Courts say custody arrangements should stay in place despite COVID-19 lockdowns

Children benefit from continuing to have contact with both parents

By: Fuad Farage-Holm S@Y News · Posted: Apr 19, 2020 10:08:00 PM ET | Last Updated: April 19

Courtesy: Angelica Alzona

Almost every area of life is being reassessed in light of COVID-19, and that includes child custody.

The Government of Canada says that between 1991 and 2011, close to 2 million people were separated or divorced — a million couples with at least one child between them.

Luckily, kids from broken homes in Canada don’t have to cope with strict border closures.

Take Australia, for instance, where several states have put in measures to stop people from crossing state lines. This has obvious implications for children of divorce, and it goes against the philosophy of family courts in this country.

Ribeiro V. Wright

Recently a woman filed an urgent motion arguing her ex-husband should be stopped from having in-person visits with their nine-year-old.

The reason? He wasn’t physical-distancing. This is a common theme of complaints nowadays.

The judge denied the motion, but in his explanation set a blueprint for judging future cases.  

Justice Alex Pazaratz, in his decision, writes:  

  • “[T]here is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.”
  • “[C]hildren’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.”

Cases where the threshold for urgency is likely to be met

Pazaratz also alluded to the type of situation that would trigger an urgent hearing over COVID-19.

He writes: “While the mother’s concerns about COVID-19 are well-founded, I am not satisfied that she has established a failure, inability or refusal by the father to adhere to appropriate COVID-19 protocols in the future.”

Essentially, if someone is well-meaning and shows they can adhere to protocols moving forward, it’s best to work within the framework of an existing order. But if they can’t or won’t adhere, that’s when courts can step in and make changes.

In one case, a man in Ottawa was forced to leave the home in which he “nested” with his ex-wife and three children. Nesting is when separated parents rotate occupancy in one home so that kids don’t have to switch between households. The judge decided he wasn’t being transparent about his activities outside the house, and even his hand hygiene, which, given preexisting health conditions in his family, was unacceptable.

Other issues: Spousal support 

Though few in number, single parents who rely solely on spousal support could find themselves in a tough spot.  

COVID-19 has put so many people out of work that it’s delaying support payments.  Payors are still expected to pony up, but if they can’t, it could leave their dependents struggling.  

CERB, the Canada Emergency Care Benefit, is only available to people who have lost paid work due to the pandemic. Through that program, qualified persons get 2000 dollars a month on an ongoing basis, presumably until the stay-at-home order is lifted.  

The Trudeau government is promising to fill the gaps left by CERB, but for now, uncovered individuals are having to wait. 

The pandemic might be creating more shared custody 

They say the first two years after a baby is born are especially high-risk for a break-up. But now it looks like quarantine is staking its own claim.   

According to Global News, filings for divorce in China are up sharply following couples getting out of isolation. Staff handling the requests were so busy back in March, reportedly, they couldn’t even break for water.

Montrealer Dumisizwe Bhembe is one parent faced with a unique parenting challenge related to COVID-19. He and his ex-wife have joint custody of a young child. In this time of social isolation, who should care for her? Should she be going back-and-forth or stay isolated with only one parent? Here he is discussing how they cope with having different levels of COVID-19 anxiety.

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