“Numerous cases since the advent of the COVID-19 pandemic have recognized that parenting and access rights must be exercised in a manner that follows the protective precautions contained within public health directives. The jurisprudence that has developed since the beginning of the COVID-19 pandemic may be summarized as follows:
i. There is a presumption that all court orders, including existing parenting arrangements and schedules, should be complied with. This reflects the principle that meaningful personal contact with both parents is in the best interests of the child.
ii. While there is a presumption that existing parenting arrangements and schedules should continue, both custodial and access parents and members of their households are obliged to strictly adhere to COVID-19 safety protocols, including social distancing, hand washing, use of face masks and compliance with all public safety measures. They must also ensure that their children comply with these protocols while in their care.
iii. A parent concerned about the other parent’s adherence to COVID-19 safety protocols cannot unilaterally deny the other parent’s court ordered access or parenting time, but must bring a motion to seek a variation. The parent initiating such a motion is required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
iv. The parent responding to such a motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
v. Both parents will be required to provide very specific and realistic proposals which fully address all COVID-19 considerations, in a child-focused manner.
vi. A parent cannot unilaterally impose on the other parent conditions in addition to the safety precautions required by government and public health officials. If one parent is of the view that additional precautions are required, and the other parent does not agree to follow them, the parent seeking to impose additional requirements must bring a motion to request the court to add such conditions to the parenting schedule. Any such motion must be accompanied by medical evidence to support the request.
See: Ribeiro v. Wright, 2020 ONSC 1829, at paras. 7-21; Almadi v. Kalashi, 2020 ONSC 2047, at paras. 7-8; Skinner v. Skinner, 2020 ONSC 3226, at para. 35.
Finally, the courts have recognized that some circumstances may exist where parenting arrangements and schedules will have to be altered as a result of one parent’s refusal or inability to comply with government mandated COVID-19 safety protocols. In Ribeiro, Pazaratz J. stated, at paras. 13-14:
In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.”