Many parents are worried about their families’ health and well-being during these uncertain times, and concerns are cropping up for parents who share parenting of their children. When various government entities and health authorities are recommending and even ordering social distancing measures, closure of non-essential businesses, and self-quarantining, it is no surprise that parents have questions about how to co-parent, especially when parenting orders or agreements require parents to transition their children back and forth between two households.
One question that is coming up with increasing frequency is whether and how this pandemic will impact their parenting schedule. Parents are often concerned about whether the other parent is potentially exposing the child to the virus, by not implementing sufficient social distancing measures or not participating in self-quarantining. Additionally, households with immuno-compromised members may be concerned that a child who has just been in another parent’s household is potentially bringing the virus back with them and thus exposing others in the household. Families that are coming back from international travel may also be required to self-quarantine for 14 days or more, which may disrupt the parenting schedule as the other parent cannot exercise parenting time with their quarantined child.
The key thing to keep in mind during these troubling times is that it is important to be both rational and reasonable. It is important to be rational and observe the recommended measures for social distancing, including not taking children to playdates or other gatherings where they may be exposed. However, it also does not do to overreact and refuse to let the child see the other parent, particularly where the other parent is taking every precaution to ensure the health and safety of the child and the family. Parents should keep in mind that both parents ultimately want what is best for the child, and will put their children’s health and safety first. As much as possible, parents should work together and cooperate in complying with the terms of any parenting order or agreement, and be flexible in temporarily varying said terms as necessary to ensure the health and safety of their children.
It goes without saying that there are going to be difficult situations where it may seem detrimental to the child’s health and safety, or detrimental to the health and safety of others in the household, to continue to implement a parenting order or agreement. For example, if one parent is a healthcare worker on the frontlines where there is a much higher risk of exposure to the virus, that parent may not want to exercise their parenting time for fear of exposing their child to the virus.
In such situations, parents should try to cooperate and negotiate a change in the parenting schedule to accommodate such health concerns. For example, if one parent is required to self-quarantine for 14 days and thus miss out on their scheduled parenting time, the other parent should offer make-up parenting for when the quarantine is over. Both parents should be reasonable and generous in offering make-up parenting time, and not take advantage of a crisis situation to try and gain a “one up” on the other parent by taking more parenting time than what is allotted under an order or an agreement.
In some instances, particularly for parents who are engaged in high conflict disputes, parents may not be able to negotiate a reasonable compromise. Some parents then choose to unilaterally withhold parenting time from the other parent, whom they see as not acting in the child’s best interest and not exercising due caution when it comes to the child’s health and welfare. In such cases, both parents should know that subsection 62(2) of the Family Law Act provides that when one parent is denied parenting time, the court may order compensatory parenting time in the future.
Parents should also keep in mind that breaching a court order or an agreement for parenting time is not taken lightly by the courts. The courts want to see parents complying with their court orders and agreements. Only in very exceptional circumstances is a denial of parenting time considered “not wrongful”, and even then, the courts can order make-up parenting time. The circumstances in which denial of parenting time is not wrongful is set out in subsection 62(1) of the Family Law Act, which reads as follows:
When denial is not wrongful
62 (1) For the purposes of section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is not wrongful in any of the following circumstances:
- the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;
- the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;
- the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;
- in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;
- the applicant
- informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and
- did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;
- other circumstances the court considers to be sufficient justification for the denial.
In terms of citing the COVID-19 pandemic as a reason for denial of parenting time, such reason would fall under section 62(1)(f), being other circumstances the court considers to be sufficient justification for the denial. Because the COVID-19 pandemic is a novel and unprecedented situation, it is difficult to say whether such a circumstance would fit within the court’s definition of “sufficient justification for the denial”. Some guidance can be found in three cases that have recently come out of Ontario:
(1) In Ribeiro v. Wright, 2020 ONSC 1829, a mother expressed concern that the father would not maintain social distancing for the child during periods of access, and wanted to socially isolate the child for the duration of the COVID-19 crisis. She did not want her son to leave the home for any reason, including seeing the father.
The Court expressed that there is a presumption that all parenting orders should be respected and complied with, and that existing orders reflected a determination that meaningful personal contact with both parents was in the best interests of the child. On the other hand, well-publicized directives from government and health officials made it clear that we are in extraordinary times, and daily routines and activities for the most part would have to be suspended in favour of a strict policy of social distancing and limiting community interactions as much as possible.
