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Custody and COVID-19: What parents need to know

“But no matter how difficult the challenge, for the sake of the child we have to find ways to maintain important parental relationships – and above all, we have to find ways to do it safely.
-- Ribeiro v. Wright , J. Pazaratz of the Superior Court of Justice of Ontario, March 24 2020

In this time of unprecedented crisis, separated parents must try to reconcile needs that may be contradictory. On one hand, children need both of their parents, and this need cannot be put on pause or taken lightly. On the other hand, the objective to limit the COVID-19 contagion and to save lives could lead to a suspension of physical contacts between a child and one of his or her parents.

Parents should remember that they must abide by two fundamental guidelines:

  • The terms of their custody and access rights judgment
  • Government Guidelines on COVID-19 (you may consult quebec.ca/coronavirus for more information)

Take 10 Minutes to Calm Down

Clinical psychologist Dr. Samantha Goldwater-Adler takes you through the Guest House meditation, inspired by Rumi, a 13th century Persian poet.

Here are a few pieces of advice to help parents navigate this difficult period:

Are we legally obliged to keep our children at home and away from public spaces and, if so, what are the consequences if we refuse to do so?

All Canadians are obliged to respect government guidelines on occupying public spaces during the pandemic. These guidelines can vary between regions and cities and can evolve rapidly.

Government Guidelines do not make a distinction between adults and children, so a child’s presence in a public space is not prohibited. However, the obligation to maintain a distance of 2 metres between people could make children’s outings in public spaces potentially problematic. When going for a walk with a child, particular caution must be had to ensure other people do not come within two meters of your child, and that your child does not approach other people either.

The gold standard for parents is to scrupulously abide by rules that are in effect in their region, and in case of doubt, it is preferable that the children stay at home instead of venturing into a public space.

Parents who do not respect government guidelines or who do not take the necessary measures for their children risk substantial fines from police who are cracking down on scofflaws. They also risk receiving an urgent demand from the other parent to restrict access to children during the pandemic. Courts are enforcing the respect of government guidelines and will act if a parent is flouting the rules.

Do government guidelines to stay home and isolate take precedence over shared custody or access rights?

If there is a judgment that outlines dedicated parent time with the child, the judgment continues to apply; a parent cannot unilaterally decide to disregard it.

Incidentally, even restrictions to certain regions of Quebec do not apply when the travel is necessary to exercise custody or access rights.

Are there exceptions that would justify keeping a child in isolation even if this goes against a custody judgment or access rights?

According to Quebec government directives, the child must not travel to the other parent in one of the four following scenarios:

  • The child has been declared COVID-19 positive or is showing symptoms;
  • One of the parents has been declared COVID-19 positive or is showing symptoms;
  • Someone in the child’s entourage has been declared COVID-19 positive or is showing symptoms;
  • The child, one of the parents, or someone in the child’s entourage is in 14-day isolation after returning from travel abroad.

If the other parent insists on physical contact with the child in defiance of these guidelines, a safeguard order must be requested from the Court. Your lawyer will counsel you on the best steps to take until a judge weighs in on your application for a safeguard order.

If there is no judgment in place, can one parent refuse physical contact with the other parent?

Both parents must always prioritize the best interests of their child, and if they do not, this can be used against them later. The best interest of a child is often reflected in mediated or informal agreements between parents who have not obtained a court judgment.

If the child is already accustomed to seeing each parent on an established schedule, the status quo should be privileged, unless COVID-19 necessitates interrupting continuity in the child’s life.

How should parents behave when they have a disagreement on the subject of physical contact between each of them and their children, or on the subject of parental authority during the COVID-19 pandemic?

Both parents have an obligation to try to cooperate before initiating legal proceedings. This is part of our collective social responsibility as Quebec is on pause to limit the spread of the virus.

Parents may amicably modify a judgment during the COVID-19 public health emergency. To do this, they may solicit the aid of a mediator offering mediation services via videoconference. Parents may also negotiate such an agreement via their attorneys. To avoid all ambiguity or difficulty, it is preferable for all agreements modifying a judgment be formalized in writing and specify that this modification is in effect during the COVID-19 public health emergency only.

