THE COVID-19 FAM FAQ Practical Legal Information on Family Law Parenting Issues During COVID-19

April 9, 2020
Posted by: Tricia Wong
Categories: FDR Updates, FDRIO News

THE COVID-19 FAM FAQ

Updated to April 3, 2020

This document shares general information gleaned from the Ontario family law court decisions arising during and as a result of COVID-19. The information should not be relied on as legal advice to specific circumstances. If you have a question specific to your situation, see Part (C) “Finding a professional to speak to.”

(A) COVID-19 CONCERNS WITHIN SEPARATED FAMILIES

I’m very concerned with COVID-19 spreading to or through my children going back and forth between me and their other parent. Can I stop access until this is over?

Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity, and common sense – to promote both the physical and emotional well-being of children.

None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

Ribeiro v Wright, 2020 ONSC 1829~9-11 (CanLII)

539082024. But we don’t have any formal agreement or court order.

Even if there is no formal arrangement, it is in the children’s best interests to maintain a status quo arrangement where the safety of a child or parent is not at risk, and shield the children from the impact of family litigation.

C.Y. v F.R., 2020 ONSC 1875~11 (CanLII)

539082025. So what type of COVID-19-related risk will be considered worth changing a parenting schedule?

In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Ribeiro v Wright, 2020 ONSC 1829~12, 14 (CanLII)

539082026. But I have shared parenting and can watch the children because I can work from home. The other party can have video/phone access. Doesn’t that change anything?

A proposal that a child remain with one parent for an indefinite period with only Facetime or other electronic access to the other parent is not in the child’s best interest. It disrupts the status quo and it signals to the child that the parent may not be capable of caring for the child and keeping the child safe.

Zee v. Quon, FS-16-412436 (SCJ), March 27, 2020 ~33-34

539082027. But the other parent works in healthcare and has an increased risk of contracting COVID-19. Doesn’t that matter?

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

However, if the parent is a healthcare professional, they and their employer would be well aware of the protocols to prevent transmission of infection. Presumptively, the parent would take all necessary precautions to keep their child safe while in their care.

Again, trying to keep a child from their parent without a specific personal restriction signals to the child that the parent may not be capable of caring for the child and keeping the child safe.

Ribeiro v Wright, 2020 ONSC 1829~13 (CanLII)
Zee v. Quon, FS-16-412436 (SCJ), March 27, 2020 ~33-34

539082028. I am concerned about COVID-19 spreading during our child exchanges.

Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

Ribeiro v Wright, 2020 ONSC 1829~15 (CanLII)

539082029. The other parent has other children from another relationship that go between homes too. I am concerned about COVID-19 spreading through all this family mixing.

In blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships. Each family will have its own unique issues and complications. There are no easy answers.

But 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.

Ribeiro v Wright, 2020 ONSC 1829~16-18 (CanLII)

539082030. I have supervised access. Will that continue during COVID-19?

If you are using a supervised access service, you should check with their current policies.

Assuming a supervisor or alternate can reasonably be agreed to, there is no reason these visits can’t take place in an open setting such as a park (parks are open although some playground facilities may be closed). Obviously, there are going to be practical issues which arise in making the access arrangements successful from the child’s perspective. If it’s raining, either a sheltered location will have to be found (which may be more difficult in COVID-19 circumstances) or perhaps the visit will have to be rescheduled for a time or adjacent day when the weather is more favourable. These are common sense details which people acting in good faith should easily be able to resolve without taxpayers funding a Judge’s involvement.

Scion v. White, 2020 ONSC 1915~5(b) (CanLII)
Skuce v. Skuce, 2020 ONSC 1881 (CanLII)

539082031. The other parent is using public transportation for access. Can I stop access?

Possibly.

Absent a risk of harm, both parties have a duty to responsibly adhere to the existing arrangements. “Responsible Adherence” means being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child(ren) contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by the child. Neither party shall do anything that will expose him/herself or the child to an increased risk of contracting the virus.

Le v. Norris, 2020 ONSC 1932~13 (CanLII)

Therefore, allegations that a parent or their household may not be in compliance with accepted COVID-19 safety measures, including methods of using public transit, needs to be addressed between parents as to whether there are any actual risks to the child as a result.

Tessier v Rick, 2020 ONSC 1886 (CanLII)

530982032. So what am I supposed to do with my concerns?

There are significant challenges for parents in knowing what is best for their children at this time. The “goal posts” seem to move daily, and what is deemed “safe” today may not be deemed “safe” tomorrow. Parents and the courts are aware that recommendations by senior public health officials are shifting in response to the evolution of the pandemic in Canada. We simply do not know. It is no wonder that this is a difficult time for parents to make decisions.

