As a result of COVID-19, many parents have concerns about their parenting arrangements and access schedules. Should they send their child for parenting time with the other parent? Can they restrict access due to COVID-19? What are a parent’s rights if the other parent is refusing to comply with a court order for parenting time or access?

Until Tuesday, Canadian parents (and their lawyers) did not have any guidance from the courts as to how to handle these difficult questions.

On Tuesday, the Ontario Superior Court of Justice (Family Court) released the first decision in Canada with respect to COVID-19 in relation to parenting and access: Ribeiro v. Wright, 2020 ONSC 1829.

Justice A. Pazaratz was faced with an emergency notice of motion where the mother was requesting to suspend the father’s physical access to their nine year-old son. The existing court order provided the mother with primary care, and the father had access every second weekend. The mother said that she and her family were practicing social isolation and she did not want her son leaving the house for any reason.

The Ontario judge denied authorization for the motion to proceed on an urgent basis. The mother had not established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols. The judge noted, “A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.” He urged “both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.”

The main takeaway is that existing parenting arrangements should continue unless one of the following applies:

  1. The other parent is not willing to adhere to, and is not willing to provide their assurance they are adhering to, current COVID-19 safety measures including strict social distancing, use of disinfectants, compliance with public safety directives, etc.;
  2. The other parent is (or should be) self-isolating for any reason, e.g. due to travel, illness or exposure; or
  3. The other parent has significant personal risk factors, e.g. due to employment.

The Ontario judge made it clear that parents need to work together to balance (a) a child’s need to have the love, guidance and emotional support of both parents during these troubling times, with (b) a child’s physical health and safety.

Both parents must show a willingness to modify or suspend parenting time or how exchanges occur in order to address COVID-19 concerns.

COVID-19 parenting issues will be dealt with on a case-by-case basis. As Justice Pazaratz noted, “Each family will have its own unique issues and complications. There will be no easy answers.”