Court Orders Mother to Let Father See Their Son During COVID-19 Pandemicedit
As the COVID-19 pandemic continues to impact all aspects of Canadian’s lives, courts are increasingly seeing parents bring COVID-19-related family law matters to their attention. In a recent Ontario family law case, a father brought an urgent motion after the mother had refused to let him see their son since the beginning of the pandemic.
Ontario courts will currently only hear family law matters deemed “urgent” and proceedings are generally conducted by teleconference, as in the case below.
The two parents had been granted joint custody over their son, with the father having access to their son every other Tuesday from 9:00 am to Wednesday at 4:00 pm, and every other Friday from 9:00 am to Tuesday at 4:00 pm.
In early March 2020, the son developed a fever and sore throat which caused him to be kept home from school for a few days leading up to the scheduled March break. Pursuant to the parenting schedule, the mother was to have access to their son during the March break.
However, since that time, the mother had refused to allow the father to resume his regular access time.
The father brought a motion seeking an order requiring the mother to comply with the parenting schedule, as well as an order mandating the mother to provide the father with make-up access time for the dates and times he had missed with their son in March and April 2020.
The mother claimed that the father used drugs and that he had recently shaved his head to avoid subjecting himself to a drug test. Additionally, seemingly in relation to the COVID-19 pandemic, the mother also alleged that the father’s apartment was unclean, that his apartment building had a common entry and elevators, and that the father left his home several times a day to walk his dog. She further claimed the need for a structured routine and stable environment for their son. Finally, she argued that her apartment was the safest place for their son.
For his part, the father gave evidence that he has not been at work since March 11, 2020, had isolated at home and had complied with social distancing guidelines in accordance with the provincial and municipal COVID-19 health protocols.
The court explained that, while these are unprecedented times, family law cases must continue to be resolved in the best interests of the child no matter what situation in which parents may find themselves. The court then stated:
“Parting with a child in the face of a growing pandemic where statistics, government strategies and medical knowledge may vary week to week, if not day to day, may not be comforting and can even cause dread until care and control is returned. However, […] especially in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents.”
In this case, the court found that there was little to no evidence raising a concern about the father’s approach to keeping their son safe during this COVID-19 pandemic. It found that the father was following the applicable provincial and municipal COVID-19 protocols.
The court explained that it could not condone the unilateral actions of the mother, stating:
“A party cannot use the new, temporary reality of the COVID-19 pandemic to revisit trial results with which he/she may not be pleased. […]
There is no reason why the existing parenting schedule should not continue, especially given the parties both adhering to all applicable COVID-19 precautions and protocols.”
As a result, the court granted the father’s motion and mandated the mother to comply with the parenting schedule. Considering that the father had only missed five overnight access visits, the court asked that the parents resolve the father’s make-up access time between themselves.
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