Co-Parenting by divorced couples during the COVID-19 Pandemic

• 
  Alfred Mamo
  Lawyer

What should separated parents do when one parent has just gotten back from being on a holiday with the children out of the country?  Should the children transition to the non-travelling parent upon their return to Canada? What about the requirement imposed by the federal government to stay in isolation for 14 days? These are uncharted waters and there is no precedent on how we can combine social isolation with shared parenting.

Isolation/quarantine requirements are accepted by the World Health Organization as a must in our fight to “flatten the curve” and reduce the alarming numbers of new cases being diagnosed every day. An order or agreement for shared parenting, in my considered opinion, does not provide for an exception to the general requirement for isolation.  My recommendation is for the child to be isolated for the requisite period with the parent with whom they travelled, but to also arrange for the non-isolated parent to have a similar period of time when the child will be in his or her care in order to make up the time missed when the child was in isolation.

Subject to directions from the Health authorities or government, the courts are not treating the pandemic as a reason, in and of itself, to disturb the existing parenting schedule.

Generally, a court order or agreement regarding parenting has to be abided by, unless for reasons beyond the control of the parent the continuation of the parenting regime is likely to detrimentally affect the health and welfare of the child.  Even in such a case the parent who is not abiding by the court order or agreement has an obligation to go to court, as soon as is practically possible, and get the court’s approval for such behaviour.

Courts are now generally closed to most matters, but the Family Court continues to hear motions of an urgent nature. Not surprisingly those motions are mostly dealing with children. It’s important to note that what the court considers urgent is something that impacts on the welfare of the child, and is serious and long-lasting.  The withholding of a child without reason for an extended period of time, or placing the child’s health in jeopardy, could qualify under the criteria of what is urgent, for example, but a short-lasting disruption in schedule or wanting to change the parenting time to have the child with you during your birthday will NOT be considered urgent.

My advice to parents during this crisis is to earn the privilege of having shared parenting by being reasonable and abiding by the golden rule, of treating the other parent the way you would like to be treated, and follow these guidelines:

1.  Stay healthy. Follow the directions of the health unit, the province and the federal government. Model good practises for the children when they are in your care including handwashing and social // physical distancing.

2.  Behave as a family unit. Talk to the other parents and agree that you are going to act as if you were one family abiding by the same rules to reduce or eliminate contamination, and to ensure that the children are being given the same message in each household. The transition from one house to the other should be similar to a child going from one room to the next if the family was living in one household, with precautions being exercised throughout “the house”.

3.  Don’t alarm the children. Only share as much with the children that they can understand, based on their age, stage of development and maturity.

4.  Practise long-distance parenting. Even if for practical reasons there might be some reduction in your face to face parenting with the child be creative. Set up a time to watch the same movie with your child, from your respective locations, and then set up a time to talk about it by telephone Skype, Zoom or FaceTime. Do the same with electronic books. Practise playing games by video or depending on the age of the child set up an electronic scavenger hunt, which will require the child to go searching for answers to questions that you make up.

5. Be cooperative. Agree to make up time and think about the schedule and whether fewer transitions will make the children less susceptible to potential harm or contamination.

6.  Always focus on the child’s best interest. The legal test to determine the best outcome for a child is not focused on what is in the parents’ best interest or the rights of a parent. What is paramount is the best interest of the child. Always use that as your guide in making any decision.

7.  Don’s saddle the children with adult problems. Most of all, if you don’t get along with the other parent, do not make your adult issues your child’s problem.

8.  Remember, parenting is forever.  The parent who acts reasonably during this period of crisis is likely to be looked on favourably by the courts in the future when it comes to the next issue that might require you to seek Court intervention!  Even more importantly, a child enjoys having both of their parents at milestone events in their life, winning a trophy at a sporting or academic event, graduations from school or university, marriage etc.. don’t deprive them of that opportunity. Don’t focus on now to the potential detriment of the future relationship with your child.

9.  Don’t sweat the small stuff. During a pandemic of global proportions take the time to put issues between you and the other parent in perspective. Hug your children and be thankful that they are healthy. It is your responsibility and that of the other parent to keep it that way.

10. It’s OK to be scared. This is an environment that causes parents to be concerned about their own health, their children’s welfare, and the financial uncertainties that come with a disruption in work and commerce.  Be open with the other parent about precautions that you are taking in your household to keep the children safe. If you are still working, especially if you are on the front line of the fight against the virus, share the protocol that your employer has set out to protect you from contamination, and the steps taken by you when you get home to ensure the safety of the children and anyone else in the household.

If you have questions about this issue or any other family law matter, please contact one of our members on the McKenzie Lake Family Law team.

Stay healthy and safe.

This blog is intended to supplement the recent post by our colleague Hilary Jenkins on the same topic.