Does COVID-19 Mean You Legally Can Stop Your Ex From Seeing the Kids

The coronavirus crisis is having a profound impact on every aspect of our society. With all the significant changes in the way that everyone is living every aspect of everyday life, and all the new public health requirements, separated parents are having questions about whether they should continue to follow the current parenting schedule as set out in a Parenting Order or to an agreement with their ex. All that is happening at a time when the Ontario court system is almost shut down and dealing with only the most desperate situations through telephone hearings. However, in the last few weeks, there have been several court decisions that confirm that established principles under our family laws continue to apply even during COVID-19. There are links to the Court decisions on this page.

At the outset, it is important to remember that parenting cases are the ones that most often depend on the particular facts of each case. Every family is unique and so are almost every parenting order that a Court makes. There can be little things about the circumstances of your particular children, or the history of your particular case that would make a big difference in how a judge will see things. Also, in times of stress and panic, it is possible that a judge would not see things the same way parents see them while working under the stress of the pandemic. So, it remains important to get a lawyer who is knowledgeable about your specific circumstances and can give you carefully considered advice. If you have concerns about whether to continue to follow your existing parenting agreement or court order, then you should speak to your lawyer for advice, contact Certified Specialist in Family Law, John Schuman, and his team by calling Hannah, at 416-446-5807 for consultations, at reduced rates, by telephone and video conference to avoid the transmission of the virus.

Almost all separated parents had parenting arrangements in place before the coronavirus virus crisis. The question many of those parents are asking is whether COVID-19 means that they have to change their parenting arrangements. Making the wrong choice can lead to serious legal problems. In cases involving children, the overriding principle is what is in the best interests of the child. Court cases during COVID-19 confirm that continues to be the case. So, the question every parent has to ask is: “Is it in the best interest of my children to change the current parenting arrangements?”

With the encouragement from public health officials to limit contact with other people, it seems like it might be in the children’s best interest to stay in one spot and have contact with as few people as possible. It would not be in the children’s best interest to engage in any activity that could put them at risk of infection. That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis.

However, the current view of parenting professionals and judges is that having contact with both parents is important to a child’s sense of well-being and healthy development. This means that seeing both parents is also in the child’s best interest. Children suffer when deprived of contact with one of their parents. They suffer even more when there is conflict between their parents over things like the schedule. So, one parent disturbing the existing parenting arrangements without the other parent’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road. Ontario Courts have continued to apply this principle during COVID-19.

However, where a parent has not pursued parenting time, or regular parenting time before COVID-19, the Court is not going to entertain a request to set up regular parenting time during the pandemic. Children need consistency and peace during this time. They do not need added stress, exposure to conflict, or big changes to their lives.

Many separated parents may be tempted to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent during COVID-19, the Courts have been clear that there may be consequences for that parent once regular court operations resume

Justice Pazaratz of the Ontario Superior Court (Family Court) made one of the first decisions when a parent cuts off the other parent due to COVID-19. Many other judges have followed that decision. Her Honour was clear that existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed.

To summarize the decision that parents have to make, it is: “Is it in the children’s best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children’s best interest to spend time with both parents even if that means they will come into contact with other people.”

Again, a lot depends on the new specifics of the situation. If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviours that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all. However, a parent doing something that will expose him/herself or the child to an increased risk of contracting the virus does justify changing the parenting arrangements.

When separated parents can be cooperative, even creative, it may be possible to make changes to the parenting arrangement to benefit the children. Perhaps changing the current arrangements is in the children’s best interest. Judges expect separated parents to cooperate and make those changes together at all times, but especially during COVID-19. Judges are not happy with parents who cannot put their children first and find ways to cooperate. For example, with the disruptions to workplaces, it may be that one parent has more ability to look after the children, especially at times of the other parent continues to go to work. This can be especially important with schools and daycares closed. Through cooperation, parents can also make adjustments to their schedules to minimize the number of other people with whom the children come into contact, and thereby reduce the chances of transmission of the virus. Similarly, to avoid the children being exposed to infection, it may be beneficial to adjust the schedule, to reduce the number of time children go back and forth between parents so that the children have fewer opportunities to be exposed.

