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By LegalMatters Staff • As coronavirus case numbers continue to climb parents with child custody orders should revisit their agreements in the event of another lockdown, says Toronto family lawyer A. Julia P. Tremain.
Tremain, a partner with Waddell Phillips Professional Corporation, says business and school closures earlier this year took many parents by surprise and had some scrambling to rework their custody arrangements. With a shaky start to the school year and teachers and students already testing positive for COVID-19, it only makes sense to plan ahead.
“We are seeing the numbers go up and we don’t know if schools are going to remain open,” she tells LegalMattersCanada.ca. “If we do see a second wave with quite significant numbers what’s going to happen if a school has an outbreak? Is the entire school shutting down? Is it just a classroom? These are things that people may be unclear about.
Situation could change quickly
“The situation could change quickly. Obviously, if the schools are closed, we are back to online learning. How will that affect custody arrangements?” Tremain adds. “Parents should start turning their minds to those circumstances. It is better to do it now than having to deal with it on the fly.”
The pandemic has left Canadians with a new workplace reality, she notes, with more people working at home, which could make it easier for parents to deal with a sudden closure. However, there are many people who have gone back to a workplace outside the home who may have to find alternate arrangements for their children.
Tremain says there are other variables to consider even if schools are not forced to close, such as before and after school care.
“Can parents help each other out if there is a situation where the daycare isn’t available after school for example?” she asks. “Will the residential schedule shift if there’s a return to online schooling only?”
Ontario court ruling
Even the decision about whether to send a child back to the classroom can become contentious, says Tremain, referencing an Ontario Superior Court ruling from last month.
Justice Andrea Himel ruled in favour of a mother who wanted her son to return to the classroom despite the objections of her ex-husband, the boy’s father.
“School attendance in the midst of a pandemic is a challenging issue for many parents,” Himel wrote. “Unfortunately, for some separated and divorced parents, this is another battleground; one more arena where their child may become the prisoners of the war.”
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In ruling in favour of the mother, Himel writes no one in either household has underlying medical conditions that would make them susceptible to the coronavirus and the decision to open schools was made by the government.
“The Ontario government has determined that September 2020 is an appropriate time to move on to a ‘new normal’ which includes a return to school,” she writes. “I note that the Ontario government did not hesitate to shut down all schools in March 2020 and has declined to re-open them until now. The Ontario government has articulated in the media that they will not hesitate to shut down schools again if the number of COVID-19 cases increases materially.”
Tremain says the judgment is important because it gives family lawyers some guidance on dealing with the issue.
Inability to find a compromise
She noted the judge also displayed some frustration at the parents’ inability to find a compromise without relying on the courts.
“A better approach is to engage in mediation with a professional or third-party trusted family member or friend,” Himel writes. “ I note that in this case (and in all others currently before the Court) the Mother and Father have delegated the authority to make the decision respecting their child’s in-person versus online attendance at school to me, a judge who has never met the parents and who will likely never meet the child. I would encourage the parents to return to mediation as this is a process that empowers them to make these important decisions.”
Tremain says it “came out loud and clear that the parents should have done a little bit more work to try to find some common ground rather than rushing in an urgent motion.”
She says she encourages parents facing custody issues to seek legal advice.
“I advise them to try and communicate with each other in an effort to work it out to a mutually agreeable solution,” Tremain says. “A child should be in the classroom unless there’s a specific reason, such as a compromised person in the home or if the child has some kind of health concerns. The courts have said that a child should go to school.”
