A number of cases have dealt with the issue of access during the ongoing COVID-19 pandemic.
Justice Pazaratz’ decision in Ribiero v. Wright [1], set out the guidelines in motions relating to changes to an access order or agreement arising out of COVID-19 concerns. In that case, the mother sought an urgent motion to suspend all in-person access by the father due to COVID-19 and expressed a concern that the father would not maintain social distancing for the child during the period of access. The mother also stated that her family was practicing social isolation in their home for the duration of the COVID-19 crisis and that she did not want the child leaving the home for any reason – including seeing the father.
The Court acknowledged that the health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19. The Court also acknowledged that directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.
Justice Pazaratz stipulated the following considerations and guidelines when it comes to access issues brought before the court during the COVID-19 pandemic:
There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.
Children’s lives and vitally important family relationships cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).
In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
In some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.
In blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.
If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
In Ribiero, the court was not satisfied that the mother had established a “failure, inability or refusal” by the father to adhere to COVID-19 protocols in the future and refused the urgent motion.
In Pollard v. Joshi [2], the court further elaborate on the onus on the parent seeking to deny access. In that case, the Applicant Father sought an urgent motion to address the unilateral withholding of parenting time for the parties’ son by the Respondent Mother.
The Court cautioned against parent unilaterally withholding access prior to obtaining a court order permitting them to do so:
“…there is a presumption that an existing court Order should be respected and complied with not only because it is an Order of the court, but because it reflects a determination that meaningful parenting time with both parents is in the best interests of the child. Unilaterally removing a child’s parent through self-help is prohibited. A parent who seeks to do so must obtain a court Order permitting such action.”
The court found that the onus was on the mother, the party withholding access, to provide specific evidence of health and safety of the child being put at risk, or to provide examples of behaviour that is inconsistent with COVID-19 protocols that would expose him to risk. The harm, or risk of harm, of exposure to COVID-19 must exceed the existing harm caused to the child by refusing him parenting time with the father.
The Court granted the motion, including make-up access for the Applicant Father.
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Suliman Law Firm has prepared this document for information only; it is not intended to be legal advice. You should consult us about your unique circumstances before acting on this information. Suliman Law Firm excludes all liability for anything contained in this document and any use you make of it.
[1] Ribeiro v. Wright, 2020 ONSC 1829 (OSCJ per Pazaratz J.)
[2] Pollard v. Joshi, 2020 ONSC 2701 (OSCJ per McGee J.)
[3] Wallegham v. Spigelski, 2020 ONSC 2663 (OSCJ per Pazaratz J.)
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