Family Law News: COVID-19 Case Law - The Hamilton Perspective
By Renee M. Roy
COVID-19 has presented a number of new challenges for the Family Law community. One of the recurring themes appearing in the courts is when one parent feels the other parent is not following best practices when it comes to protecting the children from the virus. When is a parent’s concern for their children genuinely a matter of safety, and when are they simply trying to take advantage of a difficult situation? Below are a few recent cases that illustrate the challenges facing the Court.
Ribeiro v. Wright, 2020 ONSC 3971
This motion was before Justice Pazaratz as the triage judge, in the early days of the suspension of regular court operations due to COVID-19. The question before His Honour was the preliminary determination of urgency. The parties have joint custody of their nine-year-old child. The mother sought suspension of all access between the child and the father, who until then was having access on alternating weekends. The mother was concerned that the father would not maintain social distancing during his time and the mother did not want the child to leave the house for any reason in any case during this time, including to see the father.
At paragraph 21 the Court indicated,
“We will deal with COVID-19 parenting issues on a case-by-case basis.
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b. 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 – including social distancing; use of disinfectants; compliance with public safety directives; etc.
c. 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.
d. 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. This is a very good time for both custodial and access parents to spend time with their child at home.”1
The motion was determined to be not urgent. At paragraph 23 Justice Pazaratz further indicated, with respect to parenting and taking precautions to protect children during COVID-19,
“We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”2
Wallengham v. Spigelski, 2020 ONSC 2663
In the case of Wallengham v. Spigelski, the parties had a long-standing time-sharing arrangement with respect to one child. They shared joint custody of her, which had been agreed upon on consent. The child’s primary residence was with the mother and she was sharing time with the father on alternating weekends.
The mother took the position that the father’s access needed to be significantly decreased due to COVID-19. Justice Pazaratz addressed the matter as triage judge. As there had been a long-standing time-sharing arrangement in place that was now being disrupted, the Court determined that the matter was potentially urgent. His Honour indicated at paragraph 13:
“In general terms, most cases seem to be reinforcing the view that “COVID-19 awareness” and “meaningful timesharing” are not mutually exclusive. To the contrary, they can co-exist quite effectively and safely with just a little bit of extra work and cooperation among parents.
In this, both parties consented to a “joint custody” designation. That’s not an empty label. It means both parties are presumed to have made a commitment to child-focused creative problem-solving. Which is exactly what COVID-19 requires.”3
Blythe v. Blythe, 2020 ONSC 2871
The parties had an existing parenting arrangement where the children resided primarily with the mother and spent time on alternating weekends and some time during the week with the father. The father commenced an urgent motion when the mother withheld the children on the basis that the father was an essential worker, and she resided with her elderly parents who she felt to be at increased risk.
The Court found that the children were being negatively impacted by the lack of contact with their father. The father submitted he was abiding by COVID-19 protocol and his workplace had minimized his risk. The matter was found to be urgent. Justice Chappel determined that the current parenting arrangement was not in the children’s best interests. Instead, she varied the arrangement to allow for contact with the father in outdoor locations only, in order to limit their potential exposure to COVID-19. The Court rejected the notion that the father could take time off work to have make-up access with the children, thereby alleviating the concerns, as he could unknowingly be a carrier of COVID-19 and he had not been tested. Even with extended leave he would need to isolate for a period of time before resuming access, and he was re-exposed each time he went to work.
The Court further indicated that this was not intended to create a new status quo and as the circumstances evolved a different situation could arise which would be in the best interests of the children. Justice Chappel indicated at paragraph 35,
“I wish to emphasize once again for the Respondent’s benefit that this order will not be carved in stone pending a final resolution of the custody and access issues. As circumstances evolve, the court may reach a different conclusion as to the parenting arrangement that best serves Abigail’s and Naomi’s needs and interests. For instance, if the Respondent were able to confirm that he has arranged an extended leave of absence from work, and he were to isolate for an appropriate period of time at home without showing symptoms of COVID-19, this could potentially alleviate some of the concerns that have informed my decision and result in a different outcome.”4
Johnson v. Johnson, 2020 ONSC 2896
The mother commenced a motion seeking to suspend the father’s in person time sharing and proposed that he have hour long video calls with the child three times per week in lieu of face to face visits. The mother cited concerns that the father was not following COVID-19 safety precautions, and further, the child indicated to the mother that she had spent time with extended family members that did not live with the father on two different weekend visits. The mother indicated that factors to consider from her perspective were that the child had health concerns, and the child lived with the maternal grandparents who were being put at risk due to access with the father. Justice Pazaratz held that the mother’s request to suspend access was not urgent. The allegations in relation to COVID-19 did not establish that the father was being unsafe or irresponsible. Justice Pazaratz specifically indicated at paragraph 30,
“Once the court concludes that both parties fall into the category of “loving, caring, responsible, safety-conscious parents”, it is unnecessary – and inappropriate – for judges to conduct a microscopic analysis of every single decision each parent makes during their time with a child.
a. During COVID-19, daily life for separated parents has become exponentially more complicated, entailing many new responsibilities and countless judgment calls.
b. Parents have to think about and agonize over activities and interactions previously regarded as routine and benign.
c. They have to stop doing certain things.
d. They have to do other things differently and more safely.
e. Parents have to provide children with as normal a life as possible in abnormal times.
f. If parenting standards demonstrably fall below a certain threshold, the court will have no hesitation to intervene.
g. But once parental insight, trustworthiness and devotion have been firmly established, we need to step back a bit and let parents make some of the tough day-to-day decisions on their own.”5
Brazeau v. Lejambe, 2020 ONSC 3117
The father commenced an urgent motion seeking an order that the mother comply with provisions of two orders relating to custody and access. This matter had been previously triaged and determined to be urgent by Justice Pazaratz. The children live primarily with their mother. They travelled with her to Mexico in March, and subsequently quarantined for 14 days. Following this, the mother indicated to the father that she would not make the children attend at his home against their wishes, citing that they did not want to visit with him and that it was unsafe for them to do so as he is employed in a long-term care home.
Justice Bale determined that the matter was indeed urgent, and that this was a case where one parent was attempting to capitalize on the current health crisis to marginalize the children from the other parent. It was found that it was not in the best interests of the children to suspend the access arrangements. Despite COVID-19 there is a presumption that parenting and time-sharing arrangements will continue.
The court distinguished this case from that of Blythe v. Blythe, indicating that the mother does not have the authority to unilaterally make changes to the court order. At paragraph 44 Justice Bale strongly indicated that “there is an absolute expectation that the terms of this Order will be enforced. If the Applicant father is required to return this matter to court for further enforcement for any reason including the children’s ‘refusal’ to attend, the mother is forewarned that far more drastic remedial measures will likely be ordered by the court”.6
1 Ribero v. Wright, 2020 ONSC 3971, para. 21
3 Wallengham v. Spigelski, 2020 ONSC 2663, para 13
4 Blythe v. Blythe, 2020 ONSC 2871, para. 35
5 Johnson v. Johnson, 2020 ONSC 2896, para. 30
6 Brazeau v. Lejambe, 2020 ONSC 3117, para 44