What the courts are saying during COVID-19 - Parenting

Provincial Court

The most common family law problem the courts have been dealing with during COVID-19 is parenting time. These uncertain times are especially challenging for separated families, who have concerns about following court orders or agreements while also following public health orders and rules to keep everyone safe and healthy during the pandemic.

What the courts have said

About changing parenting time

From: Ribeiro v. Wright (Ontario Supreme Court, March 24, 2020; 2020 ONSC 1829)

  • COVID-19, by itself, is not a reason to change existing parenting orders or agreements
  • Existing parenting schedules should continue
  • To protect the health and wellbeing of children and families,
    • parents must not expose their child to the virus risk
    • everyone in each household must follow health precautions
    • parents need to act responsibly and try problem‐solving before going to court
  • Parents should make whatever changes are necessary to ensure that all COVID-19 precautions are followed
  • Parenting time and contact may need to be temporarily changed in some circumstances, such as where:
    • a parent has recently travelled, been exposed to COVID-19, or gets COVID-19
    • a parent’s employment, personal, or business associations put them at higher risk
    • a parent’s lifestyle or behaviour, including failing to follow health protocols, puts them or their household at higher risk

From: S.R. v. M.G. (BC Provincial Court, April 7, 2020; 2020 BCPC 57)

  • Whether the parenting time schedule should be changed depends on the child’s best interests.
  • It’s not acceptable to deny parenting time just because the other parent is an essential service or frontline healthcare worker.

About what is expected of parents

From: Ribeiro v. Wright (Ontario Supreme Court, March 24, 2020; 2020 ONSC 1829)

  • Communicate with one another when resolving parenting time disagreements
  • Make decisions that are in the best interests of the children, and don’t focus on the parents’ rights to see their children
  • Make good faith efforts to talk to each other and work through parenting conflicts
  • Be generous and flexible if they agree to change the parenting schedule
  • In hearing urgent cases, judges will look at whether parents have tried to communicate, treat each other with respect, and come up with creative and realistic proposals that show parenting insight and awareness of COVID-19.

From: J.W. v. C.H. (BC Provincial Court, April 2, 2020; 2020 BCPC 52)

  • Be practical and use common sense.

From: S.F.D. v. A.L.B.(BC Provincial Court, April 14, 2020; 2020 BCPC 76)

  • Try to provide additional parenting time with the other parent if there is lost parenting time, such as more phone calls or video conferencing.

About what is urgent

From: Ribeiro v. Wright (Ontario Supreme Court, March 24, 2020, 2020 ONSC 1829)

  • Courts will not necessarily grant an urgent hearing just because an application raises concerns about COVID-19.
  • Courts have requirements for urgent applications, including the following:
    • The parent applying for an urgent hearing must provide specific evidence or examples of the other parent’s behavior or plans that go against COVID-19 protocols.
    • The parent responding to such an urgent motion must provide specific and absolute reassurance that they will follow all COVID-19 safety measures.
    • Both parents must provide specific, realistic, child-focused timesharing proposals that address all COVID-19 considerations.

From: J.W. v. C.H. (BC Provincial Court, April 2, 2020, 2020 BCPC 52)

  • There must be some issue of immediate concern. Examples may include:
    • an imminent plan to relocate with a child or to remove a child
    • an imminent or recent threat of family violence against a family member
    • an imminent threat that a family member may be arrested or committed to jail
    • an imminent risk of irreparable harm, including undue financial loss, if an application is not heard right away
  • If delaying an application would be contrary to the best interests of the child, the matter may be urgent.

Three important Canadian cases

Ribeiro v. Wright (Ontario Supreme Court, March 24, 2020, 2020 ONSC 1829)

Ribeiro v. Wright was one of the earliest family law cases in Canada during COVID-19, and it guided judges in many later cases. 

The situation

The child lived primarily with the mother, and the father had specified access. The mother applied to cancel the father’s parenting time because of COVID-19. Her family was practicing social isolation, and she was concerned that the father wouldn’t follow social distancing practices.

The decision

The judge decided that there wasn’t enough evidence that the father wasn’t following COVID-19 protocols. He said that the courts know that COVID-19 is very serious and that children and families must take precautions to protect themselves from it.

