Parental Behaviour and COVID-19 Results In Temporary Loss Of Access

During the COVID-19 pandemic, separated and divorced parents may have had to face new challenges, particularly as it relates to child custody and access. We’ve covered many of these situations in our blog, focusing largely on circumstances where the parents have taken different approaches in how seriously they follow public health guidelines. In today’s blog we’re building on that focus by looking at a decision from the Ontario Court of Justice that deals with custody of a child who has a condition requiring strict physical distancing.

The family

The parents separated about 18 months ago and have two children together. The children were four and five years old at the time of the hearing. The court described the parents’ relationship as “somewhat tortuous.” Indeed, the father was charged on November 27, 2019, with three counts of threatening involving the mother and her parents. As a response to that incident, the mother asked for an order without notice to the father. The order coming from that application was that the mother have custody of the children and the father have access as arranged by him and the mother. Eventually, they agreed on terms with the help of their lawyers.

The father’s legal troubles continued into the new year. He was arrested on February 17, 2020 on weapons-related charges. The mother attempted to have the father’s access suspended as a result but was unsuccessful at doing so.

COVID-19 hits

When the COVID-19 pandemic hit Canada the mother resisted a continuation of face t0 face access between the children and their father. One of the daughters (“L”) has a genetic condition that can cause potential lung conditions. The girl’s doctor recommended social distancing at first and later enhanced distancing. The father agreed to skip to scheduled visits but eventually asked to resume regular face to face visits.

The court began its analysis by noting that the children were well-loved and seemed to have adjusted to their parents’ situation. The court accepted evidence that L’s condition increased the risk of harm should she be exposed to COVID-19. The father argued that the medical concerns brought before the court were a ploy to keep him from seeing the children, though he did not provide any medical evidence of his own.

The court was sympathetic to the many challenges being faced by the father, including criminal charges, mental health treatment, and an attempt to stay off of drugs. However, the court’s decision noted the importance of ensuring L’s wellbeing, stating,

“The last best medical opinion specific to (L) is that at this point a single residence is safest for her. Like anything else in life, risk of harm is relative and there is no perfect protection of any child. Here however we are not discussing an unending block to physical access between the girls and their dad but rather a pause in face to face contact and a continuation of frequent virtual contact.”

The court asked for the parties to update the court on their plans to resume physical visitations on July 15, 2020.

To speak with an experienced Windsor lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.




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