The beginning of 2020 has caused enough panic to last a decade (and we’re only a few months in). The hysteria brought on by the novel coronavirus and COVID-19 has led to unprecedented levels of instability and confusion for nearly every Canadian, as well as most of the world. We have been told to stay indoors, and to not be around other people unless it’s absolutely necessary. But how does this work with respect to parenting a child when the other parent doesn’t live with you? Maybe you normally drop your child off with his father every Saturday at 10:00am. Can you still do this? Is the child breaking self-isolation protocols by going back and forth? Are the parents breaking these same protocols? Is it even safe? Ontario courts have recently dealt with this issue and have established some protocols of their own.
On March 31, 2020, the Ontario Superior Court of Justice issued an opinion in the case of Balbontin v. Luwawa, dealing with the issue of a mother who was hesitant to continue with an access agreement wherein she was to drop her 3-year-old daughter off with the father once a week and on alternate weekends. The mother had serious concerns about COVID-19 and did not believe the father was taking the pandemic seriously. The mother brought a motion to suspend the access agreement until the father provided evidence of compliance with recent COVID-19 protocols.
In his opinion in Balbontin, Justice D.A. Jarvis cited the Court’s opinion in Douglas v. Douglas, a case released just six days prior to Balbontin, which stated:
“There is no game plan for how parents should react, and many are understandably worried for themselves and their families and confused about what to do in such an atmosphere. It is certainly expected that parents would act in the best interests of their own child which consideration must include not only the child’s physical well-being, but also their emotional well-being. Total removal of one parent from any child’s life must be exercised cautiously.”
Justice Jarvis also cited to Ribeiro v. Wright, which illustrates that “there should be a presumption that existing parenting agreements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to” and that “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).”
The opinion in Ribeiro stated that courts are looking for realistic solutions to this unprecedented problem. Courts 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.”
The Court in Balbontin adopted the same standard. Justice Jarvis stated that “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.”
In Balbontin, the mother expressed a genuine concern about the safety of her daughter. She contacted the father numerous times, and even provided the father with face masks for the child, as well as hand sanitizer and disposable gloves. The father repeatedly refused to respond to the mother’s emails, and when he did, he did not provide the mother with the information she reasonably requested about the well-being of their child. The father appeared annoyed by the precautions the mother was taking, and told her that there were no laws requiring anyone to wear a face mask.
The Court held that the father’s refusal to engage with the mother “where the priority should be ensuring the safety and well-being of the child” was unacceptable. There was no doubt that the father loves his daughter, but the precautions and information the mother was seeking were not at all unreasonable.
The Court suspended the father’s access, but afforded him the opportunity to “specifically and absolutely assure the mother (and [the] Court) that current COVID-19 safety measures will be diligently followed” by way of an affidavit. Once the father files an affidavit with the Court that respectfully answers the mother’s questions and concerns, and confirms that he is adhering to all COVID-19 safety protocols, his access to his daughter will be reinstated.
In one of the final paragraphs of Justice Jarvis’s opinion, he states that “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.” This sums up the issue perfectly. Given the situation, all parents involved in a co-parenting situation like the one in Balbontin must put aside any and all animosity held towards one another, and communicate openly and honestly about how to best care for the child’s safety and well-being. Preventing the spread of COVID-19 is a team effort, and in order to work as a team, families need to be on the same page.