In the past two years, COVID-19 has wreaked international havoc and the challenges are intensified when it comes to governance of parenting issues for separated parents.
While the unvaccinated have found creative temporary solutions in the face of government restrictions by exercising at a home gym rather than attending a favourite spin class or ordering delivery instead of dining at one's favourite restaurant, a comparable temporary option is not available for unvaccinated parents.
Unvaccinated parents without valid medical exemptions are facing restrictions on parenting time with their child including temporary suspension of all in-person parenting time until they become fully vaccinated. Some restrictions imposed by the courts include reducing the frequency and duration of in-person visits, ordering in-person visits to take place exclusively outdoors and requiring the unvaccinated parent and child to wear masks for the duration of each visit.
In the case of S.W.S v. R.S1, the mother brought a motion to change the unvaccinated father's in-person parenting time with their two children, ages 8 and 4, to virtual. While neither child, in this case, was immunocompromised, the court held that "the father's choice not to vaccinate himself directly affects the physical safety of the children - a primary consideration under subsection 24 (2) of the Act."2. The mother was fully vaccinated and followed all COVID-19 protocols and subject to the father becoming fully vaccinated, the father's parenting time was reduced from alternating weekends and every Tuesday to just 2 hours every Sunday (in-person) with all parenting time to remain outdoors.
In the case of A.G. v. M.A.3, the mother brought a motion to suspend the partially vaccinated father's in-person parenting time with the parties' 2-year-old daughter. The father relied on a one-line medical note from his doctor claiming that he is medically exempt from taking the second dose of the COVID-19 vaccine due to a severe allergic reaction to the first dose of the vaccine.
Notwithstanding the father's lack of full vaccination, without an acceptable medical exemption, the Court concluded that the father's partial vaccination status warranted some in-person parenting time with restrictions.
The father's in-person parenting time with the child was limited from 2 hours weekly to 1 hour per week (in-person) exclusively outdoors or virtual if the weather is too inclement. In reaching this decision, the following factors were considered by the Court:
- the child's medical frailties which may leave her exposed to greater risk of contracting COVID-19;
- The father's partial vaccination status exposes him to greater risk of contracting COVID-19.[4]
- In the determination of best interest of the child, the court places considerable importance on the child's "safety, security and wellbeing" as mandated by the Children's Law Reform Act.
- The father had not tendered acceptable evidence to the court to properly assess the conclusion of his doctor that he should be exempt from his second COVID-19 vaccine.
If you are partially vaccinated or unvaccinated, consider:
- If possible get fully vaccinated.
- If you intend to rely on a medical exemption, ensure that your medical exemption is prepared by either a physician or a registered nurse and that your medical note complies with the requirements for medical exemption letters set out in the Ontario Ministry of Health's paper on Medical Exemptions.
- Consider virtual parenting options if you need time; however virtual parenting time is not a suitable long term solution and it cannot replace in-person parenting time, especially if a child is young particularly when a child is young.
Footnotes
1. S.W.S v. R.S 2021 ONCJ 646
2. S.W.S v. R.S 2021 ONCJ 646 at. para. 35.
3. A.G. v. M.A., 2021 ONCJ 531
4. Fully vaccinated, the court is referring to two doses of an approved vaccine.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
