As various levels of government continue to implement measures to restrict the spread of COVID-19, there is increasing anxiety amongst separated parents on how to maintain transfer arrangements for the children between households.
As if it’s not difficult enough to untangle the influx of new rules, regulations, and directives, separated parents must also contend with apprehensions that the information they’re relying on is outdated. But there is some good news. Despite the current suspension on regular family court operations, we are receiving clear and assuring direction from the courts on how to deal with these every-day issues. While the unique circumstances of each case will vary, here are a few guiding principles gleaned from recent decisions before the courts:
The Good – ‘Status Quo’ Parenting (with extra precautions)
We’re living in extraordinary times. Many are facing unemployment and income loss; many others must continue to show up for work on the front lines of our service industries with increased personal risk on contracting COVID-19. We’re all experiencing change. But whatever the change, it is as important as ever that the children benefit from the ongoing support of both parents. As Justice Pazaratz recently put it: “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…”. The clear message from our courts is that existing parenting arrangements should presumptively continue so that the childrens’ lives are disrupted as little as possible.
The Bad – Health Risk Behaviour
Despite the inclination to maintain the status quo parenting plan, there are certain circumstances which will mandate that a parent forego parenting time (for example, self-isolation for 14 days following international travel), and other circumstances where a parents behaviour and judgment are called into question, such that their scheduled parenting time must be reassessed. In the latter scenario, the parent seeking to suspend parenting time has the onus of producing evidence that the other parent is not complying with COVID-19 protocols, such as to practice social distancing, use disinfectants, and comply with public safety directives.
The Ugly – ‘Self-Help’ Remedies
No matter the circumstances, parents cannot spontaneously change a court order on account of a perceived COVID-19 risk to the children. Even in the face of a global pandemic, Justice Doyle’s recent commentary on this point is an unequivocal reminder of the sanctity of court orders: “without citizens obeying existing court orders, the whole justice system would be turned over on its head”. Keep in mind, even though regular family court operations are suspended, Judges are still available to adjudicate urgent matters relating to the safety of a child, as various virtual means of hearing cases have been adopted.
Return here for more information on the impact of COVID-19 on custody/access issues in the coming days.