Ontario Family Law and the COVID19 Outbreak

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

The CoVid19 crisis has raised a multitude of new legal isues in virtually every area of the law.

For those with family law concerns related to child residency, custody, access and support, the need for guidance is particularly urgent. This is particuarly true with continuing court closures and apparently insurmountable, practical barriers to obtaining any of the usual legal remedies that family courts provide.

While nothing is certain, in terms of how courts will ultimately decide on these many new issues, we are receiving many enquiries, and will do our best to provide workable answers to some of the most common questions we are receiving. 

Q: Do we need to follow our regular access schedule during the Covid-19 outbreak?

The underlying presumption remains that parties will comply with the regular access schedule established by Court order or by agreement, subject to any modifications necessary to ensure the wellbeing of a child(ren).

The question of how access should be exercised during this time must be determined on a case-by-case basis, balancing the interests of a child in maintaining meaningful personal contact with both parents, with the realities of the precautions necessary in the face of Covid-19.

The Court in the recent decision of Riberiro v Wright, 2020 ONSC 1829 has noted that there will be some cases wherein the custodial or access parents may have to forego physical access with a child due to:

(i)            Circumstances (i.e. if a parent is subject to self-isolation due to recent travel, personal illness or exposure to illness, the persons in the household that a child will have contact with etc.);

(ii)          Risk of Harm (i.e. if the parent has higher risk of exposure due to employment or association, or if parent or child has health complications etc.); or

(iii)         A Parent’s Lifestyle or Behaviour (i.e. a parent who has demonstrated little to no regard for safety directives set out by the government or public health officials)

It is recommended that parents consult with each other as to whether modifications to access are necessary in the circumstances, and agree upon the changes to be made.

Where physical access is temporarily suspended, parents are strongly encouraged to consider alternatives that will allow a child to continue to have some form of contact with the other parent, including regular phone and video calls and social media interactions.

If you are unable to agree upon ongoing access during this time, you should immediately seek legal advice to canvass the options available to you.

Q: My former spouse will not let me see our child due to concerns related to Covid-19, what are my options to see my child?

First and foremost, you should consider whether there are legitimate reasons to temporarily suspend physical access due to Covid-19.

While a court order or agreement relating to an access schedule should always be respected, and adhered to, these are extraordinary times, where doing so may not necessarily align with a child’s best interests.
Parents are called upon to exercise best judgment in determining how strictly the regularly access schedule ought to be adhered to in the circumstances.

If you agree to suspend physical access during this time, it is best to confirm the understanding regarding any modifications to the access schedule in writing. You should be absolutely clear that changes agreed to are temporary in nature with the regular schedule to be reinstated once safe to do so, the changes will not represent a new status quo in the parenting arrangement and will be subject to ongoing review as the Covid-19 situation evolves.

In urgent circumstances wherein a party is improperly withholding access, or insisting upon access, seriously jeopardizing a child’s welfare, this matter may be brought to the attention of a court (see “Can I still go to Court for a family law dispute”).

As the Court will only become involved on urgent matters, you should consider whether the matter can be addressed through alternative dispute resolutions, including attempts to negotiate a temporary agreement through counsel, or participation in videoconference mediations.

Q:  Can I still go to court for a family law dispute?

Currently, Ontario's courts will only become involved in a parenting issue relating to Covid-19 if it is truly urgent in nature.

In the recent decision of Riberiro v Wright, 2020 ONSC 1829 the Court provided much needed guidance as to how it will determine if a matter is urgent, requiring judicial intervention. Specifically, this will be determined on a case-by-case basis having regard for the following factors:

a.     The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.  

b.     The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c.     Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.  

d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.

As always, parties should consider mediation, counselling or other alternative dispute resolution prior to resorting to litigation. Where possible, parties can try to resolve parenting matters amicably through direct discussions, negotiations through counsel, or participation in mediation (which may be accommodated by videoconference).

Q: My employer has shut down due to Covid-19 and I am no longer earning any employment income as a result. Am I still expected to pay child support?

The general expectation is that a parent will continue to pay child support.

Where support is to be paid in accordance with a court order, it is typically subject to enforcement by the Family Responsibility Office [“FRO”]. Serious consequences can follow where a payor falls into arrears of support obligations. This includes enforcement measures, ranging from the suspension of a driver’s license to garnishment, and in extreme circumstances, incarceration.

The extent to which FRO will be enforcing support orders during the Covid-19 outbreak is not yet clear.

It is best practice in any case to continue to pay full support, to the extent this is possible, or at the very least to pay partial support based on the income you are receiving.

We strongly recommend that efforts be made by support payors to communicate directly with their support recipients to discuss any proposed reductions to support, and that no unlateral action be taken before such disussions have occured.  Confirm those discussions - and any agreements reached - by email or text (or on Our Family Wizard, if you are using that service), so that there is a clear documentary record. 

And if you can't reach agreement, get legal advice. If you do reach an agreement, consider working with a lawyer to draft a support-reduction agreement, to document the changes you have agreed to.

Payors who are no longer working regularly due to Covid-19 will likely be expected to explore all avenues for financial support available from the government.

Under normal circumstances, a payor would need to commence a motion to change to suspend or decrease payment of support. At present, the family court is only hearing urgent matters, which may not include motions to temporarily change support.

- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net