A week after the World Health Organization declared COVID-19 a pandemic, Kevin Reid received a text from his ex-wife.
“Based on the pandemic that is happening right now, the kids will be staying home until further notice,” it read.
Under the terms of their divorce agreement, he is supposed to have the kids every other weekend and on Wednesday evenings. He hasn’t seen his children, an 11-year-old son and nine-year-old daughter, since receiving that text more than three weeks ago.
“I understand the seriousness of the situation. But at the same time, I feel as if I’m being punished,” says Mr. Reid, who lives in Port Credit, Ont.
Family lawyers and divorce mediators say they are overwhelmed by the number of conflicts that have arisen over COVID-19, including accusations that one parent may not respect the need for social distancing. So far, most of these disputes concern who gets access to the children. Judges, lawyers and mediators all say that, barring exceptional circumstances, divorced couples and former common-law partners must abide by the agreements they had in place before the pandemic.
“Our phones are ringing off the hook,” says Ilana Tamari, a Toronto-based divorce mediator and parenting co-ordinator.
Most parents are fighting over who gets to have the kids, Ms. Tamari says. Many worry their former spouses won’t respect social distancing. But she says some people may be lying about being exposed to COVID-19 with their children to keep the other parent away for at least two weeks.
“We’re talking about being malicious,” she says.
Last week, Ontario Superior Court Justice Alex Pazaratz released a decision in a case brought by a mother who wanted to deny her former spouse access because she worried he would not respect social distancing while looking after their child.
“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,” he wrote.
Since early March, a judge has ordered a father to return his children to his ex-wife who complained the children developed fevers in his care after he had returned from a trip to Brazil. Another judge told a mother she could not deny a father access to his six-year-old son simply because that parent is working at a big-box hardware store where he may be exposed to the coronavirus.
One coronavirus legal battle centres on a scientist father who insisted he should have sole custody of their eight-year-old because the mother – who works in health-care at an Ontario hospital – is in too much of a “high-risk profession” to be allowed to see the child.
The case – details of which are being withheld by The Globe and Mail to protect the child – has already involved calls to the Children’s Aid Society and to police. At its crux is the question of how far parents should go to protect kids from COVID-19.
Court filings spell out arguments the father made in mid-March. Saying his ex-wife’s hospital workplace could be “potentially exposing the child to a deadly virus,” he insisted that their child stay in his care "until the coronavirus pandemic resolves.” In late March he refused to hand over the child, a confrontation that led his ex-wife to call authorities, who came to the house to do a “wellness check” on the child and its siblings (whose custody is not in dispute).
Police did not intervene but reported the matter to Children’s Aid. The father insisted that the mother should see the child only through FaceTime for the duration of the pandemic.
The judge who reviewed the case sided with the mother. “The Applicant is a health care professional. She and her employer are well aware of the protocols to prevent transmission of infection. If the Applicant is required to return to work, I am satisfied that she will take all necessary precautions to keep her child safe while in her care.“
“Divorce is ugly, and during this kind of time it gets uglier,” says Diane Horsman, a Toronto-based family mediator and consultant.
It is likely to get even uglier as people who are renegotiating agreements wait to see judges.
“The court is expecting lawyers to work this out,” says Russell Alexander, a family lawyer whose eponymous firm has locations throughout Ontario. “Family lawyers are trying to figure out exactly what matters courts will hear and whether or not it’s urgent or an emergency,” he says.
If someone has proof that his or her former spouse is not abiding by public-health guidelines, that would likely count as an emergency, Mr. Alexander says. But suspecting the other parent is letting the kids go to the playground or otherwise putting them at risk of exposure to the coronavirus probably doesn’t.
That hasn’t stopped clients from asking Mr. Alexander if they can deny a former spouse access.
The next big wave will likely be disputes over support payments, as people who have been laid off or are otherwise unable to work try to renegotiate terms with their exes, Mr. Alexander says.
As for Mr. Reid, he has contacted a lawyer and hopes to bring the matter in front of a judge as soon as possible, although he has no idea when that will be. The lawyer for Mr. Reid’s ex-wife declined to comment, saying he cannot discuss the matter because of solicitor-client confidentiality.
“It’s important for my kids to know that they are just as safe with me as they are with their mom,” Mr. Reid says.
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