Skip to content
Join our Newsletter

Amid pandemic, lawyer calls for compassion over custody-sharing

A Victoria family lawyer is urging parents who share custody of their children to show compassion and understanding during the COVID-19 pandemic, and to continue splitting their court-ordered parenting duties unless it’s not safe to do so.
Photo - scales of justice - courts

A Victoria family lawyer is urging parents who share custody of their children to show compassion and understanding during the COVID-19 pandemic, and to continue splitting their court-ordered parenting duties unless it’s not safe to do so.

Last weekend, Tom Bulmer was called to help a mother who was denied court-ordered access to her child because her former partner accused her of not taking proper precautions to prevent the spread of the virus.

“But the more horrifying case I had was when an RCMP police officer decided to enforce a court order knowing that both a child and her mother were sick,” said Bulmer. “The officer entered the home wearing no personal protective equipment and by force took the screaming child to the other parent. This is at a time when everyone, from the prime minister on down, is saying: ‘If you’re sick, stay home.’”

Bulmer has written to Health Minister Adrian Dix, urging him to provide guidance for parents in shared-custody situations.

“There’s always an element of society that uses a predicament to further their own ends,” said Bulmer. “But this should not be a power struggle between already pissed-off parents. Court orders should be followed, but common sense to prevent the spread of the virus is also necessary.”

The government needs to send the clear message that even opposing parents need to co-operate so their children do not experience any more isolation and can feel the comfort of both parents in these confusing times, said Bulmer.

Family mediator Drew Van Brunt, who also provides supervised-access services, said he knows a number of families in Greater Victoria who are having great difficulty exchanging children in shared-custody arrangements because of COVID-19.

“And it’s getting more extreme every day, I can certainly tell you that,” said Van Brunt. “There’s so much stress and anxiety right now. I know it’s legitimate and parents are very concerned about their children, but there are families who are using this as a fake excuse [not to share custody].”

More sad children, acting-out behaviour

Routine visits with parents are being cancelled on the grounds of physical distancing, and some children have no communication with the other parent at all, said Van Brunt, adding he is seeing increased sadness, excessive crying and acting out behaviour in younger children..

“Right now, I’ve seen an overwhelming increase in eating disorders, changes in eating, headaches and irritability.”

The Ontario courts are advising parents who share custody of their children to continue to split parenting duties unless their children’s health is at risk. Though it has reduced its operations due to the public-health emergency, the Ontario Superior Court of Justice recently issued a handful of rulings setting out guidelines for parents confused about how restrictions related to COVID-19 affect custody arrangements.

While government and health officials stress the need to stay home, keeping children in their primary residence — and thus away from the other parent — is generally not in their best interest, the court said.

“Children’s lives — and vitally important family relationships — cannot be placed ‘on hold’ indefinitely without risking serious emotional harm and upset,” Justice Alex Pazaratz said in a ruling last week. “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”

As such, Pazaratz wrote, the presumption is that existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical-distancing guidelines are followed.

Some parents might have to forgo time with their child if they are under a self-isolation order due to recent travel or exposure to COVID-19, the judge wrote.

Parents who believe their ex isn’t taking the necessary health precautions can file an urgent motion with the court to review custody arrangements, but must point to specific behaviours or plans that are inconsistent with COVID-19 protocols, Pazaratz said.

“There will be zero tolerance for any parent who recklessly exposes a child [or members of the child’s household] to any COVID-19 risk,” he wrote.

Justice officials in Quebec issued similar guidelines for parents, stressing the need for collaboration in working out any issues related to the current restrictions.

“The custody or access order should be complied with as much as possible,” the Ministere de la Justice said on its website.

“However, during this pandemic, you can try to work out new terms with the other parent to minimize travel.”

Focus on what’s best for the child

The province has set up a free legal aid hotline for residents unsure of their obligations during the COVID-19 crisis, which it said includes custody issues.

The Law Society of Ontario has also launched a hotline connecting callers with family lawyers who can provide 30 minutes of free legal advice to help determine if their matter is urgent.

The Times Colonist contacted the B.C. provincial court to see if it has issued similar guidelines or rulings, but did not immediately hear back.

Though there will likely be many more cases dealing with custody issues in light of the pandemic, Pazaratz’s ruling and at least two others issued by the Ontario courts send a “clear message” to parents, said Nicholas Bala, an expert in family law at Queen’s University in Kingston, Ont.

“The message is … be reasonable, act in good faith and expect some eventual accountability if you haven’t done that,” he said, adding any breaches of custody orders will be noted once the courts resume normal operations.

This can be a difficult situation to navigate for many separated parents who feel “an understandable degree of hostility or mistrust toward the other person,” but they must focus on what’s best for their child, he said.

Nadine Russell, a family lawyer with Siskinds LLP in London, Ont., said it’s likely some parents have withheld access to children in a panic, but stressed there is almost always an alternative.

Even if a parent who normally has some access is quarantined due to the virus, video calls can be arranged so children can stay in touch without endangering their health, she said.

“However we can maintain relationships, we should do that,” because no one knows how long the pandemic will last, she said.

The best thing primary-care parents can do is to talk to their children, not only about the virus, but also about seeing the other parent again, said Van Brunt.

“Younger children don’t have a full understanding of what’s happening and that’s why I really recommend the parent have a full discussion with the child, giving them some kind of hope that things will return to normal. Because a lot of these children are just confused.”

Van Brunt recommends phone calls that take place at the same time each day or evening, and making video calls.