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An Ontario court recently considered the interesting question of what should happen when one parent fails to follow recent COVID-19 protocols. In this case, the mother brought a motion to suspend the father’s access to their child until he provided evidence that he was complying with public safety directives.

The Background

The parties had one child together, who was three years old.

In July 2019, an order was made providing that the child would primarily live with the mother and setting out times when the child would see the father.

On March 11, 2020, the father sent the mother photographs of the child in a playground.

Two days later, the mother emailed the father to express her concerns about COVID-19 and asked the father to comply with the public health notices about social distancing. The father did not respond to the mother’s email.

On March 14, the mother provided the father with face masks for the child, as well as hand sanitizer and disposable gloves. According to the mother, the father showed little interest in these items, most especially the face mask for the child.

On March 25, the mother emailed the father to repeat her concerns about COVID-19 and indicated that she was prepared to develop an emergency action plan if the crisis worsened. The father did not respond to this email either.

Two days later, the mother wrote to the father once again about her concerns. The father finally responded, telling the mother that she had “nothing to teach [him]” about COVID-19.

As outlined above, the mother brought a motion to suspend the father’s access to the parties’ child until he provided evidence that he was complying with the recent COVID-19 protocols.

The Court’s Decision

In granting the mother’s motion, the court referenced a case we blogged about earlier, noting the following for parenting cases where there are court orders or parenting agreements:

  1. In most situations, there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to — including strict social distancing; and
  2. In some cases, custodial or access parents may have to forego their times with a child if that parent is subject to some specific personal restriction (for example, under self-isolation for a 14-day period as a result of recent travel; personal illness; or exposure to illness).

The court noted, as did the court in the previous case, that judges are looking to see if parents have made good faith efforts to communicate, show mutual respect and come up with creative and realistic proposals that demonstrate both parental insight and COVID-19 awareness. The court also explained that, “Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant.”

The court found that the mother had raised legitimate concerns about the child’s third-party exposure, and that the father had ignored these concerns until after she had written him three emails. The court noted that the mother had attempted to collaborate on a mutual approach to deal with COVID-19 developments and that the requests were respectful and child-focused, but that the father believed the mother was simply looking for a way to end his time with the child. The court concluded that the mother’s requests were reasonable, and that the father should be given the opportunity to assure the mother (and the court) that he would diligently follow the current COVID-19 safety measures.

Lessons Learned

In determining custody and access matters, the courts are considering whether parents are communicating, showing each other respect and complying with COVID-19 protocols.

If you have questions about your rights, it is best to speak with a lawyer. At Gelman & Associates, we understand that this is an uncertain and stressful time. 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. Our goal is to always empower clients to make informed decisions about their future.

In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online if you have a family law matter you need help with.

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