The COVID-19 pandemic has presented some unique challenges to parents who share parenting of their children. We endeavour to stay up to date on the pandemic-related court cases as they are released and some of them are summarized on our blog. Here are some common questions we have been receiving:
- Can I deny parenting time if the other parent is not taking the COVID-19 warnings seriously?
Before denying parenting time, think it through. The Family Law Act (the “FLA”) deals with denial of parenting time. Section 61 sets out the orders a court may make if a guardian is found to have wrongfully denied parenting time. These include, among others:
- Fines of up to $5,000;
- Reimbursement of any expenses incurred by the denied parent; and
- A requirement for make-up parenting time.
However, if your concerns are founded, the denial may not be deemed “wrongful”. Before deciding to deny parenting time, we highly recommend reviewing the applicable sections of the FLA and recent court cases with a lawyer to evaluate your position.
In a (very) recent court case in Ontario (Ribeiro v. Wright, 2020 ONSC 1829), the Judge found that despite daily life being put on hold due to Covid-19, pre-existing parenting orders reflect a determination that it is in the child’s best interest to have meaningful contact with both parents and that putting those relationships on hold could cause emotional harm to the child and is therefore not in the child’s best interest. This is to say, the Covid-19 virus on its own is probably not sufficient reason to deny parenting time.
In the British Columbia Provincial Court (N.J.B. v. S.F., 2020 BCPC 53) a father denied the mother parenting time as he was concerned she would not comply with the social and physical distancing protocols recommended by the Province. As the father was unable to point to any concrete concerns about the mother’s lack of compliance and the mother assured the court that her household was complying with all recommendations, the mother was permitted to exercise her parenting time.
So far, we have not seen the courts readily conclude that a denial of parenting time was wrongful, order make-up parenting time, or other remedies.
- Can I deny parenting time if the other parent works in healthcare or other essential services?
The Provincial Court of British Columbia has recently provided direction for parents on this point. In a judgment released on April 20, 2020 (J.R.K.P. v. L.A.S., 2020 BCPC 73) the Honourable Judge Skilnick denied an applicant an urgent hearing. The court clearly states at paragraph 4:
“the mere possibility that a person in someone’s home may have been in contact with someone carrying the virus is not a valid reason for denial of parenting time. If this was the case, those health care workers directly dealing with this pandemic would not be having contact with their own children. In order for Covid-19 concerns to prevent contact between a parent and child, there must be a more substantive reason for denial of contact, supported by some form of objective medical evidence, rather than the lay opinion of one of the parties themselves”.
Additionally, in the April 7, 2020 judgment of the Provincial Court (S.R. v. M.G., 2020 BCPC 57), the court concluded that the child should continue to have parenting time with his mother who was a health care working and who had been exposed to Covid-19 as she was mitigating the risk by abiding by all precautions.
As it stands, it is not enough to deny parenting time solely because the other parent is an essential service worker.
- What if my child’s other parent continues to send them to daycare while they work?
Sending a child to daycare may not be enough reason to deny parenting time, particularly if the parent works in an essential service sector. Many daycares remain open and are holding spaces specifically for the children of front-line workers. Communicate with the other parent to ensure all precautions are being taken at daycare and at home to mitigate the risk of contracting the virus.
- What if the other parent has a blended family (i.e. my former spouse has a new spouse who has children from a previous relationship). Can I deny their parenting time?
As discussed in question #1, if you have a shared parenting order, it has already been established by the courts that it is in your child’s best interest to have meaningful contact with them. If you are concerned that your child’s other parent may not understand the severity of the situation or may not be complying with the recommendations, open the lines of communication in a respectful manner to discuss what you are doing to protect your family during this time. Share your concerns and any credible information you can find. Dr. Michael Elterman, a child psychologist and expert in family law matters related to parenting, wrote a useful article containing advice for parents navigating the Covid-19 crisis – read it here.
