In Elsaesser v. Rammeloo, 2020 ONSC 2348, the parties each brought an urgent motion seeking to address the issue of the children’s residence during the COVID-19 crisis. The Court had to determine whether the mother’s occupation as a healthcare worker meant that the father could use this as a legitimate reason for over-holding the children and limiting the mother’s parenting time.

Case Background

The parties were married in 2011 and separated in 2017. They have two children together, who are 6 and 7 years of age respectively. There have been conflict between the parties for two years which involved the police and the Children’s Aid Society on several occasions. The children have been primarily in the mother’s care since separation. In 2018, the parties signed a Separation Agreement, which specified that the parties shall have joint custody and that the father shall have parenting time on alternate weekends and every Wednesday overnight to Thursday morning.

Despite the father commencing a Motion to Change in October 2019, the parties followed the parenting schedule as set out in the Separation Agreement until March 23, 2020 when the father refused to return the children to the mother. According to the father, it would in the children’s best interests to remain in his care until the crisis resolves as the father is not working outside the home at this time. Based on a few news articles and Facebook posts, he came to the conclusion that since some healthcare workers have voluntarily decided to refrain from in-person contact with their children, the mother should also surrender her parenting time with the children. Moreover, he told the children that the mother could infect them and make them sick, which led the children to experience increased psychological stress.

In response, the mother brought an urgent motion seeking an immediate return of the children to her care, with police enforcement if necessary. She proposed that the parties continue with the schedule as set out in the Separation Agreement, or alternatively, that the children reside with each parent on a week-on/week-off basis. Although the children were returned to the mother prior to the motion being heard, the father nevertheless brought a cross-motion arguing that the children should stay in his care.

Legal Analysis

The mother submitted that the father essentially took advantage of the COVID-19 situation and adopted an unreasonable position with respect to parenting time. The mother did not interact with COVID-19 patients during her shifts and she wore proper personal protective equipment. In contrast, the father took the children grocery shopping when they did not need to travel outside the home. When comparing the parties’ respective positions, the children would not be more at risk with the mother than they would be with the father.

The Court did not believe that the father was motivated by the children’s best interests nor was he acting in accordance with same. He never consulted the mother about changes to the children’s residence and used the mother’s occupation as an excuse for his behavior. It was especially not in the children’s best interests to present the mother as a risk to the children’s health and wellbeing. The Court stated that children involved in custody and access disputes need to know, now more than ever, that both parents are there for them and will reassure them that everything is going to be okay. At minimum, they should not be thrust in the middle of the conflict.

Furthermore, the Court found that the mother’s proposal was more attuned to the children’s best interests as she was prepared to take time off work to care for the children if they were to reside with each party on a week-on/week-off basis.

In the result, the Court made a Temporary Order that the children shall reside with each party on a week-on/week-off basis and that this schedule shall be followed until the Province lifts the current Stay at Home Order, currently anticipated to last until May 14, 2020. To address the parties’ COVID-19 concerns, the Court ordered that both parents shall advise the other in writing should one of them begin to exhibit symptoms of the virus. In addition, if one parent is required to self-isolate, then the children shall reside with the other parent until the first parent is no longer required to self-isolate. Lastly, in recognition of the anxiety that discussions of the virus have produced, the Court ordered that the parties shall only discuss the pandemic in terms that are developmentally appropriate for the children and that neither parent shall speak negatively about the other parent or about them making the children sick.

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