In Zee v. Quon, Justice Nakonechny heard a case involving a parent who appeared to have been alienated from the children by the other parent, who also unilaterally prevented that parent from seeing the children due to the COVID-19 pandemic.

Factual Background

The parties married in 2000 and separated in 2016. They have three children, the eldest of which is 18 years of age. The parties share joint custody of the younger two pursuant to the consent Order of Justice Czutrin, dated September 24, 2019. The parties also negotiated a Parenting Plan, which provides for a specified parenting schedule.

Pursuant to the consent Order, the father agreed that the March Break access schedule would commence on March 12, 2020. The mother claimed that the parties had an agreement where the father was to have the youngest child on two of the mother’s parenting days and in return, the youngest child would with the mother on March 22, 2020 and reside with her the following week. The mother took time off work to be with the child and advised the father that the regular schedule would resume on March 30, 2020. However, she was informed by the father that there was no such agreement regarding March Break access and as such, she would not be seeing the youngest child until March 25, 2020 pursuant to the regular parenting schedule.

When the mother attended the father’s home on March 22, 2020, the father refused to give the youngest child to her. The mother requested police assistance; however, the police could not enforce the consent Order as the Order did not contain a police enforcement clause.

It was the father’s position that the mother should not have any parenting time until the COVID-19 crisis resolves, on the basis that her position as a psychotherapist at Sunnybrook Health Sciences Centre increased the likelihood that she would contract the virus and endanger the children. In addition, he contacted the mother’s supervisor at Sunnybrook and made the unusual request of asking her employer to confirm that she actually took time off during the March Break period and that she would not be called into work during that time.

Not only did she deny the father’s claims regarding March Break access, the mother also alleged that the father has influenced the two older children to withdraw from a relationship with her and that she has not had any meaningful contact with the two older children due to the father’s alienating behaviors. As such, she sought the court’s assistance in implementing the March Break schedule as agreed upon.

Legal Analysis

While the father filed two doctor’s letters outlining that healthcare workers are at a heightened risk of contracting the coronavirus, the Court found that these letters were hearsay evidence and thus not admissible under the Family Law Rules. The Court was concerned about the mother’s lack of relationship with the children, especially in light of a scathing and critical letter written by the eldest child which was filed in support of the father’s position.

While the Court was not certain that the parties actually had an agreement as set out by the mother, it held that it would be in the children’s best interests to return to an equal shared parenting schedule. As such, the father’s proposal that the mother’s access be limited to FaceTime for an indefinite period was rejected. The Court was concerned that a suspension of in-person access would signal to the children that the mother was not capable of caring for them, despite being a health professional herself who is well aware of protective measures against COVID-19. It was also concerning that the children are being exposed to negative messages about the mother while in the father’s care.

In the result, the Court ordered that the youngest child was to be picked up from the father’s residence on March 27, 2020 and to remain in the mother’s care until April 6, 2020, after which time the regular schedule will resume. The father was also restrained and prohibited from contacting the mother’s workplace in any capacity other than as a patient requiring services.

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