Parenting for separated couples during this global pandemic provides unique challenges.

Existing parenting plans (either by order or agreement) have given rise to questions on what to do with children going back and forth between homes, especially given the dangers COVID-19 poses. Governments have asked that people minimize contact with others, follow proper social and physical distancing and, in the words of Prime Minister Trudeau, “just stay home”.

The Covid-19 pandemic has many parents not wanting their child/children to go to the other parent’s home out of concerns of increasing their risk and exposure to the virus, and thus refuse the other parent their parenting time.  This denial of parenting time can create significantly conflict.

These conflicts are making it across the desks of lawyers country wide.  Some are making it into our Courts (most of which are in the midst of significantly reduced operations) to determine what is in the best interest of the children in these troubling times.  Should the children stay, or should they go?

The Ontario Superior Court of Justice (Family Court – Hamilton) dealt with the issue of a primary parent seeking the suspension of parenting time over Covid-19 concerns in the case of Ribeiro v. Wright.  In that decision from Justice A. Pazaratz the court noted, among other things, that:

1. The health, safety and well-being of children and families remains the court’s foremost consideration during COVID-19;
2. There is a presumption that all orders (including parenting orders) should be respected and complied with.  More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interest of the child;
3. On the other hand, the well-publicized directive from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended in favour of a strict policy of social distancing and limiting community interactions as much as possible;
4. Parents are understandably confused and worried about what to do.  This is uncharted territory for the court system.  We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children;
5. None of us know how long the crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships –cannot be placed “on hold” indefinitely without risking serious emotional harm and upset;
6. Inmost situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to –including strict social distancing;
7. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restrictions (for example under self-isolation for a 14 day period as a result of recent travel, personal illness or exposure to illness);
8. In some cases, a parent’s personal risk factors (through employment or associations for example) may require controls with respect to their direct contact with a child; and
9. In some cases a parent’s lifestyle of behaviour in the face of COVID-19 (for example failing to comply with social distancing or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered.  There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household ) to any COVID-19 risk.

These are wise words that every parent should consider.  The most important point from this decision is that existing agreements and orders should be followed.  That said, if a parent has evidence of  the other parent putting the child at risk by not following social distancing (now referred to as physical distancing) protocols or not following reasonable health directives a court may consider some form of intervention.   I would say that the evidence on this would need to be somewhat clear and unambiguous for a court to intervene and overturn and existing parenting arrangement.   Needless to say, there is no guarantee that a court will currently hear this type of application given the reduced operations of court, and such applications cost many thousands of dollars.

Ideally, what should happen in this global pandemic is that parents should talk with each other (they should do this at all times really), work with each other, and try to find a reasonable solution to any concern around COVID-19.  These are scary and confusing times for not only parents, but children.  More now than ever, children need their parents to co-operate and work to ensure the best interest of the children is their only focus.

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