The COVID-19 pandemic has impacted society on an unprecedented global scale. As the coronavirus has continued to spread, many people have taken extra precautions to protect their families, children, and loved ones as best they can.
While most parents have the best of intentions when it comes to providing care for their children, many are facing differing views on how to best approach this in the wake of COVID-19.
As such, this has many parents who are separated, divorced, or otherwise co-parenting during COVID-19 wondering what options are available for resolving current disputes. Furthermore, many are asking whether any new legal changes or considerations introduced in response to COVID will impact how this is approached.
Dynamic developments but laws and agreements remain mostly unchanged
While decision making by the courts has required new developments and considerations, the fact of the matter remains that existing laws and agreements must continue to be upheld and adhered to, with a few exceptions.
Essentially, you must comply with an agreement or court order that gives parenting time or contact with a child to another person. The terms of such an agreement cannot be paused nor can they be automatically changed simply because of the pandemic.
The only exceptions would be in instances where the parent or child was at an unnecessarily greater risk of getting sick or where a parent can no longer care for a child due to sickness.
The key message the courts have put forth is that despite the pandemic, children’s lives should not be put on hold and the best interests of the child should be preserved through the reception of love, guidance and emotional support from both parents
B.C. judge grapples with parenting time for nurse who saw COVID-19 patient
In a BC court case in April of 2020, Judge Patricia Bond was faced with a challenging situation where a divorced couple disagreed on parenting time for their 8-year-old son.
The mother was a frontline health care worker and the father ran a demolition company. The father had reservations regarding their child’s well-being due to the mother’s risk of exposure at work and subsequently the risk of exposure to the child.
Despite this, Judge Bond refrained from limiting the mother’s parenting time and maintained a 50/50 split of said time between both parents. In addition, the mother was also awarded make-up time that had been lost when the father prevented the child from seeing her. Judge Bond went on to say the following:
“There is very little case law on the considerations that should apply in assessing whether a parenting time regime should continue in circumstances of those service providers who continue to work with the public during the pandemic. These include everyone from clerks at the grocery store and pharmacy, to medical professionals working in clinics and hospitals, police officers, social workers, fire officials, paramedics, etc.”
“On the other hand, now that the virus is spreading in the community, we are exposing ourselves to the risk of contracting the virus by accessing any services, whatsoever. This includes receiving the newspaper or mail, purchasing groceries, attending at a bank, or going for a walk.”
She went on to elaborate saying:
“I find a constellation of factors to consider, in assessing what is in a child’s best interests. In this situation, the following factors are relevant:
- Whether the child is at an elevated risk of suffering the more severe consequences of the virus;
- Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;
- Each party’s exposure to the risk of contracting the virus;
- Steps taken by each party to mitigate the risk of exposure;
- All of the relevant factors listed under s. 37 of the Family Law Act”
The final decision concluded:
“Both parties are at risk of exposure to the virus. S.R. by virtue of her work at [omitted for publication] General Hospital and by exposure in the community. M.G. in a more limited manner through his work and in the community. Furthermore, both parties have taken significant steps to mitigate the risk of exposure. S.R. says she has taken every precaution to protect herself and L.G. from contracting the virus. Likewise, M.G. has taken specific steps to ensure that his staff and his family are not exposed.”
Child and Spousal Support Payments During COVID-19
Despite the pandemic, child and spousal support payments must be upheld and existing agreements or court orders will continue to apply. Should support payments become reduced or stop altogether, the amount owing will accrue as arrears until the agreement or the court order is changed.
While COVID-19 has introduced new considerations, the safety and wellbeing of children remain a priority both in terms of limiting exposure to the coronavirus but also ensuring their fundamental needs are being met by the parents involved. Existing court orders and agreements will remain unchanged unless a significant risk is introduced to any children involved, at which point seeking legal counsel would be advised.
Are you facing a child custody dispute in response to COVID-19? Whether you’re looking for general information or legal advice specific to your situation, the team at Dreyer Davison has the experience and expertise to guide you through the nuances of family law during the pandemic. Get in touch today.