TORONTO -- Divorced parents at odds over arrangements for their child鈥檚 safety during COVID-19 have been turning to Canadian courts to settle custody disputes, sometimes in an attempt to limit one parent鈥檚 access to a child.
In one case, a father temporarily lost physical access to his daughter after taking her shopping in April without a mask. The child has asthma, putting her at higher risk of complications from the virus, and the judge expressed worry that the father would continue to dismiss safety guidelines.
In another case, a judge prevented a child from visiting a cottage with his father and a group of extended family members after the child鈥檚 mother shared concerns about the size of the group. The judge acknowledged that, in normal circumstances, the summer holiday would be perfectly fine, but that in this case, considering Ontario鈥檚 guidelines on social bubbles, the risks of the trip outweighed the benefits.
Family lawyer Russell Alexander said he鈥檚 seen a 鈥渟ignificant鈥� number of virus-related custody disputes. A judge who recently settled a dispute between divorced parents split over their son鈥檚 back-to-school plans noted a number of similar cases since mid-August and said 鈥渨ithout a doubt鈥� she anticipates more.
鈥婻esource-strapped courts are working hard to keep up with virtual hearings, but a steady stream of urgent motions, submitted by parents worried about their children鈥檚 safety, has only added to the courts' challenges. For months, judges have been urging parents and their lawyers to settle custody disputes outside of court.
But the issue is bigger than just the cases that end up before a judge, Alexander said.
鈥淭here are lots of families who cannot afford to litigate these issues,鈥� Alexander told CTVNews.ca in a phone interview Friday, pointing out that many parents have been laid off or are relying on government aid. 鈥淪o I think it鈥檚 a lot more common out there, but parents don鈥檛 have the resources to argue these cases.鈥�
Earlier this year, the Law Society of Ontario launched a hotline for callers to discuss their matter with a family lawyer to determine whether or not their situation was urgent enough to be heard by a judge.
Cases where a parent loses access to a child are 鈥渆xtreme,鈥� Alexander said, noting that restricting a parent鈥檚 physical access to their child is unusual under most circumstances.
Judges have also made it clear in their rulings that, after months of court closures, they have little time for cases without merit.
鈥淛udges are not going to be tolerant of people who come to court for the wrong reasons. If somebody is making a bald allegation about safety concerns, simply making the allegation is not going to be sufficient,鈥� Alexander said.
鈥淲hen parents are operating for nefarious motives or reasons such as to try to change the parenting order or to change the status quo, the courts will step in and prevent the parent from doing that.鈥�
Early on in the pandemic, some parents with joint custody expressed confusion about how they should handle shared time with their children as government officials urged everyone to stay home.
A father in Ontario tried to keep his two-year-old son quarantined in his home, without visits to his mother, until the pandemic is over or a vaccine is made available. The child has several medical issues that his doctor and parents agreed put him at higher risk of complications. However, the father argued that the mother was not taking the child鈥檚 health concerns seriously enough.
In her ruling, Justice Deborah Chappel cited testimony from the child鈥檚 doctor, who did not agree that the boy needed to be quarantined long-term, but that he should instead wear a mask during outings and limit social contacts. Chappel sided with the mother, calling her 鈥渁 loving, capable and responsible parent who has demonstrated that she is complying with all COVID-19-related directions and appropriate safety measures.鈥�
Custody issues have also emerged among essential workers. In one case, an emergency room doctor had their custody challenged by their ex-partner over concerns about exposure to COVID-19 in the hospital. In that case, the judge determined that, so long as the doctor exercised proper safety protocol, visits with their child should not change.
Nicholas Bala, a family law professor at Queen鈥檚 University, said judges have generally been quite careful in trying to maintain whatever visitation arrangements existed before the pandemic.
鈥淛udges were saying there are risks for all of us, and as long as people are minimizing risks in a reasonable way, they鈥檙e going to continue to have parenting rights,鈥� he said.
He added that the pandemic has been an incredibly stressful time for everyone, and that parents dealing with a fraught relationship with their ex may be feeling stressed. However, he said it鈥檚 important to consider the child鈥檚 best interests when dealing with custody disputes.
鈥淛udges are explicitly saying, 鈥楾hink about you children and the long-term relationship you鈥檙e both going to have.鈥欌��
Overall, Alexander says he鈥檚 worked with many parents who are considerate of court delays and tried to work things out through mediation.
"For families that are genuinely approaching this from a reasonable perspective, they are more willing to make certain compromises to settle their case whereas before 鈥� some people would get locked in a certain position and can鈥檛 agree on the time of day,鈥� he said.
With files from The Canadian Press
