Communication between parents is vital while COVID-19 is ongoing. As stated by Justice Pazaratz in Ribeiro v Wright, 2020 ONSC 1829, “[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”. In general, the courts will look to uphold an existing parenting order if possible, since there is a presumption that an existing order reflects the best interests of the child. [Ribeiro, para 7].

Balbontin v Luwawa, 2020 ONSC 1996

What happened?

The mother was concerned about the father complying with COVID-19 protocols and sought to suspend his access to their child. The mother had emailed the father twice with concern regarding COVID-19 protocols, and both emails were ignored. In a third email, the mother stated that she would not bring the child to the father without some answers. The father then responded with little information, and the mother declined to bring the child to the exchange the following day.

What did the judge say?

The court viewed the mother’s concerns as legitimate. She was respectful in her emails to the father and requested important information. As Justice Jarvis explains, “A parent’s failure to communicate and meaningfully co-operate where a child’s safety and well-being are involved is a failure to parent, especially in the current environment.” The father was ordered to provide the information to have access reinstated.

Your takeaway

Communication between parents is vital while COVID-19 protocols are in place. The court supports the exchange of information between parents to ensure the child’s safety. It is a good idea to keep a record of these communications.

Tigert v Smith, 2020 ONSC 2220

What happened?

After being returned to the mother’s care, the child told her that over March break the child had visited others homes, had sleepovers, and spent time with another family. The mother contacted the father with concerns about these activities breaching COVID-19 protocols, but the father did not respond to her emails. The mother then withheld in-person access, and the father brought a motion requiring the mother to adhere to the joint parenting arrangement.

What did the judge say?

Justice Tobin ordered the father to adhere to COVID-19 protocols and provide the requested information in order for the parenting arrangement to continue. In addition, Justice Tobin ordered the father to provide the mother with information regarding the child’s activities within two hours each time the child leaves his care.

Your takeaway

The court has determined that it is appropriate for parents to be kept informed about the steps being taken to keep a child safe during the COVID-19 pandemic. If communication is ignored, the court may enforce an order requiring communication for access to continue. This might include regular follow-up communication after an access visit.

The courts expect parents to abide by COVID-19 protocols. As noted by Justice Pazaratz in Ribeiro v Wright, 2020 ONSC 1829, “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”.

McNulty v Graham, 2020 ONSC 2264

What happened?

The mother sought to change the parenting agreement to have the child reside with her until COVID-19 has subsided. She requested that the father’s parenting time take place virtually, since she claims that the father is not complying with COVID-19 protocols.

What did the judge say?

This issue was deemed urgent since “denial of contact [with the father], along with the evidentiary basis supporting apparent risks caused to the safety and well-being of [the child], are of sufficient gravity to [the child’s] best interests to be considered urgent.” The court ordered in-person access to resume.

Your takeaway

Unless evidence can be provided to show that a parent is not following COVID-19 protocols, the court will not alter an existing parenting arrangement.

C.Y. v F.R., 2020 ONSC 1875

What happened?

After returning from Brazil, the father removed the parties’ two children from the mother’s home without her consent. They did not have a parenting arrangement in place. The mother brought a motion for return of the children. While with the father, the children fell ill, but the father continued to take them to public places.

What did the judge say?

This matter was deemed urgent since it is in the children’s best interest to maintain the current arrangement of sole custody with the mother (i.e. the status quo). Justice Diamond made an interim order for the father to return the children.

Your takeaway

If there is no formal parenting arrangement in place, the court will likely maintain the status quo (i.e. the  current situation).

In addition, in the case of Trudeau v. Auger,2020 ONCJ 197, the court outlined the following circumstances which may result in a suspension of access in the future:

“1)   evidence of a disregard for the safety and well-being of the child by the father by disregarding the directions relating to COVID-19;

2)   specific medical evidence relating to this child that access to the father would place the child at significant risk;

3)   increased and better general information about Covid-19 relating to the risk of taking a child with [the child’s] medical conditions for access visits out of his home even with safeguards and precautions in place;

4)   Specific evidence relating to the increased risk within the child’s community of Sault Ste. Marie and the risk of the child travelling from his home to the father’s residence.

