COVID-19: Family Law Questions

by in BLOG

Many parents have questions about how to best co-parent during the COVID-19 pandemic. Often, both parents are concerned primarily with their children’s best interests, but can disagree about how those best interests are met.
Should children continue to adhere to the current access arrangement or should they stay where they are? Are the children to follow their summer and holiday schedule, since school is out? What options do I have if my ex-partner is withholding my children? We have gone through some of the biggest questions parents have had during this pandemic, outlining briefly how the courts have responded in these situations.

Do my kids have to go back and forth for access with the other parent during the pandemic?

The short answer: likely yes. The courts have affirmed that parents should continue to follow any existing court order or separation agreement relating to custody and access. If possible, it can be helpful to come to an agreement with the other parent about the rules you will each follow to respect social distancing.

The parenting schedule you had in place immediately before the pandemic should continue, unless there are compelling reasons to restrict the access of the other parent. Examples of reasons to change the access arrangement might be if:

A parent is not respecting municipal, provincial or federal directives regarding best practices for the pandemic
A parent is refusing to communicate in a reasonable manner about their pandemic practices
Someone in one of the households is under quarantine as a result of COVID-19 exposure
A child or other family member has pre-existing conditions making him or her specifically vulnerable if infected with the coronavirus

You will need specific concrete examples, alongside corroborating proof, to persuade the court that a change of access is warranted. It is not enough to be theoretically concerned. If they are valid, you can file an urgent motion with the court to modify the existing arrangement. However, it is important for you to discuss with a lawyer whether your concerns reach the standard required. The courts have provided practice directions to help guide how to seek an urgent motion.

My ex-partner is deemed an “essential worker” and I am concerned they may pass along COVID-19 to my children. What can I do if the other parent is at higher risk due to their job?

This has typically not been held to be a reasonable basis for withholding access to a parent, as long as the “essential worker” is taking appropriate precautions. This has been specifically held for parents working in frontline healthcare; however, it can easily apply to other employment.

If you have specific concerns, alongside corroborating evidence, to demonstrate that the other parent is not taking the appropriate precautions, then you can file an urgent motion in family court.

Since the kids aren’t physically attending school, should we go by the summer or holiday access schedule?

Unless agreed to by both parents (preferably in writing), the usual parenting regime continues. Although kids are not physically in school, children in Ontario are completing their education online. The fact that their studies are continuing virtually, and some parents may be physically at home, does not mean that parents can unilaterally change to holiday schedules.

Of course, parents should be reasonable, flexible and accommodating. Parents are expected to communicate and cooperate as much as they reasonably can in their children’s best interests.

What can I do if the other parent is refusing to abide by the access schedule?

Although courts are closed and many hearings have been postponed, courts are still hearing “urgent” motions by telephone or video. Most courts’ websites list which matters they consider “urgent”. In general, “urgent” motions include:

anything relating to the safety of a child or parent;
anything about the well-being of a child including essential medical decisions or if a child has been taken or kept against orders;
sometimes, financial issues can be urgent if they are dire enough; and
in a child protection case, all urgent or required events including the initial hearing after a child has been brought to a safe place and any other urgent motions or hearing;

A parent that is refusing the abide by a court-ordered parenting may rise to the level of urgency required. You should contact a lawyer to find out if your matter is urgent and to discuss other options available to you, such as mediation and arbitration.

(Michael H. Tweyman and Kenny Hildebrand contributed to this post. The content in this article is general information only and is not legal advice. Contact a lawyer for personalized advice based on your particular situation)

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