Family law lawyers are being asked a lot of questions about the impact of COVID-19 on support and parenting issues, and are able to offer few answers. It’s unclear when we will return to a semblance of normalcy. In the meantime, courts remain open to urgent matters and are issuing a trickle of judgments illustrating the types of matters that deserve urgent adjudication.
The following principles can be extracted from these judgments:
- Outright denials of parenting time may be dealt with on an urgent basis, as may major unilateral changes to the status quo: Le. v. Norris, 2020 ONSC 1932; C.Y. v. F.R, 2020 ONSC 1875.
- Orders for the return of children to Canada may be heard and granted: Smith v. Sieger, 2020 ONSC 1681.
- Applications to return children from Canada to another country are not urgent and not likely to be granted, in light of the near-total end of international travel: Onuoha v. Onuoha, 2020 ONSC 1815; Johansson v. Janssen, 2020 BCSC 489.
- The fact that a judge makes a preliminary decision that a matter is suitable for urgent hearing does not preclude a judge hearing the matter on its merits from concluding the matter is not urgent after all: Onuoha v. Onuoha, 2020 ONSC 1815; Johansson v. Janssen, 2020 BCSC 489.
- Court orders remain in place and parties are still obligated to comply reasonably with them, including orders respecting support: Baker and Maloney, 2020 ONSC 1929.
- Parenting orders must be “responsibly adhered to”, meaning that (1) physical distancing measures must be respected; (2) parties must do whatever they can to ensure that neither of them nor the child contracts COVID-19; (3) every precautionary measure recommended by governments or health authorities must be taken; and (4) neither party should do anything that will expose themselves or the child to an increased risk of contracting the virus: Le v. Norris, 2020 ONSC 1932.
- Parenting orders need suspension or alteration where a parent’s personal restrictions so require (for example, recent travel or COVID-19 symptoms); where a parent’s personal risk factors so require (such as type of employment or associations); or where a parent is demonstrably failing to comply with social distancing or other requirements: Robeiro v. Wright, 2020 ONSC 1829.
When a parent brings an application to alter or suspend parenting on COVID-19 related grounds, the court in Ribeiro v. Wright, 2020 ONSC 1829 held that:
- 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;
- 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; and
- Both parents will need to provide specific and practical time-sharing proposals that address COVID-19 concerns in a child-focused manner.
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