Since concerns around the COVID-19 pandemic escalated in Canada in mid-March, separated families have been struggling to navigate how to continue contact between children and both parents, while ensuring that public health recommendations are enforced.
In all cases, it remains the best interests of the children that is paramount in determining whether children should continue to travel between the homes of separated parents. Now is a time, more than ever, where parents are turning to their family lawyers for direction about access arrangements. The COVID-19 pandemic is novel and constantly evolving, which means there are few reported cases wherein judges have had the opportunity to provide direction on the issue.
What we do know, is that in Ontario the Superior Court of Justice has suspended Family Court matters, except in the case of urgency. Recently, the question of urgency was addressed by Justice Pazaratz in the case of Robeiro v. Wright where a parent sought to suspend access over COVID-19 concerns. Justice Pazaratz found that the Motion to suspend access did not meet the test for “urgency” in this case, where there was a concern that the other parent was not employing appropriate social distancing protocols.
Some notable points in Justice Pazaratz’ decision are as follows:
- In most situations, there will be a presumption that existing parenting arrangements should continue. The existence of the COVID-19 crisis is not, on its own, a basis for suspension of access.
- In some cases, custodial or access parents may have to forego time with their children as a result of the global health crisis (an example might be where a parent is under a requirement to self-isolate for 14 days).
- A parent’s lifestyle or behavior may raise sufficient concerns that parenting time should be reconsidered. There will be no tolerance for parent’s recklessly exposing children to risk of the COVID-19 virus.
- The mere existence of concerns related to the COVID-19 virus will not be sufficient to create a situation of “urgency”. A parent filing an urgent motion will need to provide specific evidence and examples of behavior which violates COVID-19 protocols.
Justice Pazaratz’ decision provides some general guidance for parents dealing with the COVID-19 crisis; however, it also makes it clear that the court has to assess each case on its facts. In general, parents should remember that regular contact between children and both parents, is generally considered to be in a child’s best interests and wherever possible, Court Orders, Separation Agreements and status quo parenting arrangements should likely be followed. Further, parents should be very cautious about ignoring or disregarding public health recommendations around social distancing and other COVID-19 protocols, as doing so may result in a suspension of face to face access during the pandemic.
The determination of whether an access issue rises to the level of “urgency” contemplated by the Superior Court’s Notice issued on March 15, 2020 will have to be determined on a case by case basis. Wherever possible, during this very difficult time, parents are encouraged to work cooperatively to balance the interests of the children in maintaining consistent and meaningful access while also ensuring the safety of children, other family members in each home and the community as a whole.
If you require advice, guidance or direction with respect to your custody arrangements during this difficult time or if you believe you have the grounds to commence an urgent court proceeding, we are continuing to meet with new and existing clients through telephone and video appointments.