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If the COVID-19 pandemic hit at a different time, parents would not have the option of exercising access virtually. Thankfully, modern technology provides parents with a myriad of ways of interacting with their children, even when apart. In a recent case, an Ontario court considered a mother’s motion for the continuation of FaceTime access between the children and their father pending the resolution of the current COVID-19 pandemic.

The Background

The parties separated approximately one and a half years ago. They have two children, aged four and five.

After separation, the parties initially came to a semi-formal agreement, which included terms of access by the father.

When the COVID-19 pandemic hit, the mother immediately resisted a continuation of face-to-face access between the children and the father because the parties’ younger child, L, had a genetic condition that could cause potential lung conditions.

The mother eventually brought a motion for the continuation of FaceTime access for the father.

The Court’s Decision

In granting the mother’s motion, the court relied on the fact that L had a serious genetic condition (Alpha-1 Antitrypsin Deficiency) and that medical evidence suggested it would make her exposure to COVID-19 potentially very harmful. Specifically, the court noted that the genetic condition could attack L’s lungs and liver. L would therefore be at high risk of harm if she contracted the virus.

The court explained that the mother had been practicing an enhanced level of physical distancing to protect L, and that exposure to a single household had been recommended. The court expressed concern about the father’s statement indicating that the mother was using the COVID-19 pandemic as a reason to keep him from the children, as it discounted the existence of L’s state of higher vulnerability. The court concluded that the father’s suspicion detracted from his statement that he could care for the children as well as anyone. The court also found that the father had a lot on his plate, including stresses of the COVID-19 pandemic, mental health treatment, trying to end a pervasive long-term drug dependency, a return to work and two sets of criminal charges.

In granting the mother’s motion, the court found that it came down to one goal: keeping L safe. The best way to ensure that L stayed safe was for the father to continue to have regular electronic visits. The court also noted that it was not granting an unending block to physical access between the children and the father, but rather, a pause in face-to-face contact and continuation of frequent virtual contact. While suspending in-person access was unfortunate, the court declared:

[T]he parties together arranged and implemented access that, but for the COVID-19 crisis, would have continued.  It will, after the COVID-19 crisis, continue again.

The parties were ordered to update the court on the progress of the COVID-19 reopening plans and their plans to reinstate physical access.

Lessons Learned

In determining if a parent should have face-to-face access with their child(ren) during the COVID-19 pandemic, the court may consider whether a child has a genetic condition that could put them at higher risk if they were to contract the virus.

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 addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process.

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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