Parental Access Rights Must be Balanced During COVID-19

Recently, our firm posted a blog about a case in which a father was ordered out of the matrimonial home when the court determined his behaviour was putting his former spouse and children at risk of infection. While that case demonstrated the extreme measures that a court will take when there is clear evidence of risky behaviour, another recent case out of Ontario shows that parental access rights should remain in place whenever possible. Even during the pandemic, shared parenting arrangements should be maintained in all but the most extreme circumstances.

Mother Concerned Over Son Travelling Back and Forth During Pandemic

The mother and father share custody of their 9-year-old son, and have for nearly his entire life. During that time, the son’s primary residence has been with the mother and he resides with the father on alternate weekends. The mother brought an emergency motion in late March, looking to temporarily suspend the father’s access to their son in light of the dangers presented by COVID-19. Since the son had been exclusively living with the mother to date during the pandemic, she was concerned that travelling to stay with his father would potentially increase his chances of infection. She further indicated a fear that the father would not be as diligent in his practice of social distancing as the mother had been to that point.

Matter Found to be Not Urgent

The judge presiding over the matter released a decision in which he found the matter to be not urgent. While the judge acknowledged that people are exercising extreme caution during COVID-19, existing parenting orders should be respected. The court was required to make the presumption that the order had been found to be in the best interests of the child, and as a result, should not be abandoned, even temporarily, saying:

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 judge further went to say that in some cases, individual circumstances may dictate a temporary suspension of access, such as:

• When one parent’s job increases their risk factors, such as an emergency health care worker
• When a parent has been ordered to self-isolate as a result of testing positive or coming into contact with an infected person
• Cases where a parent fails to uphold government and public health safety guidelines (as was the case in the previous post mentioned above)

The judge found that the mother, in this case, had failed to provide a sufficient basis for her claim that the father would not uphold safety standards to the degree required. As a result, he determined the motion was not urgent and denied a hearing.

The judge went on to lay out a framework for other parents who may wish to challenge the notion of upholding access schedules out of concern over COVID-19. Each case will be determined on its own merits, but parents should be prepared with the following:

• the applicant parent must provide specific evidence or examples that the other parent is acting inconsistently with COVID-19 protocols
• the responding parent will be required to provide specific reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing, the use of disinfectants, and compliance with public safety orders
• both parents must provide specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. For example, pickups and drop-offs may need to deviate from existing plans to allow for proper social distancing.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access disputes following the breakdown of a relationship. If you have concerns about shared access during the COVID-19 pandemic, we will work to find an arrangement that fits your family’s specific circumstances. Contact our office today by calling us at 403-910-3000 or contact us online.