Child Custody

Child “Terrified” of COVID-19 – Court Reflects on Whether to Order His Return to Ontario Hotspot

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Child “Terrified” of COVID-19 – Court Reflects on Whether to Order His Return to Ontario Hotspot

Should the court allow an Ontario-based mother to remain with her three teenaged children in another province – in breach of her custody agreement with the father – mainly to give them a respite from the negative impact of the COVID-19 pandemic?

That was the question determined by Mr. Justice Pazaratz in a very recent ruling, which he began with these gripping words:

Imagine a vacation from COVID.  A temporary return to “normal”.

Imagine business as usual.  No restrictions. No lock downs.  No curfews.  No curbside pickups. No daily infection numbers.  No death counts.  No contagion.

No constant fear.

Imagine a place pretty much removed from the pandemic.  Not a mythical place like Atlantis or Mayberry.  But a real place with real healthy people, right here in Canada.

That possibility – the chance to even briefly rescue children from this COVID nightmare – was the subject of this unusual motion where the facts might actually create a bit of envy.

The parents’ custody agreement provided that the mother, who was originally from Newfoundland, could travel back there with the teens for vacations, to allow them to visit extended family and spend time at a second home she owned there.  On this particular occasion, the parents had agreed that the mother could take them for a month – which was their customary 2-week holiday at Christmas, plus another 14 days to allow for their self-isolation period after arriving.

However, when the scheduled month was over, the mother and the children did not return to Ontario as planned. Instead, as the mother explained, she opted to stay in Newfoundland longer, for the sake of the children’s mental and emotional health.  All three of them expressed a preference to stay for now. Plus, the children were not missing any of their schoolwork in Ontario, since in-person schools were closed and they were forced to study remotely anyway.

The mother accordingly asked the court for permission to stay with the children in Newfoundland, at least until Ontario schools re-open to allow for in-person learning.

The father objected.  He insisted that the children should return home immediately, in line with the agreed custody arrangement.  He urged that the parents could work together to quell the children’s fears, and had an obligation to cooperate with each other toward that goal.

Justice Pazaratz heard evidence to the effect that all three children had been struggling with the pandemic-era restrictions imposed in Ontario, including the lockdowns.  In contrast, given Newfoundland’s much smaller population, drastically lower infection rate, and relatively fewer government-imposed restrictions, they’d had a much happier experience during their month-long visit in that province.  Justice Pazaratz described the stark contrast of their time in Newfoundland:

The mother says all of the children – particularly John – have responded extremely well to this freedom from COVID.  After many months of isolation and deprivation in Ontario, their ability to have spontaneous interaction with family members in Newfoundland has been “healing”. 

They are able to enjoy the normal activities of daily life because stores, restaurants, cinemas, museums, libraries, gyms, etc. are all open – subject to masks and social distancing.  The boys have been able to resume their competitive swimming (banned in Ontario).

George plays violin. John plays saxophone.  They were members of a youth orchestra in Hamilton which curtailed its activities as a result of COVID.  They are excited about possibly being able to play with a youth orchestra in St. John’s.  They are also rehearsing to bring their instruments into the nursing home to play for the maternal grandmother.

The mother listed many other examples of ordinary activities everyone took for granted in pre-COVID times – activities the children have been able to re-discover in COVID-free Newfoundland.

To compound matters, this was not merely a case where the children were reluctant to return to Ontario after a nice Christmas holiday; rather, they were afraid to do so.  After having spent time in the significantly more-relaxed Newfoundland – where occupants were aware of safety protocols, but not pre-occupied with the pandemic – the children were becoming worried about having to return to the COVID-19 “hotspot” of Ontario, where the restrictions remain but the projected increase in infections was still frightening.

On the other hand, Justice Pazaratz acknowledged one of the father’s key objections, which was that he was being told about very important decisions only after-the-fact, and without discussion or a chance to provide input on what he felt the best interests of the children might be.

In the end, and while emphasizing that the children would indeed be returning to Ontario at the earliest point, Justice Pazaratz opted to adjourn the matter until February 12, 2021, when in-class schooling is scheduled to potentially resume in Ontario. – Russell Alexander, Founding Partner

In the end, and while emphasizing that the children would indeed be returning to Ontario at the earliest point, Justice Pazaratz opted to adjourn the matter until February 12, 2021, when in-class schooling is scheduled to potentially resume in Ontario.  If in-class instruction was not resumed on that date, then the matter could be revisited by the court to determine the best time for the children’s return, after assessing their mental and emotional readiness.

As part of the judgment Justice Pazaratz also specifically ordered the parents to find a counsellor for their 13-year-old son, who reported he was “terrified” about COVID-19, and who could even be at risk of having mental health issues.  The Justice added:  “Perhaps in addition to all the masks and hand sanitizers, we need to pay a bit more attention to how children are coping emotionally with COVID fatigue.”  In this same vein he also added:

Most of the COVID-related caselaw has focused on physical protection of children, parents and others with respect to exposure to the coronavirus. 

As the pandemic has dragged on, however, there has been increasing community recognition of the impact all of this is having on our mental health.  And if adults are having trouble coping with life-threatening dangers, just imagine what it’s like for children.

For the full text of the decision, see:

I.L. v. C.R., 2021 ONSC 590

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, 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. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.