COVID-19 / Coronavirus and Family Law: Parenting Arrangements when Parents are Essential Workers

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Alternative Dispute Resolution (ADR), Coronavirus, COVID-19, Custody and Access, Divorce, Family Law, Mobility Issues, Separation0 Comments

Co-parenting can be challenging during the best of times. Co-parenting during a pandemic presents a host of additional challenges. Today, parents are placed in the challenging position of having to continue to abide by their current parenting arrangements, ensuring the health and safety of their children and family, while also following public health directives.

It is not surprising that during this pandemic, parents who are front-line or essential workers may face additional challenges with their parenting arrangements. Out of concern that a parent who is an essential or front-line worker may place the children at an increased risk of being exposed to COVID-19, the other parent may seek to limit or suspend that parent’s access to the children. Fortunately, the courts have released several decisions during the past month which have dealt with this very issue and which provide some guidance for parents facing similar challenges.

In A.A. v R.R., 2020 ONSC 1887, the Applicant mother brought an urgent Motion to suspend the Respondent father’s access to the parties’ child. The Respondent father is an emergency room physician. The court denied the Applicant mother’s motion and found she “is woefully inadequate to demonstrate that the Respondent’s behaviour and plans present a risk of COVID-19” that would support suspending the father’s access. In contrast, the court further found the Respondent father “provided a relatively detailed and fulsome response that addresses COVID-19 safety concerns including giving the assurance that he would adhere to COVID-19 safety measures.”

In Smith v Smith, 2020 ONCJ 180, the mother sought to suspend the father’s access to the children. The father is employed in a managerial position with his family’s transport business, which has been deemed an essential service. The court denied the mother’s motion and found the current parenting arrangement should continue. The court found the “father has taken appropriate steps to keep his children safe. The concerns raised by father regarding his access and the impact that delay would have on his relationship with his children is immediate and cannot wait for a deferred resolution.  Mother’s concerns, however, are speculative.”

In Herman v Kideckel, 2020 ONSC 2021, both parents were physicians. The Applicant mother withheld the Respondent father’s access to the child on at least two occasions. The Respondent father sought an order resuming his parenting time. The court found there was: “Nothing in the evidentiary record suggests that either party is unable or unwilling to adhere to the increasingly strict health and safety protocols public health authorities have announced to control the spread of the virus.” The court further noted that cooperation between parents with shared parenting responsibilities is particularly important during a pandemic and “Now is not the time to be evasive, confrontational or strategic; what is needed is flexibility, transparency and compassion.”

The court granted the Respondent father leave to bring his Motion and ordered both parties to “adhere to the orders, measures, and protocols relating to COVID-19 issued by all levels of government and public health authorities in Canada, Ontario and Toronto”; “adhere to social distancing practices including refraining from making all but essential trips”; and to “immediately inform the other parent in the event that they, or a member of their household is experiencing any of the symptoms of COVID-19 and/or has come into contact with anyone who has the virus or who is symptomatic.”

In Matus v Gruszczynska, 2020 ONSC 253, the Applicant father sought leave to bring an emergency Motion because the Respondent mother has refused to allow the parties daughter to spend time with him. The Applicant is a chef deemed to be an essential worker. The court granted the Applicant father leave to bring his Motion, and told both parties to address in their materials whether there are any additional precautions that the Applicant father might take to ensure the child’s safety, and whether it is in the child’s best interests to reside with the father for an extended rebalancing period during or after the COVID- 19 period.

This issue is not restricted to Ontario, courts in other provinces have dealt with this issue as well. The Provincial Court of British Columbia in S.R. v. M.G., 2020 BCPC 57, dealt with this very issue. In this case, the Applicant mother works as a Licensed Practical Nurse at a hospital while the Respondent father owns a demolition company which has been deemed an essential service. The Respondent father was withholding the Applicant’s mother’s access to their child out of concern that she is at an increased risk of exposing the child to COVID-19 due to her employment.

The court noted there is little case law on the considerations that should apply in assessing whether a parenting time regime should continue in circumstances of those service providers who continue to work with the public during the pandemic. However, the court also noted that it is not just essential workers who are risk of being exposed to COVID-19, as the virus is spreading everywhere in the community and anyone can be exposed to the virus by assessing any services, whatsoever. The Applicant mother’s access to the child was reinstated as the court found she had mitigated the risk she could contact COVID-19 by “abiding by the precautions for nurses “and then some.””

It is evident from the cases detailed above, that the status quo parenting arrangements should prevail, regardless of whether a parent is an essential or front-line worker or not. Further, a parent who suspends the other parent’s access to the children on the basis that their employment places them at an increased risk of exposure to COVID-19, must be able to show a court that their claim must not be purely speculative and must be based on concrete proof. Lastly, parents who are essential or front-line workers need to be able to assure the other parent and the court that they are following necessary public health and safety protocols and taking additional precautions ensure the safety of the children.

How Can We Assist

Our experienced family lawyer can assist parties seeking to bring an urgent family law motion. At Gilbertson Davis LLP, we advise and represent clients on a full range of family law matters, including custody and access, mobility issues, urgent motions, separation, divorce, variations and ADR. Contact us for a consultation regarding COVID-19 and access or any family matters related to COVID-19.

Brief informational summaries about insurance litigation, commercial litigation and family law litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).

About the Author
Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.

Kimberley practices exclusively in family law, from contentious custody and access disputes, child and spousal support claims, to complex property division, adoption applications, and mobility issues. Kimberley is a skilled litigator and experienced in alternative dispute resolution. Bio | Contact

Leave a Reply

Your email address will not be published. Required fields are marked *