Due to COVID-19, the courts have largely shuttered their doors except for urgent matters. And now the first cases to consider what counts as “urgent” are coming out and providing at least some guidance to families as we continue to navigate these uncharted waters.
Ribeiro v. Wright, 2020 ONSC 1829, begins to answer a question on the minds of many: if I am concerned that my ex-spouse is not taking COVID-19 seriously enough, can I refuse court-ordered parenting time?
The answer is an unequivocal maybe.
Ribeiro is a decision of a “triage” judge in the Superior Court of Justice (Family Division) in Hamilton, Ontario. Triage judges are tasked with deciding whether or not a given motion deserves “urgent” hearing.
In Ribeiro, the parties had joint custody, with the mother having primary residence and the majority of the time with the child. The father had access every other weekend. The mother brought an urgent motion to suspend the father’s in-person access because of COVID-19. The mother was concerned that the father would not maintain social distancing for the child. Further, the mother’s household was practising social isolation in their home for the duration of the COVID-19 crisis, and the mother would not let the child leave the house for any reason, including to see the child’s father.
Justice Pazaratz found that these circumstances were decidedly not urgent and did not require hearing. The court’s reasons are short and are highly empathic towards families and litigants, but can be distilled to the following points:
1. There will be a presumption that existing parenting arrangements and schedules should continue, subject to any modifications necessary to ensure that all COVID-19 precautions are adhered to—including strict social distancing.
2. Where individual circumstances require, parents may have to forego their parenting time (or alter how it is carried out) for reasons including the following:
a. A parent’s personal restrictions may require a suspension or alteration of parenting time. For example, where a parent is under self-isolation due to travel, illness, or exposure to illness, regular parenting time probably cannot proceed.
b. A parent’s personal risk factors (e.g. employment or associations) may require “controls” with respect to their direct contact with a child. I assume Justice Pararatz has in mind persons in high-risk occupations, such as health-care providers and first responders.
c. A parent’s lifestyle or behavior may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. If a parent is demonstrably not complying with social distancing or failing to take reasonable health precautions, their parenting time may have to be limited or abridged.
3. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion. There will be no presumption, however, that the existence of COVID-19 will result in a suspension of the other parent’s parenting time, or even that the court will agree the issue should be heard.
4. The Court will be dealing with COVID-related concerns on a case-by-case basis, as follows:
a. 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. It will not be enough to raise generalized concerns about COVID-19.
b. The parent responding to such an urgent motion needs to demonstrate and reassure the court that COVID-19 safety measures–including social distancing—will be followed to the letter.
c. Both parents will need to provide specific and practical time-sharing proposals that address COVID-19 concerns in a child-focused manner. In other words, both parents will have to explain to the judge how they are going to make parenting work for their family.
Justice Pazaratz declined to hear the mother’s motion, as there were no serious or specific COVID-19 related concerns. The court pointedly encouraged the parents to work together to find a more cooperative and conciliatory means of resolving their differences. As the court put it, “None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”
At this stage, then, concerns about the impact of COVID-19 on parenting time may indeed justify an urgent application. Those concerns will need to be specific and individual to the circumstances, and a parent seeking to raise this issue will need to present a clear and compelling plan for parenting time during the outbreak. Both parents must take COVID-19 utterly seriously and do whatever is needed to keep their families safe.
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