Virus enters child visitation cases

Joint-parenting accords complicated by pandemic fears, says family lawyer

Despite concerns over COVID -19, children of blended families have a legal right to see both their parents during a pandemic, according to a Saskatoon family lawyer.

“You can’t deny somebody the right to see their child if certain things are put into place that safeguard the child,” Greg Walen said.

“If there is an existing court order, (parental) rights are circumscribed by that court order. I like to look at it, and most courts look at it, that it is not a parent’s right — it’s the child’s right to see both parents in a shared parenting arrangement.”

On March 24, an Ontario Superior Court family law judge in Hamilton published what Walen believes is Canada’s first emergency child access decision connected to the COVID crisis.

Justice Alex Pazaratz denied a mother with primary custody of her son the ability to temporarily suspend visits between her son and his father, who she argued is not practising social distancing.

After reviewing the Notice of Motion, in which the mother indicated she was choosing to isolate her child during the pandemic — even from his father — Pazaratz ruled in favour of continuing shared custody.

“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,” he wrote.

Saskatchewan does not have any published legal decisions related to COVID, but Walen figures one will come soon. He said he’s had phone calls from distraught parents who have either been denied access, or want to deny access, and are prepared for a legal battle.

This can be tough, with the courts only hearing urgent matters during the pandemic, Walen noted. He agreed with Pazaratz’s plea for parents to problem solve before they initiate an urgent proceeding — something he has seen happen.

He said the Ontario decision will likely set a legal precedent because it was first, and it was reasonable. Saskatchewan courts are not bound by decisions in other provinces, but the Ontario decision will be viewed as “instructive,” Walen said.

“Good judges and good lawyers always look to other jurisdictions in absence of local case law to see what did you guys do, or what did your court do?”

At the same time, he said there’s no one-size-fits-all solution, because parenting cases are always “fact-driven,” even in a pandemic.

“There might be circumstances where a child might be in danger, which of course goes over the reasonableness aspect. There might be circumstances where you can’t simply use the COVID-19 issue to simply thwart the right of a child to see the parent.”

From a public health perspective, Saskatchewan’s Chief Medical Health Officer said children can move between two households as long as no one in either family is showing symptoms of COVID-19.

“If you have a small household or small family unit, you can have a situation where two, three (people) can decide to meet among themselves only,” Dr. Saqib Shahab said on Wednesday.

Some Canadian public health officials advise that children stay in one home as much as possible to mitigate exposure to the virus. Walen said it’s not that cut and dried.

For example, it might make sense for a child to stay in one

It’s imperative that both parents act in their children’s best interest ... so, that they are reasonable in the circumstances.

home if the child only sees one parent every other weekend, but not if the child is regularly exposed to both households, like in most joint custody agreements.

“It’s uncharted territory and it’s imperative that both parents act in their children’s best interest, but at the same time, in doing so, that they are reasonable in the circumstances,” Walen said.