Adam Black speaks to the Toronto Sun about child custody battles amid COVID-19

Adam Black, partner in our Family Law Group, speaks to the Toronto Sun about child custody battles amid COVID-19.

Wearing a mask and gloves, his nine-year-old stood in the garage of her mother’s home and refused to get in his car for their weekend visit.

“She looked at me as the enemy and with hatred,” the father recalled.

“Do you want me to die? Do you want me to die? Answer me,” his young daughter demanded.

“I have a 90% chance of dying if I go outside,” she lectured. “I don’t want to go and you can’t force me … I’m not risking my life.”

He and his partner tried to reassure her that they’d been self-isolating at home for more than a month, that they’d been in contact with no one and there was nothing to fear.

She refused to come and her mom eventually called the police.

So the dad had no choice but to leave without his little girl.

Variations of this scene are playing out in many separated households where ordinary disputes over custody and access have been exacerbated by fears — real and imagined — over COVID-19.

In these uncertain times, parents are understandably concerned about their children’s possible exposure to the virus when they are switching households. But some are using the pandemic as an excuse to change their existing parenting arrangements and are turning to the courts with urgent motions to keep their kids in place.

A seminal ruling in March by Ontario Superior Court Justice Alex Pazaratz has been used to guide many family court decisions that have been released ever since, says family law lawyer Adam Black.

“Pazaratz said that existing parenting arrangements really ought to continue to the extent that they can because, pre-COVID-19, they were obviously in the children’s best interests,” Black said of the widely-quoted Mar. 24 decision known as Ribeiro v. Wright.

But that comes with an important proviso.

“He also clearly says there will be zero tolerance for anyone who recklessly exposes a child to COVID-19.”

In a recent case, Black noted, a judge evicted an Ottawa man from sharing the matrimonial home with his children because he was too cavalier about the risks he was taking.

In what’s called a “nesting” arrangement, the separated parents had been taking turns living in the house with the children. When the pandemic struck, they both decided to remain in the home.

The mother suffers from a number of serious health issues and complained her former partner was continuously leaving the house without advising where he’d been and was not washing his hands when he returned.

Justice Adriana Doyle agreed to give the mom and her asthmatic kids sole occupancy of the home for the time being.

“This is a temporary solution in these exceptional times,” she ruled. “This order is made due to the father not taking the increased risk to the mother and children seriously.”

In a twist on the usual complaint, a Waterloo nurse turned to the courts after her ex refused to take back their two children following a stay in her home.

The couple had shared parenting since they’d separated. But on Mar. 23, the dad didn’t want to return the kids over fears the mom’s work in the hospital would expose them to the virus. Eventually, after reading the Pazaratz decision and getting assurances that she’d be taking necessary safety precautions, he relented and sent the kids to her on Mar. 30.

Then he refused to pick them back up.

The mother filed an urgent motion with the court, arguing she’ll lose her job if the father doesn’t resume his share of parenting and that he’s “trying to force her to choose between working as a nurse, or having the children in her care.”

Justice Lene Madsen agreed to hear the motion since the mom faces “potentially serious and immediate harm.”

In the wake of the pandemic, the message from the family law courts has been consistent, Black said.

“Parents need to cooperate, parents need to communicate and parents need to implement proper COVID-19 protocols.”

“The failure to do all three,” the lawyer warned, “will give rise to judicial intervention.”

The dad whose daughter refused to come with him worries about parents who can’t afford lawyers to file urgent court motions to deal with custody and access issues raised by COVID-19.

“I just think of all the other fathers and mothers that are in my shoes, that are having their children held back from them or pitted against them. It’s not fair,” the dad said.

“Children have enough stress from divorce and from parents that use them as pawns. They do not need this.”

Or as Justice Pazaratz concluded in his decision last month: “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

In the little girl’s case, cooler heads eventually prevailed. She was back with her father this weekend without a mention of the coronavirus, “just a little nine-year-old having a fun time.”

This article was originally published in the Toronto Sun.