COVID-19 and Parenting or Custody Concerns

The Alberta Courts are currently responding to the COVID-19 pandemic and doing their best to reduce the spread of this virus along with the rest of us. As such, for family law matters, new applications to the Court are limited to emergency and urgent cases only until at least May 1, 2020. Please see the latest updates here:

Court of Queen’s Bench and Provincial Court of Alberta information:

At McCuaig Desrochers LLP, our Family Law Practice Group remains prepared help you navigate these uncertain times with urgent or emergency Court applications. We are able to provide consultations via phone or video conferencing to determine whether it is in your and your children’s best interests to proceed with an emergency court application or if other options may be available to resolve disputes.

Generally, existing parenting orders should be followed and complied with, and a Court application and order must be sought before making any unilateral changes to an existing parenting order.

For parents concerned about how to handle their existing parenting orders or agreements during the ongoing COVID-19 crisis, the recent Ontario decision of Ribeiro v. Wright, 2020 ONSC 1829, (Ribeiro) provides some guidance. In Ribeiro, the mother brought an emergency application to suspend all in-person parenting time with the father due to the risk caused by COVID-19.  Consequently, the Court in Ribeiro had to weigh the health, safety, and wellbeing of the child against the presumptions that:

  1. Court
    orders should be complied with; and
  2. meaningful
    personal contact with both parents is in the best interest of the child.

The Court’s decision in Ribeiro was that the application was not urgent and the Mother’s request to suspend the Father’s parenting time was denied. Justice Pazaratz was not dismissive of the mother’s concerns but was not satisfied that she had established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols. The Justice observed that parents with concerns may seek an emergency court application but should not presume the existence of COVID-19 will automatically result in any suspension of parenting time.

The Court emphasized that, during the COVID-19 crisis, both the Courts and parents will need to be practical, flexible, and creative to protect the physical and emotional wellbeing of children as:

“None of us know how long this 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.  A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child.  In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

Justice Pazaratz made the following observations
in reaching his decision:

  • There should be a presumption that existing parenting arrangements and schedules continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
  •  In some cases, a parent may have to forgo their time with a child, for example, if they are subject to a personal restriction, under self-isolation or quarantine for 14 days, personally ill, or have been exposed to illness.
  •  Parental
    risk factors through employment or association, may require controls with
    respect to time with the child.
  •  A parent’s lifestyle or behavior, such as failing to comply with social distancing or failing to take reasonable health precautions, may raise concerns about parental judgment and whether or not direct parent to child contact should be reconsidered. There should be zero tolerance for any parent who recklessly risks exposing a child or members of the child’s household to COVID-19.
  •  Social distancing during exchanges is imperative.
  •  Every family and situation are unique and there are no easy answers to these questions. However, no matter the challenge, for the sake of the children, everyone needs to work together to maintain important parental relationships and find ways to do it safely.
  •  Judicial resources during the COVID-19 crisis
    are limited, so parents need to act responsibly and try and problem solve
    between themselves before they initiate urgent court applications.
  •  There will be little tolerance for parents who
    do not take their parenting responsibilities or COVID-19 seriously during this emergency. Judges will likely take judicial notice of
    the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their
    child at home.
  •  The courts will examine each application on a
    case-by-case basis, and given the reduced judicial resources at this time, not
    all cases will meet the criteria of “urgent” or “emergency”.

Seeking legal advice from one of our Family Law Practice Group at McCuaig Desrochers LLP is the best way to understand how your circumstances may be considered by the courts in Alberta. Contact us via email or phone.

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