Custody and Access Considerations in the Face of COVID-19
16
Apr
Read Time: 5 Min.

Custody and Access Considerations in the Face of COVID-19

By now, like many other places in the world, we in Ontario realize that as a result of the COVID-19 or Coronavirus pandemic, the current situation will not resolve overnight. Consequently, there are many changes in our day-to-day lives that we must accept as the new normal. This holds true not only in general, but specifically in the realm of family law. Parents subject to a custody and access agreement or order, or alternatively in the midst of a battle on these issues, should expect some frustration.

Following recent announcements from the Ministry of the Attorney General, both the Superior Court of Justice and Ontario Court of Justice have suspended hearings in any proceeding unless they meet the legal standard for urgency and/or an emergency. In other words, if your matter is currently in court, the court will likely not hear your motion or trial unless it considers the subject matter to be urgent, an emergency and/or concerns an individual’s safety. You can read more at the following links:

Ontario Court of Justice:

https://www.ontariocourts.ca/ocj/covid-19/covid-19-family-matters/

Superior Court of Justice:

https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

A recent decision by the Honourable Mr. Justice Diamond of the Superior Court of Justice in Toronto considered specifically whether a parent withholding children in the absence of any order or agreement, and amidst concerns of proper precautions to insulate the children from COVID-19 exposure, reached the threshold of an urgent matter. As the access status quo was being drastically altered, His Honour found the matter to be sufficiently urgent to warrant the motion proceeding. (see Jackman v. Doyle, File No: FS-20-16266, Endorsement, March 20, 2020)

Unfortunately, few cases will qualify as urgent or an emergency, and so many individual courts are exploring the possibility of hearing non-urgent matters by way of video or telephone conference, to prevent such issues from delay , but no provincial-wide policy has been put in place as yet. Check with your legal counsel or the court where your matter is located to find out if any such options are currently available to you. It is most likely an option that will at this stage be made available at the discretion of the judge or court on a case-by-case basis.

Parents should expect to maintain the current residency, parenting or access schedule despite the call for social distancing and self-quarantine in the face of COVID-19. The pandemic does not provide adequate grounds upon which to deviate from an agreed to or court-ordered schedule, without “specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols”. This was the language used recently by the Honourable Mr. Justice Pazaratz in his decision rejecting as urgent a mother’s motion to suspend all in-person access because of COVID-19. (see Ribeiro v Wright, File No: 517/19, Trial Judge Endorsement, March 24, 2020) The mere concern that the other parent will not respect the social distancing or other precautionary imperatives is not enough to supersede the children’s best interest to “meaningful personal contact with both parents” presumed to be reflected in any order or agreement.

On the other hand, parents returning from travel outside of Canada or exhibiting symptoms of the virus should not expect to exercise their usual parenting or access time under an agreement or order. Similarly, parents who consented that the children travel outside of Canada with the other parent, should not expect to exercise their regular access or parenting time until the child has completed a 14-day quarantine period as required by the federal government on March 26, 2020. It will likely be considered entirely reasonable for the other parent to refuse access or parenting time under either of the foregoing circumstances. It will most likely be considered unreasonable to expect to have your children with you during any mandatory periods of quarantine or voluntary self-isolation due to symptoms or travel unless your child traveled with you or exhibits similar symptoms. Both parents should act reasonably in any of the above circumstances to ensure the well-being of the children. The courts understand that COVID-19 is extremely serious and will likely exercise “zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk” according to Justice Pazaratz.

It is likely that many parents will experience a significant decline in their income during this period of economic strife as employers begin to lay off employees and reduce work hours both on a temporary and final basis. Accordingly, parents paying child support will likely be unable to continue making the type of support payments under an existing agreement or order. The parent receiving support should expect and reasonably accommodate a temporary reduction in support based on the payor parent’s new diminished income. Parents should seek counsel to draft the appropriate temporary amendments to agreements and orders that reflect these changes.

We understand that none of this is convenient, but unnecessary turmoil should be avoidable if both parents make good faith efforts to communicate and show mutual respect while implementing creative and realistic solutions which safeguard children from COVID-19. If you would like to discuss any of the above in more detail, please do not hesitate to contact our firm and schedule an appointment. We are currently holding initial consultations and client meetings through video or telephone conferencing.

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.

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