COVID-19 and Child Access Guidelines

As if parenting wasn’t hard enough already, now we are parenting in a time when we are required to practice social / physical distancing, working from home, or in self-isolation. Our children are not in school. They are not participating in sports, theatre, arts or clubs. They are not playing in parks or hanging out in-person with friends. The changes to our children’s daily routines and structures has left many parents confused and worried about how to best maintain access and parenting schedules.

Ribeiro v. Wright, a recent decision of Justice Pazaratz of the Superior Court of Justice, provides some judicial guidance on whether children should continue with their usual access schedules during the COVID-19 pandemic. The Court was asked to grant a mother’s motion to suspend all in-person access between her nine-year-old son and his father because of the current pandemic. In denying that the motion proceed to an urgent hearing at that time, the Court reiterated that the best interests of the child takes precedence in determining these issues and that “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.”

The Court took the opportunity in its decision to provide the following general commentary on the issue of children’s access during this unprecedented time:

• 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 (i.e. under self-isolation for 14 days as a result of recent travel, personal illness or exposure to illness);
• in some cases, a parent’s personal risk factors (i.e. through employment or associations) may require controls with respect to their direct contact with a child;
• in some cases, a parent’s lifestyle or behaviour in the face of COVID-19 (i.e. 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 need to be reconsidered;
• safeguarding social distancing during access exchanges may result to changes in transportation, exchange locations, or any terms of supervision;
• in blended family situations, parents need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in either parent’s household;
• 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.

If you are a parent wanting to initiate a motion to vary access schedules based on COVID-19 concerns, keep in mind that our courts only have the capacity to deal with urgent family law motions at the present time. Raising COVID-19 concerns does not necessarily mean a court will consider your motion “urgent”. Justice Pazaratz stated that “with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.” Nonetheless, His Honour provided the following procedural guidance should a parent initiate such a motion:

• The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols;
• 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.;
• 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;
• 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.

The Court recognized that each family will have its own unique issues and complications and that there are no easy answers, but stated that in disorienting times, children need the love, guidance and emotional support of both parents, now more than ever. “None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”