Kelly Simington
For many, parenting arrangements are difficult at the best of times. The COVID-19 pandemic has presented additional and unprecedented challenges regarding parenting arrangements. The suspension of normal court operations has presented an additional challenge to parties with new or ongoing parenting issues.
The measures put in place in 2020 to limit the spread of COVID-19 left many parents uncertain as to how their parenting arrangements would be affected. Some are concerned about risks to their children or other family members due to the other parent or another person in the other parent’s home being or choosing not to remain home and limit contact with the public. Others are concerned that the other parent will use or is using COVID-19 as an excuse to deny them parenting time or change parenting arrangements to suit the other parent.
Since these measures commenced, the courts have heard several applications for the return of children withheld by a parent due to concerns over COVID-19. In many cases, the denial of parenting time has been considered sufficiently urgent for the application to be heard. Several of these decisions are summarized below.
However, in order for an application to be heard, under the new procedure for urgent applications, a triage judge must determine that the application is urgent, and should be heard. In some cases, where the court has determined that there is no risk to the child’s safety, the court has declined to hear the application.
Early Decisions from Ontario
Cases Not Considered Sufficiently Urgent
In Ribeiro v. Wright, a March 24, 2020 decision of the Ontario Superior Court of Justice, the mother applied to suspend the father’s contact due to concerns regarding COVID-19.
The Honourable Justice Pazaratz held (at paras 11 and 20)
“In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
…If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.“
In Douglas v. Douglas, a March 25, 2020 decision of the Ontario Superior Court of Justice, there was no previous order or written agreement in place with respect to parenting arrangements at the time of the application; however, the father had regular parenting time. On March 19, 2020, the mother refused to release the child for the father’s regular parenting time, based in part on the father’s continued work at a retail store, and the mother’s view that this would increase the risk of the child contracting COVID-19.
The father sought an urgent application to reinstate his parenting time. He claimed that the mother had a pattern of denying his access to the child, and was not providing FaceTime access. The judge found that the matter was not sufficiently urgent at that time, as there was no indication that the child’s safety was at risk.
The judge encouraged the parties and their counsel to attempt to reach a reasonable resolution, stating (at para 14):
“Surely a complete termination of all contact between the child and his father cannot be in the child’s best interests even in these unprecedented times.”
While this sentiment did not lead to judicial intervention in this case, it seems to have done so in many other cases. In several other cases regarding denial of parenting time or contact, the applications were heard, and orders made for the return of the child.
Parenting Time Permitted and Child Returned
In Chrisjohn v. Hillier, a March 26, 2020, decision of the Ontario Superior Court of Justice, previous interim orders had placed the two-year-old child in the father’s care on a temporary basis, with the mother having specified parenting time. On March 30, 2020, after exercising her parenting time, the mother refused to return the child to the father’s care. The mother claimed the father, who lived in a home with several other family members, was not practising appropriate physical distancing measures, and that she was concerned that the child, was at risk of contracting COVID-19, and would be at heightened risk if she did so, due to prior health conditions.
The father demonstrated that he and other members of his household were practising physical distancing, and the judge ordered that the child be returned to the father’s care, with a police enforcement clause.
In Zee v. Quon, a decision of the Ontario Superior Court of Justice on March 27, 2020, the parties shared parenting of the eight-year-old child pursuant to a consent order. The mother claimed the father had influenced the parties’ older children to withdraw from their relationship and her and that he was attempting to do the same with the younger child.
The father refused to return the eight-year-old child to the mother, claiming that the mother, a healthcare worker, was exposing the child to COVID-19, despite the mother providing proof that she would not be working during her parenting time and that the mother had no known exposure to the virus.
The judge ordered that the mother have parenting time and that the parties’ thereafter return to the regular parenting schedule, which would be police enforceable.
In Le v. Norris, 2020 ONSC 1932 (March 26, 2020), the mother had primary care of the child, and the father had parenting time twice per week pursuant to a court order. The mother refused to return the child due not only to concerns regarding COVID-19, but also due to her fragile mental health, and claims about the father’s conduct toward her. The mother admitted that she was seeking to vary the current order but had not had an opportunity to do so.
The judge ordered the return of the child a with police enforcement clause.
