By: Patrick J. McKenna, J.D. & Bryden Wudrich, B.Comm., J.D.
Within the family law realm it is an everyday habit to reference the “best interests of the child” and the “maximum contact” principle, among others. Indeed, we refer to these touchstones with such frequency and across so many similar, almost generic separated-family situations that the importance of these terms can seem diluted. Undoubtedly, each family is different and unique in their own ways but it is rare to come across a fact pattern or context that is truly unprecedented.
And then 2020 evolved, quickly, and the global pandemic of COVID-19 has added an unprecedented aspect into every co-parenting situation in our respective caseloads.
The question we all began to receive, first in a trickle and then in a flood, was how to handle co-parenting between households during this pandemic. What extra precautions are necessary? What changes? Does anything change? Who decides?
In addition to family law lawyers not being public health experts, the COVID-19 practice directive issued by the Court of Queen’s Bench in early 2020 prevent us from seeking authoritative guidance from our esteemed bench except in “urgent” cases. This necessarily means that less of these COVID-co-parenting issues are being heard, and therefore less decisions being rendered, and ultimately a limited jurisprudence for us to rely on.
Nonetheless, the Superior Court of Ontario quickly began publishing decisions directly relevant to this new issue and context, and our own Court of Queen’s Bench has slowly begun to do the same.
What follows is a brief summary of some of these recent decisions, the general and specific guidance offered for families trying to deal with this pandemic, and a few thoughts for us to consider going forward.
The reality, of course, is that this context-specific case law will both grow and quickly (hopefully) be forgotten as we (optimistically) return to “normal” times and a more familiar application of the BICs.
THIS CASE LAW IS SUBJECT TO CHANGE POST-PUBLICATION
Ribeiro v Wright, 2020 ONSC 1829 – March 24, 2020
This is the most cited case likely because it is one of the earliest reported decision to deal with this issue while also providing general guidance.
Following a 2012 order, the parties’ nine year old son lives primarily with the mother and the father has access every other weekend. The mother brought forth her motion arguing it was urgent and that she had grounds to suspend all in-person access with the father during the COVID-19 restrictions. The mother alleged that the father would not sufficiently follow social distancing protocols: “She doesn’t want her son leaving the home for any reason – including seeing the father.”
Justice Pazaratz determined that this was not in fact an urgent matter and therefore, as “Triage Judge” did not authorize the matter to proceed to a hearing. (The COVID practice directives for SKQB and ONSC are very similar regarding “urgent” matters within the current public health restrictions.)
Pazaratz described the situation and considerations of COVID-co-parenting as follows:
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.
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.
Effectively, the ONSC found that parents can indeed file applications for urgent matters, but specified that COVID-19 itself, is not an automatic suspension of in-person parenting time. However, the court also made clear that there will be zero tolerance for a reckless parent amidst this crisis. The federal and public health authorities are clearly to be followed and respected.
During this pandemic, urgent family law applications are to be considered on a caseby- case basis. Justice Pazaratz advised as to what qualifies as an urgent motion:
- a. 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.
- b. 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.
- c. 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.
- d. 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.
The endorsement closes with a call for parents to act reasonably:
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.
Smith v Sieger, 2020 ONSC 1681 – March 18, 2020
This appears to be the earliest reported case dealing directly with parenting during COVID-19. This was an urgent application seeking the immediate return of the parties’ son, aged 16, from the United States. The son was enrolled in an educational and therapeutic program in Utah.
The issue faced by the Court, not unlike all issues pertaining to children, is to be decided in a manner consistent with Adam’s best interests. Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the applicant is granted in its entirety.1
The Court ordered the child’s passport be returned to him and he come back to Canada thereafter to be quarantined for the mandated fourteen-day period. The parties’ various other issues would be dealt with in a subsequent hearing.
Lee v Lee, 2020 ONSC 2044 – April 3, 2020
This was an application to suspend the established shared parenting arrangement for a two year old son. The mother’s request was due to the potential risk the father carried with him because someone in his workplace had previously tested positive for COVID-19. It was determined to be an urgent matter and properly brought forth.
The timeline was such that the co-worker had not been to the workplace since March 13th, and the respondent father’s last day at work was the 23rd. The co-worker’s infection was not discovered until the 24th. The father’s regular parenting time was to have been resumed on March 20th. The mother unilaterally withheld the child. The mother did not want the child to have any contact with the father until April 6th at the earliest which would allow for a fourteenday period of self-isolation following the father’s last day at work.
The father argued that there was little risk of contraction from his infected co-worker as they worked relatively far apart from each other and the co-worker had not been to work since the 13th. The father included a floor plan of the office to show his distance from the infected co-worker and also confirmed that he had been following the now-familiar protocols regarding social distancing, self-isolation since his last day of work, etc.
