When it comes to child custody, exposure to COVID-19 poses new challenges. As the pandemic continues to unfold, its becoming clearer how it is impacting child custody and parenting agreements. In a recent blog post, we discussed parenting agreements during COVID-19. Today, we want to expand on the topic of child custody and how it might be affected by exposure to COVID-19.
Being a parent is one of the hardest jobs in the world. The complications imposed by COVID-19 make this role all the more challenging, particularly when child custody is involved. The Courts recognize the additional stress COVID-19 is imposing upon families. They also acknowledge that when it comes to child custody decisions, we are in uncharted territory. As such, the Courts are making child custody judgments on a case-by-case basis.
As we discussed two weeks ago, the Courts’ priority concern remains that the child’s best interest comes first. In most cases, it is presumed that contact with both parents is in the child’s best interest. This statute remains true during COVID-19. As such, all existing child custody arrangements must be maintained. During child transfers, social distancing measures must be safeguarded. Try to come to agreement with the other party that if either of you, or people in your household, have been exposed to the virus, that you will promptly inform the other.
Filing an Emergency Motion
As a parent, you are likely making efforts to limit your child to exposure of COVID-19. But what if you suspect that your child’s other parent won’t adhere to social distancing protocols during access periods? If you have an urgent child custody concern, you might consider filing an emergency motion. Please note that filing a motion will not guarantee a suspension of parenting access, even if it is COVID-19 related.
If you submit an urgent motion, the evidence must be tangible and material rather than speculative or theoretical. As stated in a recent Ontario Superior Court case, you must provide “specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.” Expressing concern that the child’s parent won’t adhere to public health protocols is not sufficient. There must be evidence of the “failure, inability or refusal by the [other party] to adhere to appropriate COVID-19 protocols...” (ibid). Note that if you refuse to return your child, this would be considered wrongful detention.
If you are responding to an urgent motion, you must be able to “provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.” (ibid).
Factors for Consideration
Decisions on child custody cases during COVID-19 might include consideration of the following factors (as cited in a recent BC Provincial Court case)
- a) Whether the child is at an elevated risk of suffering the more severe consequences of the virus;
- b) Whether either party, or those in their household are at an elevated risk of suffering the more severe consequences of the virus;
- c) Each party’s exposure to the risk of contracting the virus;
- d) Steps taken by each party to mitigate the risk of exposure;
- e) All of the relevant factors listed under s. 37 of the Family Law Act, including:
- a. The child’s health and emotional well-being;
- b. The child’s views, where appropriate;
- c. The child’s relationship with each parent;
- d. The history of the child’s care;
- e. The child’s need for stability, given his age and stage of development;
- f. Each parent’s ability to exercise his or her parental responsibilities;
- g. The ability of each party to cooperate in parenting the child; and
- f) In the larger context, society’s need to maintain and access resources in the community, including health care and other ventures that provide services and income for families in a safe manner over an extended period of time.
The Court is taking the risks of exposing children to COVID-19 very seriously. There is very little tolerance for parents who don’t adhere to this responsibility. Judges are seeking realistic solutions to the child custody challenges posed by COVID-19. Between parents, good and respectful communication is more important now than ever.