THE COVID-19 PANDEMIC – CUSTODY/ACCESS MATTERS AND URGENT MOTIONS
The Effects of the COVID-19 Pandemic on Custody Laws
The COVID-19 pandemic has resulted in numerous new issues with respect to family law disputes. The pandemic is unchartered territory that has shifted perspectives previously held on family law matters, such as custody and access arrangements. Ribeiro v Wright, 2020 ONSC 1829 is a recent case heard by the Ontario Superior Court in which the Trial Judge discusses how the family law system has adapted to the challenges associated with COVID-19.
In Ribeiro v Wright, the mother brought an urgent motion to suspend all in-person access to the child from the father. She did this because she was concerned that the father would not maintain social distancing during periods of access. The mother also expressed that she did not want her son leaving the home for any reason, including seeing the father. Despite the pandemic and issues brought forward, the Trial Judge determined that an urgent hearing would not be authorized.
Shifting Perspectives on Family Law, Custody and Access Matters
Parents are understandably confused and worried about how to approach custody and access matters during the pandemic. It is important that, when approaching these matters, Courts demonstrate flexibility, creativity and common sense to promote both the physical and emotional wellbeing of children. In most situations, there should be existing parenting arrangements and regular schedules should continue, subject to any modifications that are necessary to ensure COVID-19 precautions are adhered to.
In some cases, custodial or access parents may have to forego their time with a child. This may occur when the parent is subject to some specific personal restrictions, such as a 14-day quarantine period after travel outside of Canada. In some cases, a parent’s personal risk factors, such as employment, may require controls in their direct contact with a child. Unfortunately, sometimes a parent’s lifestyle or behaviour in the face of the pandemic may raise sufficient concerns about their judgement that warrants parent-child contact being reconsidered. There is a zero-tolerance for any parent who recklessly exposes a child, or members of the child’s household, to any risk of COVID-19.
Transitional arrangements at exchange times may create issues. However, at every stage, social distancing measures must be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision. It is important to note that each family will have its own unique issues and complications. Regardless of how difficult the challenge is, for the sake of the child, methods for maintaining parent relationships must be pursued. Above all else, this must be done safely.
Urgent Motions During COVID-19
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. The approach taken for COVID-19 parenting issues will vary on a case by case basis. If an urgent motion is brought forward and involves COVID-19, the following must be demonstrated:
- The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols.
- The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
- Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
However, it is extremely significant to note that a parent should absolutely not presume that the existence of the COVID-19 pandemic automatically results in a suspension of in-person parenting time. Raising COVID-19 considerations do not necessarily result in urgent hearings.
Custody Laws and COVID-19 and the Best Interest of Children and Families
In Ribeiro v Wright, the Trial Judge highlighted that the health, safety and wellbeing of children and families remains the Court’s foremost consideration during the pandemic. When it comes to existing parenting orders, there is a presumption that meaningful personal contact with both parents is in the best interest of the child. The Trial Judge found that while the mother’s concerns about COVID-19 were founded, she did not establish failure, non-compliance, or inability by the father to adhere to appropriate COVID-19 protocols in the future.
Ribeiro v Wright demonstrates that while urgent motions during the COVID-19 pandemic may be relevant, they should be approached with caution and not overused. The pandemic is a confusing time for children, and for their best interest, more cooperation and less litigation is needed between parents.
At Nussbaum Family Law, we understand the challenges that the COVID-19 pandemic may create for our clients and their families. We prioritize the protection of our clients and the best interest and safety of their children. If you have concerns with how the pandemic is impacting existing custody and access arrangements, or if you need insight into whether an urgent motion can be brought forward, please contact one of our experienced lawyers for assistance.
COVID-19 and Child Custody: If a COVID-19 vaccine becomes readily available
Negotiating a Parenting Plan
In most sound relationships, both parents have custodial decision making authority with regards to their child or children. Post-separation, things may look a little different. If one parent moves out of the home, or relocates with the child or children, the parent in whose care the child or children remains has de facto custody pursuant to section 20(4) of the Children’s Law Reform Act (CLRA).
It is the role of an experienced lawyer to negotiate a parenting plan that allocates decision making power between the separated parties, and one, that accords with the child’s best interests.
What does Child Custody entail?
As outlined in the blog “Seeking Child Custody and Access: A Non-Parents Guide”, though not defined in statute, custody includes the right and responsibility of a parent to make major decisions for the child or children. As the Supreme Court stated in Young v. Young, “the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child.”
Narrowing in on the COVID-19 pandemic
How will child custody and COVID-19 vaccines integrate? Focusing solely on the child’s health and welfare, many parents find themselves widely debating (i.e., pro versus anti-vaccination) the decision to vaccinate their child if a COVID-19 vaccination becomes available. Generally, the major decisions relating to a child’s medial health and well-being are in the custodial parents hands.
This debate came to light in the Tarkowski v. Lemieux case whereby Justice Jones considered the issue as to how separated parents would decide to vaccinate their child if a vaccine were to become avail. In this case, the six-year old child lived primarily with the mother post-separation. Whilst both parties were seeking sole custody, Justice Jones granted the Respondent/Mother custody. However, given the Respondent/Mother’s delays in having the child vaccinated to ‘achieve immunity from common childhood diseases even when her doctor assured her of the child’s tolerance’, Justice Jones also granted the following decision making power to the Applicant/Father:
at para  it was stated that:
“When and if such a vaccine becomes available, both parents should meet with the child’s doctor to discuss vaccination…against COVID-19.”..“In the event that the mother refuses to attend this meeting with the father and the doctor, or, at the meeting, refuses to consent to the child being vaccinated, I am granting the father, as an incident of custody and access, the unilateral power to consent to Avery being vaccinated against COVID-19. I am satisfied that he has no bias against vaccinations in general, and will be able to decide this issue on the advice he receives. If the father decides that the child should be vaccinated, and if the child’s regular doctor is prepared to administer the vaccination to the child, the father shall arrange with the child’s regular doctor”… “to administer the vaccination.”
Seek Child Custody Advice Today
In light of the COVID-19 pandemic, the Tawrkowski case shows the difficult decisions separated parents might have to make. Nussbaum Law is a Toronto based law firm that exclusively practices family and divorce law. Should you wish to speak to an experienced lawyer regarding negotiating a parenting plan, contact Nussbaum Law today.