Family courts in Canada have had to deal with many issues relating to COVID-19 in the last two years, including disputes about parenting time, vaccination and changes to support due to decreased income.
This blog looks at two recent cases with access. The child’s best interests are always of paramount importance in parenting matters. In each of these cases, arguments were raised about the impact of COVID-19 on a child’s best interests.
In A.G. v M.A., the applicant mother sought an order suspending the father’s in-person parenting time with the parties’ two-year-old daughter, after she found out about two health-related concerns relating to the father, including the fact that he was not fully vaccinated against COVID-19.
The father received one dose of the COVID-19 vaccine and obtained a one-line letter from a doctor exempting him from taking the second dose due to an alleged allergic reaction to the first dose. The daughter suffers from lung disease and is susceptible to developing complications from infectious illnesses.
Justice Spence of the Ontario Court of Justice concluded that the father did not have an acceptable medical exemption. His Honour cited a Ministry of Health paper on COVID-19 vaccine exemptions and held that the doctor’s letter fell short of the requirements because it lacked the analysis necessary for the Court to properly assess the conclusion that the doctor had reached.
The father also did not provide evidence that he had to be hospitalized following the alleged allergic reaction. Justice Spence explained that:
There are competing interests at stake. On the one hand, the father is not fully vaccinated, thereby exposing his daughter to a greater risk of infection from Covid-19. On the other hand, all other things being equal, the child should be entitled to have her parent in her life in a meaningful way. Absent unusual circumstances, in-person contact between parent and child is more meaningful than virtual contact.
The Court decided to make a temporary order reducing the father’s in-person parenting time to one hour per week, to take place exclusively outdoors.
In Hasan v Khalil, the applicant father sought an order allowing him to travel to Athens with his ten-year-old daughter from December 17 to 26, 2021. The father lives in New York, while the child primarily resides with her mother in Toronto. He planned to travel with the child to New York and then fly to Greece, so they could enjoy a family trip with all members of his immediate and extended family.
The trip was permitted by a previous consent final order. Under the order, the child is to reside with the father for nine consecutive nights during the Christmas period and is permitted to travel outside Canada for the purposes of vacation, with the consent of the other parent, such consent not to be unreasonably withheld.
The mother was prepared to consent to nine nights of parenting time in New York but did not consent to the Greece trip due to safety concerns.
Justice Kraft of the Ontario Superior Court of Justice started by noting that there is a presumption that all parenting orders should be respected and complied with. However, Her Honour recognized that:
The Court may need to modify existing parenting arrangements to ensure that all Covid-19 precautions are adhered to and no matter how difficult the challenge, for the sake of the child, we have to find ways to maintain important parental relationships safely.
Justice Kraft had to decide whether it was in the child’s best interests to travel to Greece given her vaccination status and given the current state of the COVID-19 pandemic. Her Honour weighed the benefits of a family trip to Greece against the possibility of needing to quarantine in Greece and Canada upon her return.
Justice Kraft observed that it would be extremely difficult for the child to wear an N95-grade mask for a flight that exceeds 10 hours, who would also experience long wait times in crowded airports. Despite the father selecting one hotel in Athens that maintains COVID-19 safety protocols, the child would be exposed to strangers in the elevator, lobby and restaurants.
Her Honour placed significant weight on the father’s conduct during the pandemic. In contravention of the parenting order that provides the mother with decision-making responsibility and the child’s doctor’s advice, the father arranged for the child to receive her first dose of the COVID-19 vaccine. He was also fined for breaching Ontario’s Quarantine Act in 2020 after failing to quarantine before picking up his daughter. Her Honour formed the view that the father was unable to place the child’s best interests ahead of his own.
On the COVID-19 risk, Justice Kraft opined:
In light of the recent information with which the public is being bombarded regarding the concerning spread of the Omicron variant of Covid, it would follow that it is in [the child’s] best interests to take precautionary measures when there is not sufficient scientific evidence about the hazards and risk of exposure to the Omicron variant for children under 12 years of age who have only had one vaccination shot for Covid.
As such, Her Honour declined to grant the order sought. The father could exercise parenting time in New York or Canada if he chose to skip the trip and remain behind in North America.
If you are experiencing child access and parenting time disputes, contact the experienced family lawyers at NULaw in Toronto. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.
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