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These are unprecedented times. As I write this article, Canada has 3,385 confirmed cases of the novel coronavirus COVID-19, and as you read this article that number is bound to be higher – perhaps exponentially higher. All non-urgent matters in the Ontario courts have been suspended, with only “urgent” matters being heard, by teleconference.

As a family law lawyer, I have been grappling with what to tell my clients when they ask whether access should be suspended or altered during this pandemic. My feeling to date has been that the ordinary schedule should continue, with both parents taking all reasonable steps they can to reduce the risk to their child(ren) by practicing “social distancing” as recommended by the Canadian government. This seems especially important for “blended” families, since the children of blended families are regularly exposed to a larger group of people, as step-siblings go back and forth between different homes.

Thankfully, we have recently received some guidance from the Ontario Superior Court in Ribeiro v. Wright, in which Justice Pazaratz provides some guiding points as to what the Court will expect from parents during this strange and difficult time. Some of the main guiding points from this case can be summarized as follows:

  • In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
  • In some cases, custodial or access parents may have to forego their times with a child, if a parent is subject to some specific personal restriction (for example under self-isolation as a result of recent travel, personal illness, or exposure to illness).
  • 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.
  • Transitional arrangements at exchange times may create their own issues, and this may result in changes to transportation, exchange locations, or any terms of supervision.
  • In blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former or new relationships.
  • No matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.

As a parent, you are concerned about your children. It is reasonable to expect your former partner to take this virus seriously and keep your children as safe as reasonably possible. It is not reasonable, however, to take advantage of the situation as an excuse to deny access to a parent who is taking the appropriate precautions. At paragraph 23 of this decision, Justice Pazaratz summarizes nicely what the Court expects of parents during this difficult time. “We will be looking to see if parents have made 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.

You must also keep in mind that although these are real and pressing issues for your family, every part of our community is struggling to deal with COVID-19, including our Court system. The Court only has capacity at the present time to deal with urgent family law motions. This includes child protection matters, and all other urgent issues that come before the Courts in ordinary times. You should not assume that your motion will be considered “urgent” just by raising COVID-19 concerns. We all need to do what we can to resolve these issues outside of Court, whenever possible. This need is highlighted by Justice Pazaratz in paragraphs 22 and 29, “… with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedingsI hope that both parents will understand the limitations of the family court process at this critical time.

If you are initiating a Motion regarding COVID-19 concerns, the following additional procedural guidance has been set out by Justice Pazaratz in paragraph 21:

  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; the 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 children at home.

This decision is extremely well-written, and I would encourage any parent struggling with COVID-19 concerns to read it in its entirety. As a final point, I would like to highlight two important points from paragraphs 27(e) and 30 of this decision, which I hope parents will take to heart as we work through these issues together:

Right now, families need more cooperation. And less litigation.

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.”

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