5)   The child or the parents becoming ill in circumstances that a visit or visits would place the child at significant risk. Should the child become ill, he should reside with his primary parent, namely his mother, with access temporarily suspended to the father. Should the father exhibit Covid-19 symptoms, his access shall be suspended.

6)   A more restrictive order being made by the authorities to quarantine or restrict public movement in the community. In the event of such a restriction, the child would remain with his mother as primary caregiver.”

Burrell v Burrell, 2021 ONSC 681

What happened?

The parties have two children and the mother sought a variety of orders including an order to have interim custody of the two children and an order for the father to have supervised access, provided he complies with COVID-19 restrictions. In addition, the mother sought an order to restrain the father from collecting the children from the children’s school. The reason the mother sought these orders is because the father denies the existence and effects of COVID-19 and regularly attends anti-masking rallies. In response to the mother’s claims, the father brought a cross-motion seeking an extra day per week of access to the children, and an order for unsupervised access.

What did the judge say?

Justice King noted the extreme and real impact that COVID-19 has had on the Canadian health care system. He then explained that while the father is entitled to his opinions (i.e., COVID-19 is a hoax), his conduct poses a risk to the best interests of his children. By refusing to wear a mask and participating with others in anti-masking rallies, he may increase the risk of the children contracting COVID-19. As a result, Justice King awarded the mother custody through a temporary order, noting that the order can be reconsidered once COVID-19 subsides. In relation to supervised access, Justice King stated that the “court must have zero tolerance for any parent who intentionally and/or recklessly exposes a greater COVID-19 risk.” As a result, the father’s in-person access to the children is temporarily suspended and must instead occur through Zoom or another suitable method.

Your takeaway

While people are entitled to hold personal opinions, the courts are unlikely to support a claim for custody when they believe that the health and welfare of the children may be put at risk. The threat of COVID-19 is real and it is important for parents to follow the current health guidelines to protect children from contracting the virus. A parent who attends anti-making rallies and refuses to wear a mask, without a legitimate medical reason for doing so, may be denied custody and in-person access. If a parent plans to claim that they are exempt from wearing a mask, they should be prepared to provide the court with proof as to their medical exemption.

Simcoe Muskoka Child and Youth Family Services v JH, 2020 ONSC 1941

What happened?

Due to safety concerns, the parties’ children were taken under the custody of Family Services. The two eldest children were placed with a maternal aunt. This case dealt with determining temporary care and custody of the youngest child and addressing the mother’s request for access. At the time of this request, Family Services had suspended all supervised access to children under their care as a result of COVID-19.

What did the judge say?

There was evidence that the mother requires supervised access. Regarding temporary care, the youngest child was placed in the care of the maternal aunt since Family Services is unable to adequately supervise the mother’s access to the child at this time. The court held that supervised access would result in a “clear breach of social distancing guidelines.”

Your takeaway

If family services have ceased supervised access due to COVID-19, the court will not interfere and enforce access. The child’s health is of uppermost importance. Where possible, virtual access may be granted as an alternative to in-person access.

Skuce v Skuce, 2020 ONSC 1881

What happened?

The parties have three children together, who reside with their mother. The parties have a parenting agreement which provides the father access with the children under the mother’s supervision. The mother decided she did not want to provide access under her supervision. The father requested an order to have in person access continue, and to allow his parents to supervise the visits.

What did the judge say?

This matter is urgent since it is in the best interest of the children that they have time with their father. As explained by Justice Doyle, “It is vital for the children of separated families who have parenting times with caregivers be provided with some certainty. That certainty which is contained in Court Orders should be respected.”

Your takeaway

When making an order, the court will consider the best interest of the children, with health, safety, and well-being as a central consideration. If both parents are abiding by COVID-19 protocols, supervised access agreements should continue.

Chrisjohn v Hillier, F1098/18 (SCJ)

What happened?

The father sought police assistance to have the parties’ child returned to his custody. The mother had refused to return the child and claimed that the child should stay with her since they have ongoing health risks and the father resides with multiple people.

