Can I not send my child to the other parent because I am concerned about COVID-19?
Ribeiro v Wright, 2020 ONSC 1829 (Ont. S.C.J.)
Background: The parties in this case shared guardianship of their child. The child’s primary residence with the mother. The mother applied to suspend the father’s parenting time as a result of concerns relating to COVID-19 as she was concerned that the father would not follow recommendations and social distancing. The mother took the position that the child should not leave the home at all, including for time with the father.
Given court closures across the country, the court declined to allow this matter to an urgent hearing and noted the following:
- These are extraordinary times and this is unchartered territory for parents and the court system. In a time like this, children need love, guidance and emotional support from both parents;
- Even though the health and safety of children and families is a consideration for the court’s during this pandemic, there is a presumption that court orders should be complied with;
- With this, there is a presumption that existing orders reflect a determination that meaningful contact with both parents is in the best interests of children;
- Children’s lives and family relationships cannot be put on hold without risking serious harm and upset. Adopting a policy that a child should never leave their primary residence, including to attend the home of the other parent, is inconsistent with the child’s best interests;
- In some situations, parents may have to forego their times with children. An example of this is if one parent is symptomatic or has returned from recent travel. Additionally, in the case of whether a parent works in health sector and could be exposed to COVID-19;
- In some cases, a parent’s lifestyle or behaviour during these difficult times, could rise to a level of sufficient concern to suspend parenting time; however, each case and the facts need to be looked at individually;
- We need to find ways to maintain important parental relationships and how to do so safely;
- We need to work together and problem solve reasonably as there are limited judicial resources and the landscape changes hourly/daily; and,
- If an application of this nature is brought, the courts will look at attempts made by the parties to resolve issues between them.
In this Ontario case, the court did not find that the mother has established a failure, inability or refusal by the father to adhere to recommendations.
What I take from this case is that courts order remain in effect. Try to work together to find a solution and be child-centric. Subject to extraordinary circumstances, like a parent refusing to adhere to recommendations whatsoever, build a plan to exchange your children safely.
I will update as further cases come out.
