Courts temporarily cancel access rights for some but say convincing evidence of risk of infection is needed and allow health workers to babysit
This is called nesting and is a refreshing and constructive solution for divided families. The children live full time in their house, while the separated parents take turns with them.
But on March 31, an Ontario judge ordered an immunocompromised Ottawa mother to be granted exclusive use of the matrimonial home, citing her increased risk of COVID-19 and the father’s alleged cavalier approach to distancing social.
The parents had in fact shared the house since the foreclosure started. But the father “leaves the house constantly and returns without telling him where he went or does not wash his hands on his return,” noted judge Adriana Doyle by temporarily rejecting him.
The decision is part of an extraordinary new branch of Canadian family law, a flood of new custody and access disputes arising from the coronavirus pandemic.
Courts, which otherwise are mostly closed, have rendered dozens of decisions as mothers and fathers try to end their ex-partners’ access during the period of home refuge because of fears that children are not infected.
The parents argued that the other caregiver is a health care professional, does not remain isolated enough, or travels unnecessarily with the children. The result is unique and growing jurisprudence.
In troubling and disorienting times, children need the love, guidance and emotional support of both parents more than ever.
“This is a brave new era for family lawyers and parents,” said Russ Alexander, a lawyer in Toronto. “It is always difficult to resolve separation and access issues. The difficulty is increased during the pandemic. Everyone is overloaded with the news cycle. Our health protocols evolve and change daily, sometimes hourly. “
Sam Rollans, a family law lawyer from Edmonton, said that each of the eight lawyers he works with has two or three cases where a parent has or threatens to deny access because of COVID-19. One of his own files was among the first to file a decision on the coronavirus in Alberta.
“New decisions regarding child care, access and parenting time are taking a fast and furious pace,” said Vancouver lawyer Lorne MacLean in a recent blog post.
“This is uncharted territory for our justice system,” said an Ontario decision.
Judges have restricted some parents’ access to their children, while in other cases there is no valid reason to change court-ordered visits or custody, including when a guardian is a nurse or doctor.
The disputes highlight a little-noticed exception to home segregation protocols in Canada: children from divided families who go back and forth between homes.
But judges have so far insisted that previous orders establishing shared custody or access rights be respected, unless there are compelling reasons to fear COVID-19 contamination.
Managing separation and access issues is always difficult
“A general policy that children should never leave their primary residence – even to visit their other parent – is incompatible with … the best interests of the child,” said Justice Alex Pazaratz of Hamilton, Ontario , rejecting a mother’s request to arrest her. husband’s access to children. She suspected that he was not far enough from society.
“In troubling and disorienting times, children need the love, guidance and emotional support of both parents more than ever.”
This approach has extended to situations where a parent works in health care.
A father from Kitchener, Ontario requested that his children, ages six and seven, stay with him during the pandemic because their mother was a nurse at a local hospital. One of the children, said the mother, said to him, “The nurses and the doctors are dying, mom. Your mask is not working. You are going to make us sick and we can die. “
But a judge denied the man’s request, saying that even though the mother was at increased risk, she was trained to handle it.
A British Columbia court adopted a similar position when a BC father asked to keep his children from their mother, a nurse who helped treat a COVID-19 patient. The woman “fulfills a fundamentally important role as a health worker at this critical time,” noted the judge.
Situations can be complicated, with children moving between homes with stepfamilies, interacting with brothers-in-law who do the same, Alexander noted.
Asked about this apparent violation of social distancing, Toronto assistant medical officer of health Dr. Vinita Dubey said that co-parenting during COVID-19 presents “unique challenges”.
But rather than recommending stopping the children’s shuttle between homes, the public health unit suggests parents take strict hygienic precautions such as cleaning affected surfaces and staying at least two meters from each other. the other when the children were handed over, she said in a statement.
However, in some situations, the courts temporarily stop these movements.
One case in Quebec involved a parent who tested positive for COVID-19 and was temporarily denied access to a child, said Awatif Lakhdar, a family law specialist in Montreal.
” We have to find a kind of balance “between fear and the best interests of the children, she said, adding that the courts have largely succeeded in doing so.
When a father took his children from Toronto to a house in Whistler, British Columbia in early April – after telling his ex-wife that they would stay in town and use two flights each way – a judge cracked down . She ordered that future access only take place in the area and that he not take the children on planes or other public transportation.
“There should be zero tolerance for any parent who recklessly puts a child at risk for COVID-19,” wrote Justice Lene Madsen.
Meanwhile, the courthouses being mostly closed, the cases constitute a single brand of lawyers. Hearings generally consist of teleconferences and no video access. “You realize how much you count on reading the room, and you don’t have one,” said Annie Kenet, a Toronto family lawyer.