These are challenging and unprecedented times.  Concern about how careful your former spouse is abiding by the government recommendations to stay home and social distance is real, particularly when you have an order or agreement that your children are moving between two homes.  The courts are limited in the motions they are hearing, but they are hearing parenting motions if the motion meets the threshold for urgency (and in some jurisdictions if the motion is on consent or in writing, if all parties agree).  From the decisions to date, the message is that it’s access as usual barring an exceptional circumstance.   My message to my own clients is always that an order must be followed, and if there is genuine concern that your children may be at risk in exercising access, you will have to bring a motion.  We can’t take the law into our own hands, even in these challenging times.  The first case related to withholding a child due to COVID concerns was Justice Pazaratz in Ribeiro v. Wright.

In that decision, Justice Pazaratz writes:

“Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families.  We know there’s a problem.  What we’re looking for is realistic solutions.  We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”

While he stated that the moving party’s concerns about COVID were well-founded, he did not grant the motion as he did not agree that it passed the threshold for urgency:

“ Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.

1. The disruption of our lives is anxiety producing for everyone.
2. It is even more confusing for children who may have a difficult time understanding.
3. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.
4. Vulnerable children need reassurance that everything is going to be ok.  It’s up to the adults to provide that reassurance.
5. Right now, families need more cooperation.  And less litigation.”