This article summarises the Canadian cases Ribeiro v Wright, 2020 ONSC 1829 (CanLII) and Smith v Sieger, 2020 ONSC 1681 (CanLII) which both dealt with parenting arrangements in the circumstances of COVID-19.
The cases address pertinent questions such as:
- Will the impact of COVID-19 mean I can suspend the other parent’s access?
- Will my COVID-19 parenting matter heard urgently?
- In what circumstances might a court order a child to be returned due to COVID-19?
Ribeiro v Wright
“Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.” Justice A. Pazaratz, Trial Judge, Ontario Superior Court of Justice (para. 9)
In Ribeiro v Wright, 2020 ONSC 1829 (CanLII) the applicant mother sought an urgent motion to suspend the father’s in-person access to their 9-year-old son, due to her concern that the father would not maintain social distancing during his periods of access. On careful consideration, the trial judge found that while the mother’s concerns about COVID-19 were well-founded, there was not enough evidence to establish a failure, inability or refusal by the father to comply with COVID-19 protocols; His Honour therefore denied the mother’s application for an urgent hearing.
A key factor in the background of this case was that both parties had joint custody of their son since 2012, pursuant to a final order which provided that the son live with primarily with the mother and spend time with the father on alternate weekends. It was noted that where existing orders are in place, there is a presumption that the orders were made in the best interests of the child (para. 7). While establishing there would be “zero tolerance for any parent who recklessly exposes a child … to any COVID-19 risk” (para. 14), the trial judge emphasised that during this troubling time “children need the love, guidance and emotional support of both parents, now more than ever” (para. 10).
A case-by-case approach to COVID-19 parenting issues was established. Several matters would need to be addressed before determining whether an urgent hearing is granted, including:
- Whether the applicant has provided specific evidence or examples of behaviour or plans of the respondent parent that is inconsistent with COVID-19 protocols;
- Whether the respondent has provided any specific and absolute reassurance that COVID-19 safety measures would be adhered to – including social distancing and compliance with hygiene and public safety directives; and
- Whether both parents can provide specific and realistic time-sharing proposals which “fully address all COVID-19 considerations, in a child-focused manner” (para. 21).
The trial judge cited the limitations on the court system during this time of crisis and the rapidly changing landscape as reasons for parents to act responsibly and to attempt to solve their problems out of court before initiating proceedings (para. 22).
His Honour’s approach was consistent with the notion that a child’s best interests are paramount, and that particularly in disorienting times like this, “children need reassurance that everything is going to be ok” urging both parents in the case to address their situation in a “more conciliatory and productive manner” (para 28).
Smith v Sieger
“… these are not normal times. The situation is changing as we speak. When this Motion was served, we had open borders and they are about to be closed. Just prior to the Motion, there was an earthquake in Utah that is interfering in air traffic. No one knows what tomorrow will bring.” Justice R. P. Kaufman of the Superior Court of Justice Ontario, para. 6-7).
The Superior Court of Justice handed down the second emergency decision in Canada relating to parental access in the circumstances of COVID-19.
In Smith v Sieger, 2020 ONSC 1681 (CanLII), the applicant father brought an urgent motion that his 16-year-old son is returned from the United States to Canada. The urgency of the matter was predicated on the basis that the US and Canadian governments were intending to close their shared borders in response to the COVID-19 pandemic (para. 3). Although the child was due to commence an educational and therapeutic program in Utah through the mutual consent of his parents, he was ordered to return to Canada and go into self-quarantine for 14 days while he resided with the applicant father. Both parents were to provide their consents to enable the child to be returned to Canada, and the mother was specifically required to return the child’s passport to the applicant father.
In deciding the matter, Justice R. P. Kaufman maintained that this matter, like all parenting matters was to be decided in a manner consistent with the child’s best interests (para. 8). His Honour cited the recommendations of the medical fraternity and government authorities to return Canadian citizens to their home countries in granting the application in its entirety (para. 8).
Distinguishing factors – How did the 2 cases differ?
In Ribeiro v Wright, the respondent’s behaviour did not consist of a failure, inability or refusal to comply with COVID-19 protocols, hence the matter was not deemed urgent. In contrast, in Smith v Seiger, the court deemed the matter urgent due to the imminent border closing. In addition, the child was not residing with either of the parents; it was in his best interests for him to return to the care of one of his parents as the COVID-19 pandemic reached a peak, and the country had just experienced an earthquake of high magnitude creating further uncertainty in relation to air travel.
Do I need legal advice regarding my parenting arrangements?
If you are uncertain about how COVID-19 impacts your current parenting arrangements, it is worth making an appointment to receive legal advice in respect to your specific circumstances.
Our Family Law Team are available at the Toowoomba office on 07 4637 6300, Warwick office on 07 4661 1977 and Roma office on 07 4622 1944. Alternatively, please feel free to send us a direct enquiry using the form here.