Insight into the Canadian Courts Response to Parenting During Covid-19
As a result of the COVID-19 pandemic, the practice of self-quarantine and social distancing has been implemented across Canada. Families are now social distancing themselves from co-workers, friends, relatives, and anyone else who does not live at the same residence. However, co-parents are left in confusion and constant worry at how this will affect their parenting schedule for children who transition between two different households.
Parents ask: Is it safe for the children still go back and forth between two residences? How can I rely on the other parent to practice strict social distancing and quarantine where necessary?
With the court systems in Canada being temporarily suspended, family law courts are continuing to conduct hearings only if they are deemed to be an emergency. One such emergency motion regarding Covid-19 parenting concerns was filed recently with the Ontario Superior Court of Justice.
In Riberio v Wight, 2020 ONSC 1829, a mother brought an emergency application to suspend the father’s access to their nine-year-old son in light of the COVID-19 pandemic. The son lives primarily in the care of the mother, with the father having parenting time on alternate weekends. The mother was worried that the father was not practising strict social-distancing and wanted to suspend the fathers parenting time.
The Court concluded that this was not an urgent matter and notes that in times of uncertainty and confusion like this, the Court will need to find balance between the fact that all orders should be complied with versus the government’s strong recommendations of limiting social interactions.
The Court encourages co-parents to be mindful of the limitations of resources of the Courts during this COVID-19 crisis and to come up with creative arrangements that adheres to strict COVID-19 health and safety protocols for the time-being. Co-parents should show mutual respect to each other and present to each other realistic solutions that show “parental insight and COVID-19 awareness” (para 23). In particular, the Court held that co-parents must presumptively adhere to their existing parenting arrangements with modifications if necessary. Specifically, the court notes, at para 10:
None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
The Court further notes that each situation should be determined on a case-by-case situation, and that parents should not presume that raising COVID-19 concerns will automatically qualify their case to be an urgent matter. A guideline for urgent motions was provided at para 27, is as follows:
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.
Towards the end of the judgement, the Court imparts words of wisdom that every individual, not just co-parents, should heed:
None of us have ever experienced anything like this. We are going to have to try a bit harder – for the sake of our children.
See the full case here: