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Enforcing Child Access Rights During Covid-19

A recent topic that has currently arisen in family law involves how parents can deal with traditional (or non-traditional) access for their children during the current COVID-19/Coronavirus pandemic.  For example, a parent who has an agreement or court order for primary residence of a child usually would also have an agreement for alternating overnight weekend access with the other parent.  There usually is some sharing of access time between the parents.  With any access arrangements, child(ren) go back and forth between the parents houses.  But how is this possible in the case of social distancing, self isolations and quarantine?  Also, how do you know that the other parent will be practicing social distancing themselves and wont expose the child to the coronavirus?  If a child is exposed s/he may not be showing any symptoms yet and still pass it on to the other parent in the access arrangement.  These are real issues and the case law on these issues is only beginning to emerge in the law.  The latest case that was just released is a Hamilton case by Justice Pazaratz from the Superior Court of Justice in Hamilton dealt with these issues.  In this case, the exact issue was attempted to be brought by the mother who was the primary residency holder of her 9 year old boy.  She was attempting to block the father’s weekend access for concerns over the fact that the father would not take precautions to social distance and the child could be exposed to Covid-19 during the access time.  Ultimately, Justice Pazaratz refused to declare this case to be an urgent matter and was not satisfied on the basis of the mother’s evidence that the father would not adhere to social distancing practices.  The Superior court of Justice and similarly the Ontario court of justice are basically shut down during the Covid-19 crisis plaguing the province of Ontario and the rest of Canada.  However, only extremely urgent matters are proceedings.  The cut off at this point in time is extremely high.  That is to say, only the most urgent and pressing matters will make their way to the court considering the courts are basically closed at the moment.  Extreme vetting is occurring.  Some important and interesting takeaways from this case are as follows:

 

  • Para 9: “Parents are understandably confused and worried about what to do. Similarly, this is unchartered territory for our court system.  We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotion well-being of children.”
  • Para 10: “But children’s lives – and vitally important family relationships – cannot be placed on hold indefinitely without risking serious emotional harm and upset.  A blanket policy that children should never leave their primary residence – even to visit their other parent – inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting, children need the love, guidance and emotional support both parents, now more than ever.”
  • Para 11: “ 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 COVID-19 precautions are adhered to – including strict social distancing.”
  • Para 17: “ Each family will have its own unique issues and complications. There will be no easy answers.”
  • Para 18: “But 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.”
  • Para 21: “We will deal with COVID-19 parenting issues on a case by case basis.”
  • Para23: “What we’re looking for is realistic solutions.  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.”

So as you can see this is a brand new case dealing with the issues I discussed above.  Every case will be dealt with on a case by case basis.  The legal landscape is evolving daily on this issue and by the time you read this article, this judgment may be overturned, but I suspect it will remain good law since the Judge who authored the judgement is a highly respected one (and the ruling seems to be reasonable).  If you are currently in a similar situation and are looking for some legal advice, please give my office a call at 905-789-9007 or send me an email at avi@baratzlaw.com and I would be happy to schedule a free confidential consultation either by telephone or in person.

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