It has been almost a year since we started grappling with a worldwide COVID-19 pandemic that has impacted every aspect of our daily lives. This virus has changed the way we work, our ability to interact socially, travel and even leave our homes. For parents who are separated or divorced, it has also raised significant concerns among those with shared parenting arrangements, particularly in situations where concerns have been raised about a co-parent’s adherence to safety protocols. Below, we will outline some of the ways COVID-19 has affected existing parenting plans and how Canadian courts have been managing these unprecedented issues to date.

Common Parenting Issues Related to COVID-19

There have been a number of urgent motions heard since the start of the pandemic with respect to concerns about parental behaviour in relation to COVID protocols and other related issues. In some cases, parents have disagreed over whether their child should attend school in person or online. In others, one parent may be concerned with the other parent’s lax attitudes about hygiene, wearing a mask and/or social distancing.

Some cases have escalated when the child lives with elderly or otherwise at-risk family members in one parent’s household, or if the child is at risk themselves due to a pre-existing condition. Some parents have brought urgent motions to change the existing parenting arrangements, while others have attempted to enforce an order when the other parent refuses to comply, citing health concerns.

It should be noted that parents cannot unilaterally make a change to existing orders or agreements without the consent of the other parent or a court order allowing them to do so. If a parent believes that there is cause to amend the existing arrangements during the pandemic, they will be required to bring a motion for urgent relief relating to the safety of a child or parent.

Bringing Emergency Family Law Motions Regarding Custody During the Pandemic

According to the Ontario Court of Justice, the definition of an “urgent matter” during the COVID-19 pandemic, as it concerns family law matters, includes the following matters:

• Issues under the Child, Youth and Family Services Act including place of safety hearings, temporary care and custody hearings, restraining orders, status review hearings, and secure treatment orders;
• Domestic matters including urgent parenting motions; motions for restraining orders; Hague applications and non-Hague abduction cases; and
• Refraining motions under the Family Responsibility and Support Arrears Enforcement Act.

However, just because a matter falls under one of these categories does not mean that a judge will consent to hear the case on a prioritized basis. A judge will review the motion and make a determination if the matter should proceed as urgent.

What are the Courts Saying About Bringing Urgent Custody and Access Motions?

If a court agrees to hear a family law motion on an urgent basis, the parent asking for a change in the existing parenting schedule will have to make a strong case, especially if they are asking to limit or suspend the other parent’s access to their child.

In one of the first Ontario cases on the subject, from March 2020, a mother sought to suspend all in-person access between the child and his father because of the pandemic. The mother alleged that the father would not maintain social distancing for the child during access visits. The existing parenting arrangements were in place pursuant to an order dated September 2019. The triage judge did not authorize the matter to proceed to a hearing.

The triage judge recognized that the pandemic was an extremely stressful and difficult period for everyone. He also acknowledged that each family would have its own complications and issues in dealing with the pandemic and stressed that there would be zero tolerance for any parent that recklessly exposed a child to any COVID-19 risk. However, the judge also emphasized that no matter how difficult the challenge was to navigate through this pandemic, parents had to find ways to maintain important parental relationships – and to do so safely.

Significantly, the judge set out that the court would deal with COVID-19 issues on a case-by-case basis, and he set out the evidence necessary for a parent to prove that the other parent was not complying with safety protocols. Such proof includes:

• The parent seeking a change must provide specific evidence or examples of behaviour or plans which do not comply with COVID-19 protocols;
• The responding parent is required to provide specific and absolute reassurance that COVID-19 safety measures would be meticulously adhered to; and
• Each parent is required to produce very specific and realistic time-sharing proposals that fully addressed all COVID-19 safety considerations.

In another Ontario case from March 2020, the mother breached an existing court order between the father and the child, resulting in an urgent motion by the father to enforce the parenting order. The mother claimed that one of her primary concerns with allowing in-person contact was the COVID-19 pandemic. The court sympathized with the mother’s fears regarding the health crisis, but voiced the opinion that the mother’s concerns could be respected through “responsible adherence to the existing court order”.

The court further defined what it meant by “responsible adherence” to the existing court order. The court stated that physical distancing measures had to be respected and maintained by the parents. Furthermore, every precautionary measure recommended by health authorities and by governments in Ontario and Canada would have to be adhered to by both parents.

As can be seen from the above-referenced cases, the courts understand that the COVID-19 crisis presents unprecedented challenges for parents. However, it is unlikely that a court will be prepared to change existing custody arrangements unless one of the parents fails to follow COVID-19 protocols. Parents who have concerns about custody arrangements during COVID-19 should consult with a lawyer and perhaps consider other options to resolve these concerns, such as family mediation.

Contact Boulby Weinberg LLP in Toronto for Concerns Relating to Parenting Arrangements and COVID-19

At Boulby Weinberg LLP in Toronto, our divorce lawyers regularly represent clients in private mediation, helping to guide them through the process while ensuring their interests are secured. We also offer family mediation services overseen by one of our partners, Oren Weinberg, a certified family mediator. If you have a parenting concern relating to the COVID-19 pandemic or otherwise, we will help you determine the best path towards resolution.

To arrange a consultation with a reputable and empathetic lawyer at Boulby Weinberg LLP, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.