In the context of a legal separation, parties struggle, at the best of times in reaching an agreement on what parenting schedule represents “the best interests” of their children.
There are no hard and fast rules when addressing a child access schedule between separated parents, however, there are many factors that are considered in determining a parenting schedule.
In my 16 years of practicing family law, I continue to be surprised by the variety of child access schedules that my clients have crafted with their separated spouses.
Gone are the days of the cookie cutter child access schedules such as every second weekend and one night a week with dad or mom. Parents may choose a continental schedule, one week on and week off, 2 -2-3 on a two-week rotating basis or three weekends out of four with one parent. These are just some examples where parents reach creative solutions that work for their specific child’s interest.
Clients are usually sophisticated in dealing with child access issues and act objectively when it comes to addressing differences of opinion with their separated spouse. It is when one or both parents are not able to work cooperatively, (to craft a parenting schedule which addresses the child’s interests) that a Family Court Application is necessary, resulting in judicial input or intervention.
Recently, in the context of the current COVID-19 Pandemic, a topic has emerged in my practice and to a limited degree in the case law. There is a belief of some, that frontline healthcare workers represent an unreasonable risk to the health and welfare of their children. This position, taken to its extreme, suggests that healthcare workers’ access to their children should be suspended indefinitely until the COVID Pandemic has run its course.
Anecdotally, stories have emerged in the worldwide media of emergency room doctors and healthcare providers choosing to self-isolate in residence halls and other housing, in an effort to eliminate any risk posed to their own children. Certainly, these measures will limit risk of exposure of COVID-19 to the healthcare providers’ family but are they reasonable, and further, are they responsible?
In the context of separated spouses, the news of these dramatic measures begs the following question for some: Should my healthcare spouse’s access to the children be suspended until the Pandemic is over?
At a glance, some might see the suggestion as logical. However, the lessening of the risk of harm that exposure to COVID-19 poses to children (if that is quantifiable) ought to be balanced against the harm resulting from a parent being absent from a child’s life for an extended, or even limited, period of time.
In these instances, it is important to return to first principles of the law surrounding Custody and Access.
Separated parents use a common phrase of the “best interests of the child”. It bears repeating this is a term legislated by statute and has a defined meaning. According to the Children’s Law Reform Act, the
court considers the following factors when determining issues surrounding custody and access as well as the “best interests of the child”;
a) the love, affection and emotional ties between the parent and child and other persons involved in the child’s upbringing
b) the child’s views and preferences if they can be ascertained.
c) the length of time that a child has lived in a stable home.
d) The ability of each parents to provide the child with guidance, education and necessaries of life and any special needs of the child.
e) the plans proposed for the child’s care and upbringing.
f) the permanence and stability of the proposed plan
g) the ability of each child to act as a parent.
h) the relationship of each applicant to the child.1
The Divorce Act also provides a concept known as the Maximum Contact principle which stands for the proposition that a child should enjoy a schedule of access which maximizes the child’s time with both parents, as long as it is consistent with the best interests of the child.2
The “Maximum Contact” Principle appears in the Divorce Act but does not appear in the Children’s Law Reform Act (which applies to common law relationships). However, it appears that the courts will consider the “Maximum Contact” principle in concert with the best Interests of the children legislation in instances of children of common law relationships.3
Recent COVID-19 Case Law
On March 15, 2020, the Chief Justice of Ontario released a Notice to the Legal Profession resulting in the regular suspension of regular Superior Court of Justice, Family Court operations. As of March 17, matters being heard were limited to specific proceedings including urgent child protection proceedings and restrictions on contact between a child and issues related to the well-being of a child.
As of the date of this article, there have been over seventy proceedings decided under this temporary model in Ontario requiring that only “urgent “motions be heard.
As a result of these decisions, several principles and guidelines have emerged from the courts.
