Gelman & Associate's statement regarding COVID-19 - Read More

Parents who share custody and access arrangements for their children have been facing a number of challenges during the ongoing COVID-19 pandemic. In some cases, such as Ribeiro v. Wright, which we discussed in a previous blog, the parent with primary custody has made attempts to suspend the other parent’s access out of fear of risk to the child that may come with the child travelling back and forth between homes during a time when everyone is practicing social distancing. In that case, the court emphasized the need to preserve parental relationships whenever possible and refused to hear the motion without sufficient evidence that the access parent was failing to uphold public health protocols in some way.

In a more recent Ontario case, the parents, who were separated, had decided to self-isolate together in the matrimonial home in order to provide both parents with ongoing access to their three children. After the mother brought an emergency application out of concern the father’s behaviour was jeopardizing her health and that of their children, the father was ordered to leave.

Parents Were Separated but Sharing the Home During Quarantine

In the case at hand, the parents had been sharing a “nesting” style parenting arrangement in which the children remained in the matrimonial home, and the parents alternated weeks in the home. This style of shared access is often done to reduce stress on the children and allow for a greater sense of stability. When the pandemic hit and people were ordered to remain in their homes as much as possible in order to flatten the curve, the parents decided the family would shelter together in order to allow both parents to maintain ongoing contact with the children.

However, the mother became concerned with the father’s behaviour, claiming he was not respecting the safety protocols put in place by federal and provincial health authorities. For example, he was leaving the home regularly to see his girlfriend and was often not forthcoming about where he had been. On at least one occasion, he had lied to her about his whereabouts, saying he had been on a drive by himself when he had been with his girlfriend. Further, he was not observing hand-washing protocols when he returned.

An Emergency Motion for Exclusive Possession

This was a particular concern for the mother, who is immunocompromised, having been diagnosed with heart issues, lupus, fibromyalgia, and asthma. Two of the couple’s children also have asthma. The mother eventually brought an emergency motion seeking an order for exclusive possession of the matrimonial home for the remainder of the health crisis. Further, she requested the father’s access to the children be limited to digital means only, such as video chat and phone calls.

The judge looked at the case in light of the requirements set out for an urgent matter relating to parenting rights during COVID-19 set out by Justice Pazaratz in Ribeiro v. Wright, and found the mother had satisfied the onus that the father’s behaviour was not in line with public health and safety protocols. As a result, he was potentially compromising the health of other members of the family.

For those reasons, the court granted the mother’s motion and ordered the father to give exclusive possession of the matrimonial home to the mother and to maintain communication with his children electronically for the time being.

This case demonstrates that while courts have made it clear that parental access should be maintained during the global health crisis whenever possible in the best interests of the children, unnecessary risks will not be tolerated. If a parent fails to uphold basis safety protocols or otherwise endangers their children or other family members, particularly when there are preexisting health risks, access may be suspended until the COVID-19 risk has subsided, or until the parent can provide sufficient reassurance they will closely adhere to the protocols.

At Gelman Law, we understand that everyone is experiencing a difficult time under the current circumstances. We are remaining open to help our clients, but are taking precautions to keep safety paramount. While we may not be able to meet in our office, our lawyers are fully prepared to continue to offer all of our legal services paperless and conduct important meetings using digital technology. Call us at (844) 769-0737 or 1-844-769-0737 or contact us online if you have a family law matter you need help with.