How do parents in Ontario share custody of their kids during the COVID-19 crisis?

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KPA Lawyers - March 24, 2020

This is the new normal. At least for now. Feelings of panic and uncertainty crept up as Premier Doug Ford expanded Ontario’s state of emergency, ordering all non-essential businesses to close. For parents, it was eerily similar to watching a horror movie where you know what is about to happen, but then it happens and it still scares you. That’s right, students will not be returning to schools on April 6.

Family lawyers across the province are faced with difficult questions from separating parents: What does this mean for us? Do I have to send my kids to their mother’s house if we are self-isolating? What if we don’t get along?

While this is the reality we are all currently navigating through together, albeit socially distanced from one another, the law itself has not changed. The essence of Family Law remains centered around what is in the best interests of the children. The Children’s Law Reform Act outlines this principal as it reads, in part, “applications in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children.” For clarity, remember that custody refers to decision-making, and access refers to parenting time.

Parents may have an agreed to access schedule outlining parenting time. Alternatively, there may be a court imposed order stipulating how parenting time is to be divided. Moreover, access may be supervised by a third party, or may occur at a supervised access centre. In some instances, parents may also have sole discretion over when the other parent exercises his or her access to the children. So long as it is still possible, existing parenting schedules should continue.

However, with the closure of schools, restaurants, bars, all major sporting events, as well as the news and media encouraging social distancing and self-isolation, it is not surprising that paranoia has settled upon us. So, what does that mean for a parent who may not wish to stick to their otherwise regular access schedule? Ordinarily, a parent would not unreasonably withhold access, absent a justifiable reason. Enter the global pandemic that is COVID-19. Safe to say, these are not exactly ordinary times.

Considering Ontario is in a state of emergency because of an invisible fatal virus, parents are encouraged to communicate with each other directly. This is important now more than ever as families will not be able to rely on the courts to resolve these issues until at least June due to COVID-19 restrictions on the courts. Notwithstanding the court closures (with a few exceptions), the law does not stop.

An existing agreement may state that it is in the children’s best interests to reside with each parent on a weekly alternating basis. This has proven to be a difficult situation with respect to COVID-19, as parents are growing increasingly uncomfortable shuttling their children back and forth between homes. However, in an effort to reduce a child’s exposure to the virus, parents should consider factors such as whether or not they have the ability to work from home, whether they are practicing strict social distancing subject to government guidelines, self-isolation, and how many other individuals they come into contact with on a daily basis. After taking these considerations into account, it may not be reasonable to adhere to an existing schedule if doing so would place the children in risk.

If, due to the pandemic, one parent is unable to see the children for an extended period of time, the parties may agree on uninterrupted make-up parenting time when life goes back to normal…whatever that even means anymore. If parents share in the decision-making with respect to the children, it is likely because they are able to effectively and openly communicate with one another and have the children’s best interests in mind. Now is the time to do so.

Conversely, a parent who has sole custody and absolute discretion with respect to access may not have open lines of communication with their former partner. In this situation, the custodial parent may find that they are not comfortable with their children leaving their home with the outbreak of COVID-19. As such, they may decide to withhold access completely from their former partner.

While it may be in their power to do so (via court order or agreement), consider that the monster that is COVID-19 has unfortunately not presented us with its anticipated departure date, or when we may resume our regularly scheduled lives.

In other words, for parents who have absolute discretion over parenting time, it may be tempting to withhold access for several months due to an acrimonious relationship, all while using the virus as an excuse. However, that may not be what is in the best interests of the children as there is a presumption that both parents should be present in their lives.

This does not mean that discouraged parents should wait until the courts reopen to see their children, or have their issues heard. Our office remains fully operational and thanks to today’s advanced technology, we are able to assist by way of Skype mediations, or lawyer-to-lawyer negotiations.

It goes without saying that this is unprecedented. Ordinarily, parents would have the ability to bring matters related to access before a judge. Today, we do not have that luxury, as these are not ordinary times. Instead, parents are encouraged to put their differences aside and come together to reach reasonable, fair, and safe resolutions with respect to access issues, amongst others. Parents who have an existing parenting schedule should continue to exercise access pursuant to the schedule, provided that it is still possible and does not expose the children to any risks.

After all, it is about the children, and they are probably more frustrated than anybody else having spent their March Break and final school semester sequestered in their homes away from their friends. To make matters worse, they are listening to their separated parents argue about them. This is our new normal, and parents are encouraged to do what is well within their power to least disrupt the children’s daily routines and provide a strong structure for when they need it the most.

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