Father Refuses To Return Children To Mother Because She Works In A Hospital

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COVID-19 has added new types of stress to families all over the country. These stresses take many forms, including financial hardship and challenges to familial relationships. For parents who are divorced or separated, questions may arise about the best way to share access while still practicing social distancing. One recent matter brought before the Ontario Superior Court of Justice looks at how having one parent working in the hospital system further complicates these types of challenges.

The separation agreement

The parents separated on July 1, 2013. Their children (referred to as “W” and “O”) are 7 and 6-years old respectively. The mother said she has been the primary caregiver to the children since their separation.

The parents entered a separation agreement on October 1, 2018. The agreement gave the father access to the children every other weekend from Friday at 5:00 p.m. until Sunday at 7:00 p.m. and every Wednesday overnight to Thursday.

The children are out of school due to COVID-19, and as a result, the mother said she proposed to change their access schedules to one-week-on and one-week-off for each parent. She says the father would not agree to this, instead insisting the children be kept in her care.

Concern about COVID-19

The mother stated that the father had refused to return the children to her care on March 23, 2020, because she is a healthcare worker. The mother, who is a registered practical nurse at a Kitchener hospital, does not work on the front line and says she is less likely to come into contact with COVID-19. She asked the court to return the children to her care.

Looking at recent precedent

The courts have been hearing urgent matters during this time. The court referenced a decision from just over a month ago that sets out the principles to aid in the determination of urgency with respect to parenting issues during COVID-19. They are:

  • In most situations, there is a presumption that existing parenting arrangements and schedules should continue, subject to modifications to ensure that COVID-19 precautions are adhered to, including social distancing.
  • In some cases, a parent may have to forego scheduled time with a child, for example, if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness.
  • In some cases, personal risk factors through employment or associations may require controls on direct contact on a child.
  • Further, lifestyle or parental behavior in the face of COVID-19 may necessitate restrictions on parenting time. There would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk.

The court, in this case, added that there may be risk factors related to the health of the parent or children that may need to be taken into account.

The court determined that the case was urgent, and asked the parties to file materials in time for an April 14 hearing. We will be sure to report on this hearing when available.

At Jason P. Howie, we remain open 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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A child's wheelchair representing parents ensuring care for a disabled child after divorce