Judge says COVID-19 not an excuse to unilaterally suspend access to children

Parents who share custody of their children need to be reasonable during the COVID-19 pandemic, seek compromise on access issues and not unilaterally cut off access, an Alberta judge says in a ruling that echoes a previous one made in Ontario.

Although the Court of Queen's Bench has suspended all but emergency sittings, Justice Robert Graesser took the opportunity through a recent ruling to set guidelines for shared-custody parenting during the COVID crisis.

"Many families are being impacted in similar ways to this situation," Graesser wrote in reference to a case involving a divorced couple who came before him through an emergency application last week. 

The parents can't be identified to protect the privacy of their children.

SAS, the former husband, an accountant, had been arbitrarily denied access to his two children by LMS, his former wife, a nurse. She contended that he was subjecting his children — and by extension, herself and her elderly mother — to undue risk.

The court heard SAS continued to see clients at his office, took his children to the office, regularly had a friend over to his house, and continued to allow the children to take riding lessons.

SAS denied he was being cavalier about COVID safety and said LMS was being "hyper-vigilant." 

He sought orders for his wife to be found in civil contempt of court for ignoring the access provisions of their divorce agreement and he wanted the police to enforce his visitation rights.

Alternatively, he wanted to have the children primarily live with him on an interim basis while giving his former wife reasonable access to the children. 

Pandemic doesn't suspend child access, judge warns

Graesser denied the requests, noting "[SAS] has yet to demonstrate that he will scrupulously comply with all applicable COVID-19 rules and requirements." 

But the judge adjourned the application to give the couple a week to work out a solution that would allow both of them regular access to the children, while keeping everyone safe.

Graesser's ruling relies in part on a previous ruling by Ontario Supreme Court Justice Alex Pazaratz, which gave directions on how COVID-19 parenting issues should be treated by the courts and by parents.

The Ontario ruling, Graesser wrote, stressed that parents should not presume that the pandemic automatically suspends in-person parenting time, "nor that a suspension of parenting time or threat of suspension will necessarily result in an urgent emergency hearing. 

"Everyone should be clear about expectations during this crisis," Pazaratz wrote in his ruling. "Parents want judges to protect their children. But with limited judicial resources, and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem solving before they initiate urgent court proceedings."

Pazaratz said COVID-19 parenting issues would be dealt with on a case-by-case basis guided by four main principles.

The first is that a parent initiating an urgent emergency hearing must have specific evidence or examples of behaviour that show COVID-19 protocols are not being followed. Secondly, the parent responding to the hearing application must provide "specific and absolute assurance" that COVID-19 safety measures will be meticulously adhered to.

The third principle that both parents would be required to provide specific child-sharing plans that address all COVID-19 considerations, "in a child-focused manner." And finally, Pazaratz said judges will take notice that social distancing is commonplace, and most public places are closed. 

"This is a very good time for both custodial and access parents to spend time with their child at home."

Parents must still heed court orders

Graesser specifically addressed what he called "self-help remedies" in which parents decide not to follow court orders because of what they consider to be warranted circumstances without first seeking the court's approval.

"Unilateral action, or self-help remedies can never be countenanced," Graesser wrote, although he said that in exceptional cases they may be forgiven. An example, he said, would be a parent who is diagnosed with COVID-19 but still insists on in-person access to children, or a parent exhibiting symptoms but refuses to do anything about it. 

Graesser also stressed that no emergency application should be brought to court without good-faith attempts to communicate with the other parent, and good-faith attempts to arrive at reasonable access solutions.

"The parents should work hard and creatively to find solutions that will firstly keep the children as safe as reasonably possible," Graesser wrote, "and secondly maximize contact with both parents so parent-child relationships do not suffer inordinately during the pandemic."

Graesser said parents need to realize this crisis will one day end but during the pandemic the focus has to be on children living in the safest environment, even if it deprives one parent of normal access.

"While parents may be unhappy or even devastated at not having their children with them, this is a temporary situation. Missing a few access visits, or even a few months of face-to-face visits is unlikely to have a major long-term impact on the child's relationship with the parent who is only able to communicate electronically over this period."