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As this is unchartered territory, we have limited guidance from the Courts so far on how, or if, the social distancing mandates affect parenting schedules. Each family’s circumstances are specific and unique and as such, Courts are required to assess each matter on a case-by-case basis. However, getting into Court to have a matter heard by a Judge is not currently a simple and straightforward matter as the courts have severely restricted what matters will be heard

The current ongoing pandemic may lead to co-parenting issues for divorced or separated parents.  For example, one parent may have concerns with respect to where the child has been with the other parent, what potential exposures they may have had if the other parent did not practice social distancing either during their parenting time with the child or on their own outside of their parenting time. These concerns may be heightened if there are children, or other family members in the home, that are immunocompromised. In addition, the parenting schedule may be disrupted if a parent has travelled internationally and is required to self isolate for at least 14 days or if the parent is a frontline worker.  It is important for parents to work together to ensure that the health, safety and needs of the children are being met during this unprecedented time. This requires parents to be flexible and reasonable when assessing their own child’s circumstances.  It is also extremely important that neither parent unilaterally withhold parenting time unless extreme circumstances warrant same. This may mean that a parent may need to consider offering reasonable and generous make up time, if a parent cannot exercise their parenting time for circumstances beyond their control. 

We encourage parents to follow any existing parenting Orders or agreements to the best of their ability, bearing in mind any health and safety risks to the child.  We also encourage parents to be flexible with one another while still balancing the desire to maintain a predictable schedule for their children.  As with any parenting arrangement, each situation is unique and needs to be assessed on an individual basis.

There have been a small number of court decisions that have been released since the COVID-19 pandemic started however none of them are from Alberta.  The following Ontario cases provides some guidance on the various issues raised above and how the Court have considered these issues.  This information will be updated as new cases are released. 

Onuoha v. Onuoha, 2020 ONSC 1815

In this matter the father brought an application seeking the return of his two daughters to Nigeria, alleging that the mother brought the children to Ontario in October 2019 without his consent.

Prior to COVID-19 and the suspension of the Court, this matter was scheduled to be heard on March 25, 2020. However, in light of the circumstances, the matter was adjourned to June 2, 2020. Counsel for the father requested that this matter move forward on the basis that the application was for international kidnapping and further delays would greatly prejudice the father’s case. 

The Court took into consideration the fact that a global pandemic was underway which resulted in wide-spread travel restrictions relating to non-essential travel outside of Canada.  The Ontario Superior Court held that this was not the time to hear an application to return the children to another jurisdiction and determined that the children would be adequately protected by remaining in the care of their mother in Ontario. Notwithstanding this, the Court requested that the mother make every reasonable effort to facilitate electronic access. 

The Court directed that the motion may be renewed and be heard promptly as a matter of priority once the international travel advisory was lifted.

Smith v. Seiger, 2020 ONSC 1681

The father brought an application for the immediate return of his 16 year old son from the United States, where he was enrolled in an educational and therapeutic program. The Court held that the father’s application was deemed to be a matter of urgency, taking into consideration the COVID-19 pandemic and the recent announcements regarding the imminent closure of the Canadian and United States border.

The Court took into consideration the son’s best interests, the health concerns facing all of the parties, the recommendations of the health professionals and government authorities, and the imminent border closure. The father’s application was successful and the Court ordered that the mother and father cooperate and provide all consents required to facilitate the son’s travel from the United States to Canada immediately. The child’s passport, which had been removed from the child’s school by the mother without notice or consent, was to be provided to the father. The Court further directed that, upon the child’s return to Canada, he remain quarantined for no less than 14 days (and subject to any recommendations in the event that he tested positive), and reside with the father during this time. Following this, the parties were directed to make satisfactory arrangements for an ongoing parenting schedule.

C.Y. v F.R., 2020 ONSC 1875

In this matter the mother brought an application alleging that the father was withholding the parties’ two children (ages 5 and 3).  The Court held that this fit the urgency requirement and warranted interim relief.   At the application the mother gave evidence that she had been the children’s primary caregiver throughout their lives. Since the parties separated they had attempted mediation but no formal agreement on parenting time had been reached. Prior to this matter coming before the Court, the children were residing with the mother and the father was having parenting time in the presence of the children’s nanny.

