If you are a parent, it is likely that you have had to make some adjustments during the Covid-19 pandemic.  Parents’ work schedules have changed, kids are no longer in school or daycare, and you now have to relearn and teach your children math equations you forgot back in 1992.

Spending time (being trapped) indoors with your wonderful (crazy) children is challenging enough; however, it is made easier by knowing that by self-isolating you are keeping your family safe and healthy.  Parents who are separated, divorced, or otherwise attempting to co-parent with a former partner do not always have that same comfort.  What do you do when you believe that your former partner is putting the children and others at risk of contracting Covid-19?

If you are in this situation, you are not alone.  Fortunately, the courts across Canada have been swift in addressing this issue.  Despite the fact that courts are refusing to hear non-urgent family law matters, a number of cases have been reported during the past two months which have addressed parenting in the time of Covid-19.

The first, and most frequently cited, is the Ontario case Ribero v. Wright 2020 ONSC 1829.  In Ribero, Justice Alex Pazaratz, sitting as triage judge, provided guidance on the court requirements from a parent attempting to bring an “urgent” parenting-related application, as well as the type of behavior that warrants the suspension or limitation of a parent’s time with the children.

This decision was recently adopted here in Alberta by the Honourable Justice Graesser in SAS v LMS, 2020 ABQB 287.  In this case, the parents had a shared parenting regime.  The mother suspected that the father was not following the appropriate procedures and was putting the children at risk of contracting Covid-19 during his time with them.  Her concerns were based in part on the children’s comments to her, as well as her conversations with the father, who admitted to attending his office, allowing a coworker to come to his house to drop off papers, and taking the children horseback riding.  The parents attempted to address the matter between themselves, but were unsuccessful, so the mother unilaterally withheld the children from the father.  The father then made an “urgent” application requesting that the mother be found in civil contempt and requiring her to adhere to the parties’ prior parenting order with a police enforcement clause.  In the alternative, he asked the court to order the children to live primarily with him during the pandemic.

Justice Graesser’s decision is a clearly written must-read for parents concerned about the other parent’s adherence to Covid-19 health and safety precautions.  In SAS, Justice Graesser states that as a precursor to an application to suspend or vary parenting, parents should make good faith attempts to resolve the issue between them. His Lordship goes on to say that if the concerns remain unresolved, a court application should be brought before a parent withholds the children from the other.  Despite a strong caution against these “self-help” remedies, Justice Graesser acknowledges that there may be exceptions when such actions might be warranted:

“One is where a parent is diagnosed with COVID-19 and insists on still exercising face to face access with a child. Another would be where a parent is displaying symptoms of COVID-19 but refuses to do anything about it. A third situation would be where a parent has or is about to do something involving the children that poses an immediate threat to their health or safety. In any of these cases, if there is no time to apply for permission to make an emergency application, unilateral action may be forgiven if an application is made at the earliest opportunity.”

After undergoing a detailed analysis of the evidence, Justice Graesser finds that the majority of the mother’s concerns were valid and that, despite correcting his behavior, the father continued to express a cavalier attitude towards the recommendations which suggested that he did not appreciate the associated risks.  However, his Lordship also found that, while the mother better appreciated the risks of Covid-19, she was somewhat hypocritical in failing to meet her own standards by allowing her healthcare worker partner to return to her home without self-isolating for the requisite 14 days.

His Lordship states that if parents are continuing to work during Covid-19 they must commit, at a minimum, to “scrupulous adherence to all AHS recommendations and requirements relating to the workplace.”  He clarifies that this applies to healthcare workers, but that just because a parent is, or lives with, a healthcare worker does not automatically make them a higher risk household.

Ultimately, Justice Graesser dismisses the father’s application but also admonishes the mother for failing to make an application before attempting her “self-help” remedy of withholding the children.  Had the mother been the applicant or made a cross-application instead of attempting the “self-help” remedy of retaining the children, the court’s strong, safety-first language implies that the outcome might have been different.

While the case as a whole is worth a read, overall, SAS suggests that a parent’s attitude towards AHS recommendations (and the other parent), may be just as decisive a factor as their actual adherence to these recommendations.

Justice Graesser’s summary is below:

1. Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith and to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children.
2. Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the children and the other parent.
3. Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety;
4. Whether under the Divorce Act or the Family Law Act, varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order;
5. The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting. It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct;
6. If an application cannot be made because of the urgency of the situation, an application by the defaulting party must be made as soon as possible after learning of the emergency;
7. Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful; and
8. Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and
9. Non-compliant parents can expect no second chances.