Recent COVID-19 related decisions: Restraining orders, access to children
Rankin v Rankin (March 19, 2020): In this case, the wife brought an urgent motion for a restraining order against the husband. He was served late the day before the motion was heard but did not file responding materials or contact the wife’s lawyer.
Justice Fitzpatrick found that the matter was urgent and that an interim restraining order was warranted based on two factors: the evidence provided by the wife and the fact that there would be minimal prejudice to the husband since he and the wife did not live or work together.
Chrisjohn v Hillier (March 26, 2020): The mother withheld the two-year-old child from the father, contrary to an existing court order, because she felt the father was not following COVID-19 protocols. The father said he was. The child has a neuromuscular disorder with respiratory complications, but Justice Mitrow found that the matter was urgent and ordered the mother to comply with the regular parenting schedule:
It is trite that in Ontario and elsewhere in Canada there are many families where parents are living separate and apart and the children spend parenting time with each parent either pursuant to a court order, a separation agreement or an informal arrangement between the parents. In each case, parents must act responsibly in the face of the COVID-19 pandemic to ensure that their children are adequately protected.
This should not result in a widespread suspension of in-person parenting time between a child and one of his or her parents. Each circumstance is unique and the parents will need to act reasonably in promoting the best interests of their children in relation to parenting time.
Le v Norris (CarswellOnt 4116 (S.C.J.) Conlan J.: In deciding that the father’s motion in response to the mother’s decision to withhold their three-year-old child in breach of an existing court order was urgent, Justice Conlan wrote:
In addition, something direct must be said about [the mother’s] worries and anxieties about the OCVID-19 health crisis. Those concerns, this Court sympathizes with and understands and can even relate to (notwithstanding my relatively privileged existence, far removed from the toils of those working on the front lines to supply and treat me and my neighbours). But, at the same time, those concerns can be addressed by responsible adherence to the existing Court Order. . .
Finally, what do I mean by “reasonable adherence to the existing Court Order”? I mean being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child, C., contacts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by C. Neither party shall do anything that will expose him/herself or C. to an increased risk of contracting the virus.
Cooper v Teneyck (2020 CarswellOnt 4210 (S.C.J.)) Madsen J.: The existing court order set out that the children were to live primarily with the mother and have regular access with the father. The mother wanted to suspend in-person parenting time with the father during COVID-19. The father brought an urgent motion to have police enforce the access provisions of the order. Justice Madsen found this matter was not urgent:
In this case, a police enforcement clause, as sought by the father, is no solution. This would cause significant stress on the children and is not appropriate in the circumstances. Police enforcement is not what is “urgent” at this time.
What is “urgent” at this time is that this mother and this father work together to adopt and shape their existing parenting order to work in the current circumstances. That order continues to govern. There is no presumption that COVID-19 permits a primary residential parent to terminate the children’s time with the other parent. These parents should work together to make any adjustments needed to fit the current public health circumstances. When they have agreed to those adjustments, they should write down their agreement so both are clear on what the modifications will be. Given how rapidly circumstances are changing, they may need to adjust their arrangements several times.
Reitzel v Reitzel (2020 CarswellOnt 4269 (S.C.J.)) Madsen J.: The father, who had not seen the children since the parties separated in September 2019, brought a motion for access. The mother alleged verbal and physical abuse by the father of her and the children and also said the children did not want to see their father. Child protection authorities confirmed that they did not support the father having unsupervised parenting time.
Justice Madsen found the father’s motion as not urgent because he did not bring it in a timely manner following the separation of the parties, there were no issues related to the safety or well-being of children, a Voice of the Child Report – currently not being undertaken by the Office of the Children’s Lawyer — would be appropriate given the ages of the children (aged 12 and 14) and preliminary evidence indicates the involvement of child protection authorities.
Placha v Bennett (2020 CarswellOnt 4496 (C.J.)) Pugsley J.: The mother was the nine-year-old child’s primary caregiver. The father, whose access history was sporadic, took the child from her primary residence in Ontario to Newfoundland for March break, then refused to return her, claiming concerns about COVID-19. Justice Pugsley found the matter was urgent and ordered the immediate return of the child to Ontario:
The [father] may have good intentions to protect his child from exposure to the virus but such intentions cannot be used by him to unilaterally change the custody of the child from the mother to the father; nor unilaterally change her province of residence.
Guerin v Guerin (2020 CarswellOnt 4534 (S.C.J.) Doyle J.: The parties were operating under a nesting arrangement, in which the children remained in the family home and the parents rotated in and out on a weekly basis. They both moved into the home full-time because of COVID-19. The father began coming and going from the house in a manner that concerned the mother, who was immunocompromised and had a number of health issues including asthma. The father would not discuss his movements with her, so she brought a motion for interim exclusive possession of the matrimonial home and for the father to pay the mortgage in lieu of child support.
Justice Doyle found the mortgage payment request not to be urgent, but granted the mother’s exclusive possession claim because of the father’s failure to take the increased risks to the mother and children seriously. She ordered that the father have reasonable and generous electronic contact with the children and gave him leave to return to court on or after April 17th to provide
details and measures he has taken to minimize the risk to the family and specifically how he has avoided contact with others since the date of this Order.