Start making shared custody arrangements for summer vacation

By LegalMatters Staff • Uncertainty reigns in the current coronavirus climate leading to many shared custody agreements being adapted on the fly so it can be difficult to think beyond the coming weeks, says Toronto family lawyer A. Julia P. Tremain.

However, with the May long weekend behind us, it’s a good time for parents who share custody of their children to start planning for summer holidays, says Tremain, partner with Waddell Phillips Professional Corporation.

“I’m not sure how many people have turned their minds to the summer yet because they are just trying to get through the school year,” she tells LegalMattersCanada.ca. 

Summer provisions

“However, parents need to start planning. If they have an order, they need to look at the summer provisions and start talking about the actual dates. If they want to make changes, they need to discuss those now and all of this has to be done in the context of keeping everybody safe and abiding by COVID-19 social distancing rules and health policies.

Tremain says it’s likely people are putting off making summer plans until they have a better sense of what the future holds.

“There are so many what-ifs that we just don’t know the answer to yet. The real question is when is this going to be over? Is it when children go back to school? What if they return to school and there’s another shutdown?” she asks.

“There could be less conflict because it’s unlikely people will be travelling internationally. While they might be going camping, they may not be able to go to resorts. They may not be able to travel much across Canada. It all depends on what the future holds so in that sense people’s vacation dates may be more flexible.”

Tremain says whatever schedule parents have adopted for sharing their children during the pandemic “will likely bleed into the summer” in many cases.

‘Access has become more equal’

“Some people have changed the schedule since the kids are not at school and access has become more equal,” she explains.

Getting into a routine and neglecting to make a summer plan could lead to problems come July and August, Tremain says, especially since access to courts is limited due to the coronavirus.

“Right now, parents are just trying to get through May and June,” she says. “The difficulty is if they cannot agree on a vacation schedule, going to court may not be an option since judges are only hearing urgent cases and could decide summer access is not urgent enough.”

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Tremain says a judge will step in when a parent is being denied access but if children “are still getting to see the parents, whether or not they get an extra weekend or an extra week,” it might be enough to satisfy the court.

Parents must also keep social distancing in mind when planning vacations.

“It might be you cannot do the big family gatherings in the summer because right now you are not supposed to visit anyone you don’t live with,” Tremain says. “Many children are not seeing their grandparents or their aunts and uncles, so if they attended a big family outing, they would be contravening health guidelines. Courts would not look kindly on that.”

Limited access to courts

With limited access to courts, parents who are having problems hammering out a plan should consider using a mediator “to help brainstorm and try work something out,” she advises.

Tremain says many parents have adjusted their custody agreements to deal with COVID-19 and should take the time to review their situation.

“The thing that people get worried about is establishing a new status quo,” she says. “If access is expanded and it’s working and the children are happy, there could be a reluctance to return to the original order.

“It’s entirely possible that if a status quo is established and works for a period of time it may end up back in court and a judge could decide to leave it that way,” Tremain adds.

She advises parents to have a plan in place and seek legal advice if necessary.

“Write a clear agreement with details such as what it’s going to look like and what it means, what the provisions are for changing the custody agreement and what things look like when things return to normal,” she says. “People have to be very cautious.

“As much as possible parents are going to keep an open mind and recognize that this is a unique situation.”