwilling to follow public health guidance with respect to COVID-19. At the hearing, he had insisted that, as a health and wellness coach, he took all necessary steps to keep himself healthy, and he assured the court of his overall good health. When asked whether it was his intention to abide by the then-anticipated Toronto by-law that required masking in indoor, public spaces, he stated that there was an exemption to the by-law for those whose health conditions did not allow them to wear masks. He claimed that he had pre-existing conditions, but that his lifestyle allowed him to maintain overall good health. However, there was no evidence of his pre-existing conditions in the record. 

Court Removes Father’s In-Person Parenting Time

The court began by citing the principles set out in Ribeiro v. Wright which set out guidance for parties and courts dealing with parenting issues that arise during the COVID-19 pandemic.

After reviewing the evidence, the court concluded:

“In my view, [the father] intends to rely on a fictional health condition to avoid wearing a mask because he believes that the pandemic is a “scamdemic”. […]

I find that the [father] is not prepared to follow COVID-19 protocols in the future. The [mother] has established that the [father]’s behaviour is of the sort contemplated by Pazaratz J. [in Ribeiro v. Wright]when he wrote, “in some cases a parent’s lifestyle or behaviour in the face of COVID-19… may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.” The [father] has demonstrated no parental insight, or COVID-19 awareness.

The [father] is aware that his behaviour has led to the [mother] suspending what was his significant parenting time with [the child]. Despite the government and public health messages about the risk of COVID-19, despite the [mother]’s clear will to act in the face of her concerns, despite the case law that suggests that courts will take COVID-19 seriously, the [father] has preferred his agenda – politicizing a virus – over his parenting time with his son.

In these circumstances, given the [father]’s complete failure and unwillingness to follow COVID-19 protocols, now or in the future, I order that, on a temporary basis, [the child]’s primary residence shall be with the [mother].” 

Further, the court ordered that the father’s parenting would be by video only, three times weekly.

Finally, the court stated that the father could resume in-person parenting time with the agreement of the mother. If she did not agree, the court stated that he could apply to the court for a resumption of in-person parenting time after: 

  1. He obtained a negative test result for COVID-19 or alternatively, self-isolated for fourteen days; and 
  2. He began following government and public health protocols with respect to the COVID-19 virus.

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.