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In numerous ways our daily lives have had to be put on hold since COVID-19 and requirements to social distance must continue to prevail. In the recent case of Ribeiro v. Wright, 2020 ONSC 1829, Mr. Justice A. Pazaratz of the Hamilton Superior Court of Justice recently released the first endorsement with respect to family law and urgent matters of access dealing with COVID-19. In this case, an emergency and urgent Notice of Motion was brought by the Applicant on March 22, 2020, in addition to an Affidavit in support of the motion. The motion was brought seeking to suspend all in-person access due to COVID-19.

As this was the first case dealing with this issue, the court took time to ensure that they established the seriousness of COVID-19 and wanted to ensure that parents are maintaining access periods in good faith and with mutual respect to unnecessarily refusing access to the other parent.

The Court’s view

The court noted that now more than ever, children require the love and support of both parents, and existing parenting arrangements should be presumed to continue subject to any necessary modifications required to adhere to COVID-19 related precautions. The court noted that modifications could include one parent being in 14 day self-isolation as a result of recent travel or personal illness. In this case, the motion was brought due to one parent believing that the other parent would not obey the social distancing policy without sufficient grounds.

The triage judge did not authorize this mater to proceed as an urgent hearing at this time. While the court did not find that this case was urgent, it did acknowledge that any reckless exposure to COVID-19 would be met with zero tolerance. The court’s decision was without-prejudice to the issue being returned to court if more serious and specific COVID-19 related issues arise. Mr. Justice A. Pazaratz was of the view that suspending a child’s access to one parent may be contrary to their best interests due to the risk of emotional harm that can occur when a child does not get to spend time with both parents. 

Evidence required for an emergency/urgent motion during COVID-19

The court has stated that if a parent is concerned that COVID-19 creates an urgent issue relating to parenting, they are able to bring an emergency motion before the court, but they should not presume that raising such an issue in of itself will result in an urgent hearing. The procedure that the court will consider will include:

1. The parent bringing the urgent motion will be required to provide specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 precautions.
2. 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 including social distancing, use of disinfectants such as hand sanitizer, and compliance with public health and safety directives.
3. Both parents will be required to provide a specific and realistic time-sharing proposal, which should fully address all COVID-19 considerations, in a child-focused manner.
4. Judges will likely take judicial notice of the fact that social distancing is now becoming commonplace and accepted, given the number of public facilities that have now been closed as a result of the virus. The court was of the view that during these uncertain times, it would be beneficial for both custodial and access parents to spend time with their children in their home.

Your access during COVID-19

Parents should not use the COVID-19 epidemic as a reason to deny access to the other parent, and the best interest of the child is still of paramount consideration. Mr. Justice Pazaratz reiterated that during times of limited judicial resources, the court will be looking for evidence that parents have made good faith efforts to communicate, to show mutual respect, and to come up with creative and realistic proposals that demonstrate parental insight and COVID-19 awareness and precautions. 

If you are dealing with a complication arising from parenting/access and COVID-19 in relation to your family law and parenting matter, we invite you to contact a lawyer at our firm for more information about how we may be of assistance.

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.