Child access during COVID-19’s first wave in Ribeiro v. Wright: Expansion and restriction

Law360 Canada (December 22, 2020, 11:14 AM EST) --

Giovanni C. Giuga

Michael J. Piaseczny

COVID-19 hit the legal professional like a punch to the gut. It forced the profession to rapidly change — in many respects, change was needed. But it did not only force the administration of the law to change, it created a tsunami of new legal issues for courts and lawyers alike to navigate. For family law in particular, COVID-19 presented lawyers with waves of separations, divorce applications and child custody issues — anecdotally speaking. (See “Increases in Ontario family law cases: An anecdotal account.”)

In March, Justice Alex Pazaratz of the Ontario Superior Court of Justice offered an early pandemic decision regarding suspension of parenting rights during a pandemic. In Ribeiro v. Wright [2020] O.J. No. 1267, Justice Pazaratz denied authorization of an urgent motion to suspend a father’s access to his 9-year-old son due to the mother’s belief he would not follow COVID-19 protocols — specifically, failing to maintain social distancing. (See also Chrisjohn v. Hillier [2020] O.J. No. 1617.)

We bring narrowly picked preliminary data into the fold and illustrate that family law court battles relating to child custody and access continue to offer predictable and consistent outcomes despite COVID-19’s far-reaching negative impacts. Through focusing on a sample of Ontario court decisions in the first wave of COVID-19, we argue that the court did not alter or set aside a parent’s access to a child as the court has strictly adhered to in Ribeiro v. Wright and places great emphasis on the best interests of the child in that children deserve to see both parents.

Ribeiro v. Wright illustrates how Ontario’s courts will consider access during COVID-19

On March 24, Justice Pazaratz decided Ribeiro v. Wright less than a week after regular operations of the Ontario Superior Court of Justice were suspended due to COVID-19. The court denied the mother’s urgent motion to “suspend all in-person access [to the father] because of COVID-19” (see paras. 4 and 29). The mother did not want the child to leave for any reason and alleged the father would not respect social distancing protocols.

Justice Pazaratz identified the presumption that “all orders should be respected and complied with because “meaningful personal contact with both parents is in the best interest of child” (see para. 7, authors’ emphasis). Justice Pazaratz clearly outlined that children require “love, guidance and support of both parents, now more than ever” (para. 10, emphasis added) and any total ban preventing children from leaving their primary residence — even to visit their other parent — is inconsistent with a comprehensive analysis of the best interests of the child.

Despite this, Justice Pazaratz did discuss that if a parent has a concern that COVID-19 creates an urgent issue, they may initiate an emergency motion. However, it was emphasized that the parent bringing forward the emergency motion should not presume that the mere existence of COVID-19 will result in a suspension of in-person access.

Additionally, Justice Pazaratz set out four factors to be considered on a case-by-case basis:

1. The initiating party must show that the other parent’s behaviour is inconsistent with COVID-19 protocols;
   
2. The responding party must show the court that they will specifically and absolutely abide by such protocols;
3. Both parents will be required to provide specific time-sharing proposals that address COVID-19 considerations; and
4. Judges will take judicial notice that social distancing is commonplace and that parents should be spending time with their child at home (see para. 21).
   

It is clear that Riberio v. Wright illustrates that Ontario’s courts sought, early on in the pandemic, to protect existing parenting orders and parenting time to children. 

The dataset: a sample of the number of cases citing Ribeiro v. Wright

We comprised a dataset of cases which cited Riberio v. Wright during the first wave of COVID-19, which is defined as ending on Sept. 27. Riberio v. Wright was cited within 124 Ontario Superior Court, family court and Court of Justice decisions. Our dataset includes 16 per cent of these cases (20 out of 124 cases). For the complete list of cases used in the dataset, please refer to the authors’ contact information below.

All the dataset’s cases were selected because they cited Riberio v. Wright directly at any paragraph at 7 or 19-24. These paragraphs were chosen to narrow the number of cases within our dataset because they contained Justice Pazaratz’s presumption to respect parenting times and analysis surrounding COVID-19 and parenting issues. Three variables were operationalized:

1. COVID-19’s Impact on Moving Parent’s Access,
   
2. Motion Party’s Relationship to the Child,
   
3. Reasons for Bringing the Motion.
   

Another parent’s access was more likely to be expanded or not impeded by COVID-19

Through analysis of the dataset’s selected cases, it became apparent that the other parent’s (non-moving party) access was more likely to be improved rather than impeded by COVID-19. Graph 1 illustrates that, in most cases, COVID-19 failed to impede the other parent’s access to the child. In contrast, a child’s access was limited due to COVID-19 in only five instances. (See “Graph 1: COVID-19’s Impact on Parent’s Access” here.)

An immunocompromised justification produced mixed results for limiting access. For example, an immunocompromised parent failed to reduce the other parent’s parenting time. (See Sereacki v. Berdichevsky [2020] O.J. No. 1867, para. 10 and Little v. Cooper [2020] O.J. No. 1424, para. 10). However, an immunocompromised child did result in temporary limited access (see E.M.B. v. M.F.B. [2020] O.J. No. 2344, para. 10).

An unanticipated result was that COVID-19 led to an increase, or expansion, of the other parent’s access. For example, in A.A. v. R.R. [2020] O.J. No. 1671, the court expanded the father’s access to alternating weeks because their parenting time centred around the child’s school routine which was impacted by COVID-19.

This is part one of a two-part series. Part two: Child access during COVID-19’s first wave in Ribeiro v. Wright: Other variables.

Giovanni C. Giuga is a second-year law student at the University of Ottawa. He completed his bachelor of arts from Wilfrid Laurier University and master of arts from McGill University in political science. Michael J. Piaseczny is a second-year law student at the University of Ottawa, Faculty of Law. He completed a bachelor of arts in political science and masters of applied politics from Wilfrid Laurier and masters of political management from Carleton University.

Photo credit / Andrii Yalanskyi ISTOCKPHOTO.COM

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