Best Interests of the Child (COVID-19)

Tudor Price v. Salhia, 2020 ONSC 2271 (CanLII)

[9] While these are indeed unprecedented times, since the onset of the COVID-19 pandemic the relevant jurisprudence has confirmed that the family law focus is and should always be the best interests of the child no matter what situation in which parents may find themselves. I repeat and adopt the comments of Justice Pazaratz in Ribeiro v. Wright 2020 ONSC 1829 (CanLII):

“None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.

In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

Transitional arrangements at exchange times may create their own issues. At every stage, the social distancing imperative will have to be safeguarded. This may result in changes to transportation, exchange locations, or any terms of supervision.

And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.

Each family will have its own unique issues and complications. There will be no easy answers.

But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.”

[10] Parting with a child in the face of a growing pandemic where statistics, government strategies and medical knowledge may vary week to week, if not day to day, may not be comforting and can even cause dread until care and control is returned. However, Justice Pazaratz is certainly correct in holding that, especially in the face of anxious and distressing times, any child will most benefit from the love, connection and support shared with both parents.