COVID-19: Judge Denies Mother’s Motion to Suspend Father’s Access because of Coronavirus

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A couple of days ago, I wrote an article about parenting through coronavirus. I highlighted the need, now more than ever, for parents to work together. Court is not the place to find solutions for your family, especially during a crisis. Now, a Superior Court Judge has shared a similar sentiment, directly to the mother who was seeking to suspend the father’s access because of COVID-19.

Justice A. Pazaratz (Ontario Superior Court of Justice) is well-known for his strongly worded decisions and instructive lessons for parents experiencing divorce or separation. This recent decision, Ribeiro v Wright, is no different.

The Issue

On March 22^nd, 2020, the mother brought an urgent motion to suspend all in-person access for the father because of concerns over COVID-19.

These parents had been following a parenting plan since 2012, with joint custody and primary residence with the mother. The father’s parenting time with his son has been every other weekend.

In her court materials, the mother claimed that she and her family are practicing strict social isolation, and expressed concerns that the father would not maintain social distancing during his parenting time. Therefore, she did not want their son to leave her residence, including to see his father.

The Decision

Upon review of the mother’s motion, Justice A. Pazaratz did not feel that suspending the father’s access was warranted. The child’s relationship with both parents is vitally important. COVID-19 does not mean that the child cannot leave the residence to spend time with the other parent.

The Reasons and the Lessons

In his endorsement, Justice A. Pazaratz, stated:

“7. …There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8. On the other hand, 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. (emphasis mine)

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. (emphasis mine) In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

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.

16. And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.”

COVID-19 is Not Automatic Suspension of Parenting Time Nor Results in Urgent Hearing

“19. Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system.  Despite extremely limited resources, we will always prioritize cases involving children.  But parents and lawyers should be mindful of the practical limitations we are facing. (emphasis mine)

20. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.  They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.”

“Right now, families need more cooperation. And less litigation.”

“23. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families.  We know there’s a problem.  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. (emphasis mine)

28. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

30. 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.” (emphasis mine)