Access in a COVID-19 World
The COVID-19 pandemic has put all of us into a very unprecedent time in our lives. All of us are making adjustments to our regular routines and taking measures to ensure that our families are safe.
As a result, one major complication that has arisen during this time is regarding access to children. Many clients have called in describing how the other party is not allowing access as the other spouse claims that they are concerned for the health of the children and therefore do not want to unnecessarily expose the children.
To add to this, courts have curtailed their operations, thereby making it more difficult to initiate or continue court proceedings. The courts have provided a Notice to the Profession which outlines how court procedure and rules have been amended specifically for the pandemic (see this link for a notice dated April 28th, 2020 regarding recently expanded services in courts). These notices are updated as progress with the pandemic also changes.
Also, limitation periods and rules regarding filing deadlines have been temporarily suspended during the pandemic retroactively to March 16, 2020 as stated in this Order.
Of course, parents do need to be wary of the dangers posed by the COVID-19 pandemic and be mindful of the health notices from the government, specifically regarding social distancing, and monitoring themselves and the children for any flu-like symptoms. However, although these steps need to be taken, children do still need to see both parents as much as possible.
In Ribeiro v. Wright 2020 ONSC 1829, a mother tried to bring an urgent motion to suspend the father’s access as she believed he was not maintaining social distancing. Justice Alex Pazaratz denied authorization for the motion to proceed, stating that “in troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”
Justice Pazarat further continues saying, “Children’s lives – and vitally important family relationships – cannot be placed on hold indefinitely without risking serious emotional harm and upset.” He further writes, “A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.”
What Justice Pazaratz is clarifying here is that although COVID-19 needs to be taken seriously, it is not a reason for an automatic suspension of in-person parenting time.
Courts are clear on providing guidance that parenting schedules should remain in place barring any legitimate concerns. Or in other words, parties should not be unliterally altering parenting schedules without justifiable reasons. As such, if a parent has a concern or wants to alter the access arrangements, they should do their best to negotiate and discuss the matter with the other parent to see what can be agreed to.
If a parent tries to deny access simply because of COVID-19 without having tried to discuss alternate arrangements, or by providing legitimate reasons, they could get in serious trouble with a judge if the matter is brought back to court. In fact, if a parent has unliterally and unjustifiably denied access during this pandemic, the parent being denied access may be able to bring an urgent motion to have access reinstated.
The lesson here? Work things out as much as possible with the other parent to ensure the Children can continue to see their families during this difficult time. It is unknown how long this pandemic and the stay at home provisions will be in effect, so it is so important now that parents work together to keep their children safe, healthy, and happy.