Specific evidence of risk as opposed to a generalized fear is required to vary access
1 Children’s Law Reform Act
2 Divorce Act R.S.C. 1985 c. 3. (2nd Supp.) s. 16 (10).
3 Davis v. Eastmond 2018 ONCJ 137, 2018 CarswellOnt 821, Cavannah v. Johne 2008 7455,
First, existing access agreements in place are expected to continue. Parents should not presume that the simple existence of COVID-19 will result in a suspension or limiting of in person parenting time.4
The courts are critical of one parent exercising self-help by subjectively interpreting public health directives as a license to terminate in person parenting time. If there is an articulated fear, it must be demonstrated through evidence by the parent seeking to minimize or terminate access.5
In the decision of Trudeau v. Auger, released on April 17, 2020, the subject child was particularly vulnerable as he suffered from a genetic disease which significantly compromised the child’s respiratory system. He required the use of a suction machine and asthma inhalers to keep his airways open. The Applicant mother expressed general distrust of the father as he smoked regularly and frequently left the home to attend at convenience stores. Further, she did not know if he was working.
Again, the court was not convinced that the Respondent father would do anything other than continue to adhere to the health units’ recommendations and protocols and the Applicant mother’s motion was dismissed
Interestingly, Justice Kwolek provided some examples of evidence, that if provided to the court, might have resulted in a variation of the existing access order. The examples were evidence of disregard for the welfare of the child by disregarding the COVID-19 protocols, better and specific evidence that exercising access visits even with the protocols in place would expose the child to significant risk or any illness of the child or one of the parents that would place the child at significant risk.6
COVID-19 used as a means to solely parent children
Second, Justice Pazaratz points out in his ruling in Ribeiro v. Wright that no one knows how long the crisis will last and assuming a blanket policy of putting child access to family members “on hold” poses a high risk of emotional harm and upset and is, therefore, inconsistent with the courts comprehensive analysis of the “best interests of the child”.7
Evidence of health care providers exposing children to risk
Third, the courts will likely not assume that a frontline healthcare worker who follows the current recommended protocols and health directives, poses an unacceptable risk to their children. If there is a risk being posed, a court would consider whether it is greater than a parent attending a grocery store or manually pumping gas into their motor vehicle?
4 Ribeiro v. Wright 2020 CarswellOnt 4090 [hereinafter Ribeiro].
5 Ahmadi v. Kalashi 2020 ONSJ 2047
6 Trudeau v.Auger 2020 ONCJ 197
7 Ribeiro Supra note 4.
The court has stated that if a litigant parent attempts to limit or suspend an existing access agreement of in-person contact, the onus will be on that parent to provide specific examples of behaviour or plans that are inconsistent with existing health protocols and directives.8
Even if such a risk were quantifiable and able to be presented as evidence to be considered by a Family Court Justice, the question becomes whether the harm resulting from the demonstrated risk is outweighed by the harm resulting from the damage to the parent-child relationship from suspension of access? The answer appears to be not likely, unless there is demonstrated in the evidentiary record before the court of specific facts that the child is exposed to a significant risk of infection.
The following comment of Justice Pazaratz in the Ribeiro decision is often relied on by following decisions, which seems obvious to some:
“Lifestyle or parental behaviour in the face of Covid-19 may necessitate restrictions on parenting time. There would be no tolerance for a parent who recklessly exposes a child to any Covid-19 risk.9
Elsaesser v. Rammeloo which was released on April 17, 2020, demonstrated that the court decided another urgent motion where the father withheld the parties children primarily on the basis that the mother’s profession as a healthcare worker posed an unacceptable risk of exposure of COVID-19 to the parties’ children.
The father relied on published stories of individuals in the same profession as the mother who were voluntarily self-isolating. He also provided the court with a Facebook post of a health care worker choosing to self-isolate, to protect her children and argued that the mother in his case should do the same.10
The court, however, found that the mother followed all necessary COVID-19 protocols, and therefore, the fathers position was” unreasonable” as the mother’s work on its own was not sufficient to pose an elevated risk to the children’s exposure to the COVID-19 virus.11
We are living in unprecedented times. Naturally, parents are concerned about the risks to their children posed by the COVID-19 Pandemic. Despite the foregoing, courts have been clear that litigants who seek to gain an advantage from the COVID-19 pandemic by suspending in person access based on generalized fear and bias, will not be rewarded by the courts. Family law lawyers and parents alike need to exercise flexibility, care and patience to ensure that the physical and emotional well-being of our children is preserved.
8 Tessier v. Rick 2020 CarswellOnt 1886 at para 11.
9 Ribeiro supra note 4 at para 14.
10 Elsaesser v. Rammeloo 2020 CarswellOnt 4482 [hereinafter Elsaessser].
11 Ibid at para. 88.