Child custody sharing deals still in effect, lawyers say
A Montreal mother wants her ex-husband’s access to their young daughter suspended for the duration of the COVID-19 pandemic because he takes public transit. Another wants her ex’s weekend visits with their two sons replaced by visits via Skype or Facetime because he lives 50 kilometres away and Quebecers are being urged not to travel between regions. Another mother doesn’t want her twins seeing their father, her ex-husband, because she is concerned he is not following social distancing guidelines.
Lawyers call it uncharted territory, a shifting landscape.
“The biggest issue we’re having is that the situation is evolving every day,” said Montreal family law lawyer Tara Etcovitch. “The situation tomorrow may not be what it is today.”
Family law lawyers say custody agreements should continue to apply in the time of COVID-19 to the greatest extent possible, that people should use common sense and follow public-health recommendations, that public safety is paramount and that now more than ever parents must exercise good judgment.
“We try to consider the best interest of the child — and generally that means sustained contact with both parents,” said Montreal family law lawyer Martha Shea. “Family relationships are vitally important and access cannot be placed on hold indefinitely, because we risk emotional harm to the children.”
Quebec’s justice ministry last week added to its website (justice.gouv.qc.ca) a comprehensive section in English and French addressing custody orders and changes during the COVID-19 pandemic.
If a parent, someone in the family circle or a child tests positive for the coronavirus causing COVID -19, experiences symptoms or has travelled outside Canada, a 14-day self-isolation period is required, it states — and a child cannot move from one home to another if someone on one side or the other is in self-isolation.
For a parent concerned about the precautionary measures taken by the other parent when none of these situations applies, “it’s best to discuss among yourselves to attempt to remedy the situation,” says the ministry website.
If visiting a parent requires travel to a region where Quebec has implemented travel restrictions, they should still be permitted to enter that region, the justice ministry site says. “The parent must explain to the police officers that he or she is carrying out a change of custody or exercising an access right. Travel should be permitted whether the custody or access right was granted by court order or pursuant to an agreement.”
It also addresses concerns about parents who work in health-care settings or take public transit and specifically says these are not reasons to suspend visits.
“Unless one or the other parent or children were exposed to COVID -19, theoretically the visits should continue,” said Montreal family law lawyer Linda Hammerschmid. “So long as nobody is sick, I don’t see any reason to curtail access because of this pandemic.”
There are parents who will try to use COVID-19 as a pretext to try to limit access, say family law lawyers. But the law emphasizes that contact with both parents must be fostered. “There is no way a parent should be kept from seeing a child,” Hammerschmid said.
Quebec’s director of public health, Dr. Horacio Arruda, said during one of the government’s daily briefing last week that “there is no miracle recipe” for managing child custody arrangements during this crisis. “I think we have to rely on people’s good judgment,” he said.
Said Montreal family law lawyer Sylvie Schirm: “When I tell parents to act like adults, there is more importance to that now than ever. ... Let’s not forget: What kids suffer most from is conflict between their parents.”
Parents who cannot come to an agreement can call on a family mediator to facilitate discussion and work on resolving the conflict,
the justice ministry website states. The site has a tool to help parents find a mediator in their region.
Many mediators and lawyers are working remotely during the pandemic, using web-based video conferencing tools. As a mediator and a collaborative lawyer, Shea said that, in her experience, “parents are being extremely conscientious about using best practices so that access continues.”
If all else fails, a request can be made to the courts, which are operating on an emergency basis. One Ontario mother brought an urgent motion to Superior Court this month to suspend her ex-husband’s access to their nine-year-old son because of COVID-19. She said she doesn’t want the boy leaving home for any reason; she is concerned that his father will not maintain social distancing, which she and her family are practising.
Superior Court Justice Alex Pazaratz ruled last week that he was refusing to allow the motion to proceed.
“Parents are understandably confused and worried about what to do. Similarly, this is uncharted territory for our court system. We all have to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children,” he wrote in his judgment.
“Vulnerable children need reassurance that everything is going to be OK. It’s up to the adults to provide that reassurance. Right now, families need more cooperation. And less litigation.”
Vulnerable children need reassurance that everything is going to be OK. It’s up to the adults to provide that reassurance.