Co-Parenting During the COVID-19 Pandemic

By Grace Sun

Since the Ontario government announced a “lock down” and ordered Ontarians to stay home in order to halt the spread of the COVID-19 virus, many parents who are separated and have existing court orders (or parenting agreements in place) have withheld children from the other parent alleging that it is too dangerous for their children to travel between the parents’ homes.

Beginning in late March 2020, the courts - despite being closed to the public - have heard many “urgent” cases involving the withholding of children in violation of either: 1) existing agreements, or 2) binding court orders.  The general message being communicated by the courts to counsel and parents alike is that it is inappropriate to disregard existing agreements or court orders that have been negotiated or considered at length and which have been determined to be in the children’s best interests. 

In general, the courts have followed the guidelines set out in the early COVID-19 pandemic decision of Ribeiro v. Wright which requires a parent to provide specific examples and/or evidence of behavior by the other parent that is inconsistent with COVID-19 protocols.  If the other parent agrees to provide absolute assurance that COVID-19 protocols will be meticulously followed, then there is generally no right of any parent to breach the terms of a parenting order or agreement.  Even if there is no agreement or court order, the principle of “maximum contact” with both parents continues to be deemed to be in a child’s best interest pending evidence to the contrary.

A recent decision of the Honourable Justice Wilcox involved the enforcement of a final order from which the children were in the primary care of the mother subject to a rotating weekly access schedule with both parents. After the pandemic reached Ontario, the mother asked the father for clarity regarding his adoption of COVID-19 precautions. The father responded in a confrontational, undetailed manner which caused the mother to assume that the father was not taking COVID-19 precautions seriously, and that as a result, the children may be at increased risk of infection. 

Consequently, the mother withheld access to the father despite not having specific evidence that the father was exposing the children to an increased risk of COVID-19 infection.   The court concluded that – notwithstanding the mother’s concerns - the father’s parenting time was to resume as the mother did not have the necessary and specific evidence that the father was ignoring COVID-19 protocol.

Similarly, in the recent Chahine v. Martins decision, the parents of a four-year-old child had recently separated and there was no existing court order or agreement to govern either access or decision making.  There was no dispute that the father was an active participant in the child’s upbringing; however, the mother – citing COVID-19 related concerns - refused to allow the child to enjoy in-person access with her father after learning that the father had left the home for a month.  The court re-affirmed that it is “in the child’s best interests for her parents to have shared and equal parenting time with her [and that] the parties are to alternate caring for the child on a weekly basis” as there was no evidence that the father had not been complying with COVID-19 protocol.

 

** This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.