Top 20 COVID-19 Questions about Ontario Child Custody and Access
There are significant challenges for parents in knowing what is best for their children at this time. The “goal posts” seem to move daily, and what is deemed “safe” today may not be deemed “safe” tomorrow. Parents and the courts are aware that recommendations by senior public health officials are shifting in response to the evolution of the pandemic in Canada. We simply do not know. It is no wonder that this is a difficult time for parents to make decisions.
Parents need to work together, no matter their differences, to craft the safest options for children while ensuring that children derive the benefit of the love, nurturance, and guidance of both of them. Of course, the overriding requirement on parents is to keep the health, well-being, and best interests of their children at the forefront of their decision-making.
The disruption of our lives is anxiety producing for everyone. It is even more confusing for children who may have a difficult time understanding. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner. Vulnerable children need reassurance that everything is going to be OK. It’s up to the adults to provide that reassurance. Right now, families need more cooperation. And less litigation. Important tips to consider regarding COVID-19 concerns include:
- Before speaking to the other party, double-check to see current safety recommendations provided by reliable local sources.
- If the circumstances permit, communicate with the other parent. Consider that you will get further by framing the issue as ‘problem solving’ than blaming or accusing the other party.
- If there is communication, see if a compromise or assurance will resolve the matter.
- If you reach an agreement, it can be filed with the court on a consent basis to be turned into a court order.
Here are the top 20 COVID-19 custody and access questions our clients are asking:
1. I’m very concerned with COVID spreading to or through my children going back and forth between me and their other parent. Can I stop access until this is over?
2. But what if we don’t have any formal agreement or court order?
3. So what type of COVID-related risk will be considered worth changing a parenting schedule?
4. But I have shared parenting and can watch the children because I can work from home (or, not working). The other party can have video/phone access. Doesn’t that change anything?
5. But the other parent works in healthcare and has an increased risk of contracting COVID. Doesn’t that matter?
6. I am concerned about COVID spreading during our child exchanges.
7. The other parent has other children from another relationship that go between homes too. I am concerned about COVID spreading through all this family mixing.
8. I have supervised access. Will that continue during COVID?
9. The other parent is using public transportation for access. Can I stop access?
10. So what am I supposed to do with my concerns?
11. I believe withholding access is in my child(ren)’s best interest AND I am not convinced the other side will be reasonable or even communicate with me or a lawyer. What can I do?
12. So the courts are operating?
13. The other parent is pestering me about my “adherence” to COVID safety protocols. This is yet another example of their controlling behaviour. What should I do?
14. The other parent is now not allowing me to see our children, making all these excuses, including COVID. What do I do?
15. The other parent is overholding our child and not willing to return the child as set out in an existing court order.
16. I’m concerned that the other parent will move or abduct our child. Will the court be willing to hear my matter?
17. My children are now refusing to come to my house. The other parent is not encouraging them or maybe even alienating them from me. Will the court hear my matter?
18. What other parenting claims is the court likely not willing to deal with now?
19. If I need to go the court route, how do I have my documents formally signed – I can’t meet anyone in person?
20. How do I file papers with the court?
The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. At this time of pandemic, only the most urgent matters can be heard.
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
- requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
- 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;
- dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
- in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
The determination of urgency is intended to be simple and expeditious, recognizing the summary nature of the determination. Importantly, any determination of potential urgency or lack of urgency is wholly without prejudice (will not affect substantive legal rights) to either party on the ultimate hearing of the motion.
Even if a case is considered “urgent” for Court triage purposes, on review of the facts of your circumstances the judge presiding on the hearing still needs to make a finding of “urgency” or “hardship” to skip regular family law court procedure to have a conference before a formal motion hearing. This is a separate legal analysis: “urgency or hardship” usually refers to abduction, threats of harm, dire financial circumstances AND if the moving party provides evidence (a) that he/she has made inquiries about the availability of case conference dates, and (b) of his/her efforts to settle the matter outside the court process.
During COVID the court has defined what constitutes “urgency” at the present time as:
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be seriousin the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
Currently only urgent and limited-issue case conferences are being scheduled, so the general requirement to make efforts to settle the matter outside the court process before proceeding to court assumes greater importance
OK, so you now know the top 20 questions parents are asking. How do you find the answers? Well I took deep dive into these questions with family professional Johnathan Paynter and lawyers Marc D’Heureux and Jarret Johnston. We spent over an hour examining these questions. You can hear our answers on the Family Law Now Podcast or watch us answer these questions on our YouTube channel.
Stay tuned and stay safe!
