As the COVID-19 pandemic enters its second calendar year of involvement and invasiveness in our lives, we’ve been looking back at a year of our blogs and recognizing how big a role the virus has had in family law for the last ten months. There’s little doubt that we are indeed living in a “new normal.” A fairly recent decision from the Ontario Superior Court of Justice looks at how courts continue to exercise creative ways of dealing with COVID-19 in cases that normally wouldn’t even appear before them.
Pandemic brings new concerns about parenting time
The parents involved were married in 2011 and separated in 2018. After their separation, there was a short period of time where one of each of their children lived with each parent. However, a temporary order was issued in October 2018 which provided that both children would live primarily in the mother’s care, with the father having parenting time every Tuesday and Thursday after school until 7:00 pm and on alternate weekends.
Complications regarding the parenting arrangement arose during COVID-19. The mother, who is a nurse, had been taking a year to complete further education while working towards a Nurse Practitioner designation. During this time, she is living with her parents. Her parents suffer from issues that can make COVID-19 a serious threat to their health.
Meanwhile, the father is employed as a bus driver for the city of Hamilton. He had continued to work full-time during the pandemic and was living with his mother, who also suffers from health difficulties that were not elaborated on in the decision.
On March 17, 2020, the mother texted the father to state that she had a cough, headache, and fever. She said she was concerned that the children had caught COVID-19 or the flu from a church the father had taken them to during a recent visit. She told the father that she planned to isolate with the children for two weeks.
By April 2020 the mother had grown concerned that the children were at risk of contracting COVID-19 from the father and requested that she remain isolated with them, talking to the father through video or phone only.
Father seeks parenting time
The father, having missed a number of weeks of parenting time with the children requested two weeks of uninterrupted parenting time. He then requested that their original parenting order be put back in place. He stated there was no health concern that should prevent this, and that the mother was exaggerating any health concerns. The father stated that his employer had taken precautions to limit his potential exposure to the virus, including a barrier to prevent him from getting too close to passengers.
The mother denied fabricating issues and said she had serious concerns for her children and her parents. She told the court that the father comes into contact with a high number of people on a daily basis and that puts the family at an unacceptable level of risk.
A creative parenting solution is found
The court began its analysis by stating that the best interests of the children are the most important consideration in this case. The court stated it was satisfied there had been a significant change in circumstances since the original order was made, and that the health crisis being experienced was serious.
The court stated that the existing parenting arrangement was not in the best interest of the children due to the health risks associated with COVID-19. As a result, the court produced a schedule of visitation times that would occur outdoors and would see the father and children wearing masks while spending time together. While it wasn’t what either party wanted, it was clear that the court was trying to balance the multiple issues and concerns at play.
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