Many parents are currently struggling with the impact of Covid-19 in their daily lives. The issues of social distancing, emergency lockdowns, home schooling, and conforming with public health directives can often be overwhelming for parents.
One area where this has been particularly prevalent is the issue of access to children when parents are separated. It can be difficult to keep up to date with the most recent public health announcements and regulations, but this can be rendered even more difficult when also attempting to comply with a court order or agreed upon access schedules.
The issue of whether access should occur during a look-down and how it should occur has been heavily debated, however in March of 2020, in the case of Ribeiro v Wright, 2020 ONSC 1829, Justice Pazaratz provided valuable insight that has guided lawyer and judges through these difficult questions.
In this case, the mother sought an order to withhold access that had been previously ordered by the court on the grounds that she didn=t feel it was appropriate for her son to be out of the house during the Covid Crisis.
Justice Pazaratz noted that Aa blanket policy that children should never leave their primary residence – even to visit the other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In these troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
Justice Pazaratz also made it clear that there is a presumption that there is a presumption that existing orders should be respected and complied with and that existing orders reflects the determination that meaningful contact with children with both parents is in their best interests.
Ultimately, Justice Pazaratz determined that despite the concerns over Covid 19 and Social distancing the mother was not entitled to suspend the father=s access.
It is important to note, however that Justice Pazaratz qualified his decision to state that despite the above presumptions, each matter should be treated on a case by case basis and provided some guidance to parties who may seek to litigate over Covid related access issues in the future. Specifically:
- 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.
- 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 Bincluding social distancing; use of disinfectants; compliance with public safety directives;
- 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.
- 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.
Accordingly, while meaningful access and important parental relationships will be prioritized, Aabove all we have to find ways to do it safely@ (original emphasis). This means that an existing access order, agreement, or status quo will not be a blank cheque to continue life as normal before Covid-19. It is incumbent on every parent to remember that the best interests of children will always be the primary goal of any family law legal decision when children are involved.
This means that parents must consider the very real ramifications of Covid-19 and ensure that they are taking reasonable precautions to protect their children and their families and limit the risk of transmission. This means a parent seeking to ensure that their access is maintained must be able to provide proof of effective social distancing, mask usage, disinfectant use and hand washing, and other compliance with relevant health directives.
The good news for access parents is that, should they be able to prove that they are doing this, the importance of their relationship with their children will be protected and fostered by the court, even in these difficult times.
In the event that your access is being denied or you feel that your partner is not properly protecting the children from Covid during their access, it will be helpful to consult with a legal professional in order to determine what your legal options are.