This is a circumstance that demands the best of parents and requires them to work together, no matter their differences, to craft the safest options for children while ensuring that children derive the benefit of the love, nurturance, and guidance of both of them. Of course, the overriding requirement on parents is to keep the health, well-being, and best interests of their children at the forefront of their decision-making.

Cooper v. Teneyck, 2020 CanLII 23789 (ON SC)

The disruption of our lives is anxiety producing for everyone. It is even more confusing for children who may have a difficult time understanding. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance. Right now, families need more cooperation. And less litigation.

Ribeiro v Wright, 2020 ONSC 1829~27 (CanLII)

Double-check to see current safety recommendations provided by reliable local sources.
If the circumstances permit, communicate with the other parent.
If there is communication, see if a compromise or assurance will resolve the matter.
As of April 6, 2020, if parties arrive at an agreement, it can be filed with the court on a consent basis to be turned into a court order.

If you need assistance with communicating with the other parent, either due to personal, criminal or other safety reasons, see the last question in this document.

(B) PARENTING TIME ENFORCEMENT IN THE TIME OF COVID-19

I’ve read all of the above, I believe withholding access is in my child(ren)’s best interest AND I am not convinced the other side will be reasonable or even communicate with me or a lawyer. What can I do?

Any reasonable steps, in the circumstances. to attempt to resolve the matter with the other side outside of court should be taken and recorded.

If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.

The courts are dealing with COVID-19 parenting issues on a case-by-case basis.

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.

Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

Ribeiro v Wright, 2020 ONSC 1829~20-23 (CanLII)

So the courts are operating?

No and yes. The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. At this time of pandemic, only the most urgent matters can be heard. The most recent Court communication is the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, updated and effective April 6, 2020.

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
Dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
In a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

The determination of urgency is intended to be simple and expeditious, recognizing the summary nature of the determination. Importantly, any determination of potential urgency or lack of urgency is wholly without prejudice (will not affect substantive legal rights) to either party on the ultimate hearing of the motion.

Reitzel v. Reitzel, 2020 ONSC 1977~9-10 (CanLII)

Even if a case is considered “urgent” for Court purposes, on review of the facts of your circumstances a judge may find that one, some or all of the issues raised are of “urgency or hardship” to skip regular family law court procedure to have a conference before a formal motion hearing. This is a separate legal analysis: “urgency or hardship” generally refers to abduction, threats of harm, dire financial circumstances. In addition to a matter being urgent, a motion will proceed in the absence of a case conference if the moving party provides evidence (a) that he/she has made inquiries about the availability of case conference dates, and (b) of his/her efforts to settle the matter outside the court process.

Thomas v. Wohleber, 2020 ONSC 1965~28-29 (CanLII),

Currently only urgent and limited issue conferences are being scheduled, so the requirement to make efforts to settle the matter outside the court process assumes greater importance.

3. The other parent is not allowing me to see our children. They are making all these excuses, including COVID-19. What do I do?

In general, the court decisions arising from the COVID-19 crisis have not tolerated any self-help remedies, either on withholding or enforcing access.

Skuce v. Skuce, 2020 ONSC 1881~30 (CanLII)
C.Y. v F.R., 2020 ONSC 1875~13 (CanLII)
Burton v. Woods, 2020 ONCJ 158 (CanLII)

If you have an established parenting schedule either by court order, agreement or even long standing status quo and the sole basis of withholding access relates to you exposing the child to significant risk due to not complying with then existing recommended or imposed COVID-19 safety measures:

If the circumstances permit, communicate with the other parent
If there is communication, see if a compromise or assurance will resolve the matter;
If there is no communication or resolution, then the legal onus, if you go to court is on the withholding parent to justify by providing specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 protocols and expose the child to risk.

Tessier v Rick, 2020 ONSC 1886~11(CanLII)http:/

If you have not had consistent parenting time to date, or have not meaningfully pursued parenting time before COVID-19, a court may find that the request is not “urgent” either from the court urgency screening or the “urgency and hardship” requirement to skip the regular family law court procedure, to have a conference before a formal motion hearing.

Reitzel v. Reitzel, 2020 ONSC 1977~11 (Canlii)

4. The other parent is overholding our child and not willing to return the child as set out in an existing court order.

In general, the court decisions arising from the COVID-19 have not tolerated any self-help remedies, either on withholding access or enforcing access.

