As Ontario is taking careful steps to reopen its economy while protecting the general population from COVID-19 by permitting social circles of up to 10 friends and family (commonly referred to as social “bubbling”); separated families are continuing to struggle to strike the right balance in normalizing ‘life.’

On July 9, 2020 (decision released July 17, 2020), the Honourable Justice Summers in Moncur v. Plante, 2020 ONSC 4391 heard an urgent motion by the mother, Ms. Plante, as to whether or not the parties’ 9-year-old son could safely attend a rented cottage in the Kawartha Lakes region for a week with his father, paternal grandparents, paternal aunt and cousin. The paternal family members were coming from different parts of Ontario (Toronto and Leamington) to stay at the cottage in Kawartha.

The parties share custody of their son and have had an ongoing conflict for several years. There was a Final Order allowing Mr. Moncur to have priority in scheduling vacation with their son this year and were to advise her of his chosen week by March 1.  

Ms. Plante’s position was that their son’s attendance at the cottage was ‘selfish and unnecessarily risky’ because:

  1. The 7 family members from three different parts of the province were not a ‘social circle’ as per Ontario’s guidelines;
  2. The recent COVID-19 outbreak in the Windsor-Essex region added another layer of risk to the cottage plan;
  3. If the extended family group were not a social circle, it would be nearly impossible for 7 people to social distance in a cottage and keep the surfaces properly disinfected; and
  4. Her health was of concern as she had asthma and was in a high-risk category for COVID-19 (she alleges that Mr. Moncur always minimized her asthma).

Mr. Moncur’s position was that their son’s attendance at the cottage would not expose him to harm and that Ms. Plante’s objections were unreasonable:

  1. It was the 3rd year in a row that Ms. Plante objected to his summer plans with their son;
  2. He would never expose their son to harm as the child’s best interest was always at the forefront of his mind;
  3. Mr. Moncur’s girlfriend had moved in with him when the emergency was declared, and the three of them (including their son) had not socialized with anyone else (i.e., the magical number 10 was preserved by the trip to the cottage and was consistent with government guidelines, so no social distancing was required);
  4. Each family member had their own bathroom and was knowledgeable about recommended hygiene practices. There was no reason to leave the cottage once the family arrived; and
  5. Ms. Plante’s asthma was exercise-induced, and she was not at an increased risk for COVID-19.

The Honourable Justice Summers held that it was not in the child’s best interest to go to the cottage under the circumstances in light of the current provincial health and safety guidelines.

In terms of creating a social circle, the court stated the following in paragraphs 19 and 20 that are worth repeating: 

[19] Of concern for the court was the lack of information concerning Mr. Moncur’s sister and niece and their social contacts. The court could not assess the extent of that family’s social circle. According to the provincial guidelines, each person can only belong to one social circle. So, if a person is invited to join a social circle, their social contacts must also be considered. 

[20] Moreover, it does not appear that consideration was given to the social circling directive from the province that separated spouses with children moving between their two homes must include each other in their respective household bubbles before expanding it. Here, this means that Ms. Plante is part of Mr. Moncur’s social circle, and he is part of hers. Ms. Moncur did not consent to be a part of the larger circle proposed by Mr. Moncur. I find nothing unreasonable about her decision to withhold agreement.

The Honourable Justice Summers found that Mr. Moncur had been taking appropriate health and safety measures on a day-to-day basis when his son was under his care in Ottawa and believed that he did not think attending the cottage would be a danger. However, based on the evidence before the court about the potential risks to the child, and by extension, Ms. Plante, they outweighed the benefit of a week away at the cottage.

While COVID-19 has been a confusing time for many and there are no necessarily ‘bright line’ tests for separated families to follow, the courts have made it clear that current health pandemic is one where parents have to think outside their personal bubble where a child is going between households as it also includes the ‘bubble’ of their former partner (and necessarily that person’s circle).

The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.

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