Since the rapid onset of COVID-19 there have been at least 40 family law decisions addressing the fallout of the pandemic. The majority of this growing body of case law focuses on parenting schedules and how to protect children, not only from the virus, but also from harmful exposure to parental conflict.
The initial decisions, including Ribeiro v. Wright, focus on the importance of following public health recommendations, working cooperatively with the other parent, and ensuring that children have the benefit of both parents to help them cope with the increased stress that we are all collectively experiencing. In the wise words of the Honourable Justice Pazaratz:
Each family will have its own unique issues and complications. There will be no easy answer. But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.
This comment is particularly true in families where one parent is a front-line worker and may be at increased risk of contracting the virus. In Elsaesser v. Rammeloo, the Honourable Justice J.D. Walters heard an urgent parenting motion and found that, notwithstanding the mother’s profession (registered practical and preoperative nurse), it was in the children’s best interests to continue to follow a shared parenting schedule.
The urgent motion arose because the father unilaterally withheld the children (ages 7 and 6) from the mother at the end of his regularly scheduled parenting time. By the time of the motion, the father had returned the children to the mother but she was fearful that without a court ordered parenting schedule and police enforcement clause the father would be emboldened to withhold the children in the future. The father admitted that he should not have withheld the children but claimed that his decision to withhold the children was rooted in his reasonable concerns about the children.
The Court rejected the father’s explanation and held that his behaviour was “unreasonable.” The mother led evidence that she was adhering to the public health recommendations and further, that during her 15 years of experience, she had never infected a family member with a virus and/or disease. In these circumstances, the Court found that:
While the mother’s profession may put her at an increased risk, she, unlike those who do not work in healthcare, is trained to guard against the risk. She also has access to PPE in order to protect herself while at work.
The father claimed he was genuinely concerned about COVID-19, but also admitted that he had taken the children to his workplace and to the grocery store. This behavior undercut the credibility of his purported safety concerns. In addition, the father did not have any cogent evidence to support that access to the mother placed the children at an increased risk of infection. He relied on an anecdotal Facebook post of a health care worker who chose to self-isolate from her children and newspaper articles that included statistics about the levels of infection amongst the health care profession.
Most concerningly, there was evidence that the father had inappropriately involved the children in parental conflict. The mother deposed that W. (age 7) told her that “nurses and doctors are dying mom. Your mask does not work. You are going to make us sick and we can die.” It is difficult to imagine how scared W must have been to make this comment and to think that something as simple as hugging his mother could put his life at risk. It goes without saying that in these unprecedented times:
Children who are the subjects of custody and access disputes need to know, now more than ever, that both parents are there for them to reassure them that everything is going to be okay. They do not need to be thrust into the middle of the conflict.
In addition to ordering a shared parenting schedule, the Court also ordered terms for parenting transitions and required the parent’s to “only discuss the COVID-19 pandemic with the children in terms that are developmentally appropriate for the children.” Unfortunately, the Court did not provide any guidance about what conversations would be age appropriate but clearly comments meant to incite fear and/or demonize the other parent will never be acceptable.
The mother’s motion for a police enforcement clause was dismissed on a without prejudice basis, in part, because the recent incident was the only time that the father had overheld the children. The mother was free to bring back her request for police enforcement if the father continued to engage in unilateral behavior.
This decision deals with a number of additional family specific considerations (for example: a child’s pre-existing mental health issues, previous CAS involvement, and protocols if a parent contracts the virus) and is a must read for any parent who continues to work outside of the home.