What did the judge say?

This matter was deemed urgent since the mother unlawfully withheld the child, breaking the current custody order, and must return the child to the father.

Your takeaway

COVID-19 does not automatically result in the suspension of in-person parenting time. If the parent is taking measures to protect the child, in-person access and existing parenting arrangements should continue.

Tudor Price v Salhia,2020 ONSC 2271

What happened?

The father sought an order requiring the mother to comply with the parenting schedule, along with additional access time to make up for time missed during March and April 2020. The child had become ill in early March and the mother refused the father access, claiming that he does not comply with COVID-19 protocol. The father denied this claim.

What did the judge say?

This issue was deemed urgent since there was no evidence raising concern about the father’s actions in response to COVID-19. The mother must resume the parenting schedule with the father.

Your takeaway

Without evidence showing that a party is not complying with COVID-19 protocols, a parent cannot unilaterally change a parenting arrangement. Parties should work together to ensure any missed access time is made up.

Le v Norris, 2020 ONSC 1932

What happened?

The child primarily lives with the mother, who withheld the child from regular, twice-weekly court ordered access periods with the father. As a result, the father brought a Motion in writing to continue access and enforce the parenting arrangement.

What did the judge say?

The judge determined that the mother is not complying with the existing access Order, and though her reasons for doing so include concerns of COVID-19 transmission, this is not “an excuse for non-compliance with a child custody and access order.” She must resume the access arrangement with the father.

Your takeaway

Access arrangements should continue. Parents should respect physical distancing measures and do whatever they can to ensure that neither them nor their child contracts COVID-19, they should follow every precautionary measure recommended by governments and health authorities in Ontario and Canada, and should do nothing that will expose themselves or their child to an increased risk of contracting the virus. 

Hermanus v Laurin, 2020 ONCJ 190

What happened?

The two parties have five children (three who are now adults), and the father has sole custody, with the mother having access on the weekends. As a result of COVID-19, the father withheld access since March 20^th. Along with access issues, the mother was concerned that the father was not meeting the children’s educational needs since one of the children’s teachers stated that the child was not accessing his online schoolwork. The father claimed that he has been in contact with the child’s teachers and all work is being completed.

What did the judge say?

Regarding the topic of school work, the judge appears to accept the father’s claim that school work is being completed. No order regarding school work is made. The rest of the decision focuses on the access issue.

Your takeaway

There has not yet been a case in which a judge was required to make an order regarding completion of school work, as completion of school work was confirmed by each party. If an issue involving school work occurs, it is best to keep a record of these issues since it may provide evidence to use when courts resume.

Unless the child or someone in either parent’s household would be at an unacceptable risk of harm, the court will likely determine that a child should return to school. The child’s best interests, the level of medical risk and the unique circumstances of the family are main factors to determine whether a child should return to in-person school.

Chase v. Chase, 2020 ONSC 5083

What happened?

The parties have joint custody of their 9-year-old son and were unable to reach an agreement about whether the child should return to school in-person. The mother wanted the child to attend school in-person while the father wanted the child to remain at home until the District School Board’s safety protocols were shown to be effective and there is more certainty around children returning to school. Neither parent has anyone living in their household with underlying medical conditions.

What did the judge say?

Justice Himel held that the government’s direction should be followed, and it is in a child’s best interest to return to school in-person if the government determines it is reasonable to return. One factor that will be considered is whether the child, or anyone in either parent’s home, would be at an unacceptable risk of harm if they were to attend school in-person. In this case, Justice Himel ordered that the child is to return to school in-person.

In addition, Justice Himel outlined the following as “creative ways to resolve the school attendance dispute between parents”:

• Enrol the child at the commencement of the school year, and review the plan at Thanksgiving, or following an outbreak at the school, or at the first opportunity provided by the school board to re-consider the choice;
• Delay in-person school attendance and review the decision when specific criteria are met;
• Create a small pod of children who can learn remotely together with the assistance of a parent(s) and/or tutor; or,
• Explore whether the child may attend school in-person during the morning (leaving before lunch), and participate remotely in the afternoon.

