Parenting Orders and COVID-19

COVID-19 has impacted a variety of aspects of everyone’s lives. One aspect that it has impacted is the dynamic between parents and their children where that relationship is subject to a parenting order. For many families the pandemic has increased tension and has created questions about whether a parenting order can be adjusted to better protect their families from the threat of COVID-19.

What Can I do if My Ex-Spouse is Not Following COVID-19 Health Protocols?

This question was analyzed in a recent Alberta decision, in which a mother was threatening to withhold her children from their father if he did not do a better job adhering to COVID-19 health protocols. She was specifically concerned with the fact that the father was conducting in-person meetings at work, was regularly having a colleague over at his house, and had taken the children horseback riding. The Judge found that the father exposed himself, his children, his ex-wife and his ex-mother-in-law to “unnecessary, inappropriate, and easily avoidable risks”. He effectively made business decisions and personal decisions that put his family’s health at risk.

However, the Judge also took into account that the father had made some changes in his behaviour before court, and that the mother should have sought a variation in their parenting order rather than threaten to withhold the children. As a result, the judge adjourned the application to allow the parents to come to a reasonable solution on their own. The father was to become compliant with COVID-19 protocols and the mother was to communicate in good faith with him to come to a reasonable solution.

The Judge based his decision on the following list of considerations:

1. Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.

2. Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.

3. Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;

4. Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order;

5. The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;

6. If an application cannot be made because of the urgency of the situation, an application by the defaulting party must be made as soon as possible after learning of the emergency;

7. Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful; and

8. Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and

9. Non-compliant parents can expect no second chances.

The General Takeaway

The difficult circumstances of the pandemic will not last forever and parents should be encouraged to make agreements between themselves to temporarily vary provisions in a court order. However, using the pandemic as a way to disregard parenting orders or illegitimately gain additional parenting time will not be looked upon favourably by a court.