How does COVID-19 affect issues of custody, access and divorce?

The outbreak of coronavirus disease 2019 (COVID-19) is stressful. Fear and anxiety about this disease can be overwhelming and cause strong emotions in adults and children. Many of you have questions about how COVID-19 may impact your particular family law case. I am attempting to address some of the most pressing concerns below. I hope this will be helpful for you.

If, after reviewing the information provided below, you have specific questions about your own circumstances, please contact me to discuss your case. The case law related to COVID-19 and its impact on all aspects of family law is evolving on a daily basis, so it is important to speak to a lawyer before relying on any of the cases listed below. None of the information below can be relied on as legal advice.

Click the “+” on any question below to open the answer. Click the “–” to close.

I need help! Are the family courts open and operating during COVID-19?

No and yes. The regular operations of the Superior Court of Justice and the Ontario Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19. At this time of pandemic, only the most urgent matters can be heard. 

Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:

  1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

The determination of urgency is intended to be simple and expeditious, recognizing the summary nature of the determination. Importantly, any determination of potential urgency or lack of urgency is wholly without prejudice (will not affect substantive legal rights) to either party on the ultimate hearing of the motion.

Reitzel v. Reitzel, 2020 ONSC 1977 at paragraphs 9-10 (CanLII)

Even if a case is considered “urgent” for Court triage purposes, on review of the facts of your circumstances the judge presiding on the hearing still needs to make a finding of “urgency” or “hardship” to skip regular family law court procedure to have a conference before a formal motion hearing. This is a separate legal analysis: “urgency or hardship” usually refers to abduction, threats of harm, dire financial circumstances AND if the moving party provides evidence (a) that he/she has made inquiries about the availability of case conference dates, and (b) of his/her efforts to settle the matter outside the court process. 

During COVID-19, the court has defined what constitutes “urgency” at the present time as:

  1. The concern must be immediate; that is one that cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
  3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
  4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

Thomas v. Wohleber, 2020 ONSC 1965 at paragraphs 28-29 (CanLII)

Currently only urgent and limited-issue case conferences are being scheduled, so the general requirement to make efforts to settle the matter outside the court process before proceeding to court assumes greater importance.

I need to stop access. I am very concerned with COVID-19 spreading to or through my children when they are visiting the other parent, can I stop access?

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 other 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.

Ribeiro v Wright, 2020 ONSC 1829~12, 14 (CanLII)

Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

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. 

Ribeiro v Wright, 2020 ONSC 1829 paragraphs 9-11 (CanLII)

How can I stop access when the children’s other parent works in the healthcare field?

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.

However, if the parent is a healthcare professional, they and their employer would be well aware of the protocols to prevent transmission of infection. Presumptively, the parent would take all necessary precautions to keep their child safe while in their care.

Again, trying to keep a child from their parent signals to the child that the parent may not be capable of caring for the child and keeping the child safe.

Ribeiro v Wright, 2020 ONSC 1829 at paragraph 13 (CanLII)

Zee v. Quon, (March 27, 2020) FS-16-412436 at paragraphs 33-34 (SCJ)

Elsaesser v. Rammeloo, 2020 ONSC 2025 at paragraphs 8,11 and14 (CanLII)

When my children go for access with the other parent, they are exposed to the children of that parent’s current partner. I am concerned about COVID-19 spreading through the blended family, can I stop access?

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 and current relationships. Each family will have its own unique issues and complications. There are 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.

Ribeiro v Wright, 2020 ONSC 1829 at paragraphs 16-18 (CanLII)

Can I stop access because the other parent is using public transportation?

Possibly. Absent a risk of harm, both parties have a duty to responsibly adhere to the existing arrangements. “Responsible Adherence” means being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child(ren) contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by the child. Neither party shall do anything that will expose him/herself or the child to an increased risk of contracting the virus. 

Le v. Norris, 2020 ONSC 1932~13 (CanLII)

Therefore, allegations that a parent or their household may not be in compliance with accepted COVID-19 safety measures, including methods of using public transit, needs to be addressed between parents  as to whether there are any actual risks to the child as a result. 

Tessier v Rick, 2020 ONSC 1886 (CanLII)

I have no court order or agreement in place, can I stop access between the children and the other parent?

Even if there is no formal arrangement, it is in the children’s best interests to maintain a status quo arrangement where the safety of a child or parent is not at risk, and shield the children from the impact of family litigation.

Jackman v. Doyle, 2020 ONSC 1875~11 (CanLII)

As of April 6, 2020, if parties arrive at an agreement, it can be filed with the court on a consent basis to be turned into a court order.

