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Custody and Parenting Time During COVID-19

Apr 16 2020

The effects of COVID-19 has been felt in many areas of the law.  Due to this crisis being unique, and constantly evolving, there is uncertainty for the public as well as legal professionals. In family law in BC, there has been little guidance from the courts on how parenting time might be affected.  Only weeks ago, where there were issues on parenting, our courts were able to provide directions and make orders. However, BC courts are currently operating at very limited capacity, and only hearing matters that are ‘urgent’, which basically means life or death emergencies and protection of children

Parenting time with both parents should continue for most

Parenting after separation can be difficult to navigate in ordinary times; the added uncertainty and stress of COVID-19 has made the landscape even more confusing and stressful. It has led to many separated parents asking the same question: how does social distancing affect my co-parenting?

A recent court decision from Ontario has provided us some guidance. In his judgement in Ribeiro v Wright, Judge Pazaratz provided parents with the following directions:

  • A parent should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. Raising COVID-19 considerations will not necessarily result in an urgent hearing;
  • In most situations, there should be a presumption that existing parenting arrangements should continue, subject to modifications to ensure that all COVID-19 precautions are adhered to – including strict social distancing;
  • In some cases, a parent’s lifestyle or 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 in person parenting time will have to be reconsidered. There will be zero tolerance from the courts for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk;
  • Parents should be making good faith efforts to communicate with the other parent, show respect, and come up with creative and realistic proposals which demonstrate parental insight and COVID-19 awareness; and
  • The court will likely not be providing oversight now, but a judge may be reviewing parents’ actions when this crisis has ended.

In BC, the Ribeiro case isn’t necessarily a binding authority – a BC judge isn’t required to follow the finding of an Ontario judge. However, a BC judge can use it as a guide, and Judge Pazaratz’s finding is in line with child-focused principles shared across the country. We could expect a similar decision coming from BC Courts soon.

Separated parents who may consider revoking parenting time with the other parent, simply because of fears of COVID-19, should exercise caution before doing so. Weekend parents should usually be able to continue their weekends with the children – week-on and week-off arrangements should also be able to continue.

Parenting time may be revoked if a parent is not abiding by social DISTANCING

As noted in Ribeiro, an exception to carrying on with current arrangements is if a parent fails to follow COVID-19 protocols. Parenting time should continue if it’s safe for the child. This means social distancing, use of disinfectants, and compliance with public safety directives. Parenting time should take place at home.

A parent may see a change in their parenting time if they, or someone they live with, are not adequately distancing themselves; even when they don’t have the children. Parents should be thinking of protecting their children, and the people their children regularly see, by acting socially responsible. If a parent should be self-quarantining, either due to travel or being ill, all parenting time should cease until they are no longer isolating.

Any matter that would have been urgent before COVID-19, which includes the potential of physical harm to a child, can still lead to a change in parenting time. Other exceptions may also exist; a parent being at high risk for COVID-19, for example, may be a reason to modify parenting time – but answers on potential exceptions will have to be dealt with on a case by case basis.

Negotiate before trying to litigate

If parents do have a disagreement on how parenting time should operate going forward, both parents should think twice before turning to the courts. Our legal system is not operating as usual. There are usually over 40 fully staffed provincial courts in BC that handle family matters – right now only 5 are operating. The BC Supreme Court is also operating at a reduced capacity, and all hearings are being conducted by phone or video only. The courts will always be available for urgent matters involving children; if your matter is not classified as urgent – which is probable for most family matters – you will not be heard by a judge at this time.

Our legal system has encouraged family matters to be solved via dispute resolution processes as much as possible. Now, more than ever, parents – and their lawyers – should be taking that encouragement to heart. Parents should be looking to push negotiations as far as they can, or engaging in family mediation; many BC mediators continue to operate while also abiding by social distancing protocols. Lawyers and parents alike should try to problem solve before adding to the stressed legal system.

For those currently in dispute with their co-parent, keep in mind that parenting time is about what is best for your children. The following quote from Judge Pazaratz should be taken to heart:

Parents should always be looking out for the child’s best interest. In these troubling and disorienting times, children need the love, guidance, and emotional support of both parents, now more than ever.

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As we are in a unique situation, it is impossible for us to know exactly how the courts will handle parenting time as this pandemic evolves. The information above is provided as general guidance only, and up to date as of April 16, 2020.

If you have additional questions or need assistance with a family matter, please contact our office at 604.853.0774 and we can set up a phone or video consultation to assist you.

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