What COVID-19 Caselaw Tells Us about Parenting.

• Author: Dargatz, Sarah
• Position: FAMILY

This column is coming out during the COVID-19 pandemic. Health authorities across Canada, and the world, have issued protocols for limiting the spread of the virus. Many family courts are only hearing "urgent" matters.

The court has heard cases during this time that speak to a specific set of circumstances in our history. However, the court's decisions also speak to principles that parents, and legal professionals, can apply at any time.

The Cases

One of the first parenting cases to come out was Ribeiro v Wright, 2020 ONSC 1829. Justice Pazaratz of the Superior Court of Justice in Hamilton, Ontario, heard an application shortly after the government implemented pandemic protocols. The mother wanted to suspend all of the father's court-ordered parenting time due to the pandemic.

Justice Pazaratz spoke of the balancing act that parents and courts must achieve. On the one hand, we must follow and respect current parenting orders based on the presumption that those orders reflect the child's best interests. And on the other hand, we must respect the health directives during an extraordinary time. In other words, parents and courts have to balance competing "best interests": having a relationship with both parents vs. preventing the spread of a deadly disease. This balancing act will not be the same for every family. The court will deal with each family on a case-by-case basis. The court noted that the existence of the pandemic and the resulting change to our day-to-day routines does not, in and of itself, necessarily justify changing the parenting schedule. However, there may be some cases where parents have to forego time with their children. For example, where a parent must quarantine, where family members have a heightened risk or where a parent is not complying with health protocols. Parents must make specific and realistic time-sharing proposals to address all COVID-19 considerations, with their primary focus being the children.

In Le v Norris, 2020 ONSC 1932, Justice Conlan of the Superior Court of Justice in Milton, Ontario heard an application from a father who was being denied his court-ordered parenting time by the mother. Justice Conlan noted that "responsible adherence" to the existing court order could address the mother's concerns related to COVID-19. This means "being practical and having some basic common sense". The parents could follow the order while still following the protocols set out by the health authorities.

In Skuce v...