We’ve spent a lot of time blogging over the last few months about how COVID-19 has impacted family law decisions. One thing we have found especially interesting as of late is the way that COVID-19 has influenced the decisions people make, and how those decisions play out before the courts. An example of this is a recent decision from the Ontario Superior Court of Justice which looks at a situation where a mother does not want to provide the father with access to the parties’ children because he lives with his parents and brother, the latter of whom is a long-distance trucker.

Concerns over COVID-19

The parties are separated and entered in a Minutes of Settlement on December 13, 2019. The Minutes of Settlement stipulated that the parties’ children (aged 3 and 4) would live primarily with the mother. The father was to have alternate overnight weekend access starting in March 2020 provided he abided by the access rules set out before then.

Following the father’s weekend access from 9:00 am March 15 to 7:00 pm March 16, the mother took the position that the father should not have any further access to the children due to COVID-19. The father lives with his parents and his brother. The brother is a long-distance truck driver who travels weekly to the United States for work.

Safety protocols for the brother

The brother filed an affidavit with the court outlining the COVID-19 policies his employer has in place. He explained that he waits for a call to tell him when he can arrive with his truck for delivery. He then waits in the truck while it is unloaded, and if he does have to get out he stays 6-8 feet away from anyone. He also said he eats takeout food in his truck, only exiting to use the washroom. When he arrives at home he said he immediately takes off his clothes and washes them. He then has a bath where he disinfects himself and any surfaces he may have touched before bathing.

Is it enough?

The court cited a recent decision which states that in most circumstances, families should try to maintain any access arrangements already in place, writing, “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.” However, the decision also stated that in some cases, a parent’s personal risk factors might require that their regular access be altered.

In this case, the court found that there would be harm done to the children if the father was continued to be unable to access them. The court found that in this case, the brother’s risk of contracting COVID-19 “is probably less than many members of the community such as retail employees.”

As a result the court found that the father should continue to have is regularly scheduled access to the children.

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.