“The Applicant has filed case law indicating instances where access was restricted because of COVID protocol breaches. Those cases are largely distinguishable. In J.F. v. L.K., supra, the access parent had left out of his affidavit the protocols that she complied with and in light of the fact that there was evidence that she was in the sex trade, Charney J. suspended contact. In the present case, the Respondent provided details of his compliance with COVID protocols and does not work in a risky profession.
In Blythe v Blythe, 2020 ONSC 2871, a decision made early in the COVID-19 crisis, the father’s employment as a bus driver were grounds for suspending access. Because we now know more about the disease and mitigation measures, the latter decision might have been decided differently today: see S.D.B. v. R.B.B., 2020 CarswellOnt 5278 (S.C.J.).
In A.T. v. V.S., 2020 ONSC 4198, the court found that the father was “not prepared to follow COVID-19 protocols in the future” (emphasis mine). In the present case, Ms. Carey alleged previous breaches by the father of COVID protocols. The order of January 5 was meant to address those earlier breaches. The father in this case has now said that he will continue to obey COVID protocols and says he has done so since the date of the order. Unlike A.T., the consent order in this case was entered into to address future breaches (and it is also clear that Ms. Carey entered into the consent without any belief that the Respondent would comply with it).
In Abbas v. Downey, 2020 ONCJ 283, there was specific evidence of poor judgment by the father. “Out of an abundance of caution”, O’Connell J. restricted access to virtual and telephone access only where the child was immunocompromised.
Importantly in that case, O’Connell J. said that the party seeking to restrict access should not use self-help, and should present evidence as follows:
There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict access 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] O.J. No. 2662.”