Factual Background
In this case, the father brought an urgent motion requesting the restoration of access of the parties two children. A 2018 court order granted the father access to the children on alternate weekends, however the mother began refusing access after claiming that the father has breached the public health and safety protocols and was not taking the COVID-19 pandemic seriously. On the other hand, the father argues that the children may be more at risk of contracting the virus at their mother’s house as the mother had her boyfriend, her older son, his child, and mother of his child residing with her. Additionally, the mother’s boyfriend returned to work in early May and as such, comes and goes from the house.
Legal Analysis
The Court begins by acknowledging that where there is an existing court order, there is a presumption that it should be respected and complied with. In this case, a presumption can be drawn that the existing court order which provided for meaningful personal contact with both parents would be in the best interests of the children. As such, the main issue was whether the mother or father will expose the children to any unnecessary risks in the future.
While the Court acknowledged that the father may be doing less than what he could be doing to limit his potential exposure to COVID-19, the potential for the children to be exposed to the virus may be greater at the mother’s house than the father’s house due to the mother leaving to buy groceries and the mother’s boyfriend coming and going from work everyday.
As a result of being unable to determine which house the children would be safer in, the Court ordered that access of the children should continue in accordance with the 2018 order which provided for the father to have alternate weekend access visits with the children. Due to the concerns with both parties abiding by public health and safety protocols, the Court included a provision which mandated both parties to abide by all protocols and allowed either party to bring the matter back to Court for reconsideration should either party fail to abide by these protocols.
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