Factual Background

The parties cohabited for two and a half years and separated in May 2017. In October 2017, they reached a partial Separation Agreement, which included an approximately equal-time shared parenting plan for the one child they have together.

The mother is a family physician and is at a high risk of contracting COVID-19 due to being in an immune-compromised state as a result of receiving ongoing cancer treatments. The father is a lawyer who has re-partnered with another lawyer who has a three-year old daughter from a previous relationship. As a result of the COVID-19 pandemic, the father decided to self-isolate with his new partner, her daughter and her parents at their cottage in Thornbury. This arrangement meant that the child resided at the cottage during the father’s parenting time, which is some distance away from Toronto where the mother resides.

The mother brought a motion seeking temporary sole custody of the child and an order that the child shall reside with the mother for the duration of the COVID-19 pandemic. In addition, she sought to suspend the father’s in-person access, or in the alternative, an order that he not attend at the cottage or invite third-parties into his home.

Legal Analysis

Following Justice Pazaratz’s decision in Ribeiro v. Wright, 2020 ONSC 1829, there is a presumption that exiting court orders and parenting agreements should continue unless a parent’s lifestyle or behaviour raises sufficient concerns about parental judgment such that direct parent-child contact should be limited. As such, the question is whether the existing parenting arrangement should be changed in light of the father’s conduct and the prevailing public health orders in order to protect the child’s best interests.

The mother argued that the father’s self-isolation at the cottage poses enhanced risks to her health and was in breach of public health orders advising against gatherings of more than five people who are not from the same household. The mother claimed in particular that as the father did not reside with his new partner prior to the pandemic, he cannot suggest that they have now formed a single household.

In response, the father argued that the current arrangement is mutually beneficial for the child and the individuals involved and should therefore continue. Specifically, he deposed that residing with his new partner and her parents allowed her parents to take care of the child when needed and also enabled the child to spend time outdoors without encountering others since Thornbury has a lower population density. He confirmed that everyone residing at the cottage are following the appropriate safety measures and that they do in fact constitute a single household, which means they are not in breach of any public health orders.

After hearing the evidence from both parties, the Court determined that the father’s arrangements are reasonable and there were no concerns regarding parental judgment that would warrant suspending direct parent-child contact. Moreover, the Court held that the father’s decision to form a single household with his new partner and her parents provided substantial benefits to all members of the household, including the child. The fact that he did not reside with his new partner prior to the pandemic did not preclude the formation of a single household during the pandemic. In fact, they have formed a bubble during this time and limited direct contact with third-parties for over a month.

The Court did not accept that self-isolating at the cottage posed increased risks to the mother as the father would have had contact with his new partner in Toronto when she facilitates access between her child and her ex. The father’s and the child’s contact with his new partner and her parents would have therefore been roughly the same, whether he self-isolates in Toronto or in Thornbury. As such, the mother’s motion is dismissed.

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