On March 13, 2020, upon returning from Brazil, the father advised the mother that he would be taking the children to a rental property during the children’s spring break, commencing on March 15, 2020. The mother did not agree this proposal.  The father subsequently removed the children from the mother’s home without the mothers consent.  The mother unsuccessfully attempted (through her counsel) to secure the return of the children. The father stated that he would not return the children until March 23, 2020 and only then if the mother agreed to a shared parenting arrangement going forward.  

Interestingly, the mother also submitted that the children had fallen ill and were feverish while in the care of the father. The father did confirm this but gave evidence that it was normal for children to have fever and that he treated them with regular acetaminophen. The children’s fevers did eventually subside. It was alleged by the mother that, while the children were ill, the father had disregarded health and safety recommendations and apparently took the children to public places, including visiting his elderly mother. The mother was extremely concerned for the children’s wellbeing considering the fathers actions.

The Court held that it was in the children’s best interests to maintain the status quo. Prior to the father unilaterally assuming parenting time, the children resided with their mother. The Court granted an Interim Order requiring that the children be returned to the mother’s care and control and left the parties to negotiate the father’s parenting time. The Court also ordered a police enforcement clause, which would allow the mother to engage authorities to assist her in locating and returning the children to her.

Ribeiro v. Wright – Triage Judge Endorsement

In this case, the parties shared joint custody of their nine year old son. The primary residence of the child was with the mother and the father had regular parenting time on alternating weekends (pursuant to a September 2019 court Order) but was seeking to expand his parenting time. In light of COVID-19, the mother brought an application to suspend all in-person access due to concerns that the father would not adhere to social distancing and based on her desire for the child not to leave the home for any reason. 

The Court did not allow this matter to proceed as an urgent hearing. Although the mother’s concerns about COIVD-19 were well-founded, the Court was not satisfied that that she established a failure, inability of refusal by the father to adhere to the appropriate protocols. As there was an existing parenting Order, the presumption was that all Orders should be respected and complied with. Meaningful contact with both parents is in the child’s best interests.

The Court made the following general comments with respect to parenting time in light of the COVID-19 pandemic:

  • The health, safety and well-being of children and families is the Court’s utmost concern.
  • This is unchartered territory for both parents and the Court system. As such, parents should work together to ensure flexibility, creativity and common sense to promote the physical and emotional well-being of their children. 
  • Although the Court noted that people will be essentially putting their lives on hold until COVID-19 is resolved, children’s lives and family relationships cannot be put on hold indefinitely.
  • The blanket policy that children should never leave their primary residence, including to visit the other parent, is inconsistent with the analysis of the best interests of the child. During these unprecedented times, children require love, guidance and emotional support of both parents.
  • In most situations there is a presumption that existing parenting arrangements should continue, subject to modifications, to ensure that all COVID-19 precautions are adhered to.
  • In some cases, parents may have to forego their parenting time if they are subject to personal restrictions including self-isolation from recent travel, personal illness or exposure to illness. 
  • If a parent’s personal risk factors, such as failing to comply with social distancing or taking health-precautions seriously, raises sufficient concerns about parental judgment it may be necessary to reconsider parenting time. Specifically, there is no tolerance for a parent’s reckless decision making.
  • Adjustments may be required for transition locations (for example if parents ordinarily exchange the children in a public place).
  • Further consideration is necessary for blended family situations in which parents will need to assure that necessary precautions are taken.
  • Each family will have its own unique issues and complications.
  • Although the presence of COVID-19 may result in complications, it will not automatically result in the suspension of in-person parenting time and that this will not necessarily result in an urgent hearing. 
  • Courts will deal with parenting issues on a case-by-case basis.

As can be seen from the above cases, only extreme circumstances will warrant an appearance before the court at this time.  When an existing Order or agreement relating to parenting time is in place, parents are expected to comply with it unless there is an urgent or emergency-type issue that would justify and urgent court appearance.  If you have questions or concerns about your specific parenting arrangements please do not hesitate to contact one of the Family Law Lawyers at SVR Lawyers.

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