Since the WHO declared COVID-19 a global pandemic, I have received numerous inquiries from parents regarding the impact of the pandemic on their respective parental rights and responsibilities. COVID-19 has undoubtedly affected all areas of family law. The courts in Ontario have suspended their operations, and are only hearing matters that are deemed urgent or on consent.
Many parents are now facing a scenario whereby one parent is restricting or denying access to a child due to COVID-19. In the recent case of Ribeiro v. Wright the Ontario Superior Court of Justice has provided some guidance to parties who are experiencing similar circumstances. Justice Pazaratz was of the clear view that existing parenting arrangements and schedules should continue subject to any necessary modifications to bring the parties in line with government recommended precautions. Denying such parental rights to a parent may be considered to be contrary to the child’s best interest as meaningful personal contact with both parents is presumed to be in the best interests of the child. Both parents should ensure that they are following all government recommendations in relation to COVID-19, such as social distancing and 14 day isolation after travel. Justice Pazaratz did explicitly state that there would be zero tolerance for any parent who recklessly exposes a child to risk of COVID-19.
If a parent is concerned that COVID-19 has raised an issue that requires immediate relief, they have the ability to commence an emergency motion. However, litigants should not presume that their matter will be heard simply because they have referenced COVID-19. These matters will be assessed on a case-by-case basis. If you are considering commencing an emergency motion, the following framework has been set-out by Justice Pazaratz:
1. 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.
2. 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.
3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
4. 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 time with their child at home.
If you are experiencing similar problems and want to discuss your situation in more detail, please do not hesitate to contact our office.