Parenting with an ex-partner can be an exhausting undertaking, fraught with stress if the parents do not communicate effectively or cooperate with each other. Co-parenting has become even more challenging for some since the outbreak of COVID-19. Canadian courts are weighing the potential threat of COVID-19 compromising a child’s health against depriving access to both parents.

Banaszek Family Law explains your custody rights and responsibilities during this time when tensions are high and access to the Courts is limited:

Can parenting time be restricted because of COVID-19?

Most Canadians are practicing social distancing to do their part to flatten the curve and contain the virus’ spread, leading some parents to wonder if it is "safe” or appropriate to share custody during this time. We are turning to health authorities and the Courts to understand what parenting rights and responsibilities are during this unprecedented time.

Alberta’s Chief Medical Officer of Health, Dr. Deena Hinshaw, has clarified that the current social distancing restrictions do not mean that “parents or children would need to choose which household they stay in” and restrict parenting time as a result. Dr. Hinshaw has also stated that parents should do their best to contain the number of people their families are in contact with.

Courts across Canada are being flooded with urgent parenting disputes and deciding whether the introduction of harm caused by COVID-19 contact or spread to the children is an element worthy of breaching a parenting arrangement.

In a recent BC parenting dispute heard by the Provincial Court, the father restricted the mother’s parenting time because she is a health care worker who treated a patient diagnosed with COVID-19. The father also continued to work on site projects for his demolition company with some restrictions. The Judge found that parenting time should be reinstated for the mother as she mitigated her risk of contracting COVID-19 and the risk is not escalated to the point that the child should be deprived of parenting time with her.

The Judge based his decision on what is in the best interests of the child during the pandemic and weighed the following relevant factors in coming to the decision:

• Whether the child is at an elevated risk of suffering the more severe consequences of the virus;

• Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;

• Each party’s exposure to the risk of contracting the virus;

• Steps taken by each party to mitigate the risk of exposure;

• All of the relevant factors listed in the BC Family Law Act, including:

  • The child’s health and emotional well-being;

  • The child’s views, where appropriate (depending on age and maturity);

  • The child’s relationship with each parent;

  • The history of the child’s care;

  • The child’s need for stability, given his age and stage of development;

  • Each parent’s ability to exercise his or her parental responsibilities;

  • The ability of each party to cooperate in parenting the child; and

  • In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.

Can I litigate my parenting matter during the pandemic?

Access to the Alberta Courts is being restricted in an effort to reduce the spread of COVID-19. The Alberta Court of Queen’s Bench and the Provincial Court of Alberta is only hearing urgent or emergency matters until further notice.

Emergency matters are being classified as matters of the highest priority, requiring immediate attention. The Alberta Courts consider emergency matters as ones in which serious consequences to persons or harm to property may arise if the hearing does not proceed, or if there is a risk of loss of jurisdiction or expiration of an existing protection or restraining order. For family law matters, these include:

• Orders where there is a risk of violence or immediate harm to one of the parties or a child;

• Orders where there is a risk of removal of a child from the jurisdiction; and

• Emergency Protection Order reviews.

If you believe that you are being denied parenting time unreasonably or if you believe that your children are at risk of contracting COVID-19 due to the parenting arrangement in place, contact Banaszek Family Law to set up an initial telephone consultation today by completing the online intake form. Upon submitting a consultation request, you will be contacted to schedule your initial consultation promptly.

Before an urgent matter is heard by the Court, the party claiming urgency must provide specific evidence or examples of parental behaviour that creates a level of urgency. The responding party must also assure the Court that the concern is unwarranted. There is an onus on both parents to act responsibility and attempt to problem-solve before initiating urgent court proceedings.

In a recent Ontario family decision, the mother in a joint custody arrangement applied to have the court hear her application on an urgent basis to deny the father access to the child because of the threat of COVID-19. This application was denied by the Judge, finding that it was not of an urgent nature.

Justice Pazaratz found that vague concerns about the other parent not exercising social distancing did not meet the high test of urgency.  He found that parents “…should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.”  This case is currently the leading Ontario case on urgency for custody and access issues during the pandemic and sets a precedent which judges across the country will consider.

Banaszek Family Law is here for you

As we experience an unprecedented global shift as a result of the novel coronavirus, the legal landscape is changing and adapting. The legal counsel you retain should understand the impact this state of emergency has on your legal rights and obligations as a parent.

Banaszek Family Law continues to operate during this time with measures in place to protect our community. To ensure that we are doing our part to flatten the curve, we are practicing social distancing and all client meetings are taking place over the phone or by video conference.

At an initial consultation with Banaszek Family Law, you will receive independent legal advice to decide whether your custody dispute qualifies as urgent enough to litigate during this time. If your matter requires immediate resolution but it is not urgent enough to be heard by the Courts in Alberta, there are other dispute resolution options which may be employed.

If you require independent legal advice with respect to your family law and/or divorce matter, contact Banaszek Family Law to schedule a telephone consultation with Adrianna Banaszek, HERE. We are pleased to offer a discounted rate during April 2020 for telephone consultations.

Banaszek Family Law is here to assist you with your parenting matter during this unprecedented time ●

Follow Banaszek Family Law on Twitter, Facebook, Instagram and LinkedIn for more updates on how COVID-19 is impacting family law issues.