The current COVID-19 crisis has placed us in a position most of us have never been in before. This statement certainly applies to recently separated parents and this is raising new questions and problems regarding parenting after separation.
It is not uncommon for parenting disputes to arise out of disagreements over healthcare decisions. Often parents will disagree over what healthcare is needed, they will refuse to consult with the other parent or argue that the other parent failed to discharge their responsibilities to the child in this regard while the child is in their care. The high levels of distrust often seen between separated parents are exacerbated particularly where one parent does not have faith that the other parent will adequately protect the child’s best interests.
In the context of a pandemic, with the government cancelling school and recommending that people stay home is much as possible, it is understandable that these sorts of conflicts are on the increase. Unfortunately, this coincides with a closure of the courts with the narrow exception of “essential” or “urgent” matters, meaning that right at a point when disagreements are increasing, the court is less able to assist parties through those disputes.
Below are some typical situations we have been dealing with:
My ex-partner refuses to transfer my child back
The first question to ask is whether or not there is an agreement in writing or court order setting out the parenting schedule. If there is then absent risk of harm to the child, parenting schedules should be respected. It is not enough that there is merely a risk that the transfer of a child between a father and mother by its very nature may arguably increase the risk of COVID-19 transmission. If one parent was diagnosed with COVID-19, that may be enough to warrant withholding the child but absent that, it is unlikely that this will be seen as sufficient to deviate from a written agreement or court order setting out a parenting schedule.
Even if there is no parenting schedule agreed to in a written agreement or court order, there still can be an enforceable agreement in place. Section 48 of the Family Law Act dictates that even if there is no such agreement or court order but if there is informal parenting arrangements which had been in place for “a period of time sufficient for those parenting arrangements to have been established as a part of that child’s routine”, parents are not permitted to change those arrangements without consulting the other parent unless consultation would be unreasonable and or inappropriate in the circumstances.
BC courts have not published any reasons on these sorts of cases yet. However, in Smith v. Sieger, the Ontario Superior Court of Justice, dealing with a family law case stated “interesting arguments in normal times. Again, these are not normal times.” Well put.
In Chrisjohn v. Hillier, the Ontario Court of Justice held that it was not reasonable for a mother to with-hold a two year-old with some health problems from the father where she believed that the father was not practicing social distancing. The father applied for an order that the child be transferred and adduced evidence that he was taking measures to follow the government social distancing guidelines. The court held:
[10] It is trite that in Ontario and elsewhere in Canada that there are many families where parents are living separate and apart and the children spend parenting time with each parent either pursuant to a court order, a separation agreement or an informal arrangement between the parents. In each case parents must act responsibly in the face of the COVID-19 pandemic to ensure that their children are adequately protected.
[11] This should not result in a widespread suspension of in-person parenting time between a child and one of his or her parents. Each circumstance is unique and the parents will need to act reasonably in promoting the best interests of their children in relation to parenting time.
My ex-partner refuses to take appropriate steps to properly safeguard my child
The flipside of the above concern is that the other parent is failing to take the appropriate steps to safeguard a child. This could include not staying home as much as reasonably possible, having visitors attend at their residence, failing to have the child or others in the residence wash their hands or a whole host of other steps that the government has recommended.
This could also include things not specifically recommended by the government but which could be reasonably inferred such as not using toys from other children and if possible, avoiding the children being placed in daycare.
These concerns are more difficult. Unless they reached a level where the child is clearly in danger it is unlikely that a court would step in, particularly given the restrictions on what matters come before the courts in Canada.
Zee v. Quon1 concerned a case where the father took the position that the 18-year-old child should remain with him for the time being given that the mother was a physiotherapist at a hospital. At the time, there was an agreement set out in writing as to the parenting schedule. The father argued that rather than going back and forth between the two homes that the child should stay in one home to minimize risk. The court rejected that argument and ordered that the parties returned to their previously agreed schedule.
Le v. Norris2 gives some very helpful advice for parents and these sorts of situations:
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.
It is to be expected that parents who have separated will have different views over what steps should be taken in light of the COVID-19 crisis. Even parents who have not separated often don’t agree on what steps should be taken to safeguard their children. That risk is only heightened once parents have separated.
What do we do if we cannot agree?
Inevitably, some parents will not be able to reach agreement. In those cases, with the courts only hearing essential or urgent matters, they may not be able to have it heard by a court. Even if there is a chance that they may be able to, there is a special process to be followed in order to seek leave for applications to be heard on that basis. Not everyone will be able to access courts to decide these sorts of disagreements.
Alternatives to court include hiring a mediator, a parenting coordinator or an other neutral third party.
Mediators are people that are specifically trained and certified in the area of family law mediation. Not all family law mediators are lawyers but in the Okanagan, most are. Mediate BC has a list of mediators that are qualified in this regard.
Some counsellors are specially trained to help parents work through disagreements over parenting. I normally recommend Jody Bekhuys or Sharla Schofield.
Either of these means are good ways to work through disagreements. They increase the likelihood that you and your spouse will be able to reach an agreement rather than having a third party such as a judge decide for you. Reaching agreement increases the likelihood that you and your former spouse will be able to talk through issues in the future. Courts tend to inflame conflict.
Michael Sinclair is a family law lawyer and estate lawyer at Doak Shirreff Lawyers LLP. Click here to connect with Michael. He can also be reached at [email protected]
1 Court file no. FS-16-412436
2 2020 ONSC 1932