The Impact of the Novel Coronavirus on Family Court Orders and Separation Agreements

Over the past few weeks, the outbreak of the Coronavirus disease (Covid-19) has drastically impacted the lives of most Canadians.  While many Canadians are experiencing unease related to financial uncertainty, change in routine, and a growing health crisis, separated and divorced parents are facing a new challenge: co-parenting during this pandemic.    

Presently, the courts in Ontario presiding over family law issues have restricted hearings to only urgent matters including, but not limited to, urgent child protection matters, abductions, and restraining orders.  The Superior Court has recently weighed in on the impact of Covid-19 on parenting time where the parents have an existing family court Order or Separation Agreement.    

Robeiro v Wright 

On March 24, 2020, the Superior Court of Justice in Hamilton, Ontario released a decision of the Honourable Justice Pazaratz in the matter of Ribeiro v Wright.  In that case, Justice Pazaratz was tasked with deciding whether the Mother should succeed in her motion to suspend the Father’s access, after the Mother expressed concern that the Father would not maintain social distancing for the child during periods of access.  

Background 

First, to provide some background. The Mother and Father in this case had joint custody (joint decision making) pursuant to a final Order from 2012. While the 9-year old child’s primary residence was with the Mother, the Father had always exercised access. At the time of the Mother’s Motion, the Father was exercising access pursuant to a Temporary Order from 2019, made on consent of the parties, whereby he had access with the child on alternating weekends from Friday to Sunday.  

Outcome 

In the end, Justice Pazaratz concluded that the Mother had failed to establish “a failure, inability or refusal by the Father to adhere to appropriate Covid-19 protocols in the future.” Even though Justice Pazaratz arrived at his decision solely on the basis of the Mother’s evidence (the Father did not file responding materials), which included emails exchanged with the Father’s counsel, Justice Pazaratz was not persuaded that in the circumstances that the Father’s access should be suspended or changed.   

Important Principles 

Most importantly, Justice Pazaratz highlighted a number of important principles for practitioners and the public alike, as parents, lawyers and judges learn to navigate the current reality, including: 

• In most cases where there is a pre-existing parenting Order, there is a presumption that the Order should be respected and complied with, particularly if the order in question reflects a determination that meaningful personal contact with both parents is in the child’s best interest. 

• These are extraordinary times where normal routines are being suspended in favour of social distancing.  While many aspects of our lives will be put “on hold” until Covid-19 is resolved, children’s lives and vitally important family relationships cannot be put “on hold” indefinitely without risking serious emotional harm and upset.  A blanket policy that children should not leave their primary caregiver’s residence is inconsistent with a child’s best interests. 

• In certain circumstances, custodial or access parents may need to forego their times with their child or change the conditions of access. For instance: 

• Where a parent is subject to personal restriction, such as a 14-day period of isolation after travel, personal illness, or exposure to illness; and 
• In certain cases, a parent’s failure to comply with social distancing or failing to take reasonable health precautions may raise sufficient concern about parental judgement that parent-child contact will be reconsidered. 

• Parents are encouraged to exchange proposals that fully address all Covid-19 considerations, in a child focused manner.  To that end, parents should contemplate amending the means of transportation to facilitate transitions, exchange locations, or the terms of supervision. 

• In blended family situations, parents will need assurance that proper precautions are being maintained in relation to each person in the household.  

As Justice Pazaratz wisely points out, “in scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner…Right now, families need more cooperation. And less litigation.” 

If you have questions about the impact of Covid-19 on your family law matter, or if you have questions about family law in general, do not hesitate to schedule a telephone consultation with one of our lawyers.