The decision begins with a specific and positive reference to the general guidance provided in Ribeiro v Wright including a lengthy quotation from the same. Nevertheless, and despite the requests for “specific evidence” as described in Ribeiro v Wright, the Court in Lee v Lee was willing to interrupt the usual parenting arrangement out of an abundance of caution.
Although there was no evidence to dispute the father’s following of the applicable public health protocols, the Court found that there was still a chance that the virus persisted in the workplace right up until the father’s last day there, on the 23rd. To be safe, the Court ordered that his access not be resumed until a full fourteen days after he left the office, being April 6th:
The possibility of the respondent having been exposed to COVID-19 appears to be small, perhaps nominal. Yet in such uncertain times, it is preferable to avail oneself of certainties when available.
Guerin v Guerin, 2020 ONSC 2016 – March 31, 2020
The parties had been co-parenting three teenaged children within an established nesting arrangement from the same residence. The mother applied for exclusive possession of the family home on an urgent basis.
The Court found that the “evidence indicates that despite his commitment to follow COVID-19 protocol [the father] leaves the home continuously and returns without advising [the mother] where he went or does not wash his hands upon his return to the home.”1 It was also found that the father had been visiting his girlfriend regularly and could go live with her rather than in the family home.
The Court granted the mother temporary exclusive possession of the family home. The father was not taking the pandemic seriously enough especially in light of the mother’s compromised immune system (which had been well-documented previously).
The father’s contact with the children was ordered to be by electronic means only. The father was granted leave to bring the motion back on April 17, 2020, along with a description of the measures he had taken to minimize risk to the family.
It would seem that if the father had taken the public health recommendations more seriously and not been so coy about his contact with other people he might have been allowed to stay in the home and in direct contact with his kids.
K.B. v K.K., 2020 SKQB 86 – March 31, 2020
This appears to be the only reported case from Saskatchewan, at the time of writing, regarding parenting arrangements during COVID-19.
The parties have a storied history of litigation and various allegations unrelated to the pandemic. This application was brought under the current practice directive and argued to be an “urgent” matter which should go ahead despite the pandemic. Justice Tochor did not agree.
The applicant argued that previously ordered access should be varied because the respondent had not yet sufficiently satisfied her requirements regarding drug testing.
In deciding that the matter was not in fact urgent, the Court made several direct references to the guidance and comments in Ribeiro v Wright:
There is no evidence that K.K. is acting contrary to any COVID-19 precautions and I am unable to rely upon any of K.B.’s implied concerns in this regard to determine there is an urgency as set out in the Directive. … I conclude this matter should not be considered urgent as defined in the Court of Queen’s Bench Directive and Advisory of March 19, 2020.
No evidence of imminent harm or danger was provided whether related to COVID-19 or otherwise. The application was adjourned into June as per the Court’s practice directive.
Moyle v Moyle-Mamer, DIV 268 of 2012 – March 24, 2020
This is an as-yet unreported decisions from Justice Brown of our SKQB.
Here, the father deviated from the regular parenting arrangement which had been established for the school year and in which he had access every other weekend. Instead, the father had unilaterally implemented the parties’ summer schedule wherein he would have the kids for two weeks at a time. He reasoned that because Saskatchewan schools had been closed indefinitely the summer holidays had begun. The mother applied to have the regular school schedule honoured through to the end of June.
The Court was quick to state that the proper process in this situation was for the father to bring an application forth and establish the urgency of the matter rather than resort to this self-serving, self-help remedy.
Kulack v Bryant and Bryant, FLD 249 of 2019 – March 24, 2020
This is another unreported decision out of our SKQB, also from Justice Brown.
The couple had a young child, where the father had recently begun to have a limited amount of access. On March 19, 2020, the father refused to return the child due to concerns regarding COVID-19. The mother made a without notice application, seeking an order for the child’s immediate return. Justice Brown determined this to be a situation where urgency had been established, considering the child’s safety and well-being.
It was ordered that the father respond to the application within two days or turn the child over to the mother. The court noted that this was a short timeline, however, found it necessary. The court further ordered that if the father provided materials within the timeline and is still unwilling to provide the child to the mother, the matter remains as is, until the mother responds. The mother is to indicate if she wishes to file responding materials or have a decision rendered on what is before the court at that time.
It would seem that our own Court of Queen’s Bench shares some of the caution expressed in Ribeiro v Wright in that parenting arrangements shall continue as normal subject only to clear risks being established and that unilateral deviations from the status quo are only to be taken where clear risk to the children can be specifically established.
The public health authorities are to be respected and followed. Clear and earnest evidence as to compliance with these precautions is advised. And if a unilateral disruption of the status quo is to be justified specific evidence of the risk or harm to the child(ren) must be provided.[ June 3, 2020 ]