Do COVID-19 Restrictions Affect Child Custody and Access?
By Timothy Henderson | February 16, 2021
With the assistance of law student Connor Cameron
We are currently in the throes of a worldwide pandemic that has turned just about every routine upside down. Parenting arrangements for children between separated parties have been no exception. Here is a very common question that we now see: if I’m a parent with a parenting order or agreement in place who is concerned about my former partner’s employment situation, life circumstances, or “COVID practices,” can I deny them access?
Access Usually Stays in Place During COVID-19
Generally speaking, the answer to that question is “no.” An Ontario court decision from March 2020, named Ribeiro v. Wright, ruled that an existing parenting order is a recognition that the non-custodial parent having access to the child is in the child’s best interests and that there is a presumption that this existing arrangement should continue. In support of this presumption, the court stated that in challenging times such as these (referring specifically to the pandemic and the various difficulties it has created), children will need the love, guidance and emotional support of both parents, now more than ever.
Times When COVID-19 Restrictions Can Affect Access
It is worth noting though that the court did outline three circumstances where a parent may have to forego their access with their children, or where controls may be required:
- If a parent is subject to some form of specific personal restriction (such as personal illness, exposure to others with illness, or being in a period of self-isolation as a result of recent travel);
- A parent’s personal risk factors (for example through their employment or associations), may require them to limit their direct contact with their children; or
- “Sadly,” wrote the court, “in some cases a parent’s lifestyle or behaviour in the face of COVID-19… may raise sufficient concern about parental judgement…” (such as the parent’s failure to comply with physical distancing or failing to take reasonable health precautions).
The court stressed that if a parent is concerned that the COVID-19 pandemic creates an urgent issue they should bring an emergency motion before the court. However, a parent should not presume that the existence of the pandemic will automatically result in a suspension of in-person parenting time or that they are entitled to unilaterally make that decision completely on their own. The court also emphasized that parents should not assume that raising COVID-19 considerations will even result in their being granted an urgent hearing.
This decision highlighted the importance that parents be willing to work with each other to find realistic solutions to the challenges posed by COVID-19. The courts will be looking to see if parents have been making efforts in good faith to communicate, to show each other mutual respect, and to come up with creative and realistic proposals which demonstrate – in the words of the judge – both their “parental insight” and “COVID-19 awareness.” As always, the bottom line will be your own child’s best interests!
Coping with Blended Households during COVID-19
If you or your ex-partner live with a new spouse or partner, there may be extra layers of complexity, such as the introduction of step-siblings and additional households into the equation (including partner’s partners and their children and ex-spouses, etc.) This can lead to multiple situations with expanded contact!
The Ontario cases that have dealt with this issue suggest that such situations will be treated on a case-by-case basis, depending on the circumstances. Again, the ultimate consideration will be what is best for the child(ren) about whom the court is making the decision.
In one Ontario decision called Lovric v. Olson from April 2020, the court ruled that the children’s chance of contracting COVID-19 did increase with exposure to four separate households (their mother’s, father’s, father’s new partner, and father’s new partner’s ex-partner), but that the risk could be managed with “appropriate safety precautions” and compliance with COVID-19 protocols. Thus, the continued access between the two households was permitted to continue as it had been.
On the other hand, the May 2020 Ontario matter of Cromwell v. Lucier saw the opposite result, with the judge ruling that people who didn’t live there could not be in the father’s residence when it was his four-year-old daughter’s turn to be with him. This included the child’s older step-siblings, who did not reside with the father but who typically spent time with him when their step-sister did.
COVID-19 and Your Child’s Best Interests
The takeaway from these cases, and the cases which have followed, is that the COVID-19 pandemic creates a number of different considerations for permitting access for your children between you and your ex-spouse, however, the presumption will be that parenting time will proceed as scheduled, and this will always be determined with a primary focus on your child’s best interests.
If you have concerns about your custody or access situation in light of the COVID-19 pandemic, or any other issue related to the impact of COVID-19 on your parenting arrangement or court order, please contact us to schedule an appointment to discuss your legal options.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.