In the recent case, T.E. v. M.R., 2020 ONSC 2348, a father refused to return the parties’ two children to the mother’s care as scheduled because she was a healthcare worker. Both parties brought urgent motions to the court to address the placement of the children during the COVID-19 pandemic.

Melissa and Thomas were married for 6 years and separated in 2013. They have two children who are 7 years old and 6 years old. After separating, the parents entered into a separation agreement whereby the children resided primarily in Melissa’s care and were to be with Thomas on alternate weekends and Wednesdays overnight to Thursday morning. The parents followed this schedule until March 23, 2020, when Thomas stated that he would be keeping the children in his care and refused to return the children to Melissa on the basis that she is a healthcare worker.

By the time the matter was heard by teleconference, both children had returned to Melissa’s care. As such, Melissa’s position changed and she only sought a week-about schedule while the children are not in school, and a court order setting out the custody and access arrangements. In his cross-motion, Thomas argued that the children should be in his primary care until the pandemic is over.

Melissa argued that while she is a registered practical nurse, she is a perioperative nurse and not a front-line worker, and therefore less likely to come into contact with COVID-19. In fact, she had no COVID-19 patients. Further, she is trained in the use of personal protective equipment (“PPE”) and how to protect against potential risk. She has also taken additional precautionary measures to prevent any contamination due to COVID-19 –like practicing social distancing, carrying disinfectant and hand sanitizer and wiping down surfaces in her home and car.

In his cross-motion, Thomas argued that it would be in the children’s best interests to stay in his care until the pandemic resolves since he is not working outside the home. His position, which was based on research he found on Facebook and newspaper articles, was that since Melissa is a nurse she was an increased risk to the health of the children. As such, Thomas believed that Melissa should surrender her parenting time with the children. Thomas also told the children that Melissa will make them sick, which negatively affected the children’s mental health.

In the court’s review of the case, the Hon. Justice Walter did not accept Thomas’ explanation for unilaterally keeping the children from Melissa, nor that he had the best interests of the children in mind when he discussed with them that their mother can make them sick. The court found that while Melissa’s profession may put her at an increased risk, she, unlike those who do not work in healthcare, is trained to guard against the risk. She also has access to PPE to protect herself at work. Thomas was found to be using Melissa’s profession as an excuse for his behaviour, when he tried to take matters into his own hands.

The court made a temporary order that the children shall reside with each parent on a week-on/week-off basis that this parenting schedule shall be followed until the Stay at Home Order is lifted by the government of Ontario. To address the parties’ COVID-19 concerns, the court ordered that Melissa and Thomas shall advise the other in writing should one of them begin exhibiting symptoms of COVID-19. Additionally, if one parent is required to self-isolate, then the children shall reside with the other parent until the isolating parent is no longer required to do the same.

Maintaining a relationship with both parents during this time was found to be more important than ever.