The area and practise of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FFamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
Parenting and worrying often coincide, and usually, this pairing is made worse when parents do not trust each other. Unfortunately, that often appears to be the case when parents are separated. With a pandemic added to the mix, the Courts have seen an influx of cases where one parent brings a motion and seeks an Order to modify the parenting regime on the basis that the other parent is placing the child at risk for catching the virus.
In Saini v. Tuli (2021 ONSC 3413), the Mother brought an urgent motion and sought an Order that she be permitted to move the parties’ two children (13 and 10 years-old) to Sacramento, California for one month while she travelled for work. The Mother was not convinced that the Father could care for the children in her absence.
The Mother made numerous allegations to support her position. According to her, the Father exercised his parenting time inconsistently and had never cared for the children for more than a weekend at a time. Most notably, the Mother alleged that the Father was currently homeless and in between residences. For that reason, the Mother was concerned that the children would be placed at risk to catch COVID-19, as they would likely be exposed to many households if they accompanied the Father while he “couch surfed”.
The Father did not provide the Mother with a plan to care for the children while she would be away. Also, the children wished to go to California with the Mother (after all, their schooling was online and could, in theory, be done from anywhere). The Mother had even offered to make-up the parenting time to the Father immediately upon her return.
The Father opposed the motion and denied all of the Mother’s allegations. He told the Court that the children would stay with him, his fiancé and his in-laws at his in-laws’ home, and that he would maintain the same schedule as when they lived with the Mother. He did not think it was safe for the children to travel at this time.
The Court recognized that the Father took a “backseat” in raising the children, however, the children’s safety was a “critical consideration”. According to the Court:
“The COVID-19 protocols clearly direct that non-essential outside of Canada be avoided. I do not accept the [Mother’s] speculation regarding the children’s relative risks of contracting COVID-19 if they remain with the [Father] while she is in California. Further, while the [Mother’s] travel to the United States may be essential for her in order to maintain her employment, I am unable to find that the children’s travel to the United States is essential for them.”
The Court reminded the parties that it is the best interest of the children that is considered, and not the best interests of one or both of the parents.
We have said it before, and we will say it again: the Courts defer significantly to government directives when deciding on COVID-19-related issues. Even if alternative solutions appear reasonable and make sense on paper, the Court appears to be hesitant in contradicting COVID-19 protocols.
In addition, the Court (mildly) scolded the Father for not having done more to explain to the Mother his plans to care for the children (although this was not determinative of the outcome on this motion). It is possible that such an explanation may have gone a long way in preventing this urgent motion, especially since the evidence showed that Mother had nothing against the Father’s parenting capabilities, but rather that caring for the children would not have been feasible for him and the children given his living situation.
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