Bennet Waugh Corne Lawyers - Lawyer - Family Law - Real Estate Law - Law Firm - Winnipeg - Manitoba

Monday, April 20, 2020

Access with children and parenting time during COVID-19

In March 2020, due to the COVID-19 pandemic, in an unprecedented move, the Court of Queen’s Bench of Manitoba suspended all hearings. Recognizing the great impact that the pandemic would have on families, the Family Division can be accessed, but for emergencies only at this time, and by special permission. 

On April 1, 2020, the court agreed to hear a case in which one parent was denying the other parent access (parenting time) with the children. The parents had to that point shared custody of their children, pursuant to a court order on a week on/ week off schedule.  Alison Bennet represented the parent whom was being denied access.  

Under the custody order, the mother had the authority to make medical decisions for the children, to be exercised after consultation with the father. After cases of COVID-19 were found in Manitoba, the mother refused to follow the schedule, and instead offered the father daily visits to be exercised outdoors provided he maintained 6 feet distance from the children.  She also offered FaceTime calls.  There was no evidence that the father had contracted the virus or had been exposed to the virus.  The court accepted that the facts fit within the definition of an emergent matter as the mother had “abruptly, unilaterally” and “without apparent justification”, “virtually eliminated” access and contact with the father. For this reason, it allowed the hearing to proceed as an emergency.

The hearing proceeded 2 days later by teleconference. The mother was ordered to immediately return the children to the father, and the father was granted make-up time.  The mother’s future ability to make decisions on medical issues was suspended.  The police were ordered to enforce the order if required. All other issues were adjourned to be heard after court resumes its regular work. 

In making its decision, the court noted that the court had already determined that it was in the best interests of these children to be in the shared custody of their parents.  The court also noted that these are unprecedented times, nobody knows how long the current situation will last, and that children’s lives cannot be placed on hold.  The children have the need for guidance and emotional support from both of their parents.  

The decision makes it clear that the court expects parents to cooperate and to act reasonably in the best interests of the children.  In situations where this does not occur, and access with a parent is cut off without reasonable explanation or justification, it will intervene. Acting reasonably includes an obligation to follow court orders.  While there was already a court order specifying parenting time in this case, it is believed the result would have been the same if there was an agreement, or regular ongoing schedule in place. If this was a situation where a parent was exposing children to risk by not following health recommendations related to COVID-19, the decision may have been different, as these actions would not be reasonable to the protection of the children.  Each decision will be decided on its own facts specific to the family, and the children.  This said, the courts expect parents to work it out, and to act reasonably, and not to litigate.

The court referenced the Ribeiro v. Wright decision of the Ontario Superior court.  An excerpt from that decision reads:  

"None of us have ever experienced anything like this.  We are all going to have to try a bit harder - for the sake of our children."

Other take-away points from recent decisions in Canada include:

-There is a general presumption that existing parenting plans and parenting schedules should continue. Parents must follow all recommendations from our government and health officials for the safety of the children, the members of the family, and the community.  Modifications to exchange times and methods may be required.  In blended families, all members of the households need to follow precautions.

-If a parent is subject to a restriction such as self-isolation due to illness, exposure to illness, or recent travel, that parent may have to forego their time with the children, for the short term.

-Reckless exposure of a child or the household to COVID-19 will not be tolerated.

-For the sake of the children, we must maintain important parental and family relationships, and we must do it safely.

Parents should use good judgement, recognizing the children’s need for continuity and consistency with their schedule, and that modifications to the schedule may be appropriate considering such factors as school and day care closures, the parents’ availability based upon changes to their own schedules, and specific needs of the children.  In appropriate cases, these factors may justify a change to the schedule.  Such decisions are not to be made unilaterally.  

Posted by Alison Bennet at 2:01 PM 0 Comments

Saturday, April 11, 2020

Parenting for separated parents during COVID-19

Attached is a link to material which appears on the Government of Manitoba website, called  Parenting Arrangements During COVID-19.


Posted by Alison Bennet at 4:07 PM 0 Comments


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