Child Custody and Access in the Era of Covid-19

Unsurprisingly, there have already been hundreds of decisions in Ontario which have custody and access to minor children, in the context of concerns about COVID-19. One issue which arises all the time is where one parent unilaterally restricts court-ordered access to a child due to concerns about COVID-19. However, this is unlawful. For instance, one judge has noted that “The COVID-19 pandemic is not a “trump card” that trumps an existing court order, allowing one parent to formulate his or her own “new order” as to the parenting time for the other parent.” Juergens v. Tackabury, 2020 ONSC 2852 (CanLII).

In fact, there are a number of factors which need to be taken into account in deciding whether any change to access or custody is warranted. This usually requires the cooperation and agreement of the parties, or ultimately, the intervention of a court.

The seminal decision on child access and custody in the era of COVID-19 is the Ribeiro decision. Ribeiro v Wright, 2020 ONSC 1829 (CanLII). Ribeiro dealt with whether and when existing custody and access arrangements should be varied due to the impact of COVID-19.

Significantly, Ribeiro has been quoted by over 100 other decisions to date and sets a framework for this sort of issue. There are a number of helpful points made in Ribeiro. Ribeiro started from the premise that “there should be a presumption that existing parenting arrangements and schedules should continue” and a parent “should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time”.

Therefore, Ribeiro explained that the ultimate goal was “to maintain important parental relationships” and “find ways to do it safely.” The above is not an absolute bar to a change in custody. For instance, Ribeiro also accepted that the presumption in favour of the status quo remains “subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.” For instance, “if the parent is subject to some specific personal restriction”, such as self-isolation due to “recent travel; personal illness; or exposure to illness” or where “a parent’s personal risk factors”, such as “employment or associations”, may require restrictions. In addition, “a parent’s lifestyle or behaviour in the face of COVID-19”, such as “failing to comply with social distancing; or failing to take reasonable health-precautions” may also be relevant. Ribeiro also expressed “zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk” or who fail to take “COVID-19 seriously.”

Ribeiro also noted certain other challenges which arise in the context of COVID-19 and children which may require practical solutions short of suspending access. For instance, the court noted that “exchange times may create their own issues”, in that “the social distancing imperative will have to be safeguarded.” The court accepted that “This may result in changes to transportation, exchange locations, or any terms of supervision.”

This raises the issue of when is it appropriate to approach a court to resolve a potential concern about a risk to the children due to COVID-19? Ribeiro accepted that any parent has a right to ensure that the other parent and his or her household is adhering to COVID-19 protocols “meticulously”. This includes “social distancing; use of disinfectants; compliance with public safety directives”. Importantly, the starting point is that parents should “spend time with their child at home” (and therefore, not venture out unnecessarily).

However, a concerned parent cannot make a vague, unsubstantiated allegation that the other parent is not complying with COVID-19 protocols. In fact, Ribeiro explained that the objecting parent “will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.”

Importantly, the mere fact that COVID-19 impacts on society and children at large is not a reason to alter the status quo. The circumstances must be out of the norm. For instance, one judge explained that an objecting parent has “to do a lot more” than claim “I’m afraid of COVID-19” or that the “child is afraid of COVID-19”. Brazeau v. Lejambe, 2020 ONSC 2843 (CanLII).

Importantly, a parent does not necessarily have to live up to the level or standard of safety set by the other parent. Indeed, one judge accepted that “Reasonable people can differ as to the precautions to be taken.” McMurray v. McMurray, 2020 ONSC 2949 (CanLII).

In addition, even legitimate concerns are not a reason to immediately rush to court, without a rational discussion with the other parent. For instance, Ribeiro implored “parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.” This requires “good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”

Moreover, concerns about the response of the other parent to COVID-19 should not be approached in an adversarial manner. Ribeiro confirmed parents are expected to act reasonably and make reasonable proposals for “realistic solutions”, including “very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner”.

Indeed, the consequence of rushing to court may be that the allegations made against the other parent are wholly unsubstantiated. For instance, one judge denied the mother’s request to require the father’s access to be supervised where she “failed to provide specific evidence or examples of behaviour by [the father] that are inconsistent with COVID-19 protocols and that would warrant an order for supervised access.” Dehaan v. Billings-Turner, 2020 ONSC 3002 (CanLII).

Of course, there will be situations where there is no alternative, but to temporarily terminate in-person access by one parent entirely. For instance, in one case, both parents resided in the matrimonial home. The mother wished to self-isolate, due to her particular vulnerability to COVID-19. She sought exclusive possession of the matrimonial home and to terminate the father’s in-person access to the children. The court accepted that the father “leaves the home continuously and returns without advising [the mother] where he went or does not wash his hands upon his return to the home” and that he “failed to provide sufficient details and explanations for his numerous absences from the matrimonial home”. The court also accepted that “his attitude to the mother in not responding to her requests as to locations and to wash his hands, has placed her and the children at risk” and “places undue stress on the mother”. Therefore, the mother was granted exclusive possession of the matrimonial home and the father’s in-person access to the children was temporarily terminated. Guerin v Guerin, 2020 ONSC 2016 (CanLII).