Can I Suspend Access Because of COVID-19?

The global spread of the SARS-CoV-2 virus (“COVID-19”) has brought our routines to a standstill. As of March 25, all non-essential businesses in Ontario are required to close, schools are closed, and social distancing dominates our national lexicon.

Parents are wondering if access / parenting time should continue as it has been, or to minimize the risk of exposure exchanges should be terminated. With the courts closed (to all but urgent matters), there is a sense of little recourse should disagreements arise.

Fortunately, in his March 24, 2020 decision in Ribeiro v. Wright, 2020 ONSC 1829 ( the Honourable Justice Pazaratz has provided direction to lawyers and parties in this midst of the COVID-19 pandemic.

Justice Pazaratz disagreed with the suggestion of a blanket policy of children never leaving their primary residence. Citing the risk of emotional harm and upset by not sustaining other important family relationships, His Honour felt existing parenting schedules should continue where possible.

However, Justice Pazaratz also outlined that social distancing, and adherence to the Government’s requirements or recommendations regarding COVID-19 should be followed. If a parent has recently returned from foreign travel, and are required to self-isolate for 14 days, they may have to forego their usual parenting time. A parent’s personal risk factors, through lifestyle or employment, may also constitute grounds to modify or terminate the existing parenting schedule.

Motions concerning COVID-19 will be dealt with case-by-case, and will have the following traits:

  1. Moving party must provide clear evidence or examples other parent is violating COVID-19 protocols.
  • Responding party must provide clear assurances COVID-19 safety measures will be meticulously adhered to.
  • Both parties must provide specific and realistic time-sharing proposals addressing all COVID-19 considerations.
  • Judges will likely take notice of the fact that social distancing is now commonplace and accepted.

Until an existing court order is modified by a subsequent order, you are expected to follow the existing order. Unilateral changes risks a finding of contempt of court.

If you have concerns about the other parent’s action or inaction with respect to COVID-19, discussing those concerns are often the best first step. However, if it’s not possible to have fruitful conversations, it may be best to speak to your family counsel.

Every case turns on its unique facts. If you have questions about COVID-19 and its impact on your parenting arrangement, do not hesitate to contact our firm.