The Ontario provincial government recently released an updated list of essential workplaces that can remain physically open during the pandemic. These restrictions are put in place to minimize contact between people and reduce the spread of COVID-19. Parents who have separated often have differing opinions on how to raise and care for their children; this certainly applies to how best to deal with parenting in this new “post coronavirus” world. In the wake of the COVID-19 pandemic, these differences are becoming a source of conflict when parents do not agree on who their children should be seeing and to what degree. Can one parent refuse to allow another parent to spend time with their child if he or she thinks parenting time will expose the child to risk of contracting the virus? Is the suspension of access for parents during the COVID-19 pandemic appropriate?

It is not unreasonable for separated parents to be concerned for the well-being of their child if the other parent works in a business or industry that falls within one of the listed essential workplaces. Anyone who continues to come into regular contact with the general public is presumably more likely to have more exposure to the virus. Understandably, all parents want to keep their children safe and healthy, and the courts have been clear that parents should be taking the necessary precautions during this pandemic. What the jurisprudence has demonstrated so far, however, is that the novel coronavirus is not to be used as a means to unjustifiably interfere with access time.

Heike Mintel

What is the Legal Test for Suspension of Access Due to COVID-19 Concerns?

In a recent decision,  Ribeiro v. Wright, Justice Pazaratz of the Hamilton Unified Family Court outlined the following criteria in determining whether one parent can refuse to allow another to see the child: 

  1. The parent bringing an urgent motion for parenting should be able to point to specific examples where the other parent was inconsistent with COVID-19 protocols.
  1. The responding parent must show that s/he is following COVID-19 safety measures, including social distancing, use of disinfectants, and compliance with public safety directives.
  1. Both parents are required to propose specific and realistic time-sharing schedules that fully address all COVID-19 considerations.
  1. Judges will take social distancing into consideration when determining appropriateness and type of access to be exercised.

Justice Pazaratz wrote that each case will be decided on a case-by-case basis. Where there is a pre-existing order or an agreement, the status quo should continue unless its continuation is not in the child’s best interest.

I am concerned that the other parent is not adhering to the COVID-19 protocols recommended by the government.

Over the past few weeks, federal and provincial governments have released health guidelines to flatten the curve of coronavirus infection rates in Canada. The most emphasized measure of all is social distancing, which is the act of minimizing close contact with others. Examples include avoiding crowded places and gatherings, avoiding hugs or handshakes, limiting contact with people at higher risk, such as older adults and/or individuals with underlying health conditions, and keeping a distance of 2 meters apart from others.

Although the importance of social distancing as a civic and moral duty has been emphasized for nearly a month, unfortunately, some people are still choosing not to adopt these precautionary measures. It is, therefore, understandably concerning if you suspect that the other parent is not doing his or her part to minimize risks of spreading the COVID-19 virus.

In the case of Balbontin v. Luwawa, Justice Jarvis suspended the Respondent father’s access with the parties’ three-year-old daughter until he answers the Applicant mother’s concerns about his nonchalant attitude towards COVID-19, as well as provide an affidavit that outlines his proposed measures to protect himself and the child from the novel coronavirus to the satisfaction of the court.

In this case, the mother had written to the father on numerous occasions expressing her concerns about COVID-19, and asked him to observe public health notices. She was especially concerned because the father lived in an apartment with two other people, and also had a child with another lady who had also been continuing access exchanges. In other words, the father had multiple points of contact from and to whom he could receive or spread the coronavirus.

In this case, the mother was a particularly proactive citizen, who keenly adhered to the protocols; she provided face masks, hand sanitizer, and disposable gloves to the child on her access visits, and cancelled her overseas vacation that had been planned months before the coronavirus outbreak. She said she would develop an emergency action plan in the event that the crisis lasted for an extended period of time.

In contrast, the father demonstrated little interest in using personal protection equipment for himself or the child. He was unresponsive to the mother’s communication, and when he did answer her, he said that she ‘had nothing to teach [him]’ about COVID-19.

