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As a parent, you might be wondering: “Can I stop following our access arrangement and keep the kids at my house due to COVID-19?”

What does social distancing look like when parents are separated? When we are constantly being told not to leave our homes and to limit non-essential travel, is it appropriate for one parent to stop allowing children to visit with the other parent?

In general, the answer is no.

Existing parenting arrangements should presumptively continue

In Ribeiro v Wright, one of the earliest cases addressing parenting arrangements and COVID-19, Justice Pazaratz of the Ontario Superior Court of Justice emphasized that parents should continue to respect and comply with existing access orders and arrangements.

The Court in Ribeiro denied the mother’s motion to suspend the father’s in-person access because of COVID-19. In that case, the parties’ nine-year-old son lived primarily with the mother, and the father had access on alternate weekends under a court order. The mother was concerned the father would not maintain social distancing, and she did not want her son to leave home for any reason, including to see his father.

In reaching its decision, the Court rejected a blanket policy that children should never leave their primary residence, even to visit the other parent, in light of COVID-19.

The guiding principle in custody and access matters is “the best interests of the child,” and the pandemic has not changed this.

The guiding principle in custody and access matters is “the best interests of the child,” and the pandemic has not changed this.

The presumption is that parents should continue to follow existing parenting arrangements and schedules, subject to any modifications necessary to adhere to COVID-19 precautions. In most cases, this means children should still travel between their parents’ homes.

Exceptional circumstances may require adjustments to parenting arrangements

In some cases, existing parenting arrangements will need to be modified. For example, if one parent:

  • is under 14 days of self-isolation due to recent travel, personal illness, or exposure to COVID-19;
  • has personal risk factors, such as through their employment or associations, that require controls with respect to their direct contact with a child; or
  • fails to comply with social distancing or other reasonable health precautions, raising sufficient concerns about the parent’s judgment.

The Court expects parents – and their lawyers, if applicable – to act responsibly and try to work together to resolve their parenting disputes, especially during this unprecedented time. Parents should make good faith efforts to communicate their concerns, and come up with creative and realistic solutions where possible. They should not assume they can simply withhold the children from the other parent.

Parents may bring urgent motions to deal with COVID-19 parenting issues

Although the Court has suspended its regular operations due to the pandemic, judges are still able to hear urgent family law motions remotely.

There is a high threshold to meet if a parent wants to bring an urgent motion to change existing parenting arrangements due to COVID-19. The parent initiating the motion will need to provide specific evidence or examples of the other parent’s behaviour or plans which are inconsistent with COVID-19 precautions.

The mother in Ribeiro did not satisfy this test. While her concerns about COVID-19 were well-founded, she could not establish a failure, inability, or refusal by the father to adhere to appropriate protocols to justify suspending his access with the child.

Ultimately, the Court will deal with COVID-19 parenting issues on a case-by-case basis. Every family, and each situation, is unique; there is no “one size fits all” answer.

If you have questions about access or other parenting issues, you should speak with a family law lawyer who can give you advice tailored to your particular circumstances. While our physical office is closed for the time being, we have remote services that allow full service to new and existing clients from the safety of their home.

Nelligan Law gratefully acknowledges the contribution of Grace Tran, Student-at-Law, in writing this blog post.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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