In this case the court was required to decide whether access should be continued during the COVID-19 pandemic when one of the children had a serious genetic condition which required enhanced social distancing.

Background Information

The parties in this case separated a year and a half ago and have two little girls aged four and five. The applicant-mother and respondent-father had a ‘tortuous” relationship.  In November 2019, the father was charged with three counts of threatening which involved the mother and her parents.  This resulted in the mother requesting an order without notice to the father, in which the court granted her custody and the father access, but the access was to be arranged between the parties or supervised at a visit centre.  The father had a history of drug use but agreed to consume no drugs or alcohol during or before access and would provide copies of drug test results.  In February, the father was arrested and charged with breach of recognisance, possession of a prohibited weapon and improper handling of ammunition.

When the COVID-19 crisis came about, the mother resisted continuing face to face access between the children and their father.  One of the girls had a genetic condition that could cause potential lung complications. The child’s doctor recommended enhanced social distancing pending public health clearance. The mother asked the father to stop access and for two visits he agreed. Following the two missed visits, the father believed the girls had isolated long enough and face to face access should continue. The father brought a motion alleging the mother was unfairly withholding access because she believed her daughter was under an enhanced risk of danger from COVID-19 due to the genetic disorder. That motion was dismissed.

The mother had since brought a motion seeking the continuation of FaceTime access until the enhanced risk of harm to the daughter had ceased.

Legal Analysis

Medical evidence was presented by the mother to show that the daughter had a serious genetic condition that could make the exposure to COVID-19 very harmful.  Since the father did not present any medical evidence to the contrary, the court relied on the medical evidence given by the mother.  Since the daughter was at a significantly higher risk than most people, an enhanced level of social distancing was necessary to keep the child protected.  The mother was practicing this enhanced level of social distancing and exposure to only one household during the crisis was recommended.  The court also noted the father believed that this was a ploy to stop him from being able to see his children by the mother, indicating his discount of the daughter’s condition. The court emphasized the multitude of stresses the father was dealing with at the time, from his charges, trying to beat a drug addiction and mental health treatment.

In the mother’s submission, she suggested that access be reinstated when Ontario reaches ‘phase three’ of the opening strategy.  The court recognized the motion was about keeping the child safe and the best way to accomplish that was to continue electronic visits with the father, but only as long as it was unsafe to have face to face visits.

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