Given the current COVID-19 crisis, many families may be struggling to adjust to alternative custody and parenting arrangements, especially with blended families. Although emotions may be running high and current arrangements not ideal, the case law has been clear: “None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. “
In Ribeiro v Wright, 2020, ONSC 1829 the separated parties had joint custody of their son since 2012. The son had always resided primarily with the mother, with the father having access on alternate weekends. The father, prior to the COVID-19 outbreak, had brought a motion to increase his parenting time, however this had not yet been heard. The mother brought an urgent motion to suspend all in – person access between the father and son due to COVID-19 as she suspected that the father would not practice social distancing measures with the child during the access periods, and in any event, she did not want her son to leave their house for any reason during the COVID-19 crisis.
The judge refused to hear the motion on an urgent basis, as the court had already issued a temporary order which the court presumes reflected meaningful contact and was made in the best interests of the child. The judge stated “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”, and the motion was dismissed. The judge recommended that the parents make further efforts to resolve their dispute in a more amicable manner, without the use of the courts.
The judge also commented that “sadly, 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 judgement 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.” Such behaviour was shown in Guerin v Guerin, 2020 ONSC 2016 where the parties had separated and shared joint custody of their three children; each parent resided in the family home with the children on an alternative week basis however due to the outbreak, both parties were living in the matrimonial home. The mother suffered from a variety of ailments which made her increasingly susceptible to contracting COVID-19 and as a result of recommendations from her doctor had been practising increased social distancing and cleaning practices within the home. The father had been taking vacations and unexplained trips from the house to visit his girlfriend and refused to detail where he had been or wash his hands upon his return.
The mother brought a motion for exclusive possession of the matrimonial home in light of the COVID-19 crisis and the father’s lack of observation of Government protocol, his unwillingness to observe social distancing and increased hygiene methods, with the best interests of the children in mind. The Court granted the motion banning the father from the matrimonial home on a temporary basis, granting access only by electronic means. The Court held that the father may bring a motion to the court for access again if he is able to show the measures he took to minimize the risk of COVID-19 to his family.
In blended families, 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. The court has stated “Each family will have its own unique issues and complications. There will be no easy answers. But no matter how difficult the challenge, 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.”
How can we assist
Our experienced family lawyer can assist parties seeking to bring a motion to change or assist with any urgent family law motion. At Gilbertson Davis LLP, we advise and represent clients on a full range of family law matters. Contact us for a consultation regarding COVID-19 and access or any family matters related to COVID-19.
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