Section 7 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11,.
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
During the COVID-19 pandemic, parenting disputes potentially trigger this constitution right; namely, security of the person, for not only the child or children at issue, but both parents, too. Canada’s Supreme Court has recognized and acknowledged this right for both in family-related disputes.
To the extent the parents cannot co-operatively resolve their parenting arrangements by reasonable, mutual agreement, but rather one or both requests the intervention of the Family Court on the basis of urgency, the Court will be mindful of a child’s constitutional right to security of the person, which arguably includes limiting, or minimizing, exposure to COVID-19.
If a child is to be removed from the care of a parent, it must “only be done in accordance with the principles of fundamental justice which are found in the basic tenets of our legal system.”
These principles of fundamental justice are both substantive and procedural in nature.
The section 7 right of the security of the person is recognized judicially to protect both the physical and the psychological integrity of the individual [R. v. Morgenthaler, 1988 CanLII 90 (SCC)].
Any judicial decision by the Court impacting the removal of a child from a parent’s care must incorporate a fair and reasonable hearing process by the Court [Kawartha-Haliburton Children Aid Society v. M. W., 2019 ONCA 316, paras. 68 and 69].
As noted by the Court in Ontario recently, “Given the above, I believe that the true test of our law and the fair administration of the law will be measured in how the most vulnerable in our society are treated and the administration of justice is dealt with in difficult times such as these.” [Children’s Aid Society of the Region of Peel v. M.G., 2020 ONCJ 167].
So, in any matter affecting the security of a child during the pandemic, the process for judicial determination must be both substantively and procedurally fair, not only for the child in question, but for the parents or guardians who cannot reasonably agree to the temporary arrangements during the pandemic.