The COVID-19 pandemic presents challenges for us all, in everything we do. For families who share custody or access of their children, the challenges may be even greater, as there are additional considerations. What if you have health issues that would make getting COVID-19 even more devastating that the norm. Do you allow your ex-spouse to continue to have access? Can’t the other parent just have access by video streaming or a porch visit with distancing?
The answer is that the Courts will generally expect that parents continue with the regular parenting arrangements, even with the COVID-19 pandemic and the expectation is that court orders already in place are to be obeyed.
In the case of Sereacki v. Berdichevsky, the father made an application to the Ontario Superior Court of Justice as the mother was refusing to allow their two children, ages 10 and 7, to be in physical contact with the father due to her having a compromised immune system. She did not trust the father to protect her and her children from contracting COVID-19. The father was a teacher and the mother was a provincial civil servant.
Under the terms of their separation agreement, the parties had equal shared parenting using two week blocks where the children would be back and forth every 2-3 days, with March break equally divided between the two parents.
For this past March break, the father took his children on a weekend ski trip at a resort outside Barrie from Friday, March 13, 2020 to Monday, March 16, 2020. The children stayed with their father until they returned to their mother’s home on March 20, 2020, and at that point, the mother advised that she would be keeping the children until March 30th. Within a few days, the children pleaded to return to their father. Since they normally saw the other parent every few days, this was understandable.
However, the mother had an upper respiratory infection which she had since November of 2019 and was on numerous medications. Although she had tested negative for COVID-19, she was advised by her doctor to keep her children from going back and forth because otherwise she would be put at risk of being exposed to new infection.
The Court in Sereacki dealt with the question: Should the children be denied parenting time with the other parent until COVID-19 resolves?
In this case, it was in the best interests of the children to resume their parenting and restore their relationship with their father immediately. As they had not been with their father in more than five weeks, the Court ordered that the children be returned to their father for two weeks, followed by a week on, week off parenting schedule. In addition, to reduce the risk of contracting COVID-19, the Court imposed terms on both parents and their households that were more restrictive than the current public directives, which included the following:
- Not permitting any person, other than the usual residents of their home, to attend their home;
- Not leaving their home, nor permitting the children to leave their home, except for emergencies, medical care, picking up and dropping off the children, and outdoor exercise provided they remain 6 feet away from others;
- All groceries and essential supplies to be delivered directly to their respective homes or procured using curbside pick-up, and that all such groceries and supplies are disinfected before they are brought into their homes;
- Disinfecting their automobile before and after each use;
- Not allowing their cars to be occupied by others outside their households; and
- Complying with federal, provincial and municipal governmental orders and directions related to COVID 19, including orders and directives requiring frequent handwashing and the use of masks and gloves.
So the message is clear from the Courts that, for the most part, the status quo is to be maintained for families sharing children. The health, safety and security of all parties are of the utmost importance.
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