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In a recent decision, an Ontario court considered the interesting question of what happens when one parent withholds access to a child during the COVID-19 pandemic.

The Background

The parties were separated. They had one child together, who was two years old. The child had some ongoing health issues, including a neuromuscular disorder with previous respiratory complications.

In October 2019, the child was placed in the father’s primary care pursuant to a temporary order. At the time, the mother was granted supervised access.

The mother was subsequently awarded unsupervised parenting time with the child commencing February 24, 2020, for a period of two months.

The mother failed to return the child to the father’s care after a visit on March 20. She claimed that the father was not practising appropriate social distancing as recommended in relation to the COVID-19 pandemic. The mother argued that the child was therefore at risk in the father’s care and that the child should remain with her.

The father explained that he lived with his parents, his current partner and their young daughter. The father indicated that his own father had asthma and that people were therefore not leaving the house except to obtain necessities.

The father brought an emergency motion for a police assistance order.

Parents should not presume that the existence of COVID-19 will automatically result in the suspension of in-person parenting time. As outlined in Ribeiro v. Wright, another recent Ontario case we previously blogged about, COVID-19 parenting issues will be dealt with on a case-by-case basis and will include the following considerations:

  • 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. 
  • 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.
  • 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.
  • 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.

The Court’s Decision

In granting the father’s motion, the court found that the mother was withholding the child in contravention of an existing order. This therefore constituted an “urgent” circumstance that was necessary to hear the motion.

The court explained that the COVID-19 pandemic should not result in a widespread suspension of in-person parenting time between a child and one of his/her parents. In this case, the court found that the mother had inappropriately adopted a “self-help” approach in the face of an existing order. Furthermore, the father’s evidence outlined reasonable measures he took to safeguard the health of the child.

The court ordered the mother to return the child to the father’s primary care. The court stated that both parties needed to act reasonably in meeting the child’s best interests in relation to COVID-19, and that it would be up to the mother to decide if she wanted to exercise her in-person parenting time as per the existing order.

Lessons Learned

As always, parents must be careful not to contravene existing custody and access orders. While the COVID-19 pandemic naturally raises some novel concerns, the crisis alone will not automatically result in a suspension of in-person parenting time.

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 remain open to help our clients, but are taking precautions to keep safety paramount. 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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