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Wednesday April 22, 2020

The Coronavirus v. “the Virus of Conflict”: Using COVID-19 as Excuse to Deny Parenting Time

Authored by: Bryen E. Mooney Authored by: Terrance G. Sheppard Posted in: COVID-19 Family Law

The Ontario Superior Court of Justice recently released yet another COVID-19 parenting decision Ivens v. Ivens, 2020 ONSC 2194.

In this case, the mother brought an urgent motion trying to vary a shared parenting order between her and the father. Instead of the shared schedule, she argued the children should remain in her exclusive care indefinitely, which would eliminate the father’s in person parenting time. The mother stated the children told her they wish to stay in her exclusive care, that “they are anxious about staying with their father, and that the father is taking inadequate measures in light of the COVID-19 pandemic.”1

The father argued that “nothing about the COVID-19 crisis or his response to it offers any reason to change the present parenting arrangements. He says that he understands and respects the protocols called for to combat COVID-19.”2

The court held that although the views and preferences of the child are a factor in determining parenting issues, they are not determinative. In other words, it is one factor of many to consider. The court held that: “In weighing the children’s right to be heard against the need to obey court orders and to maintain maximum contact with their father, all in the context of their best interests, the evidence before me points to their need to maintain their court ordered contact with their father.”3

The motion was deemed urgent not because of COVID-19, but because of the mother’s history of refusing parenting time as set out in their order.

Justice Kurz ultimately dismissed the mother’s motion and ordered that the regular shared parenting time continue. Justice Kurz held that the mother’s actions by continuing to refuse the father parenting time “runs the real risk of emotional harm” to the children through the “rupture of their relationship with their father.”4 In relation to COVID-19, Justice Kurtz was satisfied that the father understood the importance of COVID-19 isolation and that he would act accordingly.

Most importantly, the Honourable Justice Kurz stressed the importance of parents working together and to abide by any and all court orders and agreements:

[1] During this COVID-19 pandemic, the courts are beginning to see a situation that approaches a crisis of its own: parents using the urgency of the moment to seize the sole right to parent their children, contrary to court orders. The suspension and limited administrative capabilities of this court have necessarily led it to be very strict in determining the level of urgency necessary to allow an audience with a judge. But that rigour does not mean that we should ignore blatant breaches of custody and access orders or the unilateral usurpation of parental roles under the guise of COVID-19 protection. Such a state of affairs would, in itself, create a situation of harm for children.

[127] As great as the danger of COVID-19 undoubtedly is, another great danger here, as it is for many families before this court, is the virus of conflict. Putting children in the middle of conflict, demonstrating that fighting and arguing is how adults manage their disputes, making children take sides in a lose-lose game, all corrode a child’s emotional equilibrium. Children have no special mask or protective gear that can shield them from this type of virus.

[128] Times like this must bring out the best, not the worst in parents. They must learn, to paraphrase former Israeli prime minister, Golda Meir, to love their children more than they hate each other.

To discuss your unique parenting arrangement amidst COVID-19, talk to a member of our Family Law team. Request your free 30-minute consultation via phone or virtual meeting platform (Skype, Zoom, FaceTime, etc.).  

*This case is from Ontario. Therefore, it is not binding on Nova Scotian courts, but is likely persuasive; meaning these same logic and principles will likely apply in Nova Scotia.

This is legal information and is not intended to be legal advice.

1 Ivens v Ivens, 2020 ONSC 2194 at para 3.

2 Ivens v Ivens, 2020 ONSC 2194 at para 4.

3 Ivens v Ivens, 2020 ONSC 2194 at para 95.

4 Ivens v Ivens, 2020 ONSC 2194 at para 7.

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