by Sara Wisking, LLB
The global pandemic has all parents scared for the health and well-being of their families, and especially their children. This stress can take a bit of a different form in separated families. The provincial and federal directions from politicians and medical personnel have understandably left families, particularly those with children who share households in separated families, anxious and sometimes confused.
At the outset, please note that the information I am providing is not a substitute for legal advice. It is a summary of information for those wishing to know more about how the Family Courts are dealing with access in light of the pandemic. This is not a substitute for fact specific legal advice in your case, as every family situation is different and only a licensed lawyer practising in the area of family law will be able to give you specific advice tailored to your unique situation. In family law even small differences sometimes make for a different outcome so it is important you do not substitute this for legal advice.
Currently as a result of the pandemic, Courts are only dealing with what are deemed “urgent matters”. Courts to date appear to be treating access denials as “urgent” as they impact the mental health of the child involved. They are also, in some circumstances, seeing an urgent need to suspend or vary existing access if access has been rendered unsafe due to specific factors, related to COVID-19, in one of the households the child spends time in or resides in.
The Courts have been clear that COVID-19, in and of itself, is not a reason to deny access. There have been many Court cases which give some direction to separated families on the expectations placed upon parents during the pandemic. To highlight some of the key points that are common among the cases:
1. Courts are expecting parents to follow Orders and agreements. This is because it is presumed that it is in the children’s best interests for them to have continued parent contact during this crisis.
2. There have been situations where the Court has found that following the order or agreement in place is unsafe for a specific reason related to COVID-19. The existence of COVID itself, however, is not a reason to deny access. It is up to the parent who wishes to have a change to or suspension of the Order to bring the matter to the Court. The parent seeking the change will need to show specific evidence or examples of behaviour or plans by the other parent that contradict COVID-19 protocols.
3. The parent who is responding to a request by the other parent to vary an Order must give assurances to the Court (and the other parent) that they will responsibly adhere to the Court Order and required guidelines necessary due to COVID-19. What this means is that they will be practical and use common sense. They will respect and abide by government recommended precautionary measures to stop the spread. This includes social distancing, proper cleaning practices, and any other precautionary measure being recommended to keep the child safe.
4. Courts are expecting above average communication between parents. They are encouraging parents, be they a parent with whom a child ordinarily resides or one with whom the child spends less time, to engage in fulsome, open, honest communication about what they are doing to prevent the risk. Courts are understanding that parents are scared and that good communication can help with this. Courts currently are strongly of the view that parents need more co-operation and less litigation.
5. Children are understandably going to be worried about the pandemic. No matter how much we try to shield children their world has been completely changed and they will notice, especially school-aged children who are now having to learn online. Children are often keener observers than grown ups give them credit for. Parents need to be sensitive the children’s fears and work together to ensure the children feel safe and are safe in both households.
6. If there is an issue where one party, a child, or another member of one of the parent’s households is showing symptoms of COVID, has travelled internationally in the past 14 days, or is required to quarantined, this should be discussed between the parties. Courts have ordered some brief interruptions of access during these types of circumstances, with access to resume once the appropriate time period has lapsed. It is, however, far better for parties and children if parents can be reasonable in these circumstances and come up with a plan together, rather than the Court imposing a schedule that may not work for either party.
7. Courts will intervene to restrict contact between children and parents who are not taking health recommendations seriously. This may also include parents who are not openly engaging in sharing information about protocols being taken. Intervention by the Court is more likely when a party, child, or household member has underlying health issues that increases their vulnerability. There is an expectation now, more than ever, that parents will take every precaution to keep their children safe by strict adherence to social distancing and cleaning recommendations. Now more than ever the Court is calling on parents to work together co-operatively and engage in appropriate communication. If parents ignore COVID recommendations, or are not clearly communicating how they will keep the child safe during their time, the result may be a limitation on that parent’s time with their children during this crisis.
The Courts seem to deeply understand and be empathetic to the worries of parents relating to COVID-19. Courts are, however, balancing those worries against the need for children to have the normalcy and comfort of continuing important family relationships with each of their parents. This continued contact is more important in the face of many other of children’s normal relationships with friends and extended family being temporarily changed or interrupted. Above all, despite the stress of this situation on all of us, they are urging parents to work together to keep their children safe from not only COVID-19, but the impact that parental conflict and stress can have on the well-being of the children. More co-operation, less litigation, is the clear message from the Courts as to what is in a child’s best interests during this difficult time.