Zoe was finally getting along well with Rex her Ex and little Butch was now used to spending one week at each parent’s home. During their parenting time, Zoe and Rex trusted the other to parent appropriately, and the exchanges were simple with each of them dropping Butch off at his school Monday mornings, and the other parent picking him up that evening. Suddenly though, COVID-19 was all over the news. A global pandemic started and schools and businesses were suddenly closed. For the first two weeks Zoe and Rex were able to agree that they would simply exchange Butch at their home, the same way they did when it was a holiday, but then things worsened. Zoe worked at a veterinary office providing care to sick pups and Rex was worried about her increasing contact with others. He felt that it was safer for Butch to stay at his home until this crisis had passed. Zoe was devastated, no one knew how long the social distancing protocols would last and it was entirely unfair for her to not see Butch during that time. Zoe immediately called her lawyer and asked, “Can I bring an emergency motion for Rex to follow our previous agreement?”
A) No, because while Zoe continues to work as an essential service provider, Butch will have to stay with Rex;
B) No, the courts are currently closed and therefore only dealing with very serious matters where a child is being harmed; or,
C) Yes, Rex is not allowed to keep Butch past his normal time so Zoe can definitely bring an emergency motion.
Answer – B
Parents are understandably increasingly concerned about their children and the potential exposure to COVID -19 during this state of emergency. Many have wondered whether access visits should be suspended until the threat of exposure has passed and the social distancing protocols currently in place have been lifted. While the primary parent is worried about protecting their children, the access parent is left wondering if their visits will continue and when will be the next time they can see their children. Access parents are increasingly concerned about being denied scheduled time with their children, and about the harm to their relationship that frequently missed visits can cause. This is an unprecedented time and is difficult for everyone but, as with everything in family law, the number one question according to both the provincial Family Law Act, and the federal Divorce Act, is what is in the best interests of the children. Luckily, even though the Courts are mostly shut down, a handful of emergency motions have been made, and decisions have been published regarding access visits and what to expect until this crisis is over. What we have learned is that, for the most part, the Courts are only willing to hear the most urgent of cases where there is a risk of serious harm to a child.
The case of Ribeiro v. Wright, 2020 ONSC 1829, is one such decision. An urgent motion was brought by a 9-year-old child’s mother seeking to suspend all in-person access visits with his father due to the threat of COVID -19. The mother was concerned that the child’s father was not maintaining social distancing protocols. Justice Pazaratz did not agree that this was an urgent motion, nevertheless he did provide specific criteria that should be considered in all further motions. First, the Court confirmed that the health, safety and well-being of children and families remains their primary consideration during this crisis. Second, the Court stressed that in this case there was already an existing access Order and that there is a presumption that all previous Orders and Judgments will continue to be respected and complied with. In other words, COVID -19 is not an excuse or reason to change an already established Order or Parenting Agreement. The reasoning behind this decision is that if an Order or Agreement for access is already in place, it was made to protect the important bond between the parent and the child. These vitally important family relationships cannot be placed “on hold” indefinitely without risking serious emotional harm to the child. It is also in a child’s best interests to be supported by both of their parents and to maintain their current schedules to the extent possible amidst the rest of the chaos that this pandemic is causing.
The Court did point out a few cases where parents may have to temporarily forgo some of their time with their child, such as:
a) When a parent is under self-isolation for a 14-day period as a result of recent travel without the child;
b) Because of personal illness or potential exposure to illness; or,
c) Because a parent’s personal risk factors.
While the court stated that access visits should continue to the extent possible, Justice Pazaratz made it very clear that there would be zero tolerance for any parent who recklessly exposes a child or members of the child’s household to any COVID-19 risk, such as a failure to comply with social distancing or to take reasonable health precautions. The Court confirmed that each case would depend on its own specific circumstances but that before a parent attempts to bring an urgent motion, they try to find a solution with the other parent. As a last resort, the parent who wishes to bring an urgent motion should carefully consider the following test to determine if the Court is likely to consider the matter urgent enough to intervene:
1. The parent initiating an urgent motion will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID -19 protocols.
2. The parent responding to such a motion will be required to provide specific and absolute reassurance that COVID -19 safety measures will be meticulously adhered to – including social distancing, use of disinfectants and compliance with safety directives.
3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all of the COVID -19 considerations, in a child-focused manner.
4. Judges will likely take judicial notice of the fact that social distancing is now both commonplace and accepted, given the number of public facilities that have been closed.
Most importantly, the courts have urged both parents to be reasonable and try to work together during this time and to take a child-focused approach when making decisions.
Another case Douglas v. Douglas, 2020 ONSC 2160, deals with the issue from the opposite side, where a mother denied a 6-year-old child’s father access, stating that because he was still working it demonstrated a potential risk to COVID -19. Before hearing the matter, the Court first had to determine if this issue was urgent. While normally the unlawful retention or withholding of a child would be considered an urgent matter, under the Superior Court’s current limited capacity, the question of urgency was debatable. The Court specified that while it is certainly expected that parents will be worried about potential threats to their child’s health, the total removal of one parent from any child’s life must be exercised cautiously. Justice MacPherson sympathized with the father, however, he specified at paragraph 10, “…the Court must take guidance from the Chief’s notice that confirms that all Court operations are suspended with the exception of those that are urgent and emergency matters. The Chief’s notice defines such matters in the context of family files to be relative to ‘the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child.”
