Sharing custody of a child or children can be difficult at the best of times. With the additional stress of the COVID-19 crisis, shared custody and access adds further strain to this relationship. Parents are forced to make difficult decisions about their child’s wellbeing while balancing parenting arrangements often ordered by the courts, and additional challenges posed by mandatory public health protocols.
Parents with children who have additional needs or are at increased risk of exposure to COVID-19 are likely to face additional difficulty during this crisis with the court becoming involved where parties cannot resolve their conflicting views. Many parents have sought to suspend access or seek sole custody of their child during the crisis, citing fears for their child’s health.
The onus is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk.
The courts have released several decisions since the outbreak of COVID-19 providing guidance on these issues. In Thibert v Thibert, 2020 ONSC 2409, the courts stated that the pandemic, standing alone, is not a reason to suspend parental access, particularly where there is evidence to indicate that appropriate precautions are being taken to avoid exposure to infection. The court in Lee v. Lee 2020 ONSC 2044, clearly stated that “in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents so long as it is all done safely.”
Parents are expected to comply with all federal, provincial, and municipal public health notices issued to prevent infection which includes self – isolating and social distancing guidelines. The court in Balbontin v. Luwana, 2020 ONSC 1996 made it clear that parents are expected to communicate candidly with each other and demonstrate to the other, their strict compliance with such guidelines regardless of any acrimony between them, putting the best interests of the child first. If a parent is fearful that the current parenting arrangement is risking the child’s health or wellbeing, then the parent must bring a motion to change existing arrangements. If a motion is brought, medical evidence is required to show the child’s medical condition or vulnerability to COVID-19 and specific recommendations made by medical professionals that are necessary to protect the child.
Examples of motions brought due to a child’s medical vulnerability
In Vasilodimitrakis v. Homme, 2020 ONSC 2084, the child suffered from juvenile arthritis and was autoimmune compromised. The motion was brought to determine whether the child could be safely transported between the two homes of the parent to facilitate access. The court rejected the evidence of the child’s pediatric ophthalmologist concerning transportation risks, as it was beyond her area of expertise – she was neither an infectious diseases specialist nor a rheumatologist. The court preferred the evidence of the child’s rheumatologist who felt that the risk of transportation to the child was minimal, provided it was done safely. The court maintained the temporary access order.
In Chrisjohn v. Hillier, 2020 ONSC 2240, the child had a neuromuscular disorder and had suffered from previous respiratory complications and was at increased risk of contracting COVID-19, as well as being at risk of serious complications if she were to contract the virus. The child’s family doctor recommended that the child should remain at home with the exception of leaving for medical appointments. The doctor did not recommend that the child should remain in one home and as a result, the court ordered access should continue with both parents.
In Trudeau v. Auger, 2020 ONCJ 197, the mother sought to suspend the father’s access alleging the child was at a higher risk of being exposed to COVID-19 due to respiratory issues. The child had been on antibiotics. The court found that the mother failed to provide medical evidence to support her allegations that the child would be at increased risk spending a few hours each week during the access with the father. The court reinstated access, subject to the child finishing their course of antibiotics.
In Lyons v. Lawlor, 2020 ONCJ 184, the court held that the agreed access should not be changed for a child with asthma. The court required that should they wish to change the access order, they would require direct and compelling evidence from the child’s doctor that more intensive distancing efforts were required to keep the child safe.
From the above cases, it is clear that the courts will not support attempts by parents to use the COVID-19 pandemic as a thinly disguised excuse to change or cease access at the expense of the other parent and child. However, the courts have also been clear that parents are expected to protect their children from unnecessary potential exposure to COVID-19, and if parents believe the other parent is not adhering to government healthcare directives or taking unjustified risk, they will hear motions on an urgent basis in the Family Courts.
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.