‘Rise to the occasion’ in child custody issues during pandemic

By LegalMatters Staff • Parents must keep the lines of communication open when it comes to shared custody during the COVID-19 crisis, says Toronto family lawyer A. Julia P. Tremain.

With courts virtually shut down because of the pandemic, cooperation can go a long way to resolving issues that surface, says Tremain, partner with Waddell Phillips Professional Corporation.

“The courts are saying people have to rise to the occasion, they have to recognize that these are very difficult times and you have to try to communicate with the other parent,” she tells LegalMattersCanada.ca. 

‘Ask questions’

“Parents need to ask questions: ‘Tell me what your social distancing involves. Reassure me you are doing everything you are supposed to do.’ If the other parent does that then you are not going need to go to court.

“Sometimes people are able to rise above it and say ‘This is a unique situation and we’ve got to figure it out,” she adds.

Tremain says she has encountered several different and sometimes difficult issues that have emerged due to the need for isolation during the pandemic, adding that the legal landscape can change quickly.

“Perhaps the most difficult was what happened with those in Children’s Aid Society (CAS) care. The CAS had a policy that essentially prohibited face-to-face access,” she says.

“If a child was apprehended at the beginning of March and placed in a foster home, there may have been a temporary order allowing them to see their mother or father once or twice a week. However, the Society had suspended that access, allowing only a phone call or video chat. But some children were too young for that.”

According to the Toronto Star, the CAS in Toronto halted supervised parent-child visits in mid-March in response to the coronavirus pandemic.

‘Death by 1,000 cuts’

One mother denied access told the newspaper “not having to go outside is honestly nothing … I would take this any day. But not knowing when I’m going to see my kid next? It’s like death by 1,000 cuts.”

Tremain says parents turned to the courts for help.

“There was one case where the society wasn’t involved with the children exchanges at all,” she says. “The CAS was supervising the family, but the mother and father did the exchanges themselves so no Society worker was involved, no driver was involved and no foster care family was involved, so the court ruled the Society couldn’t suspend access just because they have a policy.”

However, Tremain says CAS has amended its guidelines in cases where parents can work it out for themselves and no Society staff is involved with the exchange or access.

Another hurdle some parents can encounter is getting a judge to hear their case, she says.

“The courts have to first determine if the case is urgent, and they likely would if it’s a parent not seeing their child. Then the court would at least hear the motion,” Tremain says. “This issue can be so complicated. Obviously, if a parent has to self-isolate for 14 days because they’ve just returned home from a trip out of the country then the children can’t visit them.

“But if everyone is just doing what we’ve been directed to do and limiting social distancing, the courts are saying there is no reason why access shouldn’t carry on as is,” she adds.

Banned from home

Tremain points to another recent case where a man was effectively barred from his matrimonial home because he wasn’t taking COVID-19 precautions seriously enough.

According to the Financial Post, a couple who separated in 2018 was living in a parenting arrangement known as “nesting.” Each parent would take turns living in the house on a week-to-week basis so their three children could remain in the home without disruption.

However, after coronavirus measures were announced, the parents ended the arrangement and remained in the home together, the Post reports.

Two of the children suffer from asthma and the mother has health issues that prompted her doctor to advise her to self-isolate as much as she could, according to the newspaper report.

The mother was concerned her ex-husband was not adhering to COVID-19 measures while he was away and asked the court for exclusive possession of the home and a judge agreed, the Post writes.

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Tremain, who was not involved in the case and comments generally, says the man “didn’t answer questions about where he had been.”

“He didn’t say, ‘I just ran out to the grocery store, I washed my hands when I got back and wiped everything down.’ He wasn’t answering things like that, so he couldn’t convince the judge he was adhering to the basic requirements,” she says, adding that while barring him from the home, the judge did say she would revisit the issue after two weeks if he followed the proper health guidelines.

Tremain says courts will react if a child’s welfare is compromised.

“What the courts are saying is access orders should stay in effect unless there’s a real concern that one of the parents isn’t adhering to health guidelines,” she says. “If parents are not doing that, the courts are going to be quite willing to step in and rule that parenting time should only happen by phone or Skype.”

Tremain warns that parents cannot haphazardly use the pandemic as an excuse to deny access.

“They have to have proof that the other parent isn’t following the guidelines,” she says.

Tremain says because there is limited access to court, only crucial cases are being heard.

“The guidelines from the court are saying if one parent has unilaterally stopped access, that might be urgent,” she says. “If one of the parents is putting the child’s safety at risk, that would be considered urgent.”

Open and honest

First and foremost, parents must be open and honest with each other when it comes to issues such as social distancing, Tremain says, noting that keeping the lines of communication open is not always possible.

“The courts are saying people have to try hard to make it work. However, sometimes there are domestic violence issues and balance of power issues and that makes it even more difficult because how do you speak to the other party in that case? Other times people just cannot communicate, there’s such a history between them in terms of bad blood that they can’t rise above it,” she says.

“Some people are not going to be necessarily able to reach out and ask how their ex-partner’s social distancing is going if this has been a person who has been violent toward them.”

In such cases, Tremain says it is important to seek legal advice to ensure that a child’s health and wellbeing are protected.