Parenting during this unprecedented COVID-19 public health crisis is stressful for families. In response to this global pandemic, Federal and Provincial leaders across Canada have implemented new rules and restrictions that have completely changed how our day-to-day lives look. Days, which in a pre-COVID-19 Canada, were commonly characterized by children attending school, participating in extracurricular activities, celebrating special occasions and socializing with friends and family have gave way, for many, to days of mundane repetition and isolation. While these rules and regulations are necessary in the interest of public health, families who share physical and emotional care for children because of a separation have additional challenges. Namely, how do parents balance the safety precautions and “stay at home” directives from our governments with a custody and access order that requires that children go back and forth between households?

Effective March 18, 2020, courts in the Province of Newfoundland and Labrador made the extraordinary decision to suspend regular operations in an effort to combat the transmission of COVID-19, issuing a Notice to the Profession and General Public that court matters will not be heard unless they fit within a very limited number of “urgent and emergency” circumstances. Specifically, in the context of Family Law, the Court will continue to hear the child and adult protection matters, requests for urgent relief relating to the safety of a child or parent, applications related to medical decisions or wrongful removal of a child, preservation orders and any other matter the Court deems necessary and appropriate to hear on an urgent basis. What is “urgent” can be open to interpretation. Is it “urgent” if a parent is concerned that another parent will not follow guidelines or orders around social distancing, proper hygiene and self-isolation? Is it urgent if a parent takes a child to a grandparents’ or another place during this pandemic, which is not agreed to by the other parent? Is it urgent if a parent chooses not to follow the terms of a custody order and refuses to allow parenting by the other parent?

The Best Interests of the Child and Suspension of Parenting Orders

Currently, there are no decisions out of the Supreme Court of Newfoundland and Labrador, Family Division, with respect to parenting orders during COVID019. However, the Ontario Superior Court ruling in Ribeiro v. Wright, 2020 ONSC 1829 (CanLii), endorsed on March 24, 2020, has garnered much attention among family law practitioners.

In Ribeiro, the mother brought an urgent motion to suspend all in-person access for the father on the basis that she felt the father would not maintain social distancing for the child during the COVID-19 pandemic. The mother did not want the child leaving the home for any reason.

Justice Pazaratz decided that the matter was not urgent. He clearly stated there is a presumption that existing court orders should be complied with and further, that an existing order indicates that meaningful contact with both parents is in the child’s best interests. At paragraphs 10 and 11:

[C]hildren’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset.  A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever. 

In 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 – including strict social distancing. 

In Ribeiro, the mother had no evidence to suggest that the father would not, or had not, complied with any of the existing protocols. For that reason, there was no urgent need to suspend the parenting order in place. However, Justice Pazaratz did outline multiple scenarios, which, in the face of COVID-19, would be exceptions to the presumption that parental contact is in the best interests of the child. These include:

1. Where a parent is subject to a personal restriction such as being in self-isolation as a result of recent travel, has been diagnosed with the virus or been exposed to the virus;

2. Where personal risk factors such as employment or associations, may require that personal contact with a child is limited; and,

3. Where a parent’s lifestyle or behavior during COVID-19 places the child’s health at risk, or by failing to comply with social distancing or other public health directives raises questions regarding a parent’s judgement.

It was abundantly clear from this decision that the paramount concern, as in all cases involving children, is the best interests of the child. Parents will need to be flexible and creative in their efforts to maintain relationships between the child and both parents in a safe manner that complies with COVID-19 protocols. Both parents also need assurances that safety precautions are implemented and maintained in relation to all people spending time in the household with a child.

On March 30, 2020, Family Justice Services, affiliated with the Supreme Court, in this Province prepared a document for families that echoes the view advocated in Ribeiro. This document is available on the court website at www.court.nl.ca.

Meeting the Threshold of Urgency

On April 28, 2020, the Chief Justice of the Supreme Court of Newfoundland and Labrador issued a Notice to the Profession and General Public, which provided further direction on the requirements necessary to be met for a matter to be considered “urgent” in family matters. Specifically, the concern must be immediate and cannot await resolution; serious in that it significantly affects the “health, safety and economic well-being” of the parties or children; definite and material (not speculative); and one that is clearly supported by evidence.

To meet the test for urgency as recently articulated by our Chief Justice, we would advise clients to follow the procedure outlined by Justice Pazaratz in Ribeiro:

1. Given the nature of very limited judicial resources, parties must make all reasonable efforts to communicate, show respect and be flexible, creative and cooperative in developing safe parenting arrangements during COVID-19 before court proceedings are initiated;

2. The parent filing the application or motion must provide specific evidence or examples of behavior by the other parent which are contrary to COVID-19 directives and recommendations;

3. The parent responding to the urgent application or motion must provide “specific and absolute” reassurance that appropriate safety measures in compliance with COVID-19 protocol will be followed;

4. Both parents will be required to provide specific and realistic time-sharing proposals that address COVID-19 concerns in a manner that is child-focused and is in the best interests of the child.

In conclusion, parents should not presume that the existence of COVID-19 automatically suspends or justifies suspending existing parenting orders. Without specific evidence and examples regarding the actions of a parent, which are contrary to the COVID-19 protocols or other circumstances that may place a child at high risk for contracting the virus, the Court will likely not accept the matter as being “urgent”. This means the matter will not be heard or decided on by a judge. Further, even where concerns may be justified, the Court will want to know that all attempts have been made to work with the other parent in a respectful manner to address the issues in play before intervention on an “urgent” basis is necessary.

---

Please contact your McInnes Cooper lawyer or any member of our Litigation Team @ McInnes Cooper to discuss this topic or any other legal issue.

---

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2020. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.