SectionI am not working and the other parent is working from home, can I keep the children with me?

A proposal that a child remain with one parent for an indefinite period with only Facetime or other electronic access to the other parent is not in the child’s best interest. It disrupts the status quo and it signals to the child that the parent may not be capable of caring for the child and keeping the child safe.

Zee v. Quon,(March 27, 2020)  FS-16-412436 (SCJ)~33-34

How do I ensure I am safe during access exchanges?

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.

Ribeiro v Wright, 2020 ONSC 1829 at paragraph 15 (CanLII)

I have supervised access and my access has been stopped completely as a result of COVID-19. Can I bring an urgent motion to resume access? Section

If you are using a supervised access service, you should check with their current policies. 

Assuming a supervisor or alternate can reasonably be agreed to, there is no reason these visits can’t take place in an open setting such as a park (parks are open although some playground facilities may be closed). Obviously, there are going to be practical issues which arise in making the access arrangements successful from the child’s perspective. If it’s raining, either a sheltered location will have to be found (which may be more difficult in COVID-19 circumstances) or perhaps the visit will have to be rescheduled for a time or adjacent day when the weather is more favourable. These are common sense details which people acting in good faith should easily be able to resolve without taxpayers funding a Judge’s involvement.

Scion v. White, 2020 ONSC 1915~5(b) (CanLII)

Skuce v. Skuce, 2020 ONSC 1881 (CanLII)

Do I have to answer the other parent’s questions about how I am adhering to the COVID-19 restrictions specifically, where I am going and who I am spending my time with?

Answer the questions asked, factually and without your editorial about the motive behind the question. 

If the matter goes to court, the court 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. 

Ribeiro v Wright, 2020 ONSC 1829~23 (CanLII)

Good parents will be expected to comply with the guidelines and to reasonably and transparently demonstrate to the other parent, regardless of their personal interests or the position taken in their parenting dispute, that they are guideline-compliant. 

Balbontin v. Luwawa, 2020 ONSC 1996~11 (CanLII)

To date, the cases where actual restrictions were made due directly to COVID-19 guideline adherence has been regarding lack of communication, leaving the court to infer the worst until better evidence has been presented.

Balbontin v. Luwawa, 2020 ONSC 1996~12-16 (CanLII)

Guerin v Guerin, 2020 ONSC 2016~21 (CanLII)

I have reviewed all of the case law and I have spoken to a lawyer but I believe I must stop access with the other parent because is in my child(ren)’s best interest. What can I do?

Any reasonable steps, in the circumstances to attempt to resolve the matter with the other side outside of court should be taken and recorded. 

If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing. 

The courts are dealing with COVID-19 parenting issues on a case-by-case basis.  

  1.   The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols. 
  2.  The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.
  3.    Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. 
  4.  Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

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.

Ribeiro v Wright, 2020 ONSC 1829~20-23 (CanLII)

The other parent is now not allowing me to see our children because of COVID-19. What can I do?

In general, the court decisions arising from the COVID-19 crisis have not tolerated any unilateral self-help remedies, either on withholding or overholding access. 

Skuce v. Skuce, 2020 ONSC 1881 at paragraph 30 (CanLII)

If you have an established parenting schedule either by court order, agreement or even long standing status quo and the sole basis of withholding access relates to you exposing the child to significant risk due to not complying with then existing recommended or imposed COVID-19 safety measures, then, before running to court: 

  1. Double-check to see current safety recommendations provided by reliable local sources.
  2. If the circumstances permit, communicate with the other parent. Consider that you will get further by framing the issue as ‘problem solving’ than blaming or accusing the other party. They may simply be overreacting or need assurances.
  3. If there is communication, see if a compromise or assurance will resolve the matter.
  4. As of April 6, 2020, if parties arrive at an agreement, it can be filed with the court on a consent basis to be turned into a court order.

Tessier v Rick, 2020 ONSC 1886(CanLII)

If you have not had consistent parenting time to date, or have not meaningfully pursued parenting time before COVID-19, a court may find that the request is not “urgent” either from the court urgency screening or the “urgency and hardship” requirement to skip the regular family law court procedure, to have a conference before a formal motion hearing. 

Reitzel v. Reitzel, 2020 ONSC 1977 at paragraph11 (CanLII)

In general, the court decisions arising from the COVID-19  have not tolerated any unilateral self-help remedies, either on withholding or overholding access. 

Jackman v. Doyle, 2020 ONSC 1875 at pargraph13 (CanLII)

Burton v. Woods, 2020 ONCJ 158 (CanLII)

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