"Families need more cooperation, less litigation"

Navigating parenting with your ex-partner can be difficult at the best of times, and the trials of co-parenting with your ex-partner can be further exasperated in difficult times such as these. If the Covid-19 outbreak occurred while you and your ex-partner were amid legal proceedings to determine custody or parenting on a go-forward basis, your personal situation may have been further complicated.

The issue of parenting during the pandemic is a completely novel issue. With many Courts across Canada only hearing urgent family issues, Courts have had limited opportunity to address Applications for interim variations to parenting schedules.

The first Canadian case on this issue appears to be the recent decision by Justice A. Pazaratz in Ribeiro v Wright, 2020 ONSC 1829 (CanLII), (“Ribeiro”), wherein Justice Pazaratz is acting as a triage judge to determine whether the Application was sufficiently urgent, such that it should be heard. In Ribeiro, the mother who has primary care and control of the parties’ 9-year-old son sought to temporarily suspend the father’s weekend access on the basis that:

1. The father would not exercise social distancing; and
   
   
2. The mother’s entire household was self-isolating, and she did not want her son to leave the home for any reason (presumably to protect the rest of the household).

The Outcome: Justice Pazaratz refuses leave to have the urgent Application heard and provides significant commentary regarding the issue of parenting disputes during the Covid-19 crisis.

In his decision, Justice Pazaratz starts by reassuring the parties and general public that the safety of children and families remain the Court’s priority and that the Court is aware of the disruptions and stress caused by the virus.  He then goes on to provide various general principles regarding interim urgent Applications for parenting variations during the Covid-19 pandemic:

1. “There is a presumption that all orders should be respected and complied with” and “schedules and arrangements should continue, subject to whatever modifications may be necessary to ensure that all Covid-19 precautions are adhered to.”

2. That parents “may have to forego their times with a child”, if the parent is required to self-isolate because of travel, illness or potential exposure to Covid-19.

3. That a parent’s personal risk factors (including their employment) or the parenting scheme itself may require that additional controls and safety mechanisms be implemented.

4. That the Courts will have “zero-tolerance” for reckless behaviour which needlessly endangers a child to exposure.

5. That the Covid-19 crisis will not automatically make all temporary interim Applications to suspend parenting time ‘urgent’ such that they will be heard.

6. That the Covid-19 crisis will not necessarily in and of itself be grounds for suspending the parenting time or access of one party.

7. That if an Application is made:

1. • The initiating party must be prepared to specifically prove how the other parent’s behaviour or intentions are contrary to the government’s current Covid-19 protocols.

   • The responding parent must be prepared to reassure the Court that he or she is meticulously adhering to Covid-19 safety measures.

   • Both parties should be prepared to propose an interim parenting regime with appropriate safety measures.

   • Courts will likely take judicial notice of Covid-19 and accepted safety measures such as social distancing.

In coming to his decision and in providing direction about urgent Applications to vary parenting, Justice Pazaratz also provided some broader guidance about the Judiciary’s expectations in these unprecedented times. He remarked that the parties must attempt, in good faith, to communicate and come up with realistic proposals to combat the concerns raised by Covid-19. He further commented on the continued importance of a child having parenting time with both parents, stating that “vitally important family relationships – cannot be placed ‘on hold’ indefinitely” and that “a blanket policy that children should never leave their primary residence… is inconsistent with a comprehensive analysis of the best interests of the child.” As Justice Pazaratz aptly stated, “families need more cooperation. [and] less litigation.”

So where does that leave us?

In just a few short days since the decision by Justice Pazaratz, there have been numerous reported decision (largely out of Ontario and British Columbia) which speak to urgent interim Applications to vary parenting. Once the Alberta Judiciary has released decisions relating to parenting Applications during the Covid-19 pandemic, we will be sure to update our blog accordingly.

In the interim, parents in Alberta who are struggling with arranging parenting time or who have concerns about the current parenting regime should consider the following:

1. Parties should engage in a meaningful discussion about how they are going to tackle the challenges posed by Covid-19. If you are worried, it may be worth while to reach out to the other party and express your concerns and request information about how the other party can mitigate risks or address your concerns. Similarly, it might be a good idea to voluntarily reach out or provide to the other parent information about how you are mitigating risks in your own home.
   
   
2. Best interests of the child should come first:

1. • if there are realistic threats to a child’s wellbeing or a risk of exposure, parties should carefully review how the risks can be mitigated and should put in adequate controls while endeavouring to respect the status quo or any standing Orders or Agreements.

   • Parties should also keep in mind other factors impacting a child’s wellbeing and development, including the ability of the parties to safely meet childcare obligations and assist with a child’s continued education.

If you’re interested in learning more about some of the case law coming out of Ontario on this issue, particularly those cases following the Ribeio decision, we suggest you review this article posted on the Lawyer’s Daily entitled Current guidelines for urgent parenting motions during COVID-19 by David Frenkel.

If you have any questions about how the Covid-19 pandemic specifically impacts you and your ex-partner’s parenting schedule or access, you can set up a consultation by calling our office at 587-390-3070 or by using the contact form on our website. Our office is set up to work virtually and we can assist you with any family or divorce issues you may have during the Covid-19 pandemic.

The above information regarding parenting during the Covid-19 pandemic, including information in the article by David Frenkel, does not constitute legal advice. EBL Family is not liable for any reliance on the above information.

For answers to questions about your unique circumstances, we recommend seeking the counsel of an experienced family lawyer.