Even if the sharing of parental time continues as per an existing judgment or agreement, parents should still maintain an open dialogue on the subject of safety measures being taken in their respective environments, especially during exchanges of the children.

What can a worried parent do when the other parent is not taking the necessary precautions outlined by the authorities, but there are no symptoms present, no positive tests and no trips taken recently?

First, as previously indicated, both parents must try to come to an agreement.

If an agreement is impossible, the parent who wants physical contact with the other parent to be suspended, must submit an application for a safeguard order to the Superior Court of Quebec. Your lawyer will counsel you whether your situation qualifies for a safeguard order, and on the necessary steps which must be taken to submit such a request to a Superior Court Judge.

In which circumstances can physical contact between the child and the other parent be suspended by the Court?

Serious and urgent reasons would have to be demonstrated: the fact of the pandemic in of itself does not suffice.

First, such a request would be possible in one of the four scenarios the Quebec government has outlined:

  • The child has been declared COVID-19 positive or is showing symptoms;
  • One of the parents has been declared COVID-19 positive or is showing symptoms;
  • Someone in the child’s entourage has been declared COVID-19 positive or is showing symptoms;
  • The child, one of the parents, or someone in the child’s entourage is in 14-day isolation after returning from travel abroad.

Additionally, the presence of specific behaviours that infringe upon Government Guidelines or otherwise demonstrate negligence regarding measures to limit exposure of children to the virus, may also result in the courts intervening.

The fact that a parent works in a domain considered an essential service does not justify restricting physical contact with the child.

In what circumstances would a parent be justified in disregarding the custody schedule to which the child is accustomed, even without a judgment?

First, in one of the four scenarios outlined by the Quebec government:

  • The child has been declared COVID-19 positive or is showing symptoms;
  • One of the parents has been declared COVID-19 positive or is showing symptoms;
  • Someone in the child’s entourage has been declared COVID-19 positive or is showing symptoms;
  • The child, one of the parents, or someone in the child’s entourage is in 14-day isolation after returning from travel abroad.

Next, if the other parent is behaving in a way that infringes upon Government Guidelines or demonstrates negligence regarding measures to limit exposure of children to the virus.

Is it prohibited to bring children to visit family members or welcome them as guests, and could this compromise visitation rights?

Visits from family members and friends are strongly discouraged by Quebec authorities. Physical contact with the child should be limited only to people who live habitually with both parents..

A parent who infringes this guideline risks losing custody or access of the children. We emphasize the Courts are applying the quarantine rules strictly.

What can a parent do if the other parent is obstructing visitation or access rights?

If there is a judgment, a parent may make a habeas corpus to the Superior Court to demand the child be returned.

If there is no judgment, a parent may submit an application for a safeguard order to the Superior Court asking for custody or access with the goal of eventually obtaining a judgment against the other parent. Important: for this demand to be heard urgently, one must demonstrate that physical contact with the child before the pandemic was interrupted and that it is urgent for contact with the child to be restored.

Common Front

The public health emergency is causing many concerns within the general population. To face these concerns, we are called upon to form a united front. This challenge is more daunting for separated parents who must manage the fact that they cannot control risks associated with transferring their children from one home to the other. The social responsibility imposed on us all during this pandemic demands we limit risk to the entire population, which includes the other parent and their loved ones. In rigorously following government guidelines and being as prudent as possible on both sides, parents will foster the necessary conditions for their children to continue to benefit from the presence of both parents in this time of great upheaval.

We remain hopeful that the call to social solidarity and the growth of skills of collaboration and communication will bring long-term benefits to all separated parents and their children, even after this crisis fades away in our memories and in the history of our nation.

For more information on child custody during the pandemic, different measures taken by Quebec courts, links to useful security information or details on web-based consultations with our attorneys, consult our website.

(Photo: US Centers for Disease Control and Prevention // Unsplash)