Do I Have To Give My Kids Back?: How to Co-Parent During COVID-19

by: Beth Purdon-McLellan, Associate

My Ex isn’t Social Distancing – What Can I do?

Generally, parents cannot use COVID-19 as a reason to change the existing parenting schedule without the other parent’s consent.  If you and your Ex have a Court Order, this Order is still in effect. While parenting arrangements always subject to the health and safety of the child, the general risks related to COVID-19 do not create a presumption that it is okay to keep your children from seeing their other parent.[1]

In other words: No, you can’t keep your children from having face-to-face contact with their other parent unless you have real and specific concerns about your child’s safety. This is a high bar. It cannot be just a general worry about COVID-19 and must be something specific you’re your Ex is doing or not doing to protect your children from COVID-19.

Parents are encouraged to problem solve to address any risk of their children’s exposure to COVID-19. This does not mean cutting off a parent’s time with a child completely, and will require the parents to think of creative solutions. For example, parents may agree a child will spend longer stretches of time with each parent during the pandemic to minimize the number of transitions between the parents’ homes.

What do the Courts expect me to do to protect my children from COVID-19?

The Court have said that parents must follow Health Canada’s safety protocols and to practice social distancing. This is not optional.[2]

Judges expected parents to make reasonable parenting choices in line with Health Canada’s safety protocols.  For example, the Courts have expressed concerns about parents who continue to take their children to see elderly relatives, allow their children to have contact with other children, allow their children to have contact with the parent’s friends, or take the children to stores for non-essential items.[3]

If you or your Ex has a job where you are at risk of exposure to COVID-19, or you have a blended family, adjustments to the parenting schedule may be required to protect the child. The Court has been clear that in all cases, it is important for parents to communicate with each other about how you are managing risk during the pandemic.[4]

Due to our growing knowledge about COVID-19, Health Canada’s safety protocols change very quickly: what may have been safe a week ago may not be safe now. The Court expects that if you are co-parenting a child, you must keep yourself up to date about what Health Canada’s current recommendations are and take steps to put these recommendations into practice.[5] 

Can a Court help me if I think my children are unsafe? What can I do if my Ex won’t give my kids back?  

Parents should not rely on the Courts to sort out their disagreements about parenting time during COVID-19. The Court should be seen as a last resort. The Courts are open at a reduced capacity and are only dealing with urgent matters. There is no guarantee if you go to Court that the judge will decide your case. You can read more about what kinds of cases the Courts are hearing in our Blog post “Parenting during a Pandemic: Early Themes Emerge from the Case Law”.

Each family’s circumstances are unique and the Court determines risk and urgency on a case-by-case basis. If you are thinking about going to Court because you are worried about your child’s safety, you will need to be prepared to provide evidence of specific actions or plans that your Ex has made that are inconsistent with Health Canada’s safety protocols.[6]

There is still a presumption that existing parenting arrangements are in the child’s best interests. A child’s relationship cannot be placed on “hold” indefinitely because of COVID-19. The Courts have said that if you are seeking to limit your Ex’s contact with your child because of COVID-19 concerns, you should be prepared to propose an alternative parenting arrangement.[7]

If your Ex won’t give you your children back because they are worried about COVID-19, you can also try to go to Court to have them returned to you. However, there is a risk that the Court will decide that your case is not urgent enough and will refuse to make an order returning them to your care. If you do go to Court, judges require you to provide specific evidence of what you are doing to follow Health Canada’s safety protocols. [8]  

Remember, COVID-19 won’t last forever. As mentioned earlier, the Courts are looking to parents to take initiative and responsibility for resolving their disagreements during this time. Once the Courts return to their normal routine, judges will be looking closely at how parents behave during this period and will not look favourably on parents who withhold children unreasonably.

[1] Ribeiro v Wright, 2020 ONSC 1829 at para. 20 [“Ribeiro”].

[2] Eden v. Eden, 2020 ONSC 1991 at para. 17m [“Eden”].

[3] Eden, at para. 15.

[4] Ribeiro, at paras. 13 and 16.

[5] Cooper v. Teneyck, 2020 CanLII 23789 at para 11.

[6] Ribeiro, at para 21.

[7] Ribeiro, at para 21.

[8] Ribeiro, at para 21.

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