Over the last two months, several urgent family law matters have proceeded before courts across Canada notwithstanding the significant suspension of court services. Those cases have revealed that judges tend to start their analysis by accepting that the parenting arrangements in place before COVID-19 ought to be respected and continue, to the extent possible. That starting point is grounded in the recognition that the pre-pandemic arrangements were made in the best interests of the children.
Judges have, of course, imposed some modifications to ensure the wellbeing of children and parents. But in some cases they have also gone further, overhauling existing parenting arrangements as a consequence of COVID-19. That is precisely what happened in a recent case before Justice Deborah Chappel of the Ontario Superior Court of Justice.
In that case, the separated parents had two children, aged 7 and 4. Pursuant to a 2018 court order, the children resided primarily with the mother and the father had parenting time with the children every Tuesday and Thursday evening and alternate weekends. That arrangement had been in place since at least November 2018.
The father is employed as a bus driver for the City of Hamilton, and is an essential worker. The mother developed concerns over the father’s regular interaction with the public while working and his potential exposure to COVID-19. The mother was concerned about the children’s safety if they were to spend time in the father’s care in accordance with the court-ordered parenting schedule. Since the mother resides with her elderly and immunocompromised parents, her concerns extended to the prospect of exposing her parents to the virus if the children were to travel back and forth between the two homes.
According to the mother, she remained isolated in her home with the exception of trips taken in order to obtain necessities.
On March 15, the mother unilaterally suspended the father’s physical contact with the children. By the time the matter was before Justice Chappel, the children had not been in their father’s physical care for seven weeks. During that time, the father had telephone and video contact only with the children.
The father sought the assistance of the court in restoring his time with the children, including an order for make-up time based on the time he had missed during the seven weeks. The matter was determined to be urgent and a hearing was scheduled.
As a starting point, Justice Chappel observed “the children have benefitted greatly from their time with their father and that they have experienced distress about not being able to see him in person or face-to-face when video contact has not been successful.” Continuing, Justice Chappel noted the “children are being negatively affected by the lack of contact with their father” and that “young children in the attachment phase of development are particularly vulnerable to the harmful effects of removing a care-giving parent.”
Those harmful effects, however, must be weighed against any health risks the children face if the 2018 court-ordered parenting arrangement were to continue. Further, it was the mother’s position that if the children were to spend time in the father’s care, they would have to remain in the father’s full-time care due to risks to the mother’s parents that would arise if the children returned to the mother’s home. According to the mother’s parents, if the children spend time with the father in his home, they cannot return to mother’s parents’ residence unless they complete a two-week quarantine at another location.
As is the case with any parenting matter before the court, the children’s best interests are paramount and must guide a judge’s decision. Faced with assessing the children’s risk against the negative impact of prolonged time away from their father, Justice Chappel found the existing court-ordered parenting arrangements to no longer be in the children’s best interest. Instead, Justice Chappel found “the children’s best interests will be served by varying the temporary order to provide for regular daytime visits, in an outdoor setting with limited exceptions, and with strict terms aimed at protecting the children and their other family members from exposure.” Building on that theme, Justice Chappel noted that “overnight access in the (father’s) home poses too high a risk for the children and their other family members at this time.”
It seems that not even the safety measures implemented by the City of Hamilton for its bus drivers could allay Justice Chappel’s concerns: “I have considered the Respondent’s evidence respecting the safety precautions that the City of Hamilton has implemented to protect bus drivers. While these measures provide some reassurance that the risk to the Respondent may be reduced, I am not satisfied based on the evidence before me that they are sufficient to alleviate the concerns that I have addressed.”
In reaching her decision, Justice Chappel placed weight on the fact the father had not been tested for COVID-19, noting there “is no evidence that the (father) has been tested to date. In any event, he faces a new risk of exposure every day that he works due to the nature of his employment.”
In the result, Justice Chappel reduced the father’s parenting time to every Tuesday (2 hours), every Saturday (4.5 hours) and every Sunday (4.5 hours). Perhaps the most restrictive component of Justice Chappel’s order is that “the parenting time shall occur outdoors, either in the (father’s) backyard or in a nearby park or other outdoor area accessible by foot once parks and outdoor areas re-open.” The children are permitted to access the father’s home “for brief periods to use the washroom facilities or to address any other urgent situations.” That said, the father “shall ensure that the washroom facilities are thoroughly sanitized, and that fresh soap and towels are provided to the children for each visit.”
With snow still falling in southern Ontario in the middle of May, outdoor parenting time will be challenging.
These are certainly unprecedented times.
Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.