It’s called nesting, and is a refreshingly constructive solution for divided families. The children live full-time in their home, while the separated parents take turns staying with them.
But on March 31, an Ontario judge ordered that an immune-compromised Ottawa mother be given exclusive use of the matrimonial abode, citing her heightened risk from COVID-19 and the father’s alleged cavalier approach to social distancing.
The parents had actually been sharing the house since the lockdown started. But the father “leaves the home continuously and returns without advising her where he went or does not wash his hands upon his return,” noted Justice Adriana Doyle in temporarily turfing him out.
The ruling is part of an extraordinary new branch of Canadian family law, a flood of novel disputes over child custody and access unleashed by the coronavirus pandemic.
Courts that otherwise are mostly shut down have issued dozens of rulings as mothers and fathers try to end their ex-partners’ access during the shelter-at-home period because they are afraid the children could get infected.
Parents have argued the other caregiver is a health-care professional, not keeping sufficiently isolated or travelling with the kids needlessly. The result is a unique and growing body of case law.
In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever
“This is a brave new era for family law lawyers and parents,” says Russ Alexander, a Toronto lawyer. “Dealing with separation and access issues is difficult all the time. The difficulty is heightened during the pandemic. Everybody is overloaded by the news cycle. Our health protocols are evolving and changing daily, sometimes hourly.”
Sam Rollans, an Edmonton family law practitioner, said each of the eight lawyers he works with have two or three cases where a parent has or is threatening to withhold access because of COVID-19. One of his own files was among the first to produce a coronavirus ruling in Alberta.
“New decisions on child custody, child access and child parenting time are coming down at a fast and furious pace,” said Vancouver lawyer Lorne MacLean in a recent blog post.
“This is uncharted territory for our court system,” noted an Ontario ruling.
Judges have curtailed some parents’ access to their children, while in other cases ruled there is no good reason to change court-ordered visits or custody, including when one guardian is a nurse or doctor.
The disputes underscore a little-noticed exception to the stay-at-home isolation protocols across Canada: children of divided families who move back and forth between homes.
But judges have so far insisted that previous orders setting joint custody or access rights be obeyed unless there are compelling reasons to fear COVID-19 contamination.
Dealing with separation and access issues is difficult all the time
“A blanket policy that children should never leave their primary residence — even to visit their other parent — is inconsistent with … the best interests of the child,” said Justice Alex Pazaratz of Hamilton, Ont., in rejecting a mother’s request to stop her husband’s access to the kids. She suspected he was not adequately social distancing.
“In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”
That approach has extended to situations where one parent works in health care.
A father in Kitchener, Ont., asked that his children, ages six and seven, stay with him during the pandemic as their mother was a nurse at a local hospital. One of the kids, the mother said, told her “nurses and doctors are dying mom. Your mask does not work. You are going to make us sick and we can die.”
But a judge rejected the man’s motion, saying that while the mother might be at heightened risk, she is trained to deal with it.
A court in B.C. took a similar position when a father in that province asked to keep his children from their mother, a nurse who had helped treat a COVID-19 patient. The woman “is fulfilling a fundamentally important role as a health-care worker at this critical time,” the judge noted.
The situations can be complicated, children moving between homes with blended families, interacting with step-siblings who are doing the same , noted Alexander.
Asked about that apparent breach from social distancing, Dr. Vinita Dubey, Toronto’s associate medical officer of health, said co-parenting during COVID-19 presents “unique challenges.”
But rather than recommend halting the shuttling of children between homes, the public health office suggests parents take rigorous hygiene precautions like cleaning touched surfaces, and stay at least two metres apart when handing over the kids, she said in a statement.
Still, in some situations, courts are putting a temporary stop to such movement.
One case in Quebec involved a parent who had tested positive for COVID-19 and was temporarily denied access to a child, said Awatif Lakhdar, a Montreal family-law specialist.
“We have to find a kind of balance” between fear and the kids’ best interests, she said, adding that the courts have largely succeeded in doing that.
When a father took his children from Toronto to a home in Whistler, B.C., in early April — after telling his ex-wife they would stay in the city and using two air flights each way — a judge cracked down. She ordered that future access occur only in the area, and that he not take the children on planes or other public transit.
“There should be zero tolerance for any parent who recklessly exposes a child to any COVID-19 risk,” wrote Justice Lene Madsen.
Meanwhile, with courthouses mostly closed, the cases make for a unique brand of lawyering. Hearings typically consist of teleconferences, and no video access. “You realize how much you rely on reading the room, and you don’t have that,” said Annie Kenet, a Toronto family law practitioner.