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Suspension of Parenting Time

4 minute read
Also authored by: Courtney Edwards

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 the Lerners Family Law Group’s weekly update on how that change is being made.

Since the early days of the pandemic, the Ontario Courts made it clear that there should be an initial presumption that compliance with all custody and access orders should continue. If a parent seeks to restrict the child’s time with another parent, specific evidence must be provided regarding that parent’s conduct and how it exposes the child to risk.

When deciding whether parental access should be suspended, the Court considers the medical vulnerabilities of the child, along with the parent’s compliance with COVID-19 protocols, and the risk of the child/parent relationship diminishing. These guidelines have helped promote the best interests of children while preserving family relationships and keeping children safe and healthy.

In a recent case, A.G. v. M.A., 2021 ONCJ 531, the Mother brought a motion to suspend the Father’s in-person parenting time with their daughter because, amongst other things, the Father was not fully vaccinated.

The Judge noted the novel nature of the case:

In the past number of months, many vaccination cases have come before the courts.  However, I am not aware of any case where a primary caregiving parent has requested an order suspending the other parent’s in-person visits because of a failure or refusal to be fully vaccinated.[1]

Apparently, the father had experienced a severe allergic reaction to the first vaccine dose and, as a result, he was exempt from the second shot. However, the father did not provide any hospital records despite claiming that he was hospitalized. The father did provide a one-line doctor’s note confirming his exemption, but no other medical records to support his claim. The mother argued that the doctor’s note was scant evidence to qualify as a valid medical exemption. She also noted that their daughter had a form of asthma that makes her particularly vulnerable to COVID-19.

The Judge concluded that the father had not provided enough evidence to justify his medical exemption.

The Court concluded that the child’s pre-existing condition exposed her to a greater risk of contracting COVID-19, and that the unvaccinated father potentially increased her risk of infection. Ultimately, the Court placed considerable importance on the child’s “safety, security and wellbeing”, as mandated by section 24(2) of the Children’s Law Reform Act.[2]

The Judge ordered that the father’s in-person parenting time be reduced from two hours weekly to one hour weekly and take place exclusively outdoors.

The takeaway? Courts are beginning to consider requiring parents, under certain conditions, to receive the vaccine if they wish to continue exercising their parenting time. What set this case apart was that the daughter had a history of illness that put her at increased risk to this infection. That the Judge declined to suspend the father’s in-person parenting time completely (as requested by the mother) suggests that the Court’s preference is that parenting time be exercised in-person (as opposed to virtually), whenever possible.

ABOUT THE LERNERS FAMILY LAW GROUP

At a time when much is at stake, there is no substitute for having the experienced and skilled advocates from Lerners at your side. You need compassion and understanding, but you also need someone to protect your interests. Our Family Law Group tailors its approach and strategy to your goals to achieve the best possible outcome. Our team, located in Toronto, London, and the Waterloo Region, serving the GTA, Southwestern Ontario, and beyond, has the experience to handle matters both straightforward and complicated, without ever over-lawyering or contributing to unnecessary conflict. With a successful track record that includes some of Canada’s most complex family law cases, we are focused on getting you results and helping you move forward. Contact us to see how we can help

[1] Ibid, para 23.

[2] RSO 1990, c C.12.

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