Custody, Access and Your Children During the COVID-19 Pandemic

With a growing number of COVID-19 cases globally, Superior Court of Ontario and Ontario Court of Justice have suspended all regular operations, putting parents and children subject to custody and access orders and agreements in an unprecedented situation.

History has never seen this action taken by the courts.  Courts have issued near blanket suspensions of limitation periods effective March 16, 2020 and adjourned most regular appearances, including virtually all trials and motions. 

Essentially only the most urgent family law matters will continue to be heard at this time, including: 

1. Requests for urgent relief relating to the safety of a child or parent (e.g. restraining order orother restrictions on contact between the parties or a party and a child, or exclusive possession of the home)
2. Urgent issues that must be determined relating to the well-being of a child, including essential medical decisions or issues relating to the wrongful removal or retention of a child;  
3. Dire issues regarding the parties’ financial circumstances, including for example the need for a non-depletion order; or 
4. In a child protection case, all urgent or statutorily mandated events, including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. 

With each day that passes the law evolves as the court releases new decisions about what constitutes an urgent issue and how the court will deal with the new issues arising from the pandemic.  

Despite that the COVID-19 pandemic has created a host of new issues for parents to deal with, most custody and access issues that arise will not meet the high threshold of urgency allowing them to be addressed by the courts in these unique circumstances.   

Consider the following situations that many parents may now find themselves faced with: 

1. The necessity of figuring out new childcare arrangements in light of current school and daycare closures;
2. The mandated self-isolation protocols, which may separate children from one or both of their parents and/or caregivers including following return from travel or due to illness or due to concerns about a parent/caregiver or child being immunocompromised; 
3. Special requests by a parent for make–up access or access with a different family member when time is lost due to quarantine, self-isolation or other circumstances related to the pandemic; 
4. Concerns about children exercising access with a parent or another caregiver who continues to work in an essential service and/or who may be at a higher COVID-19 risk; 
5. Concerns about a parent or caregiver failing to exercise social distancing measures or disagreements between parents about the precautions that should be taken to protect children during the pandemic; 
6. Disputes about the interpretations of the language of court orders or agreements in the context of the pandemic (for example, now that school has been suspended for two additional weeks after spring break, determining when the “end” of spring break is for the purposes of returning a child from an access parent to the primary parent); 
7. The inability to request that the court determine an issue relating to the child (for example, disputes relating to school registration for the upcoming year); etc. 

Despite these unique circumstances, the general requirement is that court orders must be obeyed and that agreements must be followed.   

If you think your situation is urgent you should get legal advice right away.  

Parents are not generally permitted to resort to self-help remedies and/or make unilateral changes to court–ordered or agreed upon arrangements. 

For parents who try to take matters into their own hands there is little question that once the pandemic has settled courts will have little patience for individuals found to have taken advantage of this crisis. 

Since virtually no existing court orders or agreements will have any specific language contemplating what should happen in a pandemic situation and with few cases reaching the threshold for urgency, parents must find other means to properly resolve these issues outside the courts. 

Now more than ever parents need to be flexible and reasonable in working together for the best interests of their children.  But they don’t have to do it alone.  

Your lawyer can help you understand your rights and options during the pandemic and assist you so that you are able to do what is best for your children.  Many parents are turning to lawyer assisted negotiation, mediation and parenting coordination to help them navigate these issues during the pandemic and develop creative temporary resolutions. 

Where parents can’t reach an agreement on a time-sensitive issue or where one parent encounters unreasonable behaviour or demands by the other, your lawyer can assist you in engaging a private arbitrator to make a decision on the matter in a manner similar to how a court would do so. 

Even where arbitration is not an option your lawyer can still help you strategize and prepare your matter to put you in the best possible position to move forward once the pandemic resolves. 

Despite the current crisis, parents facing custody and access issues must remember that this too shall pass.  Just because someone’s unreasonable behaviour goes unchecked now, doesn’t mean that person will not face repercussions once the court resumes regular operations. 

Your lawyer is in the best position to advise you about how the current law applies to your situation, your options and how you can best move forward right now. 

If you or someone in your family is currently experiencing difficulties with custody or access issues or if you have questions about custody and access issues during this pandemic, you can still get the important legal advice you need.  We invite you to contact our office and speak with our intake specialists who will be able to arrange for a video or telephone initial consultation with one of our available associates. 

Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel.