Pandemic Parenting: Early Themes Emerging from the Case Law

by: Patricia Gordon, Associate

On March 17, 2020, Chief Justice Morawetz of the Superior Court of Justice issued a Notice to the Profession, the Public and the Media, confirming that the court was suspending regular operations amid the COVID-19 outbreak. Chief Justice Morawetz’s Notice confirmed that only urgent and emergency family law matters would be heard during the suspension, including:

  1. Requests for urgent relief relating to the safety of a child or parent; and 
  1. Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child. 

When the Notice was first issued, there was uncertainty in the family bar about how the new urgency standards would be applied and how the COVID-19 epidemic would impact parenting arrangements. Now that the standards have been in place for three weeks, the following themes have emerged in the case law, which may offer guidance to counsel and parties regarding how to manage COVID-related issues and when the courts may intervene: 

  • The standard for urgency during the court suspension is stringent, likely more so than the test for urgency under Rule 14(4.2) of the Family Law Rules
  • There is a general presumption that existing parenting orders and agreements reflect the best interests of children and should continue to be followed (Ribeiro v Wright) (Zee v Quon); 
  • During this difficult period, it is particularly important for children to have the love and support of both parents- a blanket policy that children should not leave their primary residence to visit the other parent fails to take this into account (Ribeiro v Wright) (Skuce v Skuce) (Zee v Quon); 
  • Just as a parent with primary residence of a child will likely not be able to use general COVID-19 concerns to deny an access parent their court-ordered time with a child, an access parent rely on general COVID-19 concerns to refuse to return a child to a parent with primary residence (Chrisjohn v Hillier) (Skuce v Skuce) (Zee v Quon)(Placha v Bennett)
  • Having fewer people living in one parent’s home compared to the other parent will not, in and of itself, justify an Order that the child should remain with that parent, particularly if the parent with the larger household can show that appropriate safety precautions are being taken (Chrisjohn v Hillier); 
  • However, if a specific parent’s circumstances are such that there is increased risk (for example, the parent is required to self-isolate or their employment puts them at unique high risk), it may be necessary to suspend or change parenting time to manage risk (Ribeiro v Wright) (Skuce v Skuce) but a parent who is at increased risk will not automatically be prevented from exercising their regular parenting time (Zee v Quon)
  • If there is evidence that a parent is failing to comply with health directives or to protect the health of children and other members of a child’s household, this may be grounds to change parenting time during this period (Ribeiro v Wright)
  • The absence (or expiry of) an order or agreement on parenting may not meet the test for urgency (Reitzel v Reitzel) (Eden v Eden) but parents are expected to work together to come up with reasonable arrangements in the interim (Eden v Eden)
  • Parents are expected to work together creatively, cooperatively and with common sense to protect the well-being of children, including considering changes to methods of transportation between homes or exchange locations (Ribeiro v Wright)
  • A parenting motion which was scheduled to be heard before the court shutdown is not urgent simply because it can no longer be heard on the same timeline as a result of the shutdown (Onuoha v Onuoha)
  • A parent should not assume that raising a COVID-19 related issue will meet the stringent test for urgency during the shutdown. A parent raising such issue bears the onus of providing specific evidence and examples of behaviour or plans by the other parent which are inconsistent with COVID-19 protocols (Ribeiro v Wright) (Skuce v Skuce) (Zee v Quon)
  • The responding parent bears the onus of providing specific and absolute reassurance that COVID-19 safety measures will be adhered to in their home. Both parents will then be expected to provide specific and child-focused proposals for how to address the concerns in a child-focused manner (Ribeiro v Wright)
  • A parent should not assume that raising a COVID-19 related issue will result in suspension of parenting time (Ribeiro v Wright)

Many of the decisions that have emerged since the shutdown have stressed the importance of parents and counsel working cooperatively and creatively together to resolve interim parenting issues before resorting to urgent motions. In the words of Justice Pazaratz in Ribeiro v Wright, “none of us have ever experienced anything like this. We are all going to have to try a bit harder- for the sake of our children.”