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.
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.
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:
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.
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.
A Nussbaum 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.