Factual Background

The parties commenced cohabiting in 2008 and were married in 2009. They separated in May 2019. There are three children of the marriage, 3, 5 and 7 years of age, respectively. The children reside primarily with the mother and it was agreed that the father would have visits with the children, supervised by his mother or her husband. Over time, however, the mother began to personally supervise the father’s access visits. The father is a recovering addict and is enrolled in treatment and counselling programs. He has been residing at Sobriety House since the fall of 2019 and planned to return to live with his mother in the near future.

As a result of a Motion brought by the father, returnable on March 24, 2020, the parties signed Minutes of Settlement on March 16, 2020 to settle the Motion. Among other things, the Minutes of Settlement provided that the father was to have parenting time with the children 30 minutes before school and on every Saturday. The father also agreed to submit to random drug and alcohol testing twice a month.

Since the signing of the Minutes of Settlement, the mother took the position that due to COVID-19, all access visits should take place through video-conferencing only. The mother alleged that the father is not self-isolating nor implementing COVID-19 protocols.

The father brought an urgent motion seeking to enforce the terms of the Minutes of Settlement. He argued that the mother’s self-help remedy should not be condoned and that he is committed to sobriety and to following COVID-19 directives. He also raised concerns with the mother’s conduct in past supervised access visits and claimed that she would call him an “addict” in front of the children.

Based on these facts, the Court held that this matter was urgent and as such, the father’s motion was heard on March 26, 2020.

Legal Analysis

The Court took the view that the mother was essentially trying to renege from the agreement by adopting self-help remedies in the midst of the COVID-19 pandemic. During these challenging times, it is vital that children from separated families be provided with some certainty and to maintain the relationship with their caregivers. This is not to say that existing orders or agreements cannot be modified in accordance with a child’s best interests. However, self-help remedies are seriously discouraged by the Court.

In this instance, it is up to the Court to determine whether the terms of the Minutes of Settlement were still in the children’s best interests, with the understanding that the onus is on the mother to demonstrate that the terms were not longer in the children’s best interests. Specifically, the Court held that the maximum contact principle as envisioned in the Divorce Act should be respected so long as it is in the children’s best interests.

In light of the father’s willingness to implement protective measures against COVID-19, the Court held that supervised access visits shall take place at the paternal grandmother’s home, commencing April 11, 2020. However, due to the communal living arrangement at Sobriety House, the father was believed to have been exposed to eight other residents as well as staff. As a result, the father’s parenting time with the children shall be by way of video-conferencing three times per week for two hours until April 11, 2020. This Order not only preserves the father’s parenting time with the children but also limits their risk of exposure by allowing for a period of time in which the father can return to live with his mother and refrain from coming into contact with others.

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