Another consideration at this time is that some parenting arrangements have the children being exchanged between parents in a public place, with other people around. In the current situation that is no not recommended. You and your ex want to do the exchange of the children at a place away from other people. So, you may need to change where to do it. If there are ongoing safety concerns and that is the reason why the exchanges are where they are, then you will you may still need to change the location to keep yourself away from other people, but still do it in a place where you are visible so that nothing stupid can happen. Perhaps you’ll have to move to a place that is further away from other people but still has people close enough around so that they can notice any difficulty from a distance. Perhaps you will have to move your meetings to be in the vicinity of a police station or someplace else where people can intervene if something goes wrong even if those other people are at a distance during the exchange itself. Remember, the only thing you should be concerned about is the best interests of your children making arrangements.

Where one parent is worried about his or her ability to keep the children safe from infection, then it may be possible for the children to maintain contact with both parents over FaceTime Time Skype, other videoconferencing or other methods of communication. For example, parents could still interact with their kids by playing video games that allow players to play together from different locations. Parents have to balance all the considerations to determine what is in their children’s best interest. However, the courts have been clear that these types of parental contact are not sufficient and should only be put in place when there is a real danger to the child’s safety by being with the other parent. Real danger means the parent must have been advised by public health to go into self-isolation, be a confirmed or presumptive case of COVID-19 or be actually engaging in risky behaviours. 

Being employed in health care, as a first responder, or as any other type of front-line work is not engaging in risky behaviour that should result in a change to the parenting arrangements. People holding those positions work with their employers to put into place measures to protect them from contracting the virus. The screening tools for COVID-19 consider whether a person has been in contact with someone with COVID-19 without necessary Personal Protective Equipment in place. It is usually the foolish and selfish parent who does not wear PPE during this crisis if only out of concern for the children. So, before changing parenting arrangements, judges want to see evidence that a parent is being reckless and not wearing PPE or otherwise putting him or herself at unusually high risk. 

Obviously, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials. Or, when a parent insists on engaging in other risky behaviour at this unusual time. Chances are that if a parent is going to engage in risky behaviour now, they probably have engaged in it before and the parenting arrangements take that into account. If the arrangements do take that type of behaviour into account, then no change may be necessary. However, if a parent insists on engaging with the children in activities that are clearly not in the children’s best interest in light of the advice and information from our public health officials, then a parent may have to insist on changing the arrangement.

If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting time between a child and one parent, the circumstances may meet the test for “urgency”, which would allow a concerned parent to get the matter decided by a Judge under the special provisions that the Ontario Courts have put in place during COVID19. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area:

  1. The parent’s concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date;
  2. The parent’s concern must be serious enough in that it significantly affects the health, safety or economic well-being of the children or one or both of the parents; and
  3. The parent’s concern has to be rooted in real evidence. It cannot be speculative or theoretical.
  4. The parent’s concerns must be clearly particularized in evidence with examples that describe the concern and why it is urgent.

There are very few circumstances in which a judge will find that deliberately breaching a court order is okay. Judges can throw people in jail when they deliberately go against Court Orders. Judges also expect parents to respect and follow their parenting agreement. So, if any parent thinks they have to stop their child from seeing the other parent MUST speak to a lawyer about getting into Court to get a judge’s permission to change the existing arrangements.

Similarly, if you are a parent who wants to see your children but is worried that you have been exposed to the coronavirus now is not the time to insist on your parental rights. There are no parental rights in Ontario. There are only parental responsibilities and your children have rights. Children have the right not to be placed in danger unnecessarily, especially not by their parents whose main concern should be protecting them during these dangerous times. No judge is going to be sympathetic to any parent who puts the misconceived idea of “parent rights” ahead of the children’s safety or who hides the fact that the parent is a carrier of this virus and puts the children at risk of contracting it.

Procedures like family arbitration or parenting coordination may also give parents a procedure to resolve these types of disagreements more quickly and more easily than trying to get into Court during COVID-19. While both parents have to agree to use those mechanisms, suggesting to an ex that it would be good to have an impartial professional weight on what would be in the children’s best interest will show the court that the parent at least tried to work things out and that may give some assurance that a judge will not be terribly upset by the decision when the matter finally makes it into court later.

If you are having difficulty coming to an agreement with your ex over what is in your children’s best interest, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation. It is possible that a lawyer can contact your ex’s lawyer and they can work something out. Perhaps they can agree on a mechanism such as parenting coordination or arbitration to work things out. At the very least, they will be able to give you some objective advice about what is in your children’s best interest and what you should be doing. Don’t get into a fight in front of your children and cause them even more stress and anxiety over this difficult time. Get in touch with professionals to help you figure out what is best for your children in light of your parenting situation and the extraordinary times in which we are currently living.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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