With government measures enforcing social distancing, self-isolation, and ordering the closure of non-essential businesses and schools, many parents are left wondering what this means for their children who share time between two households. Now more than ever children need their parents to cooperate to ensure this difficult situation does not become detrimental to their physical or mental wellbeing. Although there are specific circumstances where maintaining the current parenting schedule may not be practical, now is not the time to overreact or refuse children the right to see their other parent where it is in their best interest to do so. Put bluntly, parents need to put their children’s physical and mental well-being, and their safety, first. Unless there is a sound medical reason not to, parents should adhere to current parenting schedules.

While it is important to ensure a parent does not restrict access to their children while the other parent is being rational and observing the recommended measures for social distancing, it is equally important for parents to recognize there may also be times when it is not in the children’s best interests to stay with them during scheduled parenting time. Decisions of this matter should be made having regard for the children’s best interests and be made on a case-by-case basis based on the facts.  Parents will need to work together and be flexible to reschedule parenting time if there is a risk to their health, or a real risk to the health of others in one or both homes.  Examples of these types of situations may include:

  1. Where a parent (or member of their household) has had contact with an individual who has confirmed COVID-19. Not only should this be immediately disclosed to the other parent, the exposed parent should take the appropriate measures to practise self-isolation for 14 days;

  2. Where a parent (or member of their household) has returned from international travel and is required to practise self-isolation for 14 days;

  3. Where a parent (or member of their household) thinks they are infected with COVID-19 or is otherwise ill and showing symptoms, or has been tested and is awaiting results;

  4. If the child will be residing with older or otherwise immune-compromised individuals; 

  5. If parenting time is to take place in a public space;

  6. If parenting time requires a supervisor and social distancing measures cannot be taken; or

  7. Where a parent (or member of their household) is working directly with the public in an essential service.

In addition to considering circumstances where a child may face an increased risk of contracting COVID-19, it is also important for parents to discuss, in advance, a plan should one of them fall ill so they are not scrambling to ensure the child has a safe place to stay.

Where the difficult decision of voluntarily opting out of scheduled parenting time does need to be made, parents should work together to get creative and permit other means of parenting time, such as Facetime, Skype and Zoom video calls. Parents should work together to facilitate quality virtual parenting time, whether it is reading a story before bed, watching TV together, or sitting down to eat a meal at the same time to ensure the children can appreciate the love of both parents. Parents should also be open to permitting the parent who has had to forgo parenting time in the interim, to make up this time once it is safe to do so.

When working together to decide whose home is best equipped to accommodate the children during the pandemic, particularly when schools and daycares are closed, we recommend parents further consider the following: 

  1. If the parent is off work, or working from home, and able to care for the children;

  2. If there is sufficient space and activities, both indoors and outside, for the children to play/stay entertained while practicing social distancing; and

  3. If the parenting schedule can be temporarily altered to reduce the number of exchanges.

Where, however, parents are not able or willing to work together, or parents have differing opinions of how to best protect their children during the pandemic, the Court has indicated it is open to considering a matter if it is deemed “urgent”.  That being said, even if the Court does not deem a matter to be “urgent”, that does not mean that a parent acting unreasonably in these times will receive a “pass”.  It is very likely that once the Court returns to normal operation, parents who behaved poorly in relation to parenting decisions will have their actions taken during this period of time judged accordingly. More importantly, people must consider whether their current actions could have long term implications on their ability to amicably co-parent.

Although the courts have restricted operations to hearing only urgent matters, the paramount consideration as articulated in provincial and federal legislation continues to be the “best interests of the child”. Even though there has not yet been a reported case of what constitutes an “urgent” family law situation in Saskatchewan, the following cases from Ontario may provide a foundation for how a court may assess parental conduct: 

  • In Ribeiro v. Wright, 2020 ONSC 1829, a mother was concerned with the father’s social distancing practices, and sought to isolate the child in her home during the pandemic. The court held that the best interests of the child continue to be of utmost importance, and that it was vitally important for children to maintain a meaningful relationship with both parents. It was not in the child’s best interests to never leave their primary home. The Court went on to note there should be a presumption that current parenting arrangements and schedules shall continue, subject to necessary modifications to ensure COVID-19 precautions are adhered to. The Court made it clear there would be zero tolerance for any parent who recklessly exposes a child to the risk of contracting COVID-19.
  • Numerous other cases, such as Le v. Norris, 2020 ONSC 1932, confirm there can be no arbitrary withholding of a child from parenting time, and that there should be “responsible adherence” to the existing parenting schedule. The court went on to clarify this meant practicing basic common sense, and that “every precautionary measure recommended by governments and health authorities … must be taken by both parties... [and that] neither party shall do anything that will expose [themselves or the child(ren)] to an increased risk of contracting the virus” (para 13). 
  • In Perkins v Macierzynska, FC-19-876, the court agreed a matter was urgent and should proceed where a parent had unilaterally moved a child to another city, where there was no evidence to support the claim the other parent had “failed, [was] unable, or refused to adhere to the COVID-19 protocols” (para 10). 

As outlined above, the courts have consistently sent the message that it is in the children’s best interests to adhere to current parenting schedules where both parents are able to, and willing to follow measures recommended by health authorities to limit the risk of contracting COVID-19. 

As everyone’s situation is unique, the above is provided to you for information purposes only and does not constitute legal advice. If you or someone you know is dealing with a parenting schedule issue, or a related legal issue pertaining to their family dynamics, please contact a member of the McDougall Gauley LLP Family Law Practice Group. We are available to assist, whether that entails negotiating an alternative parenting schedule during the pandemic, or bringing an urgent court application where the same is justified.

Rochelle D. Blocka HBSc JD

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