Family Litigation During Covid-19

As most are aware, the family courts have been closed since the start of the pandemic in March, except for the most urgent cases, and some straightforward procedural issues. What falls within the ambit of what is considered urgent includes matters involving the “wellbeing being of a child, including essential medical decisions, or issues relating to the wrongful removal or retention of a child”.

There is a developing body of caselaw regarding what a court deems urgent in the context of custody and access disputes during Covid-19.

Given the risks inherent in a child spending time in two households, some custodial parents are using Covid-19 as a reason to suspend regular access visits and to not honour the terms of existing custody and access orders or agreements. While parents are expected to be mindful of Covid-19 protocols, one might assume that a wholesale denial of access would be considered an urgent matter in need of immediate court intervention considering the effects of this denial on a child’s well being, especially as our collective time living in social isolation continues.

However, the caselaw is contradictory.

In Douglas v. Douglas (Ont.S.C.J.), a mother unilaterally stopped allowing access every other weekend to the father, arguing that access could not be safely conducted during Covid-19 because of (among other things) the father’s potential exposure at his workplace. All of the father’s mid-week access was also suspended. In a decision rendered on March 25, 2020, the judge concluded that the matter was not urgent on the basis that it involved a dispute over parenting time, and the child’s safety was not at risk.

I might agree with this characterization if there was a minimal amount of access being given by the mother. But when there is no access at all, the role of the access parent has effectively been terminated by the access parent. While it’s not cited as a reason, perhaps the distinction here is that, on the facts of the case, there was no existing court order or written agreement in place regarding custody and access.

In contrast, in Le v. Norris (Ont.S.C.J.), the court upheld the existing custody and access schedule of two access visits per week to a father for his 3-year-old child, even though the mother did not believe this schedule could be safely implemented during Covid-19. The judge concluded that ‘responsible adherence to the existing Court Order’ was necessary, and that one could balance the need for complying with public health recommendations with the need to follow an existing Order. The judge went one step further and authorized the police to enforce the terms of the custody and access Order.

Finally, in C.Y. v. F.R. (Ont.S.C.J.)

although the parties did not have an existing Court Order or written agreement, the clear status quo was that the two children, aged 3 and 5, had resided primarily with the mother since separation. When the father took the children and refused to return them unless the mother would consent to a 50/50 time-sharing arrangement, the judge concluded that the matter was urgent on the basis that it involved a unilateral attempt on the part of the father to alter the status quo.

It would seem that, absent an order or agreement, unilateral attempts to alter the status quo are more likely to be considered ‘urgent’ if they involve changes to a child’s primary residence, as opposed to changes to access visits with a non-custodial parent.