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As most members of the public are now aware, the courts in Ontario have suspended their operations in light of the COVID-19 pandemic. On March 18, 2020, a Notice to the Profession was released, which can be found here:

Due to the suspension in operations, the Court is only hearing urgent or emergency matters until further notice and has implemented protocols such as the appointment of a Triage Judge to determine whether a particular case is “urgent”.

The decision in Ribeiro v. Wright from Justice Pazaratz of the Hamilton Superior Court of Justice not only address the question of whether the parties’ dispute was “urgent”, but also sheds light on the issue of parenting during these extraordinary times.

Factual Background

The parties have had joint custody of their child since a Final Order in 2012. The child resides primarily with the mother and the father has specified parenting time with the child, including visits every other weekend. The mother brought a Motion to the Court seeking to suspend all in-person access visits with the father due to COVID-19. In addition to her concern that the father is not following social distancing practices, she also expresses that her entire family, including the child, is practicing social isolation and as such the child will not be leaving the home, not even to see the father.

Legal Analysis

While the ultimate decision was that the mother’s motion was not an “urgent” matter that will be heard by the Court at this time, Justice Pazaratz acknowledges that there are multiple considerations at play in a case like this. On the one hand, there is an existing parenting order which was made in light of the child’s best interests, including the need to have meaningful personal contact with both parents. On the other hand, while court orders should be respected and complied with, it is recognized that during these unprecedented times, our daily routines and activities will need to be suspended in favor of strict social distancing.

In most situations, there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever changes necessary to protect children and their families from COVID-19. Children’s lives and family relationships cannot be put on hold indefinitely and as such, a blanket policy prohibiting visits with the other parent would be inconsistent with a child’s best interests.

It will be incumbent on parents to consider the particular circumstances of the situation, such as a parent’s personal risk factors including exposure in the course of employment, and failure to practice social distancing. The principle of social distancing needs to be safeguarded at every stage of implementing the existing parenting schedule and may involve changes to transportation, exchange locations and terms of supervision.

While COVID-19 may create urgent parenting issues that warrant an emergency motion, it should not be presumed that the existence of COVID-19 crisis will automatically result in a suspension of in-person parenting time.

Instead, courts will look at each case on its facts and based on the following considerations:

  1. The parent initiating an urgent motion will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
  2. 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, such as social distancing, use of disinfectants, and compliance with public safety directives.
  3. 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.
  4. 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.

Justice Pazaratz reflects that this is a very good time for both custodial and access parents to spend time with their children at home. Above all, the Court will be paying particular attention to whether parents have made good faith efforts to communicate, show mutual respect, and come up with creative and realistic proposals which demonstrate both parenting ability and public health awareness.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.