This blog is co-written by our former articling student, Janet Son.

Co-parenting with your ex-partner is difficult even in normal times. Now trying to co-parent amidst a pandemic with ever-changing safety guidelines is even more challenging. The courts are closed until at least July 6, 2020, and only hearing urgent matters. Despite this, there has been a flood of COVID-19 era decisions on parenting arrangements.

Ribeiro v. Wright by Justice Pazaratz set out the principles on how parents should be approaching access orders during COVID-19:

• The presumption is that all existing parenting orders should comply with subject to modifications that may be necessary to ensure that COVID-19 precautions are adhered to (para 7)
  • A blanket policy that children should never leave their primary residence to visit their other parent is inconsistent with a comprehensive analysis of the best interests of the child (para 10)
• A custodial or access parent may need to forgo their parenting time temporarily if they are subject to specific personal restrictions such as self-isolation for 14 days due to travel, sickness or exposure to illness (para 12)
• A parent’s personal risk factors such as employment as an essential worker may require controls and precautions before direct contact with their child can take place (para 13)
• Finally, reckless behaviour such as failing to comply with social distancing measures may raise concerns about parental judgment in which parent-child contact may be reconsidered (para 14)

If you are considering bringing an emergency parenting motion or you have been served with one, Justice Pazaratz outlined a number of requirements (para 21):

• The parent bringing the motion must bring specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 safety protocols
• The parent responding must provide specific and absolute reassurances that COVID-19 safety measures are being followed
• Both parents must bring specific and realistic time-sharing proposals that are child-centred
• Judges will take judicial notice that many public facilities are closed and so parents should take this opportunity to spend time with their children at home

Here are some cases where judges applied or distinguished Ribeiro v. Wright:

WHEN YOUR CHILD IS IMMUNOCOMPROMISED

In Trudeau v. Auger, an emergency motion was brought by the mother to temporarily suspend in-person access with the father as the child was immunocompromised.  In this case, Justice Kwolek ordered the father to take the following precautions: disinfect frequently touched items such as doorknobs, maintain social distancing, stay at home except for necessary trips to the grocery store or pharmacy, allow no one else to enter the home, do not take the child to any public locations, wear a mask and stand at least 2 meters away when together (para 52).

Justice Kwolek also outlined circumstances that may justify a suspension of access in the future:

1. Evidence of a parent’s disregard for the safety of their child
2. Specific medical evidence regarding the child that access would place them at significant risk of COVID-19
3. Specific evidence that shows increased risk due to travelling between households in your particular community
4. If a parent becomes ill, access will be temporarily suspended
5. If a more restrictive order is made by the government to restrict movement even further, existing parenting schedules should be re-visited (para 59)

WHEN SOMEONE IN YOUR HOUSEHOLD IS A FRONTLINE WORKER

In Blaskavitch v. Smith, the mother brought an emergency motion as the father’s partner is a personal support worker at a long-term care facility (para 18). The father set out in great detail the protocols in place at the facility his partner works at and the precautions they are taking within their home. They also confirmed that there have been no cases of COVID-19 at the facility (para 43).

As a result, Justice Trousdale found that the father and his partner were taking all reasonable precautions and there was no evidence that his partner was not complying with work protocols. There was no cause for a temporary change in the residence of the child during COVID-19 (para 44). Though the motion was dismissed on a without prejudice basis, Justice Trousdale expected each parent to inform the other immediately if any person in their household tests positive or presents symptoms of COVID-19 so that temporary changes to access can be made.

Key Takeaway: Avoid the temptation to use this situation as an opportunity to change the parenting status quo, unless you can provide concrete evidence specific to your child that they will be in danger from the existing parenting order. There are only narrow circumstances in which the court will vary an order in order to maintain as much consistency and normalcy for your children during this very distressing time.

If you have been served with a motion, rally as much evidence to show that you are taking all precautions at your workplace and at home to protect your children from COVID-19. To conclude, court resources are currently scarce and the judiciary is urging parents to cooperate as much as possible and avoid litigation except only for the most serious cases.

If you have more questions about bringing or defending against an emergency parenting motion during COVID-19 contact Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”