April 15, 2020
COVID-19 PARENTING ISSUES
The following is general information only. Contact Shawn J. Bobb for advice on your specific circumstances by going to our contact page or emailing firstname.lastname@example.org.
In this bobb blog, I will be dealing with some of the issues raised in my family law practice and reported decisions in British Columbia and elsewhere.
Access to the courts in British Columbia remains limited to “urgent” applications. As blogged previously, it is expected that the courts are attempting to modify its approach as this pandemic goes the distance. Electronic applications and court hearings by phone are the norm.
The Provincial Court of British Columbia appears to be more flexible in what evidence may be permitted compared to the Supreme Court of British Columbia. However, it may depend on the degree of urgency of the application, but normally evidence is given by way of affidavit or the courts are being forced to have evidence given over the phone.
A number of new scenarios have presented themselves in the midst of this COVID-19 pandemic. Separated parents continue to grapple with issues that arise with their children most of which involve safety concerns and others around how the pandemic and out of school should be characterized under existing orders or agreements.
COMMON COVID-19 PARENTING ISSUES
In several cases, parents are denying parenting time between the child and the other parent on the basis that:
- the other parent is not taking COVID-19 preventative measures,
- the other parent is a front line worker and has an elevated risk of infection, or
- the transportation of the child between the two residences creates an increased risk.
In the scenario where one parent alleges non-compliance with preventative measures by the other parent, there are a number of cases where the claims are unsubstantiated or substantiated. In those cases where substantiated, the question becomes whether the other parent has taken steps to rectify their conduct and will maintain the preventative measures. If so, typically, the court will make “conduct” orders requiring the other parent (or mutual orders) to maintain preventative measures to ensure safety of the child and ongoing contact between parent and child. However, if the other parent has demonstrated a lack of insight and it is found they are unlikely to follow preventative measures, parenting time will be suspended.
But those alleging that the other parent is not following preventative measures need to be careful that they are not “throwing rocks from a glass house”. Usually a claim by one parent will be followed by a claim by the other parent of non-compliance. There have been cases where the court has found that BOTH parents were not taking preventative measures and made conduct orders.
For parents who are front line workers, much depends on their employment duties, the degree of elevated risk and additional preventative measures that they are taking. Some front line workers like hospital personnel that are in direct contact with COVID-19 patients, for example, have agreed to suspend parenting time with their children to avoid any risk. These parents are to be applauded for putting their children first. However, whether parenting time should be suspended at all depends on the circumstances of each family. Many front line workers are not in the same position as someone who is regularly in direct contact with people with COVID-19. This is yet another sacrifice or issue that our front line workers may be having to deal with.
There are also those cases where the parents reside in different cities or provinces that require a long drive or transportation by airplane. At this point, airplane transportation is out of the question. However, what about transportation by vehicle which require long drives? Parents can reduce the risk of COVID-19 by following these rules for travel:
- pack meals and anything that is needed to avoid the need to stop at a public area (e.g. food store),
- in the event that a stop at a rest area or public washroom is required, take preventative measures when you and the child are using the washroom, and
- do not pick up anyone along the way (just watch the horror movie “the Hitcher”).
It is important for children to have normalcy in their lives and maintain meaningful relationships with both parents. Of course the time and distance of travel, and age of the child, will be factors to consider.
HOLIDAY SCHEDULE OR REGULAR SCHEDULE
Many separated parents have written agreements or court orders which set out the “regular schedule” and the “holiday schedule”. The regular schedule is the parenting time between each parent and the child while the child is in school. The holiday schedule is the parenting time between each parent and the child during school breaks (e.g. Spring, Christmas, etc) and on special occasions (e.g. birthdays, father’s day, mother’s day, etc).
The question becomes whether the regular schedule or the holiday schedule applies during the pandemic when the child is physically not attending school. It may depend on the wording of the agreement or court order, and interpretation.
Children are back in school at this time albeit remotely and on a limited basis. Arguably, the regular parenting schedule applies and the agreement or order should be followed. However, it depends on the agreement, order and the circumstances.
It may be on how a parent approaches this issue; that is to say that since the making of the agreement or order there has been a material change in circumstances that warrants a change in the agreement or order. One example may be the availability of a parent due to employment loss or reduction in employment, and now they are available to look after the child. We will have to see how the courts look at this issue in British Columbia. There is one Ontario Superior Court decision that found that the regular schedule applied because the children were in school remotely.
REMEMBER: the above is general information. Each family is different. Get legal advice and keep up to date with the recommendations of our public health authorities. Stay safe!