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Nuri Law

Access and Custody Arrangements During COVID-19

One of the many areas of daily life that COVID-19 has disrupted is how parents are expected to follow custody and access orders. Parents want to comply with court orders and continue allowing their children to stay on their regular access schedule. At the same time, we are being told to stay at home, isolate ourselves, and make contact with as few people as possible.

Understandably, this can be a confusing time if you have a court order that deals with custody and access. Seeking guidance from the courts has also not been available since all non-urgent matters in the Ontario courts have been suspended, with only “urgent” matters being heard by teleconference.

Luckily, the courts recently shed some light on this issue in the Ontario Superior Court cases Ribeiro v. Wright and Skuce v. Skuce. These cases conclude that so long as the health and safety of a child is not affected, custodial and access parents should still follow court orders and exercise access to the best of their ability. Sometimes this can mean making necessary modifications relevant to your present circumstances.

However, there can be some instances where the nature of your access arrangements might make it impossible to comply with both your court order and the laws the government of Ontario has made pertaining to COVID-19 precautions. For example, your order may be that access is to take place within the community at a specific location. What if the location the court has ordered access takes place at is now closed?

Some families who are practicing social distancing do not even want their child leaving the home under any circumstances- even if the child is just going to their other parent’s home. This could be because you reside in a blended family where members of the household have preexisting risks, are elderly, or for any other personal considerations.

In the past couple of weeks in response to COVID-19, the Ontario courts have maintained that the best interests of the child is still the most important factor that should be considered. However, there is no universal answer on what the best interests of the child are. Each family is different and has to adjust to these uncertain times depending on what is best for their child and their family’s own circumstances.

The child’s best interest may still be seeing both of their parents if it is safe to do so. In Skuce v. Skuce, the court explained that even in the face of COVID-19, the “maximum contact principle” should still be respected so long as it is in the children’s best interests.

In another recent case, Ribeiro v. Wright, the court clarified that a “blanket policy” that children are never to leave their primary residency, including to visit their other parent, is inconsistent with the best interests of the child. In fact, the court highlighted that in these unsettling times, it is even more important that children have the support of both of their parents.

However, it may not be in your child’s best interest to continue with the current access arrangement if either parent, or family member who lives with that parent, has travelled recently, is feeling unwell or has been exposed to someone who is ill. If you have travelled recently, you should not exercise your access time as there is a risk you may be infected even if you are not showing any symptoms. You do not want to risk passing the infection onto your child and/or other members of the community.

The court found in Ribeiro v. Wright that 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. Families need each custodial and/or access parents to provide assurance that COVID-19 precautions are being maintained with respect to each person who spends any time in the home.

In Ribeiro v. Wright, the court also expressed that they will be looking to see if parents have made good faith efforts to communicate, shown mutual respect, and whether they have come up with creative and realistic proposals that show both awareness of COVID-19 and parental insight. It is essential that both parents consent to any adjustments being made to an access arrangement. If you are unable to agree on modifications, you should seek the assistance of a family lawyer to help you.

If it is not in the child’s best interest to physically see one of their parents, options to exercise access can include using programs like FaceTime, Skype or Zoom to video chat. Video chatting may also be a good solution for the time being for parents who cannot meet in a public space to exercise access. If either party does not have access to a computer, phone calls may also serve as a good substitute.

Modifications should also be made during access exchanges in order to maintain everyone’s health and safety. Try to minimize contact with other parties as much as possible during the exchange to help stop the spread of any potential infections or illnesses.

It is important to note that courts are still open in the event of emergencies. The courts remain open to deal with emergency motions, especially if the emergency involves the health and wellbeing of children. In Ribeiro v. Wright, the court explained that if an emergency motion is brought dealing with the current parenting arrangement during COVID-19, the court will look at the following:

a. The parent bringing the urgent motion will have to provide specific evidence or examples of the other parent that are inconsistent with the COVID-19 protocols;
b. The party responding to the motion will have to provide assurance that COVID-19 protocols are being adhered;
c. Both parents will be required to provide specific and realistic time-sharing proposals, focusing on the child and addressing COVID-19 considerations;
d. Judges will likely take judicial notice of social distancing.

With that being said, as this is an unprecedented time for us, the courts are trying their best to adjust to the circumstances as well. The courts are only hearing urgent matters, and a matter is not urgent just because it is relevant to COVID-19. We need to cooperate and try to resolve issues outside of the courtroom. If you need assistance coming to a solution, a family lawyer can help.

If you would like to speak to a lawyer or have questions about how COVID-19 may impact any of your court Orders, contact one of our lawyers at: (416)-323-5092. We would be happy to assist you.