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CUSTODY AND ACCESS - Access - Conditions - Denial of or interference with

Monday, June 22, 2020 @ 9:53 AM  

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Motion by the respondent father for resumption of his access to the parties’ child and for a police assistance order to ensure compliance. The parties’ child, born in April 2015, lived in the mother’s care since the parties separated in July 2015. In February 2017, the mother was granted custody of the child. The father was granted access, which was to be gradually expanded. The mother refused to provide the child for access. In October 2018, a court order provided the father with two hours of supervised access with the child twice a week. In February 2020, a temporary order granted the father unsupervised access, with gradual expansion. The COVID-19 pandemic caused the mother concern for the child’s safety and her own safety. The mother had severe insulin-dependent diabetes and a lung condition. The child was born prematurely and was susceptible to pneumonia. Because of the COVID-19 pandemic, the mother suspended access.

HELD: Motion allowed in part. There was a material change in circumstances. The COVID-19 pandemic and necessary health protocols were not contemplated when the February 2020 order was made. The pre-existing conditions of the mother, father, and child put all at increased risk should they contract the virus. In addition, the mother had suspended an access schedule that was presumptively in the child’s best interests. The court was satisfied that both parties could and would be assiduous in complying with steps to mitigate the risk to the child and themselves due to COVID-19. The father had already taken several steps to deal with COVID-19. He self-isolated for 14 days to make sure that he was safe. He lived alone and went out only for necessities. When he did go out, he practised social distancing. In these difficult and upsetting times, the child would benefit most from the love, connection and support shared with both parents, if it was done safely. It was in the child’s best interest to resume the graduated access, with modifications to take into account COVID-19. The mid-week in-person access was to be suspended until further order of the court. That would reduce the number of access exchanges in the community. Weekend access was to resume. The court was not prepared to make a police assist order.

Robinson v. Darrah, [2020] O.J. No. 2106, Ontario Superior Court of Justice, B.M. Tobin J., May 7, 2020. Digest No. TLD-June222020001