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In Grossman v. Kline, 2020 ONSC 2714,  Madam Justice J. Akbarali of the Toronto Superior Court of Justice released a recent decision from a family law emergency urgent motion concerning shared parenting and one parent's desire to self-isolate with their child at the cottage to the objection of the other parent during COVID-19. The parents in this case cohabitated for 2.5 years. They separated in May 2017. Following the separation, in October 2017, the parents reached a partial Separation Agreement that included an equal time-shared parenting plan for the child. The mother is a family physician who was diagnosed with cancer and is at high risk of contracting COVID-19 due to being immune-compromised as a result of cancer treatments. The father is a lawyer who decided to self-isolate with his new partner, her daughter, and her parents are their cottage in Thornbury, Ontario. This arrangement created a situation where the child would reside at the cottage during the father’s parenting time, which was some distance away from Toronto where the mother lives.

 

The mother's motion

 

The mother brought an urgent emergency motion seeking temporary sole custody of the child and an order that the child would reside with the mother for the duration of the COVID-19 pandemic. In addition, the mother sought to suspend the father’s in-person access, or in the alternative, an order that he not attend at the cottage or invite third-parties into his home.

 

The mother’s argument was that the father’s self-isolation at the cottage posed an enhanced risk to her health and was in breach of public health orders advising against gatherings of more than 5 people who are not from the same household. The mother claimed in particular that as the father did not reside with his new partner prior to the pandemic, he cannot suggest that they have now formed a single household.

 

The father's response

 

In response, the father argued that the current arrangement was mutually beneficial for the child and everyone else involved and should therefore continue. The father submitted that residing with his new partner and her parents allowed her parents to take care of the child when needed and also enabled the child to spend time outdoors without encountering others since Thornbury had lower population density. The father stated that everyone residing at the cottage with him was following the appropriate safety measures and that they do in fact constitute a single household, and therefore were not in breach of any public health orders.

 

Should existing court orders and parenting agreements continue during COVID-19?

 

There is a presumption that existing court orders and parenting agreements should continue unless a parent’s lifestyle or behaviour raises sufficient concerns about parental judgment such that direct parent/child contact should be limited, as outlined in Justice Pazaratz’s recent decision of Ribeiro v. Wright, 2020 ONSC 1829. In this case, the question for the Court was: Should the existing parenting arrangement be changed in light of the father’s conduct and the prevailing public health orders so that the child’s best interests are protected?

 

The Court’s view

 

The court held that the father’s arrangements were reasonable. There were not concerns regarding parental judgement that would warrant suspending direct parent/child contact. The court was of the view that the father’s decision to form a single household with his new partner and her parents provided substantial benefits to all member of the household, including the child. The fact that the father did not reside with his new partner prior to the pandemic did not preclude the formation of a single household during the pandemic. The court held that self-isolating at the cottage did not pose increased risks to the mother, as the father would have contact with his new partner in Toronto when access to the child was facilitated between the parties.  The mother’s motion was dismissed.

 

Parents who wish to self-isolate with their children at the cottage during COVID-19 must be reviewed on a case-by-case basis, and there are circumstances where such actions have substantial benefits. Parents should not use the COVID-19 epidemic as a reason to deny reasonable temporary relocation to a cottage as a method of self-isolation or social distancing, and the best interest of the child is still of paramount consideration. 

 

If you are dealing with a complication arising from a situation of self-isolating or social distancing at a cottage as it applies to your family law and parenting matter, we invite you to contact a lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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In numerous ways our daily lives have had to be put on hold since COVID-19 and requirements to social distance must continue to prevail. In the recent case of Ribeiro v. Wright, 2020 ONSC 1829, Mr. Justice A. Pazaratz of the Hamilton Superior Court of Justice recently released the first endorsement with respect to family law and urgent matters of access dealing with COVID-19. In this case, an emergency and urgent Notice of Motion was brought by the Applicant on March 22, 2020, in addition to an Affidavit in support of the motion. The motion was brought seeking to suspend all in-person access due to COVID-19.

 

As this was the first case dealing with this issue, the court took time to ensure that they established the seriousness of COVID-19 and wanted to ensure that parents are maintaining access periods in good faith and with mutual respect to unnecessarily refusing access to the other parent.

 

The Court’s view

 

The court noted that now more than ever, children require the love and support of both parents, and existing parenting arrangements should be presumed to continue subject to any necessary modifications required to adhere to COVID-19 related precautions. The court noted that modifications could include one parent being in 14 day self-isolation as a result of recent travel or personal illness. In this case, the motion was brought due to one parent believing that the other parent would not obey the social distancing policy without sufficient grounds.

 

The triage judge did not authorize this mater to proceed as an urgent hearing at this time. While the court did not find that this case was urgent, it did acknowledge that any reckless exposure to COVID-19 would be met with zero tolerance. The court’s decision was without-prejudice to the issue being returned to court if more serious and specific COVID-19 related issues arise. Mr. Justice A. Pazaratz was of the view that suspending a child’s access to one parent may be contrary to their best interests due to the risk of emotional harm that can occur when a child does not get to spend time with both parents. 

 

Evidence required for an emergency/urgent motion during COVID-19

 

The court has stated that if a parent is concerned that COVID-19 creates an urgent issue relating to parenting, they are able to bring an emergency motion before the court, but they should not presume that raising such an issue in of itself will result in an urgent hearing. The procedure that the court will consider will include:

  1. The parent bringing the urgent motion will be required to provide specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 precautions.
  2. 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 including social distancing, use of disinfectants such as hand sanitizer, and compliance with public health and safety directives.
  3. Both parents will be required to provide a specific and realistic time-sharing proposal, which should fully address all COVID-19 considerations, in a child-focused manner.
  4. Judges will likely take judicial notice of the fact that social distancing is now becoming commonplace and accepted, given the number of public facilities that have now been closed as a result of the virus. The court was of the view that during these uncertain times, it would be beneficial for both custodial and access parents to spend time with their children in their home.

Your access during COVID-19

 

Parents should not use the COVID-19 epidemic as a reason to deny access to the other parent, and the best interest of the child is still of paramount consideration. Mr. Justice Pazaratz reiterated that during times of limited judicial resources, the court will be looking for evidence that parents have made good faith efforts to communicate, to show mutual respect, and to come up with creative and realistic proposals that demonstrate parental insight and COVID-19 awareness and precautions. 

 

If you are dealing with a complication arising from parenting/access and COVID-19 in relation to your family law and parenting matter, we invite you to contact a lawyer at our firm for more information about how we may be of assistance.

 

Aubrey Sherman is the managing partner at Sherman Law LLP in Kitchener, Ontario. His practice focuses on family law, estate planning, and estate administration. The team at Sherman Law LLP in Waterloo Region has over 40 years of experience providing clients with creative and innovative solutions. If you wish to discuss your family law or estate planning matter in further detail, please contact our office to arrange for a consultation. We can be reached by phone at 519-884-0034 or by email.

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