Family Courts across Canada will be asked to consider issues of parenting time in light of the COVID-19 pandemic. Although family courts may have suspended non-emergency and non-urgent hearings, some parents will seek to change parenting schedules on an emergency basis. Court decisions are starting to become available to the public. These decisions provide important guidance regarding how judges are likely to view applications to vary parenting orders due to COVID-19 concerns.

On March 24, 2020, Ribeiro v. Wright 2020 ONSC 1829, a decision of the Ontario Superior Court of Justice, Family Court was released.  The mother and father had joint custody of their 9-year-old son. The mother had primary residence of the child and the father had access on alternating weekends. The mother applied to suspend the father’s access because of COVID-19, as she was concerned that the father would not maintain social distancing for the child during his access. The mother was practicing social-isolation and did not want the child to leave her home for any reason, even access with the father.

Justice A. Pazaratz was the Triage Judge and did not allow the matter to proceed as an urgent hearing. Justice Pazaratz noted:

  • The health, safety, and well-being of children and families remains the court’s foremost consideration during COVID-19.
  • There is a presumption that all orders should be respected and complied with, and there is a presumption that all existing orders reflect a determination that meaningful personal contact with both parents is in the best interests of the child.
  • These are extraordinary times and daily routines and activities are being suspended for a strict policy of social distancing. This is unchartered territory for parents and the court system.
  • 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 the other parent – is inconsistent with the best interests of the child.
  • In troubling and disorienting times, children need love, guidance and emotional support from both parents.
  • 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 behavior may raise sufficient concern about parental judgment that direct parent-child contact will have to be reconsidered, as there will be zero tolerance for any parent who recklessly exposes a child or members of the child’s household to COVID-19.
  • 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.
  • For the sake of the child, we have to find ways to maintain important parental relationships and above all, we have to find ways to do it safely.
  • With limited judicial resources and a rapidly changing landscape, we need parents to act responsibility and try to attempt some problem-solving before trying to initiate urgent court proceedings.
  • Judges will be looking to see if parents have made good faith efforts to communicate, to show mutual respect, and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

Justice Pazaratz did not find that the mother established a failure, inability, or refusal by the father to adhere to appropriate COVID-19 protocols. Justice Pazaratz urged both parents to renew their efforts to address important health and safety issues for their child in a more conciliatory and productive manner.