The British Columbia Provincial Court has released a judgement regarding a blended family situation (T.C. v. R.E., 2020 BCPC 65). In this case the mother wanted the father to exercise his parenting time in his home, rather than in the home of his girlfriend and her child. The Judge emphasized effective communication between the parents and allowed the father to exercise parenting time at his girlfriends as he was taking precautions to deal with the risk of Covid-19. The Judge ended the judgment with a firm statement to parents:
“it is incredibly important that separated parents communicate effectively in co-parenting their children. That communication should not focus on the rights of the parents to see their children, but rather on the rights of their children to have parents that can share important information about the children’s safety and welfare respectfully and effectively.”
- Can I go to court if my parenting time is being denied?
Both the Provincial and Supreme Courts of British Columbia are hearing only urgent family matters by telephone. In the Provincial Court, an urgent issue is defined to include situations “relating to the well-being of a child including essential medical decisions or issues relating to relocation, non-removal, wrongful removal or retention of a child”. In the Supreme Court, an urgent matter is defined to include “Orders relating to the well-being of a child (e.g., essential medical decisions, urgent issues relating to parenting time, contact, or communication with a child that cannot reasonably be delayed)”. Whether your application is considered urgent, is determined by a Judge. The process for requesting an urgent hearing is different in each level of court. For more information on requesting an urgent hearing, please contact our office.
In a recent decision of our Provincial Court (J.R.K.P. v. L.A.S., 2020 BCPC 73), the Judge denied an urgent hearing when a mother applied on the grounds of a denial of her parenting time. The Judge provides some helpful guidance for parents applying for an urgent hearing:
- Details of the denial should be provided, such as (1) when were you entitled to pick up the child, (2) how was the refusal to comply with the order communicated, and (3) what, if any, reason was given for the refusal to comply with the order.
- There must be some form of objective medical evidence to support a denial of parenting time. The lay opinion of a parent is not enough. He goes on to say “…the mere possibility that a person in someone’s home may have been in contact with someone carrying the virus is not a valid reason for denial of parenting time”.
- If I believe modifying the existing parenting arrangements are in the best interests of my child(ren), what are my options?
Unless the matter qualifies as “urgent” the court will not be ale to assist you at this time. Some other options, include:
- Modifying a court order or agreement, by consent. This means you and the other parent have discussed and agree on the proposed changes.
- Negotiate with the opposing party, either with the assistance of lawyers or on your own. It is possible and common to negotiate using video-conference technology. A meeting between lawyers and clients is called a “4-way meeting”.
- Mediate via video-conference technology. Read more about our mediation services here.
- What happens if I can’t pay child support?
Applications regarding support have not been defined as “urgent” by the Provincial or Supreme Courts at this time. Unfortunately, that means you are unable to apply to the court to adjust your child support obligations. It is important during this unprecedented time that parents communicate and work together to reach temporary agreements. Should you be unable to negotiate a temporary reduction in support with the other party, arrears will begin to accrue on any unpaid amount under your court order or agreement. Consider seeking legal advice regarding a later application to reduce arrears.
If your order or agreement is enrolled with the Family Maintenance Enforcement Program (FMEP), you are expected to continue to pay support and if the full amount cannot be paid at once, partial payments should be made. During the pandemic, FMEP is limiting some enforcement action. They have temporarily stopped issuing new credit reports, default fees for missed or late payments, and driver’s licence cancellations. Read more here.
NOTE: THIS INFORMATION IS NOT LEGAL ADVICE, AND YOU SHOULD NOT RELY ON IT AS SUCH. TO ENSURE YOUR INTERESTS ARE PROTECTED, FORMALLY SEEK THE ADVICE OF A LAWYER.
COVID-19 NOTICE: WE ARE OPEN DURING THE COVID-19 PANDEMIC TO ASSIST YOU WITH ALL YOUR FAMILY LAW ISSUES. WE ALSO OFFER MEDIATION SERVICES. PLEASE NOTE OUR OFFICE HOURS HAVE BEEN REDUCED TO 9:00 A.M. TO 3:00 P.M., MONDAY TO FRIDAY. PLEASE CALL IN ADVANCE IF YOU PLAN TO ATTEND THE OFFICE FOR ANY REASON. PLEASE CALL OUR OFFICE TO BOOK A CONSULTATION OR SEE OUR BLOG FOR FURTHER INFORMATION.