Parenting during normal times could be a difficult task for parents. COVID-19 could definitely add to the challenges of parenting. Whether you are dealing with the first wave or second wave of COVID-19, knowing how the pandemic could affect your parenting rights could help you to navigate through parenting during these uncertain times. The Alberta Court of Queen’s Bench in SAS v LMS, 2020 ABQB 287 made the following key points on the implication of COVID-19 on parenting disputes:
- “Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.
- Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.
- Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is an imminent risk to a child’s health or safety.
- Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order.
- The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct.
- If an application cannot be made because of the urgency of the situation, an application by the defaulting party must be made as soon as possible after learning of the emergency.
- Applications based on speculation, mistrust or fear without credible evidence of material noncompliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful.
- Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures.
- Non-compliant parents can expect no second chances.”
As stated by the judge in SAS v LMS, COVID-19 will not automatically contribute to change in circumstances in a parenting dispute. The parent seeking a variation in parenting must establish that their family circumstances have been impacted by COVID-19 in a way that warrants a change in the Order in light of the best interest of the children. Moreover, in Matus v. Gruszczynska 2020 ONSC 2353, the Ontario Superior Court of Justice held that parenting is an essential service and mentioned that the following factors are necessary to a finding of urgency, as set out in Thomas v. Wohleber, 2020 ONSC 1965 (Ont. S.C.J.):
- The concern must be immediate; that is one that cannot await resolution at a later date;
- The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
- The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
- It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.”
While parenting is considered by many courts as an essential service, whether your application for a variation in parenting will be considered urgent needs to be analyzed on a case-by-case basis in light of the best interest of the children. If you have questions regarding how to navigate through parenting during these uncertain times, feel free to contact the lawyers at Osuji & Smith.
Author: Amit Chowdhury.