“When the pandemic started in March 2020, case law came out stating that 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. There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict the other’s parenting time to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID-19 protocols and expose the child to risk. See: Tessier v. Rick, 2020 ONSC 1886.
However, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 raises sufficient concerns about parental judgment that direct parent-child contact is not in a child’s best interests. In Ribeiro v. Wright, 2020 ONSC 1829, Justice Alex Pazaratz wrote at paragraph 14 that there should be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
Justice Pazaratz went on to write at paragraph 23 of Ribeiro that “judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. …”
Since the release of Ribeiro, other courts have held that parties must follow COVID-19 protocols, including handwashing, physical distancing, and limiting exposure to others. See: Skuce v. Skuce, 2020 ONSC 1881, at para. 85.
In A.T. v. V.S., 2020 ONSC 4198, the court made an order for no in-person parenting time for a father who refused to follow COVID-19 health protocols.
In Balbontin v. Luwana, 2020 ONSC 1996, Justice David Jarvis wrote that parents cannot ignore the other parent’s inquiries about how they would comply with government directions. All levels of government in Canada, national, provincial and local, he said, have issued public health notices dealing with preventing infection which include guidelines for physical distancing and, where appropriate, self-isolating. Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. Justice Jarvis suspended the parenting time of a parent who was not responsive to the other parent’s inquiries.
In determining a suspension of face-to-face contact the court must assess the medical vulnerabilities of children in the home, the ability of the parents to follow COVID-19 health protocols and the risk to the child of diminishing their relationship with one parent. See: C.L.B. v. A.J.N., 2020 ONCJ 213. The court must balance the harm of COVID-19 exposure with harm to children being denied face-to-face contact with a parent. See: Pollard v. Joshi, 2020 ONSC 2701.
In A.G., supra, where the mother sought to terminate the in-person parenting time of a parent who had only had a single vaccination, Justice Spence wrote that there were competing interests at stake. On the one hand, the father’s parenting time with his child increased the child’s risk of infection for COVID-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way – in-person contact being more meaningful than virtual contact. Justice Spence balanced these considerations by reducing the father’s parenting time from two hours to one hour each week and requiring that it take place outdoors.
In L.S. v. M.A.F., supra, the mother only learned at trial that the father was unvaccinated. The mother did not seek to reduce the father’s parenting time of three hours each week but sought additional safety precautions. This court made the following orders to reduce the child’s chances of contracting the virus during the father’s parenting time:
a) The father’s parenting time shall be exercised either outdoors or in the paternal grandmother’s home.
b) The child shall not attend the father’s home. This is because both the father and the paternal grandfather, who reside together, are unvaccinated.
c) The child and the father shall wear masks at all times during the father’s parenting time.
d) Other than the father, the child shall not be exposed to any adult who is not fully vaccinated during the father’s parenting time. This means that the paternal grandfather, if he is not fully vaccinated, cannot have in-person parenting time with the child at this time.
e) If the father, or any person that the child will be exposed to during the father’s parenting time is experiencing any cold, flu or other COVID-19 symptoms, or has been in close contact with someone who has had such symptoms, or tests positive for COVID-19, within the prior 5 days, the father is to notify the mother and rearrange the visit.
f) If the father breaches any of these conditions, the mother may bring a motion to court on an urgent basis to suspend his in-person parenting time.”