COVID-19: First Emergency Child Access Case Decision from the SCJ
In the case of Ribeiro v Wright the Hamilton Superior Court of Justice has recently released the first endorsement with respect to urgent matters since COVID-19 measures were put in place. In the case, an Emergency Notice of Motion of Applicant was submitted March 22, 2020 in addition to an Affidavit of the Applicant on same. The urgent motion was brought by one party to suspend all in-person access because of COVID-19. The trial judge has not authorized this matter to proceed as an urgent hearing at this time.
COVID-19 has shown us that our lives have had to be put on hold in many respects, however the court identifies that suspending a child’s access to one parent may be contrary to their best interests due to the risk of emotional harm. The court highlights that now more than ever the child requires love and support from both parents, and that existing parenting arrangements should be presumed to continue subject to any necessary modification to follow COVID-19 precautions. The court outlines that such modifications can include one parent being in the 14 day isolation period due to travel or personal illness. In the case at hand, the motion was brought due to one party believing the other would not obey social distancing policy and despite the court not authorizing this matter as urgent, it did however acknowledge that any reckless exposure to COVID-19 will be met with zero tolerance.
The court has also expressed to clients that if a parent is concerned that COIVID-19 creates an urgent issue relating to parenting, they are indeed able to initiate an emergency motion but they should not presume raising such an issue will result in an urgent hearing. The procedure the court will consider at this time is as follows:
a) The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
b) The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
c) Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
d) Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
The court is aware of the seriousness of COVID-19 and wants to ensure parents are proceeding in good faith and with mutual respect opposed to abusing the situation. The decision of the court was reached without prejudice to the issue being returned to court if more serious and specific COVID-19 issues arise.
You can also check out our Covid-19 and Divorce Information Centre: here.
At Russell Alexander Collaborative Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com