Your Takeaway

Unless the child or someone in either parent’s household would be at an unacceptable risk of harm, the court will likely determine that a child should return to school. Since the government in Ontario has determined that September is the right time for schools to reopen, their direction should be followed.

Joachim v. Joachim, 2020 ONSC 5355

What happened?

The parties have joint custody of their two children who are 6 and 8 years old and attend the same school. The mother wanted the children to continue school at home through online learning, while the father wanted the children to return to school in-person. The mother’s common-law partner suffers from a medical condition and is immunocompromised. The mother also has a 15-month old child at home.

What did the Judge say?

Justice Summers held that the main question to consider is whether the psychological and developmental advantages provided by the school environment outweigh any physical risks that a child returning to school may cause. As a result of the mother having an immunocompromised individual and a baby in the household, Justice Summers determined that the children are to attend online classes.

Your takeaway

The level of risk posed by COVID-19 to each member of each parent’s household must be considered. While the court has determined that returning to school is generally in the child’s best interest, this interest must be balanced with the risks of harm that the child returning to school in-person may bring to the child, or anyone in either parent’s households. If there is significant risk, the court may determine that a child should attend online classes.

Nuell v. Guay, 2020 ONSC 5861

What happened?

The mother has primary custody of the parties’ three children. The father requested that the children attend school in-person or, in the alternative, to share the responsibilities of assisting the children with online learning in his home. The father argued that the mother was not able to successfully assist the parties’ three children with online learning, in addition to the three other children in the mother’s home. The mother opposed any change in the timeshare schedule.

What did the judge say?

Justice Bale reviewed the relevant caselaw and noted that each case has been decided on the individual and unique needs and circumstances of the children and families involved. After considering the needs and circumstances of the children and family in question, Justice Bale determined that the parties’ separation agreement should be upheld and the mother, as the custodial parent, will continue to assist the children with online learning at her home.

Your Takeaway

The unique needs and circumstances of the children and family will be considered. The court may choose to uphold a custodial parent’s decision regarding school attendance if the decision is not contrary to the best interests of the children.

Evidence is required to show that a child should continue online learning because of a medical risk to the child or someone in the home. A parent (or guardian) should not rely on general news or medical reports but should include evidence related directly to the person in the home who is at risk.

Phelps v. Childs, 2020 ONSC 5901

What happened?

The parties have joint custody of their three children, who primarily reside with the mother. Since September, the parties’ three children have attended school in-person. The father requested equal parenting time. The father argued that both himself and his new partner suffer from asthma and the children should attend school online at his home along with the father’s other two children. After attending school online at his home, the children would be returned to the mother. The father filed extensive medical evidence with the court.

What did the judge say?

Justice Pedlar emphasized that each decision must be based on what is in the children’s best interest. After reviewing the principles established by relevant case law, Justice Pedlar considered the evidence filed by the parties. Justice Pedlar determined that the father’s evidence, including medical reports and hospital records, did not establish that there was an “unacceptable” level of risk created by the children returning to class in-person.

Your takeaway

Although there may be a risk to someone in a parent’s household, the best interest of the children will be considered. In order to establish that a child’s return to school would result in an “unacceptable” level of risk, sufficient evidence must be filed. In addition, it is important for parents to communicate and cooperate when possible, to limit the stress placed on children.

Zinati v. Spence, 2020 ONSC 5231

What happened?

The parties have a 6-year-old daughter and disagree about whether the child should return to school in-person. The mother wants the child to return to school in-person, while the father wants the child to remain at home. Both parties relied on a medical report by the Hospital for Sick Children in Toronto, but cited to different parts of the report, and both claimed the report supported their position.

What did the judge say?

