Latest COVID-19 lockdown: Conflict, self-help among divorced and separated parents

By Ron Shulman

Law360 Canada (February 9, 2021, 11:50 AM EST) --
Ron Shulman
Jan. 13 marked the beginning of the Ontario government’s most recent intensified effort to curb the spread of the COVID-19 virus, in the form of a provincewide lockdown and stay-at-home order.

In a prior article we discussed the significant impact of these measures on separated and divorced families. These included the effect of a parent’s job loss on his or her ability to pay child support, unwanted changes to families’ living conditions and the move from in-person to online learning for children.

In this second part, we discuss some of the other areas in which families may be affected during the current lockdown — and likely beyond.

Conflict from non-adherence to stricter protocols

Perhaps one of the less obvious areas of fallout from the current lockdown and stay-at-home order is that the members of some fractured families are unable to keep a safe and healthy distance from each other. This is usually due to economic constraints that dictate less-than-ideal living situations, but it is a difficulty that is exacerbated when self-isolation protocols are thrown into the mix.

In Hamam v. Mantello 2020 ONSC 4948, the mother was employed in a job that involved extensive travel. She and the father separated in January 2020 but continued to live separate and apart in the matrimonial home with the children. On March 14, 2020, the mother travelled to Chile for work, and under government-mandated COVID-19 protocols was required to self-isolate for 14 days upon her return. She did so in the basement of the home, away from the father and children.

However, a few days into her quarantine, she and the father had an argument when (according to the husband) she asked to watch a movie with the children. The situation escalated, and the police were called. The husband was directed to leave the home with the children that night, to allow the wife to continue self-isolating there.

During a later court hearing to resolve their numerous issues, the father accused the mother of having used the scenario to try to oust him from the matrimonial home entirely, in furtherance of her broader goals in connection with their disputed custody, access and support issues.

In at least one case the parents disagreed over whether one of them was properly adhering to COVID-19 protocols that were mandated for her particular line of work. In J.F. v. L.K. 2020 ONSC 5766, the parents (both female) went to court because Mother A complained that Mother B, who was a sex worker, had failed to take proper COVID-19 precautions with her clients. The court noted that sex work falls within the definition of “personal services” defined by the Stages of Reopening Regulation (O. Reg. 363/20, Sch. 3) under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.

Under that regulation, personal service providers are required to adhere to specific mask-wearing requirements. The court found on the evidence that Mother B had failed to do so while working and accordingly suspended her parenting time in line with Mother A’s request.

Self-help measures during COVID-19

Finally, the known risks related to the pandemic, and the proliferation of health information and statistics, can sometimes breed confusion and even panic among well-meaning parents. This can lead to heightened conflict and may prompt resort to self-help measures in some instances.

In Gerges v. Ayad 2020 ONSC 3604, the mother chose the beginning of the last COVID-19 lockdown period to unilaterally withhold the child from the father during his access times. Her self-help measure was designed to bolster her broader wish that — despite court orders to the contrary — the father should not enjoy in-person access to the child at all during the pandemic, the court found.

After concluding that in-person access between father and child was important for them both and was in the child’s best interests, the court ordered it to continue, after being satisfied the father would follow social distancing protocols. Given the mother’s past unwillingness to follow prior orders, the court also warned her of various measures it could use to compel her obedience in the future, including a contempt finding, a monetary fine and a police enforcement mechanism.

The bottom line

The economic and social cost of the COVID-19 pandemic — for everyone, everywhere — is already incalculable.

But perhaps the hardest hit sector are those families that feature parents who are separated and divorced, and who are already navigating the usual challenges of untangling their lives while safeguarding the best interests of their children.

For those parents this latest lockdown (temporary as it may be) will merely add more items to the already daunting list of challenges.

This is part two of a two-part series. Part one: Latest COVID-19 lockdown: Impact on divorced and separated parents.

Ron Shulman, a certified specialist in family law, is the founder and managing partner of Shulman & Partners LLP, an exclusive family law practice focused on the resolution of conflicts and ensuring clients are prepared to confidently move on with their lives.  

Photo credit / SvetaZi ISTOCKPHOTO.COM

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