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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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