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

As the situation with COVID-19 continues to change and develop, some parties have been challenging their parenting arrangements. In this recent case, an Ontario court considered the mother’s request to suspend the father’s access to their child because the father had chosen to self-isolate with his new partner (and her family) at a cottage.

The Background

The parties separated in May 2017 after cohabiting for approximately two and a half years. They had one child, who was four years old.

In October 2017, the parties reached a partial separation agreement, which stipulated that the father would have parenting time with the child six nights and seven days out of every 14 days.

During the pandemic, the father decided to self-isolate at a cottage with his new partner and her parents. The mother, who has stage 3 breast cancer and is at high risk of experiencing complications and serious illness if she contracted COVID-19, objected to the arrangement.

The mother brought a motion seeking to suspend the father’s parenting time with the child, or in the alternative, an order that the father adhere to strict COVID-19 protocols.

Recent case law outlines that existing parenting orders (which include existing parenting agreements) should generally be respected and complied with because there is a presumption that the existing arrangement “reflects a determination that meaningful personal contact with both parents is in the best interests of the child.” That said, the courts have also indicated that there may be some cases where a parent’s lifestyle or behaviour may raise enough concern that direct contact will have to be reconsidered.

The court also referred to an order that was made under s. 7.0.2(4) of the Emergency Management and Civil Protection Act, which provides that no person shall attend:

  • an organized public event of more than five people, including a parade;
  • a social gathering of more than five people; or
  • a gathering of more than five people for the purposes of conducting religious services, rites or ceremonies.

The exceptions to the above are if the gathering is (1) of members of a single household, or (2) for the purposes of a funeral service that is attended by not more than 10 people.

The Court’s Decision

In dismissing the mother’s motion, the court found that while the father and his new partner may not have been ordinarily part of the same household as her parents before COVID-19, there was nothing in the order that prevented them from choosing to form a single household for the duration of the pandemic. The court concluded that the father’s arrangements were reasonable. None of the people in the father’s household had had direct contact with anyone else in over a month, and the father was not acting irresponsibility or recklessly exposing the child (and by extension the mother) to COVID-19. The father’s arrangements were therefore far from behaviour that would raise “sufficient concerns about parental judgment” that would warrant cutting off direct parent-child contact. In fact, the court found that the father’s decision to combine into a single household with his new partner and her parents provided substantial benefits to all members of the household. The court stated:

In these uncertain times, everybody needs to get by somehow. The decisions the [father] and [his new partner] have made to get by during this pandemic are responsible and consistent with public health guidelines.

The court also found that the risk to the child by spending her parenting time with the father at the cottage was negligible. The risk of the child becoming ill and being unable to receive adequate treatment in time was theoretical.

In the end, the court concluded that it was in the child’s best interest that the parties continue the existing parenting arrangements.

Lessons Learned

In deciding if a party’s parenting arrangements during COVID-19 are reasonable, the courts will make a determination in accordance with the best interests of the child and consider whether that party’s behaviour raises enough concern about their parental judgment.

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.