“There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child. On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times…”
– Justice Pazaratz[1]
While COVID should not be used as an excuse to reduce one’s support obligations absent a factual and evidentiary basis, COVID concerns should similarly not be used as a justification for denying parenting time where there is no specific concern that a child’s health or someone in the child’s household is at risk.
As Justice Pazaratz noted in the well-known case of Ribeiro v Wright, “[i]n most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to.”[2] However, if there is some specific concern, the courts will consider whether the concern warrants a change to the existing parenting arrangements in accordance with the best interests of the child. Each case will turn on its own specific facts.
Making every effort to work with the other parent is expected
Absent a specific concern, the fact that a child must go from one parent’s household to another is not a basis for ignoring parenting arrangements or applying for a variation. Instead, courts have stated that “each parent is expected to show some flexibility by making every effort to work with the other parent and to comply with recommendations of public health officials regarding things such as self-isolation, physical distancing, and proper hygiene.”[3]
Courts expect parents to cooperate and to act in the best interests of the child instead of engaging in unilateral self-help behaviour. Courts will consider whether the “parents have made good faith efforts to communicate; to show mutual respect, and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”[4]
Failure to adhere to the recommendations could be a basis for varying an existing parenting order
A parent’s failure, inability or refusal to adhere to the coronavirus recommendations of public health officials could be a basis for varying an existing parenting order. This requires specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 protocols. On the other hand, the parent responding to these claims will need “to provide specific and absolute reassurances that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.”[5]
Where arrangements need to be reconsidered in light of case-specific evidence such as one parent not adhering to the COVID recommendations of public health officials or where one household is subject to heightened risks associated with COVID, courts will consider how those risks can be minimized in a manner consistent with the best interests of the child. In this regard, realistic time-sharing proposals which fully address COVID 19 considerations in a child-focused manner will be taken into account.
In the end, COVID concerns will not automatically result in a suspension or decrease in parenting time. Instead, courts will address these issues on a case-by-case basis. A parent’s parenting time will not be curtailed absent case-specific evidence that this is warranted and in the best interests of the child.
[1] Ribeiro v Wright, 2020 ONSC 1829 (CanLII) at paras 7-8 (“Ribeiro v Wright”).
[2] Ibid. at para 11.
[3] CGR v JLR, 2020 BCSC 790 (CanLII) at para 20.
[4] Ribeiro v Wright at para 23.
[5] Ibid at para 21.
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