Childs Access Rights and COVID-19: Your Questions Answered
The Coronavirus pandemic has affected all of our lives in different ways but arguably, none more so than parents trying to remain in their children’s lives. We have compiled a number of frequently asked questions and answers below relating to your child access rights and custody arrangements that we hope can shed some light during this confusing time.
For Custodial Parents
Will access visits between my child and the other parent continue?
You must follow any existing court orders or agreements about access. If you currently do not have a court order or agreement about access, you are expected to follow your child’s normal routine.
However, you can make changes to your order or agreement if you and your child are under quarantine or self-isolating. Current guidelines suggest that anyone who has COVID-19 symptoms is asked to self-isolate.
If somebody or their child are sick, they must stay in quarantine for 14 days:
- Someone or their child has recently returned to Canada from a foreign country, or
- Visitors or their kids had contact with someone who tested positive for COVID-19.
One option is for your child and the other parent to practice virtual access during quarantine or self-isolation. For example, FaceTime, Skype, WhatsApp calls, phone calls, emails, and letters are ways your child can maintain their relationship with the other parent.
If you and your partner can agree about the changes, you do not need to take any other steps. You can put your new access agreement in writing, but you do not have to.
What can I do to change or stop access visits between my child and the other parent during this time?
If you and the other parent cannot agree on the change, then you may need to obtain a court order to change access. This will be difficult since as of March 16, 2020, Ontario family courts only hear urgent matters. It is up to the individual court to decide whether your access request qualifies as urgent enough for them to hear it now.
COVID-19 cannot be used as an excuse to ignore the current parenting schedule. You cannot change or deny the other parent access unless you have a good reason to believe that your child’s safety would be compromised. If you do have a good reason and the court decides that it is an “urgent” matter, you may bring a motion before a court.
Motions over COVID-19-related access concerns must include[1]:
- Specific evidence of the other parent’s behaviour or plans that breach COVID-19 recommendations. For example, if the other parent has returned to Canada after travelling but is not following the rule that they must self-isolate for 14 days.
- The parent whose access is being restricted or denied must reassure the court that COVID-19 safety measures will be followed, such as social distancing, using disinfectants, and following public safety orders.
- Both parents must provide very specific and realistic time-sharing proposals that address all COVID-19 considerations, in a child-focused manner.
What happens if the Court order only allows the other parent supervised access?
Your child’s safety is the main concern. If there have only been supervised access visits so far, this might mean there can be no access visits until the CAS office opens again. In this situation, the child is not safe with the other parent in an unsupervised visit and you are responsible to communicate this to the other parent.
What happens if I have an order for supervised exchanges of my child?
You must find other safe public or private spaces where you can exchange your child with their other parent, such as:
- the front lawn of a friend, neighbour, or family member’s home
- the parking lot of a hospital, police, or fire station
- ask the other parent to stay inside their home as you drop off the child at the end of their driveway while remaining in the car
- have another adult witness you exchanging the child, where the witness keeps social distancing by coming in their own vehicle
For Non-Custodial Parents
How will I see my child if CAS has stopped holding access visits?
Currently, all of Ontario’s Children Aid Societies have stopped in-person access visits. Check your court order to determine your next steps.
- If the order gives CAS discretion over the access arrangement, they decide how and when the access takes place. It is important that you follow their instructions. CAS may still have a duty to allow for virtual access. For example, using Skype, FaceTime, or WhatsApp call.
- CAS must change the court order first if your order has more detailed terms about access. For example, you have 1 weekly supervised access visit at a CAS office. CAS will have to bring a motion to change the order and may ask you to agree to another access plan because of COVID-19. If you do not agree to the new access plan proposed by CAS, you will need to respond to their motion.
If CAS does not bring a motion, you may have to bring your own motion. In some circumstances, you may be able to bring a regular motion asking the court to:
- order another way for you to get access to your child,
- place your child with another relative who will give you access to your child, or
- return your child to your care.
Meaningful contact with both parents is in the best interests of the child now more than ever.
If you would like more information or have any questions relating to child access/child custody, please do not hesitate to contact us. As experienced family law lawyers in Mississauga, we would be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.
[1] Ribeiro v Wright, 2020 ONSC 1829 at para 21.
