Court Cases & Orders

Outdoor Access Visits Ordered for Dad Who is One of the “Heroes of This Tragic Pandemic”

Written by Russell Alexander / (905) 655-6335

Outdoor Access Visits Ordered for Dad Who is One of the “Heroes of This Tragic Pandemic”

Now in its eight month, the COVID-19 pandemic continues to impact the daily lives of separated or divorced parents and their children.  By extension, it also impacts the types of orders that Family Law courts are having to make, when adjudicating on custody and access disputes between those parents.

The orders are typically tailored to account for government-mandated travel advisories, school closures, social distancing protocols, and restrictions on the size and location of group gatherings.  As we related in previous recent blogs, this can include preventing a custodial parent from travelling with a child out the country, or making rulings on whether a child should attend school in-person during the pandemic, when the parents disagree.

In one case from a few months ago, it has involved the court needing to put temporary restrictions on the right of a non-custodial parent to exercise parenting time with his or her child, by mandating that the visits only take place outdoors and during the daytime, while wearing masks.

In Blythe v. Blythe the separated parents had an existing temporary parenting order in place, giving the father access time with the two children on a specified schedule.  However, the father was an essential worker, and the mother was concerned that he might contract COVID-19 and then infect the children during his time with them.

In light of the mother’s legitimate concerns – which were heightened by the fact that she and the children lived with her elderly parents – the court reluctantly put constraints on the time and location of the father’s parenting time visits.  The court said:

For the reasons set out below, I have determined that it is in the best interests of the children to vary the existing temporary order … to provide that for the time being, the [father’s] parenting  time with [the children] should be reduced to daytime visits for limited periods of time, in an outdoor setting with some very limited exceptions, and subject to a number of conditions regarding safety precautions to maximize the protection and safety of the children, their immediate family and their extended family members. 

While lamenting the need for this type of restrictive order, the court went out of the way to recognize the father’s sacrifice during the unprecedented global challenges, calling him a “hero”:

I wish to emphasize that this decision has not been taken lightly, is a temporary measure only, and is not intended in any way to reflect upon the [father’s] love and commitment to his children or his general parenting abilities during the time that he has had with them.  I emphasize that from this court’s perspective, the [father] is one of the many heroes of this tragic pandemic:  an essential worker who has demonstrated a strong sense of civic duty by continuing to serve members of the public who are in need during an exceedingly difficult time.   It is one of the very sad ironies of this situation that courageous essential workers like the [father] are finding themselves caught in the middle of challenging parenting dilemmas such as the one that I have been asked to resolve, on top of all of the onerous responsibilities that they are shouldering to ease everyone’s way through this difficult time. 

With that said, the court noted it was always guided by the best interests of the children; the COVID-19 pandemic has necessitated many short-term adjustments to parents’ normal day-to-day routines, in order to achieve that goal.  The court emphasized the temporary nature of these adjustments:

However, all parents and the court must nonetheless remain focused on the best interests of children in dealing with these types of situations, and this will unfortunately at times necessitate that parents make sacrifices regarding the nature and extent of their time with their children for the overall benefit of the children.  As other judges have emphasized, solutions that are implemented during this period will in many cases be intended as short-term measures to address unique challenges that none of us have had to confront during our lifetimes.  The courts must not to view such temporary solutions as creating new “status quos” as we emerge on the other side of COVID-19.  Such is the situation in this case.

For the full text of the decision, see:

Blythe v. Blythe, 2020 ONSC 2871

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.