Kim Johnson – March 2020
During the COVID-19 crisis, people may feel torn between upholding parenting Orders or Agreements, and concerns for the safety of the children and other members of both households.
Yesterday, Dr. Robert Strang, Chief Medical Officer of Health for Nova Scotia, was asked to give advice for the parents of children moving between two homes – should they continue to do so, or stay in one place? His answer was:
“Co-parenting has lots of challenges, and COVID-19 would make that more challenging. Respecting that there may be legal requirements, so the first thing is people need to talk to their lawyers if necessary, but from a public health perspective, every time the child is moving back and forth, we’re increasing the chance of bringing the virus between two homes. So if at all possible, and I know this may be difficult for families and hard to hear, but if at all possible, as a public health physician, it makes sense that the child remain in one home, isolated and kept separate in that one home, rather than going back and forth between two different family units; each family unit probably has connections out in the community. You’re putting that child and both family units at increased risk of coming in contact with the virus.”
Unfortunately, from a legal standpoint, there is no “one size fits all” answer to this question. Every family is different, and the solution to this crisis will be different for each family. The emotional and psychological need for a child to spend time with both parents, and to maintain consistency and routine as much as possible, must also be considered. These concerns are especially important to children during a time of crisis, and must be weighed in any decision-making about their best interests.
Can the physical risks of exposing a child or other household members to COVID-19 be minimized through solution-based adaptations to the current parenting schedule? Are both households following the recommended protocols to minimize the risk of exposing both households? Is one parent or the other at higher risk of exposing the child to COVID-19? Are there other family members who may be at higher risk if the child is exposed? Are there other opportunities for communication and contact between the child and the other parent during this crisis? These are just a few of the questions that may need to be taken into consideration when these decisions are being made.
The Nova Scotia Courts are only hearing emergency matters, and in a Memorandum issued on March 23, 2020, unilateral interruptions of court-ordered parenting arrangements were deemed not to be an emergency. This was clarified in a further Notice issued on April 1, 2020, after the recommendations made by Dr. Strang, as follows:
“This position reflected the then already growing demand on the court to respond to decisions by parents to not comply with parenting orders because of concerns about COVID-19 transmission. The Court did not and does not have the capacity to adjudicate this issue in the current circumstances. It is open to a party, however, to make submissions that a particular parenting issue rises to the level of an emergency as provided for by Notice#1. Should the Court eventually consider whether a parent acted reasonably all relevant factors will be considered, including the opinion of Dr. Strang if admitted into the evidentiary record. The Court is not prejudging the issue.”
Despite this clarification, it is unlikely that most families will receive answers specific to their circumstances from the court at this time. Furthermore, in the midst of this pandemic, circumstances and protocols change on a daily basis, so today’s decision may not even apply tomorrow. Parents must do what they can to keep themselves and their children safe, while still considering the needs of the children to maintain contact with both parents.
Other jurisdictions have provided advice that may be helpful.
In Ontario recent decisions have, for the most part, directed that existing parenting arrangements should continue, with modifications only as necessary to ensure COVID-19 precautions, such as social distancing during exchanges, and ensuring that both households are following all recommended rules and safety precautions such as handwashing and self-isolation. Only in the event of a health risk (such as a parent becoming ill, having travelled abroad, having been exposed to someone with the illness, or if either the other parent, or anyone in the other parent’s household, is disregarding COVID-19 safety protocols) would parenting time be suspended (see https://www.protopage.com/corollaryrelief#Covid-19).
In the UK, the government advised that even during lockdown, children’s parenting arrangements should continue as normal in the absence of circumstances which put a child, or others, at risk (for example in the case of a vulnerable child with a serious health condition who has been advised by medical professionals not to travel). The guidance encourages parents to think creatively if self-isolation is necessary – for example, organizing indirect contact such as Skype or Facetime or online story-time. Good communication is also key, with an emphasis on working together https://www.cafcass.gov.uk/parent-carer-or-family-member
The American Academy of Matrimonial Lawyers released seven guidelines for parents sharing custody of children during the COVID-19 pandemic. (https://www.afccnet.org/Portals/0/COVID19Guidelinesfordivorcedparents.FINAL.pdf?ver=2020-03-17-202849-133). The Guidelines encourage parents to follow all health and safety protocols; be compliant with court orders and parenting arrangements; find creative solutions for changes that must be made; encourage closeness with a parent who may not be able to see the child (through shared books, movies, games and FaceTime or Skype); provide honest information to your co-parent about any exposure to the virus; try to agree on what steps each of you will take to protect the child from exposure; and try to make up time lost to the pandemic.
The Guidelines note that: “For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.”
We at MDW Law urge parents to review and act on these Guidelines when making decisions about parenting exchanges during this crisis. The safety of the children must come first, over the needs or wishes of either parent, but both parents should be looking at this issue from the perspective of creative problem-solving.
In accordance with today’s Notice (April 1/2020) from the court, if current parenting arrangements cannot or should not be followed for the safety of the children, when the courts re-open, they will be looking to whether or not parents “acted reasonably”. We expect that when deciding “reasonableness”, the courts will look to whether parents put their children’s interests ahead of their own, acted reasonably in the face of crisis, tried to communicate openly with the other parent, tried to find solutions, and made reasonable accommodations wherever possible. If face-to-face time cannot be accommodated safely, all reasonable efforts should be made to maintain contact between the child and the other parent through telephone, video calls and any other creative measures that can be found.
For more information, please contact one of our Family Law team members at 902.422.5881 or email info@mdwlaw.ca.