The area and practice 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. FamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
For separated families, parenting time can leave a huge question mark on previously simple decisions about how their children should spend their days. Unfortunately, the risks posed by new COVID-19 variants can clash with some parents' personal views, and negotiating "what's best" for their children can feel like trying to hit a moving target.
In a recent Quebec case, Justice Vaillancourt took a hard stance on vaccination risk in one Quebec father's application for holiday parenting time.[1]
Since August of 2021, the mother had parenting time over their 12-year-old child. The father sought a Court order granting an increase to his parenting time as of December 30, 2021, for eight days, one day more than outlined in their parenting agreement.
The mother contested the father's request, seeking to have his parenting time suspended entirely on the basis that he was a "conspiracy theorist" and "anti-vaccine". The father did admit he was not vaccinated owing to personal reservations about the vaccine, but noted that he "hardly ever leaves his house". However, the Court pointed to the father's Facebook page, citing various examples of posts and shared images, to demonstrate his strong anti-vaccine attitude. In the eyes of the Court, this confirmed he was indeed a "complotiste" (English translation: a "conspiracist").
The father challenged whether there was truly heightened risk caused by his choice not to get vaccinated because his children were both double-vaccinated. The father, who represented himself at the hearing, provided no response or explanation for his "reservations" about the vaccine. The Court asserted it was "common knowledge" that the vaccine was an effective preventative measure and strongly encouraged by health authorities. The Court found that the best interests of their child must prevail and suspended the father's parenting time.
Two important sources of risk to the parties involved were persuasive in the Court's eyes:
- The Court stated that "current epidemiological context" and "evolving uncertainty" around the Omicron variant posed special risks should the child be exposed to the father. In the Court's view, the Omicron variant had "adversely" changed the pandemic circumstances. As a result, earlier Quebec decisions holding that unvaccinated parents would not have their parenting time suspended were sufficiently dissimilar and of no use to the father.
- The mother resided with children aged seven months and four years. The children were too young to be vaccinated, so it was necessary to suspend the father's parenting time to protect their wellbeing.
The Court noted that the suspension could be reassessed in short order in light of the rapidly changing Omicron variant and knowledge surrounding the risks it poses. Justice Vaillancourt adjourned the application to February 8, 2022, which provides a brief window for the father to change his stance or for the public health situation to change. Alternatively, the Court suggested the suspension could be rescinded if the father complied with health authority recommendations and became vaccinated.
How are cases like this playing out in Ontario?
In Ontario, family Courts have likewise demonstrated a lack of willingness to "roll the dice" on exposing children to potentially harmful emerging variants. Recently, a father's parenting time was restricted for his rejection of the "new normal". In this case[2], the father organized and participated in public protests and displayed consistent defiance of public health measures, such as mask mandates, on social media.
In another Ontario case[3], a father's in-person parenting time was suspended because he had received only a single vaccination. The judge in the case noted that potential harm to children exposed to COVID could be as severe as death, not to mention that there were available vaccines known to prevent more severe reactions.
In the best interests of the child.
Parents should keep in mind that in the face of new, potentially more severe public health risks, their personal views about the "epidemiological context" will likely give way to their child's best interests. These cases are reminders that Courts hold the power to substantially restrict parenting arrangements in light of public health uncertainty. Whatever views one holds on the pandemic, it stands to reason the Courts will err on the side of caution rather than subject children to the risks of a novel and poorly-understood coronavirus variant.
We will continue to monitor the development of the case law on these highly sensitive issues.
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[1] Family law — 212444, 2021 QCCS 5387 (CanLII).
[2] A.T. v. V.S., 2020 ONSC 4198 (CanLII).
[3] LS v MAF, 2021 ONCJ 554 at para 42, citing A.G. v. M.A., 2021 ONCJ 531 (CanLII) at para 26, citing B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438 (CanLII).
