The emergence of COVID-19 and the safety measures put in place to slow its spread has led to a huge change in the way people live their lives on a day-to-day basis. For parents who share access to their children, there may be a concern by one of the parents that the other is not following the safety protocols put in place as a result of COVID-19. A recent decision from the Ontario Superior Court of Justice looks at a situation where a mother was concerned the father of their child was failing to comply with such protocols.

The application

The parents have a child together who is currently three-years-old. At the time of the trial, they were involved in a high-conflict dispute involving several motions that were scheduled to be heard together as a long motion in April, though whether or not that happened is still unclear. In the meantime, the mother was worried that the father was not respecting COVID-19 safety protocols, and as a result, she wanted to prevent the father from having access to the child until a time to be determined in the future.

Leading up to the application

The parties’ parenting schedule was established by a court order issued in July 2019. It gave the mother primary access to the child, with the father entitled to access as set times. While the child was in the care of the father on March 11, 2020, the father sent the mother photographs of the child playing on a playground. She responded two days later expressing concern about COVID-19, asking the father to ensure he was being pro-active in safeguarding the child, mentioning that she had canceled a planned vacation. The mother noted that she was concerned because the father lived in a three-bedroom apartment with two others.

The father did not respond to the mother’s email, stating later that he didn’t think it was important to acknowledge what he already knew.

On March 14, the mother provided the father with a face mask for the child as well as hand sanitizer and disposable gloves. She said he showed little interest in the items, adding there was no public health rule or guideline pertaining to the use of face basks. She emailed him again on March 25, once again expressing concern about COVID-19, offering to work with him to develop an emergency action plan in the event the pandemic worsened and risked impacting his access to the child. Once again, he did not respond.

The mother sent another email on March 27, seeking reassurance that the father was respecting COVID-19 protocol. She mentioned she was self-isolating with other members of her family, and that if he continued to fail to respond to her messages, she would escalate the matter. He responded the next day, writing she had “mothering to teach (him) about COVID-19.”

The court’s analysis

Citing a recent decision, the court offered some context on how the courts are addressing issues like this during COVID-19, quoting,

“In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing. 

“In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).”

In this case, the court found it was clear that rather than working with the mother to come to an understanding of how they would parent during COVID-19, he refused to engage with her, meaning the child’s safety was not the priority it should have been. The court said that while there is no doubt he loves the child, the mother was being reasonable in attempting to talk with him about parenting during COVID-19. As a result, the mother was granted sole custody of the child until a time yet to be determined.

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