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Across the country, people are facing uncertainty relating to their jobs, the economy and even their daily activities. Parents are also dealing with kids being home from school or daycare, and balancing child care with working from home in many cases. However, the current “stay at home” protocol poses additional unique challenges to couples who are co-parenting children, due to the requirement to avoid close contact with anyone outside of one’s home. How are co-parenting arrangements supposed to adapt in cases where a child started the self-isolation process with one parent, yet is required to see the other?

A recent decision out of Ontario has addressed the issue, in refusing to allow an emergency motion to be heard in full. Although courts across the country are primarily shuttered, they are operating to address emergency hearings in criminal and family law matters. In this case, a mother filed an urgent motion seeking to temporarily suspend the father’s access to his child during this period of self-isolation. The judge refused to classify the matter as urgent and said that the existing co-parenting order should remain in place with special care taken to avoid infection of the parties involved.

Family Background and Existing Access Order

The parents share joint custody of a nine-year-old child, with the mother having primary custody. Under the current order, the father has access to his son on alternate weekends. The mother brought an urgent motion seeking to suspend the father’s access for the interim, out of concern he would not maintain social distancing guidelines for the child, potentially exposing is son to infection. The mother and her family were isolated at the mother’s home, and she did not want her son to leave the home for any reason until it was safe to do so.

Safety Must Be Balanced With a Child’s Best Interests

The judge in the case noted that there is a need to balance the best interests of the child, which would have formed the basis for the original shared parenting order, with the need to follow federal and provincial directives aimed at slowing the spread of COVID-19.

The judge found that, while much of our lives are currently being put on hold, we cannot put the important relationships in a child’s life on hold for an indefinite period. In the case at hand, there was no evidence that the child’s father would not follow social distancing guidelines, and so there was no need to set aside the existing access order.

However, the judge did set out situations in which it may be necessary to bypass an access order due to the pandemic. These circumstances include:

  • Cases where a parent is subject to quarantine or self-isolation due to illness, travel or exposure to illness;
  • Cases where a parent’s personal risk factors may put the child at risk; for example, if a parent’s place of employment puts them at a particularly high risk of exposure; and
  • Cases where a parent refuses to adhere to social distancing guidelines, creating an unnecessary risk for their child.

Here, the judge examined the materials provided by the mother and found no indication that the father would present any particular risk to the child. However, the court noted that it would be important for parents sharing custody to continue to observe all distancing requirements while picking up and dropping off a child.

Emergency Motion Protocol

The decision also set out a protocol for people seeking to raise an urgent motion during the pandemic while courts are closed to most matters. Parties should be cautious to follow the protocol set out below:

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.

At Baker & Companyour family law lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce or separation or other family law dispute. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.

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