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Family Law... Parenting Plans During Pandemic

No matter how detailed the wording of the parenting plan, however, it is unlikely to be of much help this week.  It is extremely rare (if not unheard of) for a parenting plan to contemplate parenting in the event of a pandemic.  The coronavirus pandemic is creating additional stress and uncertainty for many separated families, as it raises problems they have never had to worry about before. 

Christine Doucet – March 2020

Separated or divorced parents look to their parenting plan to guide them when problems arise or they have disagreements with the other parent.  No matter how detailed the wording of the parenting plan, however, it is unlikely to be of much help this week.  It is extremely rare (if not unheard of) for a parenting plan to contemplate parenting in the event of a pandemic.  The coronavirus pandemic is creating additional stress and uncertainty for many separated families, as it raises problems they have never had to worry about before. 

A parenting plan is contained in a separation agreement or court order and sets out details of parenting after separation, including the regular schedule, holiday schedule, and other details unique to the situation. A well-crafted plan considers such details as how children’s birthdays will be celebrated, when a how a parent must obtain permission to travel with the children, and how children will be transported between homes. Parenting plans cannot address unexpected and unprecedented situations such as the current public health concerns around coronavirus transmission, which has resulted in the closure of all schools, most public places and many workplaces.

Parents’ uncertainty about where to turn for answers is compounded by the fact that Nova Scotia courts are operating at significantly reduced, emergency-only capacity, rendering them unable to provide guidance or resolution to most families.  On Monday, March 23, 2020, Associate Chief Justice Lawrence O’Neil of the Supreme Court of Nova Scotia (Family Division) issued a Notice to the Bar and Public stating that all scheduled family matters will be removed from the docket unless deemed urgent and will not be rescheduled at this time.  The notice states that “urgent matters” include matters of child protection, child abduction and domestic violence.  It went on to clarify:

     To date, the following have been deemed to not be an emergency:

Counsel are asked to consider alternatives to attending court.

My colleagues and I at MDW Law know that many parents have been able to work together in this unprecedented time to make the necessary changes to their parenting schedule (as well as arrangements for the financial support of their children) to meet their children’s needs.  Parents are always able to make changes to their parenting plans, by agreement. Any time a change is made, it is important to document the changes so both parents are on the same page about the new arrangement and future disagreements can be avoided.  Ideally, a family lawyer will document the changes to ensure that they reflect the best interests of the children.

There are of course, other situations where parents have been unable to resolve their differences regarding how the pandemic affects their parenting.  Some parents are asking whether their current parenting plan can be disregarded during this current health crisis.  Some American courts have weighed in on the issue and, in general, have determined that parents are required to continue to follow the most recent court order that it is in place.  In other words, existing court orders and agreements always prevail. 

However, in this unprecedented time, parents have a competing obligation.  They are also required to comply with the directives of Nova Scotia’s Medical Officer of Health (ordered under section 32 of the Health Protection Act*) requiring, among other things, social distancing of six feet and self-isolation for 14 days following the return to Nova Scotia. As guardians to their children, parents are also required to ensure their children are following such directives. We are hearing of many situations where parents do not agree on how their current order or agreement should be interpreted in light of the directives of the Chief Medical Officer, which also have the force of law.

Common sense must prevail.  There will be times when the circumstances require parents to change existing parenting schedules or arrangements in order to best meet their children’s needs during the pandemic. For example, a parent may be in self-isolation as a result of exposure or recent travel without the children and may offer to reschedule or trade upcoming parenting time.  Parents faced with layoffs or additional work demands (in the healthcare sector, for example) may have either more or less time available for parenting.  With childcare unavailable, they will be forced to be flexible in their arrangements with the other parent.  

As with each family, each case is unique.  Now, more than ever, advice from a family lawyer is key.  In times of great stress and uncertainty, direction from professionals will help families navigate the uncertainties.  Parents who have relied on the court to make their parenting decisions in the past will by necessity need to find a new way to have these conversations and resolve these issues.   It appears that the courts’ conciliation option remains available to parties starting new applications for matters such as variation of child support.  It is unknown how long that will continue and how extensive the service will be.  Furthermore, Many parents have a mediation clause in their separation agreements or court orders but have never had to take advantage of such option.  Now may be the time. 

Parents looking to discuss these issues are invited to reach out to MDW Law at (902)422-5881 or info@mdwlaw.ca.

*The March 23, 2020 directives of the Medical Officer of Health under the Health Protection Act of Nova Scotia can be found at:

https://novascotia.ca/coronavirus/COVID-19-Global-Order-2020-03-23.PDF

 

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