The judge also made the expectations of the court clear. These include:

  • In most situations, existing parenting arrangements and schedules should continue.
  • In-person parenting time isn’t automatically suspended because of COVID-19.
  • Parents should make whatever changes are necessary to ensure they follow all COVID-19 precautions, including strict social distancing.

Urgency

The judge noted that courts will not necessarily grant an urgent hearing just because an application raises concerns about COVID-19. He outlined some requirements for urgent applications, including the following:

  • The parent applying for an urgent hearing must provide specific evidence or examples of the other parent’s behavior or plans that go against COVID-19 protocols.
  • The parent responding to such an urgent motion must provide specific and absolute reassurance that they will follow all COVID-19 safety measures.
  • Both parents must provide specific, realistic, child-focused timesharing proposals that address all COVID-19 considerations.

In hearing urgent cases, judges will look at whether parents have tried to communicate, treat each other with respect, and come up with creative and realistic proposals that show parenting insight and awareness of COVID-19.

Children’s lives and family relationships can’t be put on hold indefinitely, and it’s not in a child’s best interests to prohibit visits with the other parent.

J.W. v. C.H. (BC Provincial Court, April 2, 2020, 2020 BCPC 52)

The situation

The parents had a written agreement about parenting time, and the child spent alternating weeks with each parent. The father applied to the court when the mother refused to return the child, denying his parenting time.

The decision

Judge Lee granted an urgent hearing. The judge considered other cases, including Ribeiro, and confirmed that:

  • parenting arrangement orders should be respected and followed,
  • a child should not be exposed to unreasonable risk, and 
  • COVID-19 is not an excuse to deny scheduled parenting time when there is no other reasonable basis for doing so.

Courts will follow these directions when considering granting an urgent hearing:

  • There must be some issue of immediate concern. Examples may include:
    • an imminent plan to relocate with a child or to remove a child
    • an imminent or recent threat of family violence against a family member
    • an imminent threat that a person may be arrested or committed to jail
    • an imminent risk of irreparable harm, including undue financial loss, if an application is not heard right away
  • If delaying an application would be contrary to the best interests of the child, the matter may be urgent.

Overall, parents should be practical and use their common sense.

Judge Lee noted that the best interests of a child include the child’s health and safety. Given the threat that COVID-19 poses, a parent’s right to time with a child could be considered of less importance than the child's health and safety, despite the terms of an existing court order.

S.R. v. M.G. (BC Provincial Court, April 7, 2020, 2020 BCPC 57) – essential service worker

The situation

The child lived mainly with the mother. The father had parenting time on weekends. The mother worked as a nurse at a hospital. The father refused to return the child to the mother because she had been in contact with a COVID-19 patient. He was concerned about exposing the child to COVID-19 while in the mother’s care. The father suggested video contact or in-person contact where the child would see the mother from her balcony. The mother applied for an order that the father return the child to her care.

The decision

The judge decided there was no evidence of specific harm to the child and allowed parenting time with the mother to continue.

This case showed that parents must take the necessary precautions to keep their children safe from the risk of COVID-19. But it isn’t acceptable to deny parenting time just because the other parent is an essential service or frontline healthcare worker.

Whether the parenting time schedule should be changed depends on the child’s best interests. This includes considering many different factors, including:

  • each person’s exposure to the risk of contracting the virus
  • whether the child, either parent, or any member of the household is at increased risk of severe consequences of the virus
  • the measures each parent takes to lessen the risk of exposure
  • whether there is any objective medical evidence (as opposed to subjective personal opinion) to support a denial of parenting time.

The court balanced all these factors and decided that the child was not at an elevated risk. It found that that the child would benefit from safe contact with both parents, which was important for the child’s healthy development.

This is a challenging time for us all – and especially our children. As one judge said, “Right now, families need more cooperation. And less litigation.”
 

Research other cases

You can read more about other cases heard by courts in BC and other provinces in Family law cases addressing the COVID-19 pandemic. John-Paul Boyd, QC published this digest of the Canadian family law cases involving the pandemic on April 23, 2020.

You can also find decisions about COVID-19 cases by typing pandemic or COVID in the “document text” field on CanLII’s Provincial Court of BC page.

See Researching other family law cases if you’d like more detailed information about finding family law cases to support your application.

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