Written on behalf of Shariff & Associates
Various parenting disputes have come up throughout the course of the COVID-19 pandemic, such as whether a child should be vaccinated and non-compliance by parents with public health recommendations.
In this article, we report on the decision of the Superior Court of Justice in Moore v Moore. The applicant mother sought decision-making responsibility after the father disregarded public health directives and posted “stream of consciousness” videos on social media. The case highlights the impact that posting messages online can have on family law proceedings and offers a reminder that if a decision-making dispute ends up in court, the court considers the child’s best interests.
The parties married in 2014, had two children born in 2012 and 2016, and separated in 2019. The parties entered a comprehensive separation agreement, which featured a shared parenting regime wherein the parties divided the weekday time with the children evenly and alternated weekend time with the children.
After an initial period of compliance, things turned sour during the COVID-19 pandemic. The mother approached the court for an order awarding her with interim decision-making responsibility, or in the alternative, interim decision-making with respect to all healthcare decisions. She also sought the use of a parenting application for communication with the father and an order that he be compelled to comply with all public health recommendations related to COVID-19 as prescribed by the province of Ontario and the Kingston, Frontenac and Lennox & Addington Public Health authority.
At an earlier stage in the proceedings, the father consented to an order requiring compliance with public health recommendations, including ensuring the children wear face coverings in public and maintaining social distancing.
The mother claimed that the father started attending her home uninvited, contacted her new partner and attempted to include her in inappropriate non-child related issues. In September 2021, he advised the school that his child was not to wear a mask at school.
The mother also provided examples of the father’s disregard for public health directives, including two TikTok videos and messages from his Facebook page. One video referred to the ongoing family law litigation and contained his thoughts about giving children “experimental gene therapy”. The other depicted him and his child unmasked in a grocery store, where he prompts the child to say “pureblood” on camera.
The Facebook messages included his thoughts on vaccinating children, the pandemic and various politicians.
Justice Waters explained that, under the Divorce Act, the decisions to be made were governed by the best interests of the child. The assessment of the best interests of the child involves considering a range of factors, including the child’s needs, nature and strength of the child’s relationship with each spouse, and each spouse’s willingness to support the maintenance of the child’s relationship with the other spouse.
On the issue of decision-making responsibility, her Honour concluded:
“The [father] has not demonstrated by his behaviours associated with the pandemic that he can care for and meet the needs of the child, Madden, with respect to decision-making.”
Her Honour decided that, while the parties would continue to make joint decisions with respect to the children:
- Effective communication was required to provide for decision-making, which would involve consultation via an application; and
- After mandatory consultation, if the parties could not agree on decisions related to the children’s healthcare, the mother would have final decision-making authority on this issue.
Her Honour laid down strict timelines for the subscription to a parenting communication application and specified that communications between the parties be restricted in scope to only matters relating to the children.
Neither party provided evidence that the current parenting schedule was not in the children’s best interests. There was a strong bond between the children and both parents and, as a result, Justice Waters decided that the shared parenting regime was to remain in place, subject to a safeguard relating to the use of social media.
Justice Waters explained that while the father was entitled to his own views, adverse impacts on the children would not be tolerated:
“A review of the Respondent’s social media posts clearly shows that the Respondent displays disdain toward the government and governmental policies associated with COVID-19. While the Respondent is certainly entitled to his opinions, his opinions cannot lead to actions that detrimentally affect the children. The parading of an unmasked Madden into the Metro store while being filmed is a true indicator of the Respondent placing his beliefs ahead of the children’s well-being. The Respondent has exhibited a true lack of appreciation of how his actions can adversely impact the children.”
Her Honour ordered the father to cease posting the children in any manner that references the litigation or the COVID-19 pandemic. Her Honour was critical of the “highly inappropriate” use of a five-year-old child to convey the father’s beliefs. If the father failed to comply with the social media order, there would be an immediate cessation of parenting time.
If the father failed to comply with the public health recommendations and protocols, the mother was given the ability to bring the matter before the court on an expedited basis.
Contact the Family Law Lawyers at Shariff & Associates in Whitchurch-Stouffville to Protect Your Decision-Making Rights
The experienced family law lawyers at Shariff & Associates assist clients with a variety of separation and divorce and mediation matters. Our lawyers ensure that clients are informed and aware of every step in the process. We will review your circumstances and provide a realistic assessment of the likelihood of potential outcomes to help you understand your options. Our team will advocate for the best possible outcome on your behalf. To speak with a member of our team and find out how we can help, please reach out to us online, or call us at 905-591-4545.