Skuce v. Skuce, 2020 ONSC 1881~30 (CanLII)
C.Y v F.R., 2020 ONSC 1875~13 (CanLII)
Burton v. Woods, 2020 ONCJ 158 (CanLII)

5. I’m concerned that the other parent will move or abduct our child. Will the court be willing to hear my matter?

In general, the court decisions arising from the COVID-19 crisis have not tolerated any self-help remedies. A parent should not think that they can use the cover of the COVID-19 crisis to make a substantial unilateral change to a child’s residence. Court’s have and will address this conduct.

L-A.F. v. K.V.S., 2020 ONSC 1914 (CanLII)
Perkins v. Macierzynska, FC-19-87619-367-2, March 27, 2020 (SCJ)
Placha v. Bennett, 2020 ONCJ 164 (CanLII)

6. My children are now refusing to come to my house. The other parent is not encouraging them or maybe even alienating them from me. Will the court hear my matter?

Generally, these types of claims are not considered “urgent” unless the circumstances raise concerns about the immediate physical and emotional well-being of the child. There have been decisions during the COVID-19 crisis that the court has and has not heard these claims because they reached that threshold, each based on particular circumstances.

Have: S.W-P. v. S.P., 2020 ONSC 1913 (CanLII)
Have not: Derkach v. Soldatova, 2020 ONSC 1992 (CanLII)

7. What other parenting claims is the court likely not willing to deal with now?

Each circumstance stands on its own merits, but the courts have mentioned the following parenting claims are not considered “urgent” during the COVID-19 crisis:

to remove various social media accounts under the child’s name^;1
to cease posting photos of the child that he considers inappropriate¹
Make up access¹
police enforcement of access, where no other enforcement tactics have yet to be tried¹
dispensing with the other parent’s consent to travel²
Return of child to another country where currently safe³

Tessier v Rick, 2020 ONSC 1886 (CanLII)
Bruni v. Daunheimer-Bruni, 2020 ONSC 2017 (CanLII)
Onuoha v. Onuoha, 2020 ONSC 1815 (CanLII)

8. If I need to go the court route, how do I have my documents formally signed – I can’t meet anyone in person?

Currently, there are two answers to this question:

The Law Society of Ontario has relaxed the commissioning of sworn affidavits and financial statements as not requiring the lawyer or paralegal carrying out commissioning functions in the physical presence of the person seeking that service. Rather, video conferencing can be used as an alternative means of commissioning, with certain conditions.
In the Superior Court of Justice and Ontario Court of Justice have advised that where it is not possible to email a sworn affidavit, affidavits may be delivered unsworn but the affiant must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit.

9. How do I file papers with the court?

The directions depend on which court you would be seeking or responding to claims. For current directions at the Superior Court of Justice, see “B. PROCEDURE TO BRING AN URGENT MATTER”. For current directions at the Ontario Court of Justice, see Filing Urgent Documents.

Here is a link to the Superior Court of Justice’s website offering information about the documents that must be filed to bring a family law motion and what will happen during that motion.

A link to the Family Law Rules, and in particular Form 14A – Affidavit, can be found at ontariocourts.ca/scj/family/legislation-forms.

(C) FINDING A PROFESSIONAL TO SPEAK TO

Legal Advice

Law Society of Ontario’s emergency family law referral telephone line. This service will connect self-represented persons with family lawyers, working on a pro bono (free) basis. Those lawyers will provide up to 30 minutes of legal advice specific to determining whether or not a person’s family court matter is urgent and make referrals to other available legal services. Self-represented persons may contact the Law Society emergency family law referral telephone line by phone at the following numbers:

Toll-free: 1-800-268-7568, General: 416-947-3310

Law Foundation of Ontario’s Family Law Limited Scope Retainer Project provides a list of lawyers who will work on an ‘a la carte’ basis.

Legal Aid Ontario: You may call 1-866-874-9786 or 416-204-7104 for assistance, although it is likely that only limited services are available for litigants who do not qualify financially for Legal Aid Services. There may be an exception for cases that involve domestic violence. See their COVID-19 page for more information.

2. Mediation Services

Mediation is a voluntary way of resolving disputes where a trained mediator helps parties of relatively equal bargaining positions to resolve disputes about family issues.

Each of the following sites have a search function to find mediators and information on mediation.

This paper was prepared by Family Law Lawyer Shmuel Stern. Follow Shmuel on Twitter @corollaryrelief or visit the Matrimonial Home Webpage which is currently keeping track of COVID-19 related case law.