How to Co-Parent in a Pandemic: Advice from the ONSC on Custody, Access and Urgent Motions

 In Family Law

Many parents are wondering how to proceed with custody and access arrangements given the current COVID-19 situation. In Ribeiro v Wright  the Ontario Superior Court of Justice recently provided guidance to families on this important topic. In this blog, we will review the Court’s comments and discuss how families should approach pandemic parenting.

Ribeiro v Wright involved parents who share custody of a nine-year-old boy. The Court denied the mother’s request for an urgent motion to suspend the father’s parenting time due to COVID-19. The mother was specifically concerned that the father would not enforce proper social distancing for the child. Additionally, her household practiced social isolation and she did not want the child leaving her home.

In making its decision, the Court emphasized that parents should respect and comply with existing access orders. However, it would stand to reason that the Court would take a similar approach regardless of whether the parenting time is established by way of order, agreement, or status quo. The overall goal is to respect a child’s routine and protect their time with each parent. This means that parents should proceed through COVID-19 according to the usual access schedule, however established, with any necessary modifications. These modifications might include finding new transportation; agreeing on a temporary location for transitions; or arranging for an alternate access supervisor.

The Court rejected the idea that a child should not travel between households because of COVID-19.  In some cases however, parents will have to forgo time with their child if they have a high-risk job or if they must self-isolate due to travel or illness. Though not discussed by the Court, parents should consider using creative solutions such as FaceTime to facilitate parent-child communication in these situations.

Parents will also need to forgo time with their child if they refuse to practice COVID-19 precautions such as social distancing. The Court took a firm stance against this type of behavior stating that “there will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.”

The Court’s general view during this time is “more cooperation, less litigation.” However, if parties need to bring an urgent motion for a COVID-19 reason, the Court will want to see that the parties tried to solve the problem by communicating with each other and coming up with “realistic proposals which demonstrate both parental insight and COVID-19 awareness.”  If a party brings an urgent motion for a COVID-19 reason, the Court will take the following approach:

  1. “The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
  2. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
  3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
  4. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.”

Essentially, parties should adopt a child focused approach to COVID-19 parenting. This means allowing a child to spend time with both parents, as usual, provided that it is reasonably safe. Parents need to communicate to find a workable solution to carry them through these uncertain times.

If you require assistance with a family law matter related to COVID-19, our offices remain open and able to assist clients.

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.

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