Can you restrict parenting due to Covid-19 concerns?

Recent decisions on parenting issues during the pandemic:

It is unquestionable that social distancing is crucial to the fight against the Covid-19 pandemic. However, can a parent restrict access to another parent because of concerns that the parent might not be practicing safe distancing? There is currently no directions in British Columbia about how to approach parenting arrangements when the practice of social distancing is a concern. A recent decision by Justice A. Pazaratz in the Ontario Superior Court of Justice case of Ribeiro v. Wright, 2020 ONSC 1829 (“Ribeiro”) may provide some guidance on this issue.

In Ribeiro, a mother, who is the primary caregiver of a 9 year old child, sought to amend an existing court order which provides access to the father on alternate weekends. The mother brought an urgent application to the Court seeking to suspend the father’s parenting time because of concerns that the father might not be practicing proper social distancing while parenting. Pazaratz J. refused to allow the motion and found that mother’s concerns that the father would not exercise social distancing did not meet the high test of urgency. He found that parents “…should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.”

Pazaratz J. held that there is a presumption that all orders should be respected and complied with and that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

With respect to the practice of social distancing while exercising parenting time, Pazaratz J. stated that:

“[8] …. the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

[9] Parents are understandably confused and worried about what to do.  Similarly, this is uncharted territory for our court system.  We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

[10] None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved.  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 – is inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

[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 all COVID-19 precautions are adhered to – including strict social distancing.

[12] In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

[13] In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

[14] And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  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.

[15] Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.”

The gist of Pazaratz J.’s reasons regarding social distancing is that there is a prima facie presumption that pre-existing parenting arrangements and scheduling will continue unless a  parent can show that there are specific risks of a child being exposed to the Covid-19 virus if the other parent is allowed access.

Pazaratz J. decided that urgent application dealing with COVID-19 parenting issues are to be dealt with on a case-by-case basis. In order for a parent to succeed in bringing an urgent application,

  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; 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 child at home.

 

In British Columbia, both of the family courts in Provincial Courts and Supreme Court are closed until further notice, unless a family matter is considered to be urgent.

The Supreme Court considers the following to be urgent matters to be:

  1. Orders relating to the safety of a child or parent due to a risk of violence or immediate harm (e.g., a protection order, conduct orders, or exclusive possession of the home);
  2. Orders relating to the risk of removal of a child from the jurisdiction (e.g., relocation, non-removal, wrongful removal, or retention of a child); and
  3. Orders relating to the well-being of a child (e.g., essential medical decisions, urgent issues relating to parenting time, contact, or communication with a child that cannot reasonably be delayed).

The Provincial Court considers the following matters to be urgent:

  1. requests for urgent relief relating to the safety of a child or parent;
  2. requests to obtain or set aside protection orders, or urgent orders involving parenting time, contact with a child or communication between parties;
  3. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to relocation, non-removal, wrongful removal or retention of a child;
  4. applications to suspend, change or cancel any order for imprisonment or committal pursuant to the Family Maintenance Enforcement Act;
  5. in a child protection case, all urgent matters, including applications for supervision orders and for extension of time, and any other urgent motions or hearings; and
  6. urgent cases where irreparable harm will occur if the application is not heard.

In both the Supreme Court and the Provincial Court, urgent matters are heard over a telephone conference. If a parent in British Columbia wants to be bring an urgent application to court dealing with COVID-19 parenting issues, an application can be submitted online to determine if the matter is urgent. Each application is determined on a case-by-case basis.

In the recent British Columbia case of Johansson v Janssen, 2020 BCSC 469, the Honourable Mr. Justice N. Smith decided that it remains for the judge or master hearing the application to determine whether a case is in fact urgent and can be appropriately decided during the current state of emergency. Smith J. stated that “[i]ssues to be considered on the question of appropriateness may include the practical utility of any order, difficulties faced by parties in obtaining necessary evidence, and the possibility of changing circumstances as the emergency situation evolves.”

The take away from the above is that a parent cannot simply refuse to provide access to another parent just because they have concerns that the other parent might not be practicing social distancing protocols. The parent looking to restrict access must have specific evidence or examples of the other parent’s behaviors that are inconsistent with the COVID-19 protocols. If the other parent’s behaviors are inconsistent with the COVID-19 protocols, then it is recommended for the parent seeking to refuse access to make an urgent application to court to obtain an order. Denying a parent’s time with a child without a court order may very well lead to adverse consequences at future stages.

The ideal approach remains one of open communication with the other parent. As Pazaratz J. pointed out “[r]ight now, families need more cooperation. And less litigation.”

Crease Harman’s family law team is here to discuss parenting, or any other family law issue with you throughout this crisis. We have measures in place to maintain social distancing, and are happy to speak with you today.

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