Justice Akbarali notes that evaluating medical reports or newspaper articles relating to the impact of COVID-19 is challenging since these reports are highly contested, and there is no clear agreement regarding how in-person school attendance may affect the risk of contracting or spreading COVID-19. In addition, Justice Akbarali outlines the following as factors for the court to consider in determining whether a child should return to school in person:

1. The risk of exposure to COVID-19 that the child will face if they are in school, or not in school;
2. Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;
3. The risk the child faces to their mental health, social development, academic development, or psychological well-being from learning online;
4. Any proposed or planned measures to alleviate any of the risks noted above;
5. The child’s wishes, if they can be reasonably ascertained; and
6. The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

In this case, Justice Akbarali determined that the child should return to school in-person.

Your takeaway

The court may decline to rely on medical reports and other sources of information related to the risk of COVID-19 in school attendance. While the presumption is that the government directive should be followed, the court will consider whether it is truly in the child’s best interest to return to school in-person. If there is an increase in risk or substantial reasons for the child to continue school online, the court may take this into account in their decision.

Tenants should be aware that a key change to the Residential Tenancies Act, or RTA, of 2006, as a result of Bill 184, relates to eviction proceedings for unpaid rent, or “rental arrears”.

Even though Bill 184 went into effect July 23^rd, 2020, there are portions of the Bill that are not yet in force. Bill 184 provisions that are not yet in effect are not law, and therefore are not currently of concern. To avoid confusion, we encourage you to refer to the updated RTA on CanLII’s website. CanLII has a helpful feature where the portions of the Bill 184 changes that are not yet in effect are “greyed out”. For example, under section 57 (3) of the RTA, CanLII has given certain text a grey highlight, where they explain that a limitation period under Bill 184 is not in effect yet.

Bill 184 does affect rent repayment agreements. Tenants who cannot pay their rent, or owe their landlord rent from previous months, should be aware of the way their rights are affected by a rental repayment agreement, or RRA. RRAs set out a timeline for the tenant to pay back the rent owed. Tenants and landlords are able to propose an RRA – see below for links to helpful templates. Tenants are never forced to sign such agreements, especially if they are not sure that they can meet their obligations under the agreement (in other words, pay on time).

Tenants must identify which stage they are at in the eviction proceeding in order to determine the legal effects of an RRA with their landlord. The possible stages of an eviction proceeding are:

1) Before the landlord has given you an N4: Notice to End your Tenancy Early for Non-payment of rent. In other words, you have not been given any legal notice yet by your landlord.

2) You have received an N4 Notice (above), but your landlord has not filed an L1: Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenant Owes

3) After the landlord has filed an L1 Application (above).

Look at the top of any legal notice you are given by your landlord to figure out what the notice is, and which stage you are at.

For tenants who are at stage 1 or 2, any RRA signed is unaffected by the changes in Bill 184. Tenants who signed an RRA at stage 1 or 2 will still be entitled to a hearing at the Landlord and Tenant Board, or LTB. However, we caution tenants at stage 1 or 2 to be careful about signing an N-9 or N-11 form if their landlord provides one, as they both require that the tenant move out.

Bill 184 DOES affect tenants who are at stage 3. Tenants who are at stage 3 could lose their right to a hearing if they are not careful before signing an RRA agreement with their landlord. Due to the changes in Bill 184, landlords and tenants at stage 3 are able to enter into an RRA privately, without mediation. The RRA does not require approval from the LTB nor does it require oversight from an LTB-appointed mediator, so the onus is on tenants to understand and comply with the terms of an RRA they choose to sign. Thus, tenants should carefully read the terms in an RRA which set out what will happen if they fail to meet any of their obligations under the agreement (for example, late payment of rent).

Specifically, tenants should be on the lookout for a term in an RRA that allows for the landlord to make an application under section 78(1) of the RTA. If such a term is included in the RRA at this stage, and in the event that a tenant misses a payment, even by one day, the landlord can make a section 78(1) application. This means that the Landlord and Tenant Board can grant the landlord an eviction order, without a hearing and without notice to the tenant.

Tenants should seek advice from a legal clinic or Tenant Duty Counsel in order to ensure that they understand the terms and consequences of an RRA.

Tenants should also be aware that using the Landlord and Tenant Board’s own special form for an RRA is not mandatory. Steps to Justice has broken this form down here. As well, Steps to Justice has made available a form of their own that can also be used to create an RRA.