In Skuce v. Skuce, 2020 ONSC 1881 (March 26, 2020) the parties had entered into an agreement and interim consent order regarding parenting time on March 16, 2020. The father was a recovering addict, and his parenting time was to be supervised. The mother refused to return the child to the father for his parenting time, saying she would agree to only video conferencing between the father and child.
The Honourable Justice Doyle found that the mother was using COVID-19 as an excuse to resile from the agreement. The father was living in a community home, but would soon be returning to live with his parents. Doyle J. ordered that when the father moved back to parents’ home, he was to have parenting time supervised by his parents. Until that time, he was to have FaceTime with the child.
Doyle J. stated (at para. 36).:
“In this case, there is a consent order. The mother has chosen not to respect it. She indicates it is no longer in their best interests. She has engaged in a self-help remedy despite a clear consent Order that was filed a few days ago. The Court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.“
British Columbia Provincial Court
Factors to be Considered
In S.R. v. M.G., 2020 BCPC 57 (April 7, 2020), the Honourable Judge Bond set out the factors that should be considered in determining whether a parenting regime should continue where one parent may be at a heightened risk of exposure to COVID-19.
Unlike many recent urgent applications, in this case, the parties had previously cooperated regarding parenting and did not have a history of litigation. The mother, a healthcare worker, applied for the return of the parties’ eight-year-old child after the father did not to return him to the mother’s care. The father was concerned about the child’s exposure to COVID-19, as the mother had treated a patient with COVID-19. The mother advised that she had taken all necessary precautions “and then some”, and was not considered to be at higher risk of contracting the virus.
Judge Bond ordered that the mother have immediate parenting time and that the parents thereafter follow a modified parenting interim schedule whereby the child would be with the mother for seven days, while she was not working, and then with the father for four days, while she worked. Changes could then be made if there was an increased risk to the child in either parent’s home.
In her decision, Judge Bond acknowledged the novelty of the current situation and the minimal case law regarding the considerations that should be applied in determining whether a parenting regime should continue in the current circumstances when one parent is required to continue to work with the public. She then set out several factors that should be considered in such cases, expanding upon the factors that must be considered pursuant to section 37 of the Family Law Act, as follows:
- Whether the child is at an elevated risk of suffering the more severe consequences of the virus;
- Whether either party or those in their household are at an elevated risk of suffering the more severe consequences of the virus;
- Each party’s exposure to the risk of contracting the virus;
- Steps were taken by each party to mitigate the risk of exposure;
- All of the relevant factors listed under s. 37 of the Family Law Act, including:
- The child’s health and emotional well-being;
- The child’s views, where appropriate;
- The child’s relationship with each parent;
- The history of the child’s care;
- The child’s need for stability, given his age and stage of development;
- Each parent’s ability to exercise his or her parental responsibilities;
- The ability of each party to cooperate in parenting the child; and
- In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.
The factors set out above take into account the fact that many parents must continue to work, and that there is a benefit to the community in them doing so. The fact that a parent is working with the public should not in itself prevent a parent from continuing to have meaningful relationships with their children. This decision also recognizes that further upheaval to prevent a child from having any risk of exposure to the virus will often not be in the child’s best interest.
The above decisions complement guidelines that were recently published by the Province of British Columbia.
Parents should review these guidelines carefully, and ensure that they are complying with all orders and agreements regarding parenting arrangements. If changes must be made they should be made in accordance with these guidelines, which urges parents to be reasonable and flexible in finding alternative temporary parenting arrangements.
Wrongful Denial of Parenting Time
While this is an unprecedented situation, the law continues to apply, and parents should be aware that there may be significant consequences if they are found to have wrongfully denied parenting time to the other parent.
Breaches of an order for parenting arrangements could result in a finding of contempt of court, punishable by fines or, in extreme cases, imprisonment. A finding of wrongful denial of parenting time set out in a court order or agreement may also result in fines, other monetary penalties, and compensatory parenting time for the other parent, pursuant to sections 61 and 62 of the Family Law Act.
If you have questions regarding parenting arrangements or other matters regarding separation and divorce, including concerns about the safety of your children, yourself, or other family members, obtaining advice from an experienced family lawyer can help you navigate the road ahead.
Contact a family lawyer at North Shore Law LLP. We are here to help.
