My Ex is Unwilling or Unable to Protect Our Child From Exposure to Covid-19. What Can I Do?

My Ex is Unwilling or Unable to Protect Our Child From Exposure to Covid-19. What Can I Do?

If there is a parenting schedule in place, there is a presumption that the existing parenting schedule should continue. Judges expect parents to use their best efforts to resolve parenting issues before applying to the court for an urgent order. If an agreement isn’t possible, it will be your responsibility, as the applicant, to rebut the presumption that the existing parenting schedule should continue. In order to rebut this presumption, you will need to convince a judge that the other parent is exposing your child to a risk of harm, and that the risk is urgent and serious enough to outweigh the child’s need to maintain regular access with the other parent. 

Examples of risk might include the other parent’s recent travel or exposure to Covid-19. Sufficient risk may be established if the parent is frequently exposed to Covid-19 in his or her workplace, or refuses to comply with health protocols.

The test for seriousness and urgency is determined on a case-by-case basis. The parent making the application must provide specific evidence and examples to support his or her position. In other words, the applicant can’t simply speculate that the respondent poses a risk because the respondent is generally opposed to health protocols. The applicant must provide specific and tangible examples to establish that the respondent poses an imminent and urgent health risk to the child and is likely to continue to do so, whether intentionally or unintentionally.

For example, if one of the parents works as a healthcare worker and is likely to be exposed to patients with Covid-19, he or she may take all of the recommended precautions to limit the chance of bringing home the virus. Nevertheless, the other parent may have legitimate concerns. The parties are expected to work together to come up with reasonable solutions to preserve stability for the children while also protecting them from unnecessary risk. One solution may be to allow a parent working in the healthcare industry to have parenting time on his or her days off.

A matter is not urgent if the order sought has no immediate consequence. Examples of urgent issues of immediate concern may include:

(a)        a parent’s plans to relocate with a child or to remove a child from a jurisdiction;

(b)        an imminent or recent threat of family violence against a family member;

(c)        an imminent threat that a party may be arrested or committed to jail; or

(d)        an imminent risk of irreparable harm, including undue financial loss, if an application is not heard immediately

The courts have ordered parents to return home from other Canadian cities or provinces, however, if either parent plans to travel internationally with a child, it is important that an emergency application is made before the child leaves Canada. Given the travel restrictions in place, the Courts have been reluctant to order parents to return to Canada from abroad, when such travel would likely result in further risk of exposure to the child.

If the applicant can establish the existence of an urgent risk, the respondent must then offer specific and absolute reassurance to the judge that all health protocols will be complied with in the future, and that the risk of exposure to the child will be taken seriously and mitigated. A parenting schedule will not be changed simply to punish either parent for previous behaviour, but a parenting schedule may be changed if there is sufficient reason to believe that such measures are required to prevent the child from being exposed to ongoing or future health risks.

Such health risks are not necessarily limited to exposure to Covid-19. Exposure to any health risks during a pandemic may cause sufficient grounds for denial of parental access if the health risk is real and tangible. For example, if a parent refuses to administer prescription medication or treatment to a child, the other parent may rightfully deny access until or unless the parent agrees to administer the child’s prescriptions. Any health risk is relevant if it reasonably increases the child’s need for medical intervention during this unprecedented time.

The judge will expect both parents to propose realistic solutions to allow their child to safely have access to both parents. Children require stability, and their routines should not be upended unless absolutely necessary to protect them from harm. Parents are expected to use common sense and to view risks objectively, based on the most recent recommendations from the provincial and federal governments and health authorities. Covid-19 must not be used as an excuse to unreasonably breach court orders without a justifiable basis for doing so.

More than ever, children’s best interests are paramount to the courts in family law cases. Procedural and evidentiary rules have been relaxed in order to ensure that parents are able to advocate for their children promptly and efficiently. With so much uncertainty in family law courts at the present time, parents are not expected to be perfect, but they are expected to communicate with each other, use common sense, act reasonably, responsibly, and in good faith.

Written by Sarah Miller of Hart Legal