To all of the parents who are currently trying to manoeuvre Covid-19 and parenting arrangements with the other parent – this is for you!
The Ontario Court of Justice and Superior Court of Justice announced on March 16, 2020 that they will only be accepting URGENT matters for their family law departments. The pressing question that everyone has is – Is my matter urgent?
While your parenting issues are pressing and urgent to you, the courts may not see it that way. We are currently in a unique and unprecedented time. What does that mean? It means that the courts do not have all of the answers right now and everything is going on a case-by-case basis.
What is truly urgent is going to be judged against a high threshold to use the limited court resources for a decision.
On March 24, 2020, Justice Pazaratz of the Hamilton Superior Court of Justice, endorsed a Motion decision that we can rely on to decide if a case is truly urgent to be heard by the courts. (Ribeiro v. Wright, Superior Court of Justice, Family Court – Hamilton)
In this case, the Mother brought an Urgent Motion to prevent the parties 9-year-old son from attending the Father’s home in light of Covid-19 and concerns that she and her family are practising social distancing and self-isolation and that she has concerns the Father is not. The parties have joint custody of the child pursuant to a Final Order from 2012 with primary residence to the Mother. There is a current outstanding Motion to expand parenting time to the Father.
What is noteworthy of Justice Pazaratz’ Endorsement is that he takes the time to outline what is an urgent parenting matter for the courts attention during this time and provides guidance for litigants and parents. This is no surprise as Justice Pazaratz is usually very detailed in his decisions with making strong statements to illustrate his decisions. This case is no exception.
What are some takeaways from the case?
- There is a presumption that existing parenting arrangements, whether and order, consent, agreement etc., should be respected and complied with in the best interests of the child;
- These are extraordinary times and parents are understandably confused and worried about what to do.
- This is uncharted territory for our court system and that we all have to work together to promote both the physical and emotional well-being of our children;
- A blanket policy that children should never leave their primary residence – even to visit the other parent – is inconsistent with a comprehensive analysis of the best interests of the children;
- Modifications, flexibility, creativity and common sense are all required by everyone right now to carry out parenting arrangements as best as possible;
- In some cases, custodial or access parents may have to forego their times with a child for reasons such as recent travel, personal illness, exposure to illness etc.;
- In some cases, a parent’s personal risk factors through employment or associations may require controls with respect to direct contact with the child;
- In some cases, a parent’s reckless lifestyle or behaviour in the face of Covid-19 which raises serious concerns about failing to take expected precautions, such as social-distancing, will have zero tolerance;
- Each case has its own unique circumstances and arrangement modifications.
If you need to bring an Urgent Motion for parenting issues in light of Covid-19, it would be expected of you to try everything else before you do. It is also important that you outline examples of behaviour or specific evidence against the other parent which are inconsistent with Covid-19 Protocol and the risk to the child.
All in all, this is something new for everyone. We all need to use our best efforts to and prior to taking that step to stop existing parenting arrangements, take a step back and think about how to make it the best possible in these circumstances, if possible.