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It seems like the world has turned upside down in the past few weeks with Covid-19 spreading around the globe. This is an unprecedented situation that is difficult and stressful for everyone. The courts have reacted to the pandemic by suspending regular operations including adjourning all family law matters scheduled to be heard on or after Tuesday, March 17, 2020, only allowing urgent matters to proceed. See the Notice dated March 18, 2020, available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

Understandably there is confusion as to what urgent family matters will be heard by the courts. These are outlined in the Notice (see link above) and include:

1. urgent relief related to the safety of a child or parent (e.g. restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
2. urgent issues related to the well-being of the child including essential medical decisions or issues related to wrongful removal or retention of a child;
3. dire issues related to the parties’ financial circumstances including the need for a non-depletion order; and
4. in child protection cases, all urgent and statutory mandated events including the initial hearing after the child has been brought to a place of safety, and any other urgent motions or hearings.

While courts understand that there are competing concerns here, on one hand, there are government and public health directives urging people to practice social distancing and remain home, and on the other hand, compliance with existing court orders or parenting arrangements, they are reminding parents that they cannot use the pandemic to try and unilaterally change the court ordered or agreed upon parenting arrangements. 

A common scenario right now involves access parents refusing to return the child(ren) after March Break as had been agreed previously, or custodial parents looking to limit access as ordered or previously agreed to by both parties. In most scenarios, parents should follow existing orders or existing parenting arrangements in place with modifications to ensure that all COVID-19 precautions are being adhered to including strict social distancing. However, some modifications would apply such as:

1. the custodial or access parent may have to forego their time with the child, if that parent is under self-isolation for 14 days due to recent travel, personal illness or exposure to illness;

2. with respect to transitional arrangements, there may have to be modifications to transportation, exchange locations or other terms of supervision that are otherwise in place in order to ensure that social distancing is followed; and

3. A parent’s personal risk due to employment or association may require controls with respect to direct contact with a child.

Although there will be no tolerance for any parent who recklessly exposes a child (or members of a child’s household) to any COVID-19 risk, parents will be expects to be creative and find ways to maintain important parental relationships safely. The key is remaining child focused and for both access and custodial parents to try to spend time with the child at home.During this uncertain time, stay safe and healthy. Try to resolve family law disputes creatively before heading to court. If the matter cannot be resolved after best efforts are made, there are other options including consider temporary “without prejudice” agreements. If you are thinking of bringing an urgent family law motion or need assistance resolving a parenting dispute, please email [email protected], to a book a free consult.