April 6, 2020

COVID-19 UPDATE – PARENTING ISSUES

Shawn J. Bobb Lawyer & Family Law Mediator

Note: this is general information only. Obtain legal advice for your particular situation.

In addition to a recent decision of our BC Supreme Court, the BC Provincial Court has reported a few decisions publicly. These decisions are about denial of parenting time on the basis of safety amidst the COVID-19 Pandemic.

Both BC Provincial Court decisions refer to cases of the Ontario Superior Court that we have mentioned in previous posts, and summarize the test for urgency and factors that the court considers; which really comes down to the best interests of the child.

Both cases of N.J.B. v. S.F. 2020 BCPC 53 and J.W. v. C.H. BCPC 52 provide useful summaries of the jurisprudence to date.

Recently, a child psychologist that has performed numerous section 211 reports in child-related matters, Dr. Elterman, provided the courts, lawyers and others with guidelines surrounding the COVID-19 and parenting time issues. In N.J.B. v. S.F., Judge McQuillan summarized Dr. Elterman’s recommendations:

[28]        Dr. Elterman describes a variety of common parenting decisions that may increase risks for both the child and the community, and should form part of decisions regarding parenting arrangements. They include:

  1. If a parent has had contact with an infected party, they should disclose this immediately to the other parent.
  2. If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.
  3. If the parent is in a home with older family members or friends or with individuals who are immune-compromised, the child should not be in that home.
  4. There should be no play dates and the child should not be taken to family or social gatherings.
  5. If parenting time is to occur in a public place such as a community centre, a mall or a restaurant, then it should be suspended.
  6. If a supervisor is required and who is not the spouse of the parent and living in the home, then the parenting time should be suspended.
  7. If either parent or anyone in the household is in an Essential Service or still working with the public, eg. doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) then this can represent an increased risk to the child.

Judge McQuillan went on to state:

[29]        In my view, these are all reasonable recommendations, and consistent with what I understand to be the recommendations of public health officials, at this time. Although public health guidelines are not technically before the Court, in my view, and particularly under the exigent and evolving circumstances that we all currently face, I am able to take judicial notice of those guidelines, which include social distancing, frequent washing of hands and avoiding non-essential travel.

[30]        There are a few written decisions that have emerged in Ontario that have begun to address the family issues arising in the context of Covid-19. In Le v. Norris 2020 ONSC 1932, the Court considered a case in which the mother was withholding parenting time for the father contrary to a Court Order due to her concerns about Covid-19 transmission. The Court ordered compliance with the parenting Order and in doing so said the following:

[11]  In addition, something direct must be said about Le’s worries and anxiety about the COVID-19 health crisis. Those concerns, this Court sympathizes with and understands and can even relate to (notwithstanding my relative privileged existence, far removed from the toils of those working on the front lines to supply and treat me and my neighbours). But, at the same time, those concerns can be addressed through responsible adherence to the existing Court Order.

[12]  This Court orders that the December 5, 2019 Order of Kurz J., with regard to access between Norris and the child C., shall be complied with in all respects. This Court orders, further, that the police are hereby authorized to enforce the said Order, and the one made herein.

[13]  Finally, what do I mean by “responsible adherence to the existing Court Order”? I mean being practical and having some basic common sense. Physical distancing measures must be respected. The parties must do whatever they can to ensure that neither of them nor the child, C., contracts COVID-19. Every precautionary measure recommended by governments and health authorities in Ontario and Canada must be taken by both parties and, with their help, by C. Neither party shall do anything that will expose him/herself or C. to an increased risk of contracting the virus.

[31]        In Ribeiro v. Wright 2020 ONSC 1829, the Court said the following:

[21]  We will deal with COVID-19 parenting issues on a case-by-case basis. 

a.  The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.

b.  The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c.  Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. 

d.  Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.

[23]  Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

Naturally, what should come from these decisions is the need for transparency without judgment between parents, practicing safe measures to ensure the safety and well-being of everyone (particularly the children), and understanding that each situation is different. Separated parents should not simply “cherry pick” what a Judge, public authorities or experts say and rely on it. A practical, balanced, and reasonable approach must be taken as stated by our courts and the experts.

If you need help, contact us. We offer initial consultations for free, or if you are looking to resolve your matter through mediation, please contact us through our website page, call 778.654.0006 or email us at [email protected]

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