The novel coronavirus (“COVID-19”) has created uncertainty for many families with custody and access arrangements. Not only has the pandemic exacerbated existing family law disputes, it has also led to new issues with respect to custody and access that courts are addressing for the first time.
In a family law case heard on March 31, 2020, the Ottawa Superior Court of Justice admonished the respondent father for not adequately following COVID-19 safety protocols and for exposing the applicant mother and the parties’ children to an increased risk of illness.
While acknowledging the exceptional circumstances surrounding the COVID-19 pandemic, the Court made the following interim without prejudice orders on an urgent basis:
(1) the mother was granted exclusive possession of the matrimonial home (barring the father from entering the home); and
(2) the father’s access (more recently referred to as “parenting time”) was ordered to be via electronic means only.
The parties, who have three children together, separated in August 2018. The mother is on long term disability and has several health conditions: Lupus, heart issues, Sjorgren’s syndrome, fibromyalgia, and asthma. Her immune system is compromised. Her physician instructed her to self-isolate as much as possible to avoid exposure to the virus. Further, two of the parties’ children have mild asthma. The members of this family will have to delicately navigate the COVID-19 pandemic as the virus presents significant risks.
The parties have had a living arrangement since separation known as “nesting,” whereby the mother and father rotated living in the matrimonial home on a week-on/week-off schedule, but the children lived in the home permanently. Due to the COVID-19 pandemic, the mother and father decided to temporarily live together with their children in the matrimonial home.
Shortly after the parties implemented this new living arrangement, the mother brought an urgent motion, arguing that the father was not adequately following the COVID-19 protocols and directives (and particularly as they relate to vulnerable persons). She claimed that he left the matrimonial home many times—sometimes multiple times a day— was secretive about where he was going, and had refused to wash his hands upon returning when asked. The circumstances were creating stress and anxiety for the mother. The father, claiming that the mother was over-reacting, argued that he had been following the Government’s protocols and left the home to go for drives and walks with his girlfriend.
The Court did not accept the father’s argument. In making the interim without prejudice order, the Court followed the March 24, 2020 decision of Ribeiro v. Wright, which held that COVID-related concerns are to be dealt with on a case-by-case basis.
The Court noted that the mother was taking precautions beyond the public guidelines due to her compromised immune system and gave considerable weight to a note provided by the mother’s doctor, which confirmed that she was particularly vulnerable to the virus because of her health conditions. The Court stated that the father was not forthcoming about his comings-and-goings from the matrimonial home and, in some instances, had lied to the mother about his whereabouts. The Court also mentioned the children’s asthma, noting that their general health could be affected too. The Court stressed that the children’s best interests dictate access and that a deterioration of the mother’s health would impact the children.
The father failed to provide specific and absolute reassurance that COVID-19 safety measures would be meticulously adhered to, and his actions put the mother and children at risk. Because of this, he was temporarily ousted from the matrimonial home and prevented from having any in-person access with the children. He was granted leave to return the matter to court on or after April 17, 2020 “to provide the court with details and measures he has taken to minimize the risk to the family and specifically of how he has avoided contact with others…”
Parents must be mindful of the unique circumstances created by the pandemic and should do their best to work together to ensure the safety of their children and themselves. This decision confirms that courts will look at each family’s specific situation to determine if family members are adequately following government protocols and advisories. Parents must address COVID-19 considerations in a child-focused manner, which may entail making significant compromises for the time being.
Miller Thomson is closely monitoring the COVID-19 situation to ensure that we provide our clients with appropriate support in this rapidly changing environment. For articles, information updates and firm developments, please visit our COVID-19 Resources page.