Split Families, COVID-19 and the Law — Parenting Needs Extra Effort for Kids’ Sake

By Darlene Rites

The unprecedented COVID-19 crisis can be especially complicated for families where the parents are separated or divorced.

Not only do these families have the usual stress that comes with court orders and agreements about access; now they have to figure out how to manage safe social distancing while sticking to the rules.

Nobody is sure yet how long social distancing will last, so it’s important for parents who have access arrangements to ask a number of questions. First and foremost, what’s best for the children?

In some cases, parents will need to talk to their lawyers.  The exact solutions in each case will depend on different families’ particular arrangements. In such an unusual time, all kinds of situations can come up.

For example, parents might have an agreement where children stay with one parent every other weekend. But a parent might believe the other is not taking proper COVID-19 precautions and try to block court-ordered access.

Or it could be the other way around — one parent might believe that everything is COVID-safe, and that the other parent is using the crisis as an excuse to block access.

No matter what the situation, one thing is sure: putting the children first is always most important. It’s not just because it’s the right thing to do, it’s also how family law works in Ontario.

Normally, spouses who disagree might ask their lawyers either to negotiate or to fight it out in court. But now more than ever, going to court is a last resort. Since mid-March 2020, Ontario’s courts have been closed except for urgent matters.

On March 24, Hamilton Superior Court Justice Alex Pazaratz dealt remotely with an urgent case and outlined what parents should consider. In this case, the mother wanted to block the father’s access to their child because she feared the father wasn’t social distancing.

Judge Pazaratz refused to block access. He acknowledged the mother’s concern about COVID-19 protection, but added that, “We all have to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children.”

At the same time, “with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.”

What should parents consider? Many people have been contacting their local MPP for guidance and have been told to consult with their family law lawyer. But even before that, there are questions parents should ask themselves:

  • What effect would not seeing the other parent for weeks or months have on the children?
  • Am I genuinely scared for my children’s safety or just trying to take advantage of the situation?

Parents who are still genuinely worried for the safety of their children because of COVID-19 can also try to reach an alternate agreement with their spouse. Here’s what to consider:

  • Why do you want to change access? Is the other person being careless? Or are they in risky, front-line jobs where contact with the kids needs to be limited?
  • If your concerns are reasonable, can you still work out a new arrangement with the other parent?
  • Are there alternatives, even temporary ones? For example, can you get the other parent to self-isolate for 14 days, or agree to video calls while the lockdowns persist?

Parents who can’t work out a new arrangement might still have to ask the courts for help — but still they must remember that the courts themselves are limiting their work.

The other side of the coin is a parent who is being blocked from access despite a court order or agreement. In ordinary times this might mean going straight back to court, but these are unusual times.

In such cases, parents should be able to show the lawyer and if it comes to it, a judge, that they are safe for their kids — working from home, social distancing, wearing gloves to the grocery store, and so on.

Parents should also be prepared to offer alternatives. Maybe porch visits for a while, or maybe they need to put some ground rules for visits into writing.

Many of these issues can be negotiated or mediated. Mediation, with a trained, accredited mediator, can often resolve issues more quickly, at less cost and with less acrimony.

True, sometimes that doesn’t work. But these unprecedented times call for extra effort.  As Judge Pazaratz says:

“None of us have ever experienced anything like this.  We are all going to have to try a bit harder — for the sake of our children.

Darlene Rites

Darlene Rites