“Right now, families need more cooperation and less litigation.” So said Justice Alex Pazaratz of the Ontario Superior Court in his recent ruling Ribeiro v Wright, where he refused to hear a mother’s urgent motion to suspend a nine-year-old’s access with the father on the basis that, given the coronavirus crisis, “she doesn’t want her son leaving the home for any reason – including seeing the father.” While her concerns about the virus were “well-founded,” said the judge, “I am not satisfied that she has established a failure, inability, or refusal by the father to adhere to appropriate COVID-19 protocols in the future.”

He indicated he might have ruled differently if, say, the father had been subject to some specific personal restriction such as “self-isolation for a 14-day period as a result of recent travel, personal illness, or exposure to illness,” or if the father had “personal risk factors (through employment or associations, for example) that require controls with respect to his direct contact with a child,” or if the father’s “lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing, or failing to take reasonable health-precautions) raised sufficient concerns about parental judgment that direct parent-child contact would have to be reconsidered.” In the case at bar, however, there was no specific evidence establishing any of these things.

Following this lead, in Skuce v. Skuce Justice Justice Adriana Doyle ruled against a mother who, on the basis of virus fears, unilaterally terminated in-person access between the father and the parties’ three children (aged seven, five, and three) and instead allowed only video-calling on Facetime. “Children will benefit from being nurtured and comforted by both parents who have been part of their lives,” said the judge. “This routine should only be disrupted if evidence has been established that the children’s health and safety are at risk.” The evidence here pointed contrariwise. “The father has agreed to abide by the COVID-19 protocol,” the judge found. “This includes ensuring regular hand washing, using hand sanitizers, ensuring that the children maintain their social distance with others and complying with public safety directives.”

The mother “is essentially wishing to resile from the access agreement due to the intervening world events,” the judge chided. “There is a consent order. The mother has chosen not to respect it. She has engaged in a self-help remedy despite a clear consent order that was filed a few days ago. The court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.”

A similar ruling was made by Justice Clayton Conlan in Le v. Norris, where the mother unilaterally terminated the child’s court-ordered access with the father for various reasons, including his “allegedly harassing and stalking her;” her “alleged fragile mental health;” and “the ongoing COVID-19 crisis.” Ruling that the existing access order must be complied with, and adding police enforcement to it, the judge noted that any virus concerns could be addressed through “responsible adherence” to the existing order.

“What do I mean by ‘responsible adherence to the existing court order?’ I mean being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them, nor the child, contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by the child. Neither party shall do anything that will expose him/herself or the child to an increased risk of contracting the virus.”

With the pandemic creating such big challenges for shared parenting, the Association of Family & Conciliation Courts (AFCC) has released helpful guidelines which include the following: comply with court orders and custody agreements; follow virus protocols such as hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing; be honest with children about the seriousness of the pandemic, but maintain a calm attitude and convey to them your belief that everything will return to normal in time; provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure; try to provide makeup time to the parent who missed out, if at all possible (judges expect reasonable accommodations to be made, and will take seriously concerns raised in later court filings about parents who are inflexible in these highly unusual circumstances); and if the current economic means support cannot be paid in full, payors should pay what they can, and payees should try to be accommodating under these “challenging and temporary circumstances.”

A good overall summary of the pandemic situation was provided by Justice Pazaratz in Ribeiro, above: “We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”

This is indeed a very stressful and challenging time for all of us, and for those who are experiencing relationship and marital difficulties, including issues with children, parenting time and economic upheaval, all the more so. If you are looking to move forward with settling your marital/common law relationship issues, there are a number of out-of-court options to help you now, such as traditional settlement negotiations, collaborative practice, and mediation. We are working remotely using apps such as Zoom to hold meetings and discussions. A lot can be accomplished to help you move forward during this difficult time, and we are here to help.

For advice on family law issues and fertility law issues, contact Shirley Levitan.