However, the Court found that notwithstanding that in many respects, people would be putting their lives “on hold” until COVID-19 is resolved, children’s lives and vitally important family relationships cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence, even to visit the other parent, is inconsistent with the best interests of the child.
Key takeaways from this case:
- A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.
- In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing.
- In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self -isolation for a 14-day period as a result of recent travel; personal illness; or exposure to illness).
- In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.
- And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID -19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.
- If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
(2) In Jackman v. Doyle, 2020 ONSC, the applicant mother sought the return of the children from the respondent father, who had recently returned from a trip to Brazil. After returning from his trip, the respondent father went to the applicant’s home and removed the children without the applicant’s consent. There was no formal parenting agreement in place, although the children had been residing primarily with the applicant, with the respondent having interim access. The respondent refused to return the children to the applicant until she consented to a 50/50 parenting time agreement. As a result, the applicant brought on an emergency motion for the return of the children.
In addition, while the children were in the respondent’s care, they had also developed fevers. The respondent father took the position that it was “normal” for children to have fever sometimes and treated them with regular acetaminophen. The respondent stated that the children’s fever had since subsided. Nonetheless, the respondent had been taking the children to public places including stores and visiting his elderly mother. The applicant was extremely concerned for the children’s well-being in light of the COVID-19 situation, and argued that the respondent’s decision making was questionable.
The Court ordered that the respondent return the children to the applicant’s care and control forthwith, and also ordered a police enforcement clause, meaning that the applicant could enlist the police to assist her in locating and returning the children to her.
(3) In Smith v. Seiger, 2020 ONSC 1681, the applicant father brought on an urgent application for the child to be returned to Canada from the United States. The parties had previously agreed to the child going to the United States for therapeutic treatment, but given the impact of the COVID-19 pandemic and recent announcements about the imminent closure of the border shared between Canada and the United States and government and public health recommendations regarding Canadian citizens out of the country, the Court ordered the return of the child. Upon his return, the child was to be self-quarantined, as recommended, for no less than 14 days, subject to further medical recommendations, during which time the child would reside with the applicant father. Thereafter, absent any health concerns, the parties were expected to make satisfactory arrangements for the parenting schedule.
As each parent and child has different and unique circumstances, even in light of this current pandemic, every situation must be individually analyzed and considered. As demonstrated by the above court decisions, COVID-19 parenting issues will be dealt with on a case-by-case basis.
Where a parent wrongfully denies parenting time to the other parents, meaning that the parent’s rationale for withholding the child does not fit within subsection 62(1) of the Family Law Act, then the parent potentially faces a variety of consequences. Pursuant to subsections 61(2) and 61(3) of the Family Law Act, the court may order a number of remedies when parenting time is wrongfully denied, as follows:
Denial of parenting time or contact
61 (2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child’s guardian, the court on application may make an order to do one or more of the following:
- require the parties to participate in family dispute resolution;
- require one or more parties or, without the consent of the child’s guardian, the child, to attend counselling, specified services or programs;
- specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;
- require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;
- require that the transfer of the child from one party to another be supervised by another person named in the order;
- if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to
- give security in any form the court directs, or
- report to the court, or to a person named by the court, at the time and in the manner specified by the court;
- require the guardian to pay
- an amount not exceeding $5000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or
- a fine not exceeding $5000.
61 (3) If the court makes an order under subsection (2) (a), (b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer.
In addition to the above consequences set out in section 61 of the Family Law Act, the parent who wrongfully denies parenting time can also be ordered to pay the other party’s “costs” for having to bring on a court application in BC Supreme Court. “Costs” in BC Supreme Court are awarded pursuant to a tariff set out in Appendix B of the Supreme Court Family Rules.
Parents should keep in mind the potential consequences they face for breaching a court order or agreement providing the other parent with parenting time.
Every parent and child’s situation is different and unique, and requires a careful analysis of the facts, as well as any existing orders and agreements, to determine what the best possible resolutions may be.
If you or someone you know is dealing with parenting schedule issues or other related legal issues, reach out to our Family Law Group. We can assist in a variety of ways, including negotiating alternate parenting schedules or bringing on urgent court applications where parenting time is being wrongfully denied.
Partner, Family Law Group
Lindsay Kenney LLP – Vancouver Office
Associate, Family Law Group
Lindsay Kenney LLP – Vancouver Office
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.