In the decision, the court held that good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. What the mother asked of the father, in this case, was not unreasonable.

What can be garnered here is that dismissive attitude towards the virus (or the suggested protocols for tackling its spread) at this stage of the pandemic, where thousands of people are infected on a daily basis in Canada and hundreds of people have died from it, will raise some justices’ eyebrows. This might lead to a consequence as severe as suspension of access for parents during COVID-19.

My child has medical conditions that render him/her more vulnerable to the contraction and complications of COVID-19. Can I deny parenting time?

If there is a currently existing parenting order or an agreement, it might not be a good idea to deny parenting time solely for the reason that the child has underlying health conditions.

In the case of Chrisjohn v. Hillier, Justice Mitrow of London Superior Court of Justice ordered the Respondent mother to return the child to the Applicant father’s care. The child, who was living with her father, was also enjoying liberal and reasonable access with her mother. One day, the mother refused to return the child to the father, claiming that the father is not practicing appropriate social distancing measures, and the child is at risk being the father’s care at this time. The child suffers from a neuromuscular disorder with respiratory complications, which puts her in a position where there is an increased risk of contracting the virus.

In response to the mother’s claim, the father argued that no one in his house is leaving the house except to obtain necessities, and they are not having any visitors over. He also explained that the child’s paternal grandfather, who lives with the father, has asthma so everyone in the family was taking extra care to reduce the risk of infection.

The court determined that the mother had adopted a ‘self-help approach’ by breaching an existing court order. There was enough evidence from the father to establish that he is serious about safeguarding the health of the child during the COVID-19 pandemic.

Therefore, the medical conditions of a child alone will not justify a parent’s failure to return the child to the other parent. There must be specific and concrete examples as to why leaving the child in the care of the other parent causes a risk of harm to the child’s safety and well-being.

The Profession of the Parent: Does the parent’s workplace increase the risk of the parent, and therefore the child, contracting COVID-19?

What about parents who work in the healthcare industry? Are they presumptively more exposed than an average person to the coronavirus by the virtue of their career? A parent’s profession, on its own, may not be sufficient to meet the legal threshold for the suspension of access.

For example, in the case of Zee v. Quon, Justice Nakonechny ruled that the court is not convinced that parenting time should be suspended for the reason that the Applicant mother is a healthcare professional. In this case, the Respondent father refused to relinquish care of their child to the Applicant mother, even though there was a previously agreed parenting schedule, on the ground that she works as a physiotherapist at Sunnybrook Hospital. The father argued that the mother is of ‘high-risk profession’ in becoming exposed to the coronavirus, therefore parenting time with their daughter should be suspended indefinitely.

The court ruled that it is in the best interests of the child for her to spend time with both parents. In addition to the fact that the court was satisfied that the mother and Sunnybrook Hospital are well aware of the COVID-19 related protocols, Justice Nakonechny wrote that disrupting the status quo would signal to the child that her mother is incapable of caring for and keeping her safe throughout the crisis. 

It appears that the party asking for the court to suspend an ongoing access schedule on the grounds of the other parent’s profession must be able to show specific examples as to how their workplace would negatively affect the child’s well-being; just because a parent’s work requires him or her to be in contact with others – such as medical professionals, grocery store workers, or public transportation personnel – does not necessarily mean that the court will find that parenting time should be suspended for the duration of the coronavirus pandemic.

Understanding the Suspension of Access for Parents 

Unilaterally terminating a child’s access time with the other parent, or refusing to return the child to the parent with whom he or she primarily lives, even if triggered by COVID-19 concerns, can backfire without absolutely iron-clad reasons. Each case will turn on its facts, as a result, it would be most prudent to speak with a lawyer before making any rash decisions. If you are experiencing parenting difficulties or have concerns related to these issues, you should speak with a legal professional at Kain & Ball to find out what your parental rights and responsibilities are during these uncertain times. 

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, on how to find justice during a pandemic, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation about the suspension of access for parents with one of our experienced family law lawyers at Kain & Ball Family Law.

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