In Ribeiro v Wright, 2020 ONSC 1829 Justice Pazaratz was assigned as the triage judge to determine whether an urgent motion with respect to interim access arrangements should be deemed “urgent” or not, and therefore whether it should proceed on that basis during the COVID-19 contingency measures put into place by the Court. It is important to note that this does not appear to have been a case where there was any specific factor that made the situation for either the child involved or the parties to be at higher risk of complications from COVID-19 than the general public. This appears to have simply been a case where one parent wished to self-isolate proactively.

As of September 2019, the father had been having access to the nine-year-old child every other weekend from Friday evening to Sunday evening, while the child resided primarily with the mother. In March 2020, after the Superior Court released a Notice to the Profession stating that only urgent motions would be heard until June 2020, and that if a motion was found to be urgent it would be heard via teleconference, the mother filed a motion to suspend the father’s access during the COVID-19 pandemic, and sought to have the motion heard on an urgent basis.

Justice Pazaratz did not allow the mother’s motion to proceed on an urgent basis, without prejudice to the matter returning if the situation became more serious. In other words, the father’s access was to continue on an interim basis.

In coming to his decision, Justice Pazaratz considered the child’s best interests to be the primary guiding factor and wrote that “no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships. – and above all, we have to find ways to do it safely“.

Where a parent has a concern that COVID-19 creates an urgent issue in relation to their particular case, and can point to specific factors that make their situation urgent, the court will consider hearing the motion on an urgent basis, but the mere existence of the COVID-19 pandemic is not sufficient cause in itself to meet the standard of urgency when it comes to interim access motions.

The Court will consider interim access motions during the COVID-19 pandemic on a case-by-case basis in accordance with the following set of criteria:

a. 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.

b. 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.

c. 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.

d. 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 this particular case, the mother filed her motion materials which were before the Court, but the Court did not have the opportunity to receive submissions or evidence from the father. It does not appear that the mother’s position was that self-isolation or quarantine was necessary due to travel or possible exposure to the COVID-19 virus, but was founded simply on her concern that the father would not maintain social distancing for the child during periods of access.

The mother’s evidence included a series of e-mails between the father and the mother’s counsel, which the Court considered. The Court found that the mother had failed to establish a failure, either by inability or refusal, by the father to adhere to appropriate COVID-19 protocols in the future.

As such it appears that during this outbreak, parents should therefore ensure that they are making every effort to abide by the protocols and directives being put in to place by the relevant public health authorities, while also working to maintain access for both parents and, crucially, continue to abide by existing court orders for as long as it is possible and safe to do so.

Where a parent has specific evidence of a reasonably founded concern that the opposing party is not taking the situation seriously, or is either unwilling or unable to comply with social distancing measures, as one example, the Court may be inclined to consider a motion to alter the access schedule on an urgent basis. But the existence of the outbreak alone will not be sufficient grounds for the Court to entertain the possibility of cutting off access for one parent.

The Court expects parents to show good-faith efforts to communicate with each other, and for parents to come up with realistic and creative proposals which demonstrate both parental insight and COVID-19 awareness.

Click here to download the Court’s original endorsement.

This article is provided as general legal information only. Consult with a lawyer in your area prior to taking any action in your family court or blended family matter. Our London, Ontario family law office can be reached by telephone at 51-488-5263 or toll-free at 1-866-428-1063. Due to the coronavirus pandemic, we are currently restricting the number of clients we are accepting, and all meetings are being conducted by telephone or video conference.