In these uncertain and unprecedented times, parenting issues have been by far the most prevalent and pressing concerns in family law. Restrictions on international travel, limitations on domestic travel, the closure of supervised access centres and public health directives have all disrupted parenting orders and agreements.
Parents are placed in a difficult position of having to continue to abide by their current access arrangements, whether that be a court order, formal written agreement or informal agreement, while ensuring the health and safety of their children, and family, and following public health directives.
While the Ontario Superior Court of Justice and the Ontario Court of Justice have suspended regular operations, they are still hearing urgent family law matters. There has been a slew of decisions released in the past few weeks which specifically deal with custody and access issues during the pandemic. Over seventy percent of urgent matters the court dealt with in March 2020, post-suspension, involved parenting issues. The numbers in April so far have been consistent.
In Ribeiro v. Wright, 2020 ONSC 1829, one of the first court decisions released post-suspension of the courts, Justice Pazaratz noted that the existence of the COVID-19 crisis will not automatically result in a suspension of in-person parenting time and that “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.”
Several key themes have emerged from the recently released court decisions. For one, the status quo should prevail, however, parents need to take into account the continuingly evolving public-health COVID-19 policies and government directives. In Scharanfanowicz v DeMarchant, 2020 ONSC 1916, Justice Pazaratz confirmed that the status quo parenting arrangements should prevail “to the extent that this can be done in a manner which ensures the safety of children and the members of each household.” Justice Pazaratz noted parenting arrangements may need to be modified to address specific concerns or dangers but terming access arrangements “should only occur as a last resort.”
The court similarly noted in Ahmadi v. Kalashi, 2020 ONSC 2047, parents are not permitted to interpret public health directives as a license to terminate parenting time. The court further noted, if a parent fears that the current routine may compromise their child’s well-being, or their own health; then that person must provide specifics and an alternate plan.
In Zee v. Quon, (March 27, 2020 unreported) the court noted a proposal that a child remain with one parent for an indefinite period with only Facetime or other electronic access to the other parent is not in the child’s best interest. It disrupts the status quo and it signals to the child that the parent may not be capable of caring for the child and keeping the child safe.
Secondly, to succeed on an urgent motion regarding COVID-19 parenting concerns, a claim must not be purely speculative and must be based on concrete proof. Specifically, to succeed on an urgent motion Justice Pazaratz stated in Riberio, that parties will need to show the following:
- A parent initiating an urgent motion will be required to provide specific evidence or examples of behavior or plans by the other parent that are inconsistent with COVID-19 protocols.
- The parent responding to an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to, including social distancing, the use of disinfectants, compliance with public safety directives etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals that fully address all COVID-19 considerations in a child-focused manner.
- Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend with their child at home.
Thirdly, the courts have emphasized the need for cooperation between parents during these times. As with any parenting issue, the guiding principle is always the best interests of the child. Parents need to work together, with or without assistance of counsel, to make creative modifications or adaptions to their current parenting schedule if there are valid COVID-19 concerns to ensure both parents have maximum contact with the children.
In Cooper v. Teneyck, 2020 ONSC 1876, the court held this is a circumstance that demands the best of parents and requires them to work together, no matter their differences, to craft the safest options for children while ensuring that children derive the benefit of the love, nurturance, and guidance of both of them. The court in Cooper, noted many mediators continue to work remotely and encouraged the parties to try mediation to craft a parenting plan that maintains the children’s relationship with both parents during this time and succeeds in putting the children’s safety at the forefront.
With supervised access, the court in Scion v. White, 2020 ONSC 1915, found no reason why supervised access could not continue, provided a supervisor or alternate can reasonably be agreed to. Here the court noted, there is no reason supervised visits cannot take place in an open setting such as a park or another either a sheltered location (which the court acknowledged may be more difficult in COVID-19 circumstances).
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, interjurisdictional issues, variations and ADR. Contact us for a consultation regarding COVID-19 and access or any family matters related to COVID-19.