Along with the COVID-19 Pandemic have come court applications by parents seeking to change their parenting plans because of disagreements as to the other parent’s perceived lack of compliance with social distancing guidelines. A small but growing body of case law has generated common-sense principles that should be observed by both parents in the midst of a COVID-19 related parenting dispute, before taking their matter to court.
The Ontario decision of Justice A. Pazaratz in Ribeiro v. Wright, was probably the first widely reported case dealing with an application by a parent to vary or suspend the other’s parenting time because of a COVID-19 related concern. In the Alberta case of SAS v. LMS, Justice Robert A. Graesser builds on Justice Pazaratz’ decision and provides a thoughtful review of the principles to be considered by prospective parental litigants. Both Justices note that each case should be dealt with on its own merits. Justice Graesser states: “I do not think the default position should be that the household with the lowest risk level should be the home where the children reside at during the pandemic, with the other parent having virtual access only”. However, he goes on to say: I think my role as a judge deciding issues the parents cannot decide between themselves is to be hyper-vigilant for the health and safety of the children.”
Justice Graesser listed nine factors to consider when an application is brought to change the parenting regime because of a disagreement over parenting in a time of pandemic.
- 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.
- 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.
- 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;
- 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;
- 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;
- 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;
- 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
- Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and
- Non-compliant parents can expect no second chances.
In SAS v. LMS, Justice Graesser disapproved of the mother’s unilateral withholding of access to the children, but found her concerns as to the father’s cavalier attitude toward social distancing to be non-trivial. Although he denied the relief sought by the father in the first instance, he also adjourned the application to give the parties an opportunity to work out an acceptable solution, which they did as reported in his subsequent decision.
Written by: Gary Kirk