The outbreak of the COVID-19 pandemic has forced us all to change the way we operate, from working remotely to changing the way we solve day-to-day problems. During this time, parents and carers are increasing concerned about protecting the health and safety of their children, which at times can lead to confusion and hesitancy in how to safely facilitate time with the other parent or carer.
In this article, we investigate a global approach with respect to children maintaining a meaningful relationship with both parents versus the risks of the COVID-19 pandemic. We will be guided by the Canadian case of Ribeiro v Wright 2020 ONSC 1829  (“Ribeiro v Wright”).
In the case of Ribeiro v Wright, the Mother and Father settled Final Court Orders in 2012 which provided for joint custody arrangement of their son. The Mother is the primary carer and in 2019, the Father sought additional time with his son.
The issue arises when the Mother lodges an urgent motion in Court to suspend all in-person access due to the COVID-19 pandemic. The Mother asserts that she is self-isolating at home and is seeking that the child remain in her care during the COVID-19 pandemic. The Mother is concerned that the Father will not adhere to social distancing. The Court concluded that this matter should not proceed on an urgent basis for the reasons outlined below.
- Determined on a Case-by-Case Basis
The Court acknowledges that there is no uniform solution to the issue of facilitating parenting arrangements amid the COVID-19 pandemic.
This is because there are two competing interests to be considered in this case. Firstly, there is an existing parenting order in place which requires compliance by both parents to uphold the bests interests of the child and to enable the child to have a meaningful relationship with both parents. On the other hand, there are also clear government directives in place which provide that residents comply with strict guidelines, including social distancing.
As a result, each case must be dealt with on a case by case basis.
- Unchartered Territory for the Legal System
These times are unprecedented for our legal system. The Courts, which are already limited in resources, have nonetheless been forced to quickly adapt to the current climate. As a result, the Court in this case states that parents and carer’s should not automatically assume that the COVID-19 pandemic gives them permission to suspend time with their children or to assume that they will be granted an urgent Court hearing on that basis. Instead, the Court urges that families work together in a “more conciliatory and productive manner.”
- Undefined Parameters of the COVID-19 Pandemic
As the information surrounding the COVID-19 pandemic is constantly changing, it is fair to say that it is not clear how long we will be living with the virus. As a result, we have all been forced to change or delay our ordinary way of life.
However, the Courts in this case emphasise that a child’s relationship with their parent’s “cannot be placed on hold indefinitely”, rather it is in the best interest of the children to continue to develop their relationships with both parents, in a safe manner.
GUIDANCE FOR PARENTS AND CARERS
This case highlights that we all need to work together to demonstrate “flexibility, creativity and common sense to promote both the physical and emotional well-being of children,” whether that is moderating parenting arrangements with respect to changing transportation or the mode of supervision.
In particular, the Court has provided specific guidelines at paragraph 28 of the decision in this case for families in these situations, which include:-
- The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
- 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 to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
- Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
- Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home
In relation to this case, it was found that the Mother was not granted an urgent Court hearing on the basis that she could not establish a “failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.”
If you would like advice on your Family Law matter and want to “know where you stand” please contact one of our lawyers at Pearsons Lawyers for your free consultation on 1300 699 688.
(1) Ribeiro v Wright 2020 ONSC 1829  . Link at https://www.canlii.org/en/on/onsc/doc/2020/2020canlii23204/2020canlii23204.html?resultIndex=1
(2) Ribeiro v Wright, para 28.
(3) Ribeiro v Wright 2020, para 10.
(4) Ribeiro v Wright 2020, para 9