Parents should not view the COVID-19 pandemic as an opportunity to change the rules of the game when it comes agreements or court orders regarding custody and access of their children.

While regular operations of the Ontario Superior Court of Justice remain suspended until further notice, the same does not apply to existing orders concerning parenting time, as the recent judgment in J. v. J. shows.

The judge in the case ordered an immediate resumption of parenting time for my client – the successful father – in accordance with two previous temporary orders, after the mother unilaterally cut off his in-person contact over concerns about the risks associated with COVID-19.

Background

The two children of the former couple in J. v. J. – aged six and five – first became the subject of a temporary order in January 2019, when the father was granted parenting time on consent for Tuesday and Thursday each week, as well as on alternate weekends.

A further temporary order made on consent in August 2019 slightly expanded his parenting time, and also confirmed the father’s full responsibility for decision-making regarding the children’s health and medical issues. The mother took final authority over education decisions under the same order.

However, soon after the pandemic struck, the mother barred the father from in-person contact with the children, and insisted he complete his parenting time via Skype.

In response to the father’s motion for a resumption of in-person contact with the children, police enforcement and make-up parenting time, the mother asked the court to endorse her suspension of his access, to be replaced by “liberal and generous” access via Skype.

Urgency

This case is typical of many cases heard since the court’s suspension of operations in mid-March, when hearings were confined to urgent family law matters only.

According to our own survey of reported decisions since the pandemic struck, the focus has shifted significantly towards parenting issues – often focused on concerns about at least one party’s compliance with social distancing protocols. By contrast, only a tiny minority of decisions have any financial aspect to them.

Noting that the father had not seen his children in a month by the time the motion was heard, the judge in J. v. J. wrote that the mother’s “self-help remedy” could not be condoned.

“It is not known at this time when this pandemic will end or when the Superior Court of Justice will be able to resume its regular operations,” she wrote. “The children’s well-being includes in-person contact with their father as the existing orders for access have determined that this is in their best interests.”

However, only the matter of the resumption of in-person parenting time was urgent, the judge added, declining to rule on the issues of police enforcement and make-up parenting time. 

In-Person Parenting Time

Although the previous orders were made on consent of both parties following negotiations, the judge in J. v. J. found that it would have made no difference had they arisen following contested motions, given there was no question over their validity.

“During this unprecedented pandemic, there is a presumption that orders for parenting time will be followed unless it can be demonstrated that continuing to follow court orders would pose a real risk to the children’s safety and well-being,” she wrote, concluding that the mother had failed to prove any such risk to the children.

“Therefore, the Applicant’s parenting time shall immediately resume,” the judge added.

Rejecting allegations of inadequate safety precautions, she found both parents were being responsible in the face of the pandemic and practicing social distancing. 

In addition, the use of Skype to replace the father’s in-person contact raised issues, including difficulty maintaining the attention of young children and the necessary involvement of the mother, according to the judge.

“Pursuant [to the previous orders], the Applicant’s parenting time with the children is unsupervised. However, by the nature of Skype, it is inevitable that the Respondent will be monitoring,” she wrote.

As unusual and trying as these times are, children seeing their parents continues to be a very important fundamental of family law. As this case shows, parents should avoid allowing COVID-19 to interfere with their custody and access arrangements, unless there are valid safety or other concerns that would affect their children’s best interests.