COVID-19 Family Law Decisions » Ribeiro v. Wright, 2020 CarswellOnt 4049

TRIAGE JUDGE ENDORSEMENT – COVID-19 PROTOCOLS, PARENTING AND URGENCY

Source: CanLII

In Ribeiro v. Wright, 2020 CarswellOnt 4090 (S.C.J.), the mother brought a motion to suspend the father’s parenting time in light of COVID-19.  At the time the motion was brought, the Court’s regular operations were suspended, and only urgent motions were permitted to be heard.  This is the first Endorsement released with respect to urgent matters since COVID-19 measures were put in place.

The Honourable Justice Pazaratz made the following important comments regarding parenting arrangements in light of COVID-19:

11.  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 – including strict social distancing.

12.  In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

13.  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.

14.  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.

15.  Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.

16.  And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

17.  Each family will have its own unique issues and complications.  There will be no easy answers.

Jutstice Pazaratz found that the mother’s motion was not urgent, stating: “While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.”

Although the mother’s motion was found to not be urgent, Justice Pazaratz’s March 24, 2020 decision included the following general comments that provide guidance and instruction on how the courts should be dealing with parenting disputes during the COVID-19 crisis and compliance with respect to COVID-19 protocols.

20.  If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.  They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing. 

21.  We will deal with COVID-19 parenting issues on a case-by-case basis.

• The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.  
• The parent responding to such an urgent 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.
• Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. 
• Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.”

Had the mother in this case had specific examples of a failure, inability or refusal of the father to adhere to appropriate COVID-19 protocols, the result likely would have been different.  Parents should “meticulously adhere” to COVID-19 protocols and should reassure each other that they are doing so not only to ensure health and safety but also to avoid any uncertainty which may result in urgent issues arising.  As stated by the Honourable Justice Pazaratz at the conclusion of the decision, “None of us have ever experienced anything like this.  We are all going to have to try a bit harder – for the sake of our children.”