On March 26, 2020, Justice Mitrow heard an emergency motion seeking police assistance with the enforcement of a parenting schedule, which was deemed urgent by the triage judge pursuant to the new COVID-19 protocols at the Superior Court of Justice.
In this case, the parties have a two year-old child who was placed in the care of the father on an interim without prejudice basis pursuant to a Temporary Order dated October 9, 2019. Pursuant to a further court order dated February 20, 2020, the mother was granted unsupervised parenting time with the child on every Monday, Thursday and Friday, as well as alternate Saturdays.
The mother’s position
Following her visit with the child on Friday, March 30, 2020, the mother did not return the child to the father’s care. She cited concerns regarding the father’s lack of social distancing practices as a reason for why the child was not returned. The mother deposed that there are multiple individuals living in the father’s home and visitors who come and go from the home. In addition, she claimed that the father was taking the child to various locations in defiance of public health advice from the government. Given that the child had ongoing health issues, including prior respiratory complications, there is a heightened risk that the child would contract the COVID-19 virus with sever health consequences. As such, the mother submits that the child should remain with her and that access with the father should not take place in-person.
The father’s position
The father explained that he lives with his parents, along with his current partner and their daughter. The father has an older daughter living in the home as well. The father denied the presence of visitors and deposed that the father only carries out essential trips outside the home to obtain necessities and wear masks and gloves when he does so. The rest of the family are almost exclusively staying at home.
Based on the above, the father submits that the child should be returned to his care and that the schedule remain in place until the matter returns for a further hearing on April 22, 2020. The father is not opposed to the mother having in-person access with the child at this time.
Legal Analysis
Following the decision in Ribeiro v. Wright, Justice Mitrow reiterated that parents should not presume the existence of the COVID-19 crisis automatically leads to a suspension of in-person access. In this case, the Court found that the mother adopted a self-help approach in contravention of an existing court order. The medical evidence filed does not support the mother’s position, nor does it suggest that in-person access visits should be suspended. Given the father’s voluntary adoption of protective measures against COVID-19, the Court did not find it necessary to impose conditions for the child’s return to the father’s care. As such, the Court held that the child is to be returned immediately, with the assistance of police if required.
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