March 26th, 2020 by Kristin Greenough

If you have kids and you are separated or divorced from the other parent of those kids, there is a good chance you have an Agreement of some sort (written or unwritten) or a Court Order outlining how you and that other parent share time and responsibilities for your kids. You may be wondering what, if any impact, the pandemic has on that Agreement or Court Order. These are unprecedented times, both in the typical sense of that statement but also in the legal sense. There are no laws specifically regarding parenting time and parental responsibilities in a pandemic. Typically when we cannot point to a specific law we look to the case law for guidance, but until a few days ago there was no case law (aka precedents) guiding us on how the COVID-19 pandemic impacts parenting time either.

I offer the following legal information to consider, please note that this is not to be taken as legal advice.

At the time of writing this, I am not aware of the Courts of British Columbia having made any decisions regarding parenting time during the pandemic. However, the Ontario Superior Court of Justice in a case called Rubeiro v. Wright 2020 ONSC 1829 has provided some guidance. If you would like to read the full decision, here is the link: http://canlii.ca/t/j60jj. In Rubeiro v. Wright one parent was seeking to change the existing court order to have the other parent’s time with the child stopped for the duration of the pandemic, out of a concern of infection if the child was moving between households. Justice Parzaratz did not change the order, as was being requested, meaning both parents would continue to have time with the child as outlined in the existing order.

The points that Justice Parzaratz suggests parents consider are:

  1. Everyone needs to work together at this time being flexible, creative, and using their common sense support the physical and emotional health of children;
  2. Especially now children need the love, guidance and emotional support of both of their parents;
  3. In most situations, the existing parenting schedule should be followed, subject to modifications to ensure COVID-19 precautions are followed;

    1. This includes social distancing, the use of disinfectants, and compliance with public health directives.
  4. In some cases, a parent may have to modify what their parenting time looks like or they may need to temporarily stop their in-person parenting time. This would likely be necessary where:

    1. A parent is subject to specific restrictions, for example if they have recently returned from out of country and are in their 14 day isolation or if they have been directly exposed to a confirmed case of COVID-19;
    2. A parent’s personal risk factors may create a situation that requires parenting time to be modified, for example a parent’s employment or associations; or
    3. A parent whose lifestyle or reckless behavior during this time creates concerns, for example: failing to social distance or take reasonable health precautions at this time.

      1. The court explicitly notes that: there will be zero tolerance for any parent who recklessly exposes a child (or members of a child’s household) to any COVID-19 risk.

The above principals can be applied to Agreements as well. There is no one-size-fits-all answer because ever situation and every family is different, and this is a situation that is changing rapidly day by day. Ideally both you and your co-parent would be able to discuss how best to keep your children safe and work together during this time; however, I know that is not always going to be possible.

If you have questions about parenting time during this pandemic, one of our lawyers would be happy to have a consultation appointment and discuss these matters further with you, via telephone or video-conferencing, of course!

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