Parenting Time in COVID-19’s 1st wave series

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This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc. 

Michael Piaseczny and I wrote a two-part series published on December 22, 2020 and January 11, 2021 with an empirical look at child access during COVID-19's first wave under Ribeiro v Wright.    

Michael and I would like to thank Prof. Natasha Bakht for her insightful comments and feedback. 

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.
 

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.

In part one of this series, from our new dataset, we found that in most  cases, COVID-19 was more likely to increase or not impede a child’s  access compared to limiting it.
 

It is clear from our succinct analysis that the treatment of precedent  has been upheld during an unprecedented time, specifically the COVID-19  pandemic. Moreover, our analysis shows that the court continued to use  the “best interests of the child” lens to maintain child custody and  access, despite pandemic concerns.
 

Since the penning of Justice Alex Pazaratz’s words in Ribeiro v. Wright [2020] O.J. No. 1267, Ontario courts have cited it 124 times within the  premier’s self-described “first wave” of COVID-19, from mid-March until  Sept. 27, 2020. Given the dramatic changes in the legal profession  since the start of the pandemic, we used s. 20 of the Child Law Reform Act as a backdrop to examine how courts have subsequently treated Justice Pazaratz’s decision in Ribeiro v. Wright in child custody and access cases. 

Moving party’s relationship to child relatively equal compared to most children  

Graph 2 illustrates the different parties who brought forward a motion for  child access. The number of cases between each party was relatively  balanced, but a child’s biological mother was slightly more likely to  bring forward a motion related to access compared to a biological  father. We do emphasize that this article does not examine the moving  party’s role within a custody arrangement. 

Dataset: Main reasons for bringing forward a motion

Graph 3 illustrates the different reasons that parents brought forward their  motions. The moving party predominantly brought forward motions to  enforce an existing access order or change to the current access order.  Over half of the cases fall into the “Enforce access orders” and  “Wants/change access” categories.
 

Another popular reason was the “other parent is not following COVID-19  protocols,” with the number of cases at three, but the moving party’s  success rate among these cases is mixed (see Little v. Cooper [2020] O.J. No. 1424, J.F. v. L.K. [2020] O.J. No. 4043 and Guerin v. Guerin [2020] O.J. No. 1396).
 

Conclusion
This article offers introductory empirical insight — during a time of  epidemiological crisis — into the study of family law, specifically  child custody and access, because this area of law, like others, has  been greatly affected in many facets.
 

Even before COVID-19, those in the area of family law have argued that  the practice area needs more empirical insights so family law can become  “more inclusive and move beyond narrow dominant norms” (see Clare  Huntington, “The Empirical Turn in Family Law” (2018), 118:1 Columbia Law Review, 227 at 231).
 

The premise behind this argument is that greater empirical study of  family law has the ability to “give decisionmakers a clearer sense of  areas in which legal inputs might yield particular social outcomes …  [and that] it holds the potential to help depoliticize battles” by  attempting to separate social beliefs from political arguments (see  Huntington).
 

This short piece is a mere introductory step into analyzing empirical  observations of family law during COVID-19. It is thus key to note that  this article presents a piece of a larger project and does not make any  causal assumptions.