By: Sandy Vander Ziel
Co-parenting can be challenging in the best of times but with the new circumstances surrounding the Covid-19 Pandemic (“Pandemic”), we need to learn to adjust as our “new normal” continues to shift daily. As family law lawyers, we are being asked about what rules apply with a Pandemic and what can be expected when people are being asked to self-isolate and socially/physically distance while balancing an obligation to abide by the terms of a Parenting Agreement or Court Order.
The mandate has been abundantly clear: it is important to self-isolate and people (including children) are not to be within 2 metres of anyone they do not reside with during the Pandemic. This mandate is not being treated as a suggestion, and as a community we are doing what we can to flatten the curve. As family law lawyers, we are acutely aware that this mandate can create a difficult situation for parties that are co-parenting and critical family law issues that are arising are as follows:
- If you are in a situation where you co-parent, it is imperative to have a transparent and honest conversation about your expectations around self-isolation and practicing physical/social distancing during the Pandemic. This conversation does not mean that existing parenting schedules or parenting time should automatically be suspended; it means that parents should be open and transparent about the steps they are taking to self-isolate and engage in social/physical distancing if they are required to leave their home.
- If you are in a situation where one or both parties or individuals within their respective households are required to travel to work or are in high exposure jobs, this fact needs to be taken into consideration and those individuals need to take all precautions as outlined. In addition, given the current travel restrictions, you may have the right to ask that any travel cease as a result of the mandates that are currently in place. We strongly advise to seek advice as to your particular circumstance and concern prior to making any unilateral decisions.
- If a member or members of a household are exposed or show signs of illness, that party needs to advise the other household immediately.
- In situations where it has been determined that the children cannot be alternated between the residences because of factors that put their exposure level at risk, one suggestion is to offer opportunities for web-based contact so the children can connect with the other party during that time. It is important to note that this does not allow a party to keep the children for the entirety of the Pandemic. Each situation will be unique and it’s important that you get proper advice before making unilateral decisions.
- If a party does need to go into self-isolation due to the Pandemic, and the other parent either cannot or does not want to do follow the mandate, there may need to be a discussion regarding make up time for lost parenting time to ensure the parenting regime is not interrupted. While it may not be mandated, ensuring that the other parent will receive makeup parenting time and being reasonable is crucial to working through this new reality and respecting the co-parenting relationship.
While we cannot say at this time what the Court’s perspective will be on this in the future, it would be hard to understand a Court penalizing parents for doing their best in unprecedented times. We would hope that Courts and other triers of fact would acknowledge parties for doing their best to balance the safety of the household while not unnecessarily breaching Agreements or Court Orders.
While there is, and will be, levels of adaptation required what the Courts will likely not allow is parents using this situation as an opportunity to deny parenting time without having legitimate reasons to do so and without addressing what the parenting expectations will be once we emerge from this new normal.
We are all being asked to adapt to a world that changes daily, we need to remember that when we get back to a new sense of normal and we emerge from this Pandemic, we will be stronger. This crisis is an opportunity to show the other parent that co-parenting can still be done as long as parties are willing to adapt, be reasonable and transparent.
It is imperative, however to acknowledge that every situation is unique and prior to making any unilateral decisions, we highly recommend that you seek legal advice about these critical issues.
For more information or to answer any of your questions, please reach out to our Family Law Group.