Custody & Parenting During COVID-19: What are your Responsibilities?

Dr. Strang, Nova Scotia’s Chief Public Health Officer, made some comments at a news conference yesterday, March 31^st, that have raised some questions for families that have child custody arrangements.

Dr. Strang’s comments were not issued as a directive nor an order as a public health officer. He was offering a suggestion, from a medical rather than legal perspective, regarding how parents might handle such arrangements.

Child custody and access arrangements may be made pursuant to a court order or according to an agreement of the parties, and are meant to reflect the best interests of the child. Arrangements set out in an order are the directive of the court and have the force of law but most importantly reflect the careful and deliberate determination of the child’s best interests. The very purpose of the order is to optimize the health and well being of the child. Absent a specific order from the Chief Public Health Officer the order of the court must prevail and does so for very sensible reasons. Families are by nature very close and personal and as such contagious disease of any sort will be readily transmittable, but absent a family member testing positive for COVID-19 or displaying the obvious symptoms there should be no interference with the emotional and psychological well being of the child whose needs dictate the contact with both parents mandated by the court order.

The same would be true of status quo arrangements where parents have agreed on arrangements that they believe are in the best interests of the child and their family. The safest most sensible path through COVID-19, like the safest most sensible path through life depends on our common sense and intelligence and parents should continue to exercise those faculties without injecting the emotionalism or other personal issues they might have that interfere with their child’s well being. All parents are united in one objective, to protect their children and that means exercising safe practices in their dealings particularly with non-family members.

A recent Ontario family law case Ribeiro v Wright [1] dealt with whether the COVID-19 crisis should upset a court ordered custody arrangement. The court was clear, in dismissing the case, that parenting arrangements and schedules should continue subject to following COVID-19 precautions.

The court stated, at paragraphs 10 and 11:

“ …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 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.”

Now more than ever, parents need to pull together to make this work in a happy, positive fashion precisely because of the unsettling effects on the child. In addition, no one knows how long this will go on for and people need to plan for the possibility this will go on for months. The longer the alienation of the child from normal family contacts, the more damaging it can be. Conversely, the more stable and regular and normal contacts are, the easier for children, who like all of us are trying to make sense of a new way of living.

Of course, every family is different, and faces unique circumstances. If you believe your child’s other parent is engaging in behaviour inconsistent with COVID-19 protocols that may put your child at risk during this time, such as ignoring directives from the federal and provincial governments, you should seek advice from a lawyer. At Kimball Law, a consult with one of our family lawyers can be arranged by calling (902) 422-8811.

Sources

[1] 2020 ONSC 1829 (CanLII)