Best Interests of the Child: Parenting Time or COVID-19 Safety?
In family law matters, the best interests of the child are paramount. This principle is codified in Canadian legislation such as the Divorce Act of 1985 wherein courts making orders relating to the child(ren) are directed to take into consideration the best interests of the child of the marriage, as determined by reference to the conditions, means, needs, and other circumstances (s.16(8)). This principle is also codified in practice as the Supreme Court of Canada and Court of Appeals have repeatedly confirmed and emphasized the child-focused approach. However, what happens when there is conflicting interests of the child?
The recent case of Rafeiro v. Bolhuis dealt with such a conflict wherein there was conflicting circumstances that made the best interest of the child difficult to determine. In the case, the children were living in Ontario with their father but had not seen their mother for an extended period of time due to the pandemic, who was living in Nova Scotia. The issue before the Court was whether the best interests of the children laid with their physical health relating to COVID-19 and travelling, or their mental/emotional health relating to not seeing their mother.
The first issue for the Court to determine was if visiting their mother was in their best interests. In its ruling, the Court gave heavy weight to the additional considerations established by case law that there should be “maximum contact between a child and both parents, and the opportunity to develop and maintain a healthy relationship with both parents, and such contact is presumed to be beneficial and in a child’s best interests” [33 (a)]. The Court considered this in accordance with the fact that the children’s extended time apart from their mother had begun to strain their relationship and needed to be restored.
The second issue the Court was presented with was the impact that travelling would have on the children’s health and safety with respect to COVID-19. The children possess an asthmatic condition that gives rise to a degree of elevated risk. In its assessment, the Court acknowledged the serious weight they have placed, and continue to do so, on abiding by health protocols during the pandemic. However, the Court stated that the children would be in no greater risk in Nova Scotia than Ontario given the number of infections in both provinces. It was concluded that their physical presence in Nova Scotia with their mother did not elevate the risk of their physical health.
The third relevant issue was the travelling to Nova Scotia itself. The Canadian government has advised against all non-essential travel throughout the course of the pandemic, however the Court stated that since the onset of the virus there has been much improvement and safety precautions implemented to ensure the health of travelers. They cited actions such as mandatory health checks and mask wearing for airline passengers and the limiting of guests in hotels, in addition to increased sanitation. The Court concluded that given the above, and the mother’s ability to care for the children, it would be in the best interests of the children to spend time with her.