While Ontarians continue to observe social distancing measures and take extra precautions to reduce the spread of COVID-19, many parents are considering whether this should include keeping their children home from access with the other parent. The Ontario courts have affirmed that in the majority of cases, parents should continue to follow custody and access arrangements that are currently in place.
The presumption is that existing parenting arrangements and schedules should continue to be observed in the majority of cases and that minor adjustments or accommodations to such plans can be made where necessary to address safety concerns. For example, parents can adjust exchange locations or make alternative transportation plans. The message from the courts is clear: the health and safety of the children is a priority, but so are family relationships.
In troubling and uncertain times such as these, maintaining a sense of normalcy is important. Justice Alex Pazaratz, in a decision providing some guidance for families on what the courts will expect with respect to access during the pandemic, wrote that “Children’s lives — and vitally important family relationships — cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”
While concern for the wellbeing of a child is paramount, a general concern over COVID-19 is not a sufficient basis to refuse access. The message from the court is to be reasonable and to act in good faith. Parents who are experiencing COVID-19 symptoms, or who may have been exposed to the virus and are under self-isolation or quarantine measures should postpone any planned access in order to ensure there is no risk that the virus will be passed to the child. Conversely, parents who are seeking to withhold access need to be able to point to a specific reason, and cannot just rely on the presence of the pandemic generally. A general concern or wish that children remain in the custodial parent’s household is not enough.
Even in such instances where physical access is not safe, other measures ought to be taken to ensure that parents have an opportunity to communicate and spend time with their children. This could mean scheduling phone calls, video calls, or utilizing other means of remote communication. In the words of Justice Pazaratz, 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. It is important to remember that at the end of the day none of us have ever experienced anything quite like this, and we are all going to have to try a little bit harder for the sake of our children.
Court Availability Limited to Urgent Matters
While the Courts have suspended most operations in an effort to reduce the spread of COVID-19, they are still open to hear and address urgent matters. In the context of child access, it is not enough that there is an ongoing pandemic in order for a motion relating to access to be considered “urgent”. In order for a matter to be meet the threshold of being considered “urgent” it must meet the following guidelines:
- The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
- The parent responding to such 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; 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.
The court has held that there will be zero tolerance for any parent who fails to abide by COVID-19 protocols and recklessly exposes a child, or members of the child’s household, to any risk related to the virus. Conversely, the court has also held that any breaches of custody orders which are not substantiated by legitimate fears for the child’s wellbeing will also be noted and dealt with once the courts resume normal operations.
Conclusion
As parents and children navigate the ever-changing landscape of protocols and recommendations aimed at combating the spread of COVID-19, the one certainty that remains is the need to maintain strong parental and strong familial relationships. Finding ways to maintain those connections, while observing best practices to stay safe and healthy, will ensure that children are not deprived of essential relationships.
Disputes over child access are inherently difficult and only made more so in light of calls for social distancing and self-isolation. If you are experiencing issues or concerns related to the health and safety of your child, or about your parental access rights, then contact our family law department today for more advice.