Court Does Not Allow Unilateral Changing Of Custody Arrangements During COVID-19


When divorced or separated parents find new partners, sometimes with their own children from previous relationships, blended families are formed. While blended families may have been rare just a couple of generations ago, they’re now a common part of Canada’s family landscape. Unfortunately, COVID-19 has impacted the ways blended families operate. This is illustrated in a recent decision from the Ontario Superior Court of Justice.

Two blended families

The parties have four children between them, and both the mother and the father have found new partners, also with children from previous relationships. The parties live with their new partners and share custody of their four children.

A trip to Florida upsets the balance

Like many of the recent blogs we’ve discussed, things went south during the onset of COVID-19. The children had been in Florida with the mother and her partner (as well as his kids). The children were unable to take a commercial flight home and instead returned via private plane with their live-in-nanny on March 22. The children returned to their father upon their return.

On April 2, the children were scheduled to return to their mother’s custody. However, the father told the mother he would not turn them over unless she could promise him they would not be in contact with the children of her partner. The mother missed two weekends with the children until she relented and agreed to the father’s terms on April 17.

The issue arrived before the courts when the mother submitted that the father cannot prescribe the conditions on which she has access to the children.

The positions of the parties

The mother submitted that she is in a committed relationship with her partner and their children, who they each have access to on Mondays and on the same alternate weekends. However, she and her partner each maintain their own residence since neither home is large enough to accommodate all eight children, though the partner did state that they all sleep at his house during their weekends.

The father shares a home with his new partner and her three children. He maintains that they are a single household while the mother and her partner are not.

A situation unique to COVID-19

The court noted that the pandemic raises significant health concerns for everyone, but it is not an excuse to cast aside existing parenting agreements and orders which have been negotiated and/or considered at length, and are in the best interest of the children. The court said it was the father’s obligation to show that additional conditions are warranted based on an increased risk to the health and safety of the children.

The court did not find the father to have met this obligation.

The court found that the mother and her partner constitute a “household” despite having two homes. It was pointed out that even the father referred to their blended family as a “household.”

The court found that “At this time, if contact with the (mother’s partner’s) children does not pose an additional risk to the health and safety of the children, it is also in their interest to maintain their relationships with the (mother’s partner’s) children, especially at a confusing and stressful time when they are unable to attend school, participate in their usual activities, and spend time with friends.”

The team at Jason P. Howie is still serving our clients during COVID-19, though in a more limited capacity than we are accustomed to. Please be aware that most of our staff are working from home at this time. Please contact us by phone at 519.973.1500 or online if you need to meet. We are trying to minimize office visits but can meet virtually as well. We are available to help you determine how COVID-19 impacts your family law issue and to guide you through it in these difficult times.

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