A few weeks ago, we blogged about the case of Ribeiro v Wright which provides the foundation for parents asking themselves: how does access work during COVID-19? In this blog, we will discuss access questions that have arisen in the Court since that time.
Does access stop if one parent is a healthcare worker?
At this time, the Court has found that healthcare workers are aware of how to prevent transmission of infection. The Court has not ruled that healthcare workers should forgo access with their children.
How do parents know what standard of behaviour they will be judged on?
Parents are held to the standard of COVID-19 precautionary behaviour prescribed by government authorities at the time their actions took place. Courts have taken notice that these directions often change. Courts have declined to implement stricter standards for specific families without any overriding factors such as health conditions.
What if a member of the household is at a greater risk of COVID-19?
Parents might have to forgo access time or adjust the parenting schedule if the child or a member of their household is at greater risk of COVID-19.
If the child is at greater risk of COVID-19, the Court will want to see medical evidence indicating that the child’s condition requires special COVID-19 precautions beyond those required by the general public. Even if the child’s condition does require special precautions, those precautions could still possibly be accommodated within face to face access.
The Court might also change the access regime if a parent is at greater risk of COVID-19. For example, in Guerin v. Guerin, 2020 ONSC 2092 (March 31, 2020), the mother’s health problems required a higher standard of COVID-19 precautions and the father, who lived with her in the matrimonial home, refused to follow those precautions. The Court granted the mother exclusive possession of the house and suspended the father’s face to face access with the children.
What if one parent will not communicate with the other parent about COVID-19?
The Court has suspended access for parents who refused to communicate about COVID-19 concerns with their child’s other parent. The Court will expect parties to try and problem solve amongst themselves before going to Court.
What if one parent denies the other parent access because of COVID-19?
The Court is clear that parents should follow the pre-COVID-19 access arrangement. At the beginning of the COVID-19 pandemic Courts deemed withholding the child to be a non-urgent issue. However, in recent weeks, Courts are now deeming these matters urgent and allowing them to proceed to a full hearing or Case Conference.
Parents should be aware of the consequences of withholding the child over the other parent’s access time. Courts can award make up time or costs in response to one parent’s unjustified withholding. Parents should be aware that the Court may judge their actions as not in the child’s best interest after the pandemic is over.
This blog post was written by Kathleen Broschuk, a member of the Family Law team. Kathleen can be reached at 613-369-0362 or at kathleen.broschuk@mannlawyers.com.