Justice MacPherson explained that although this is clearly important to the father and the child, there is no indication that there is any emergency or need for this matter to be decided urgently. The Judge did not consider the mother refusing the father’s access to be the unlawful retention of the child, as it did not amount to an abduction and it was not an emergency as there was no indication that the child’s safety was at risk if he continued to reside with his mother. Despite this decision, Justice MacPherson did state specifically at paragraphs 14 and 15,
14 The parties have experienced family law counsel representing them. It does not appear that mother’s counsel has responded to father’s counsel in any meaningful way to reach a reasonable resolution. He is encouraged to do so. Surely a complete termination of all contact between the child and his father cannot be in the child’s best interests even in these unprecedented times.
15 Finally, all counsel and parties must be aware that actions taken in these unusual circumstances, may very well be judged once Court operations resume, as not being appropriate nor in the best interests of their children.
While the judges in these two cases have stated that all Orders and access Agreements should continue as before, and that any actions taken during this time that are not in the child’s best interests will be thoroughly considered afterward, the last questions is what should occur if a child or a party suffers from one of the risk factors involved with COVID -19.
This question was considered in Trudeau v. Auger, 2020 ONCJ 197, where the child suffered from a genetic condition which includes respiratory issues placing him in a high-risk category should he contract the virus. The Judge was satisfied that this matter was urgent and allowed it to proceed, as it was different from Ribeiro v. Wright, (detailed above) because no final access Order was in place. In addition to the child’s condition, the mother also claimed that access between the child and his father should be suspended because the maternal grandmother lived in the home and had a compromised immune system, so if the child visited his father and returned, she would be put at risk. Previously, the father was ill and voluntarily agreed to suspend access, which the court found was in the child’s best interests. He is now asking for access to be reinstated and the mother disagrees. The father explained that he did not have Wi-Fi in his home and therefore could not afford the data cost of electronic access. The father indicates that he was laid off due to this pandemic and is therefore no longer in contact with others and is able to stay home and care for the child.
Firstly, it was reiterated at paragraph 48, “It is not enough, to demonstrate that the onset of COVID -19 is a material change in circumstances. The current case law would seem to support the view that in most circumstances, COVID -19 will not be sufficient on its own to justify a variation of an existing court order if any risk can be dealt with by appropriate compliance with existing community and public health directives.”
Then the court moved on to this case’s specific circumstances. The father stopped working more than 2 weeks prior to this motion and has not had any symptoms since. The court specified that while the maternal grandmother may be at risk, there was no evidence as to her ability to isolate elsewhere and why no other arrangements could be made for her care. The court felt that the grandmother’s potential risk was not sufficient to curtail the father’s access.
The court explained that the father has proven his awareness of the safety measures and precautions that need to be in place to protect the child and his family, and indicates that he lives alone and that he will take all of the necessary precautions to mitigate any risks to the child, which specifically included:
a) Disinfecting items such as doorknobs that may be touched by others entering his home or apartment building;
b) Maintaining social distancing;
c) Staying home except for necessary appointments, such as for food and medication;
d) Allowing no one else to enter the home;
e) Avoiding leaving the home unnecessarily;
f) Limiting access visits to within his home and not taking the child to any public location;
g) Wearing a mask or other facial covering when necessary.
The judge concluded that if the father abided by the above, that no medical documentation indicated that the child would be at an increased risk from spending a few hours at a time in his father’s home (as he was doing before the pandemic started). The Court also pointed out that there was no evidence of the father previously not complying with the recommended protocols and that his agreement to previously suspend access when ill showed his good judgment and willingness to put his child’s needs above his own.
In conclusion, the Court stated that the father could continue his access, despite the potential risks to the child so long as he continued to abide by any future public health directives, did not leave his home with the child and agreed to wear a mask whenever he was within 2 metres of the child and that if he began to exhibit any symptoms of illness he would forgo access for an appropriate period of time. The judge concluded by urging both parents to renew their efforts to address important health and safety measures for their child in a more conciliatory and productive manner in the future, instead of turning to Court. He emphasized the need for increased communication and cooperation between the parties in order to put the child’s needs first.
This is an unprecedented time for everyone around the world. Questions regarding parenting abound and no one is certain how long this will last or what further precautions or measures will be taken by the government or recommended by health professionals. Parents are understandably extremely worried about the health and well-being of their children and families. The number one takeaway from the cases cited is the appeal for parents and their counsel to be reasonable and creative in coming up with solutions that will be in the children’s best interests. Many parents are turning to alternative dispute resolution methods, such as, mediation, lawyer-led negotiations, or collaborative law for answers, especially with the Courts refusing to get involved in anything but dire emergencies.
If you have any questions or concerns regarding parenting during this pandemic, or, if you are looking for more information on alternative dispute resolution options, the lawyers at M.G. Michaels & Associates would be happy to assist. Please do not hesitate to call us at (905) 426-1476 or visit our website at https://familycourt.law/ for more information.